We granted review to decide when a prior out-of-state conviction constitutes a “lewd or lascivious act on [an underage] child” for serious felony sentencing purposes (Pen. Code, § 1192.7, subd. (c)(6))1—a category that includes sexually motivated touching (§ 288, subd. (a) (section 288(a))) and sexual penetration. (See People v. Murphy (2001) 25 Cal.4th 136, 141-149 [105 Cal.Rptr.2d 387, 19 P.3d 1129].) I agree with the majority that qualifying foreign convictions must contain “all of the elements” of such a serious felony in California. (§ 667, subds. (a)(1), (d)(2).) Plainly, the latter requirement excludes conduct that is not lewd, lascivious, and felonious because it either lacks sexual intent or is not inherently sexual in nature.
I am less sanguine about the majority’s conclusion that the Nebraska lewd touching statute under which defendant was previously convicted lacks the same mens rea as section 288(a), California’s comparable law. (Ibid, [requiring specific intent to arouse or gratify sexual desires of defendant or victim]; see People v. Martinez (1995) 11 Cal.4th 434, 444-445 [45 Cal.Rptr.2d 905, 903 P.2d 1037].) As explained below, the Nebraska statute may reasonably be interpreted to require actual sexual intent. Moreover, the majority fails to persuade me that the Nebraska courts have directly confronted the issue and squarely rejected actual sexual intent as an element of the Nebraska offense. Contrary to what the majority seems to imply, several states have lewd touching laws like Nebraska’s. Hence, the present case may have the unintended effect under California’s sentencing scheme of treating many recidivist child molesters as first time offenders, an issue the Legislature may wish to address.
Nevertheless, I am not willing to subject this defendant to serious-felony consequences without greater certainty under Nebraska law of the requirements for violating that state’s lewd touching statute. I therefore reluctantly concur in the outcome of the majority opinion.
*562Discussion
Three years before he committed the present crimes against his three-year-old stepdaughter, defendant was convicted under Nebraska Revised Statutes section 28-320.01 (1995) of felony “sexual contact” with another stepdaughter, who was then four years old. At that time, and as pertinent here, Nebraska Revised Statutes section 28-318(5) defined “sexual contact” between an adult and underage victim as the “intentional touching” of “sexual or intimate parts,” whether clothed or unclothed, where the act “can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.” The majority insists that a statutory violation occurs where the defendant “intended] to touch the victim” under circumstances which could be “ ‘reasonably construed ” as sexual, and that the act need not be performed “for any particular purpose” or “with any specific intent.” (Maj. opn., ante, at p. 553.) Under this view of the Nebraska law, the defendant’s actual intent to achieve sexual arousal is not an element, and the proscribed touching is criminal if it objectively seems lewd to an outside observer.
I am not persuaded that this construction is compelled by the statutory language “on its face.” (Maj. opn., ante, at p. 553.) Nor has the Nebraska Supreme Court held that “proof of specific lewd intent” is unnecessary under Nebraska Revised Statutes section 28-318(5). (Maj. opn., ante, at p. 554.) Indeed, defendant candidly states in supplemental briefing solicited by this court that no Nebraska decision “specifically considers” the issue. An examination of the two provisions and relevant case law suggests that Nebraska’s lewd touching statute may, in fact, contain the same mental state requirement as California’s version of the crime.
One plausible view of the “reasonably construed” language is simply that it allows the jury to infer actual sexual intent from circumstantial evidence. The legislative purpose may only have been to ensure that the fact finder need not accept the defendant’s disclaimers of sexual purpose where it is otherwise clear he actually had that intent. However, by entirely excising such an intent requirement from the statute, the majority’s construction would preclude either side from litigating the issue. It would insulate from conviction those defendants who intentionally touch a child’s private parts under objectively innocuous circumstances (e.g., relatives and caretakers), but who actually possess harmful lewd intent. The majority offers no evidence that Nebraska lawmakers desired that result.
As judicially construed, Nebraska Revised Statutes section 28-318(5) sounds more like a specific intent, than a general intent, provision. Though *563not fully explored by the majority, Nebraska cases have said that the prohibited act must be committed “for the purpose of sexual gratification,” with no suggestion that the defendant’s true state of mind is irrelevant to this determination. (State v. Max (1992) 1 Neb.App. 257, 265 [492 N.W.2d 887, 893] [allowing expert evidence on penile nature of anal contact to prove sexual purpose]; accord, State v. Styskal (1992) 242 Neb. 26, 30 [493 N.W.2d 313, 317] [allowing evidence of prior touchings of victims’ private parts during dental examinations to prove that “purpose” and “intent” of subsequent similar act was “for sexual arousal and gratification”].)
No Nebraska Supreme Court case cited by the majority clearly supports its contrary view. In State v. Berkman (1988) 230 Neb. 163 [430 N.W.2d 310], for instance, the defendant caressed and kissed his girlfriend’s 13-year-old daughter, and rubbed her breasts and vaginal area for over a minute. On appeal, the defendant claimed the evidence was insufficient to support his lewd touching conviction because he lacked the requisite intent. The Nebraska high court rejected the claim. The court emphasized that “[t]he intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.” (Id. at p. 166 [430 N.W.2d p. 313].) According to the court, the intimate nature of the touching raised a strong inference that it was “intentional and for the purpose of [the defendant’s] sexual arousal or gratification.” (Id. at p. 167 [430 N.W.2d at p. 313].) Nothing in this description of the statute suggests sexual purpose and intent are unnecessary or irrelevant in proving guilt.
The foregoing authorities can be read to suggest that Nebraska Revised Statutes section 28-318(5) requires actual sexual intent, as “reasonably” inferred from all the circumstances by the trier of fact. Indeed, this court has described section 288(a), including the requisite mental state, in language strikingly similar to that used by the Nebraska courts. Section 288(a) prohibits any sexually motivated contact with an underage child. (People v. Martinez, supra, 11 Cal.4th 434, 444-445.) We have said that, in determining guilt beyond a reasonable doubt, the fact finder “ ‘looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’ ” (Id. at p. 445.) Likewise, a particular touching is made criminal in California “by reference to the actor’s intent as inferred from all the circumstances.” (Id. at p. 450.) I see no clear sign that Nebraska and California have constmed their lewd touching statutes differently with respect to the mental state needed to commit the crime.
*564The majority’s reliance on Michigan law, which defendant cites in his supplemental briefing, arguably adds little to the analysis. Like Nebraska, Michigan criminalizes any “intentional touching” between an adult and underage child of “intimate parts,” whether or not clothed, if the act “can reasonably be construed as being for the purpose of sexual arousal or gratification, done for a sexual purpose, or [done] in a sexual manner ...” (Mich. Comp. Laws, § 750.520a(n).) The majority cites two intermediate court decisions for the proposition that the Michigan statute describes “ ‘a general intent crime,’ ” and that “ ‘a defendant’s specific intent is not at issue.’ ” (Maj. opn., ante, at p. 555, quoting People v. Piper (1997) 223 Mich.App. 642, 646 [567 N.W.2d 483, 485]; see People v. Fisher (1977) 77 Mich.App. 6, 13 [257 N.W.2d 250, 254].) However, even assuming these principles and authorities are well established in Michigan, they have never been cited or used by the Nebraska courts in interpreting the mental state requirements of their own law. As noted earlier, Nebraska courts have instead described the lewd touching statute in terms echoing those this court has used under section 288(a).
Moreover, the majority fails to observe that Michigan does not have the only lewd touching law similar to Nebraska’s. Several other states also ban “intentional touching[s]” of “intimate” parts that can “reasonably” be “construed” as having a sexual purpose. (E.g., Md. Crim. Code Ann., § 3-301(f); N.H. Rev. Stat. Ann., § 632-A:l(IV); R.I. Gen. Laws, § 11-37-1(7); Tenn. Code Ann., § 39-13-501(6).) Defendant cites no decision from any of these jurisdictions, and I am aware of none, concluding that specific or actual intent is not an element of these crimes. In addition, two high court decisions from other states have resisted such an interpretation under former sexual touching laws similar to Nebraska’s current statute. (State v. Wield (2003) 2003 WIApp 179 [266 Wis.2d 872, 880-882 & fn. 5, 668 N.W.2d 823, 827-829 & fn. 5] [sentencing case equating former and current versions of statute requiring sexual purpose, even though former version said such purpose must “reasonably be construed” as sexual]; State v. Tibbetts (Mn. 1979) 281 N.W.2d 499, 500 [instructional case invalidating “reasonably be construed” language appearing in former version of statute because it undermined reasonable doubt standard].) Against this backdrop, the majority arguably overstates the significance of Michigan law in deciphering Nebraska law.
In light of the foregoing, I have serious reservations about the majority’s conclusion that defendant’s prior Nebraska conviction lacks all of the elements of a lewd act amounting to a serious felony under section 1192.7, subdivision (c)(6). Nebraska statutory and decisional law suggest the opposite may be true.
*565That said, I am reluctant to uphold a serious-felony determination based on a prior foreign conviction where the courts in that particular state have not precisely defined each element of the crime. The consequences at stake, here and in other cases, include application of both the five-year serious-felony enhancement (§ 667, subd. (a)), and the three strikes law (id., subds. (b)-(i)). Before any California court decides that a foreign conviction qualifies as a serious felony for such sentencing purposes, it should be more certain than I am now that the requisite congruity exists. On that basis, I join the majority in reversing the Court of Appeal judgment insofar as it reaches a contrary result.
Corrigan, 1, concurred.
On September 20, 2006, the opinion was modified to read as printed above.
All unlabeled statutory references are to the Penal Code.