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California Prosecution for Lewd or Lascivious Acts upon a Minor Penal Code 288(a)

In California, you can be charged with several different offenses for committing a lewd act upon a minor. Each of the charges under California Penal Code section 288 have slightly different requirements, however each carries a severe sentence. If you have been charged with committing a lewd or lascivious act upon a minor it is important that you contact an experienced defense attorney to assist you immediately.

 

Lewd or Lascivious Acts upon a Minor (CA PC 288(a) and CALCRIM 1110)

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Prosecutors may try to prove you threatened the minor. Fight the prosecution by hiring a sex crimes lawyer to defend your rights.

In order for you to be convicted for lewd or lascivious acts upon a minor under California Penal Code section 288(a), the prosecution must prove all of the following:

(1)    You willfully and lewdly touched any part of a child’s body, or you willfully caused the child to touch your body, or the body of someone else;

(2)    You committed the act with the intent of arousing, appealing to, or gratifying your lust, passions, or sexual desires, or the lust, passions, or sexual desires of the child; and

(3)    The child was under the age of 14 at the time of the act.

The language of California Penal Code section 288 is complex, and a broader explanation of a few terms may make the requirements of this charge more clear. For your reference, the language of the statute is provided below.

The term “willfully” means that you acted willingly or on purpose. In order for it to be proven that you acted willingly, the prosecution is not required it to show that you intended to break the law, hurt someone else, or gain any advantage. The prosecution must only show that you intended to commit the touching for sexual arousal or gratification.

It is not necessary that the touching be done on bare skin to be charged under California Penal Code section 288. The unlawful touching can be done on bare skin or over clothing.

Lastly, a charge under California Penal Code section 288 does not require that you actually became aroused during the commission of the act. You must only have intended to arouse or gratify your passions or sexual desires when you acted.

 

Lewd or Lascivious Acts upon a Minor using Force, Threat or Duress PC 288(b) and CALCRIM 1111

You can also be charged under California Penal Code section 288(b) if you committed the lewd or lascivious act with the use of force, threats, or duress. Under California Penal Code section 288(b) the prosecution must show all of the same elements that are required under California Penal Code section 288(a), but must also show that you used any of the following to commit the act:

(1)    Force;

(2)    Violence;

(3)    Duress;

(4)    Menace; or

(5)    Fear of immediate unlawful bodily injury to the child or someone else.

If you are charged under California Penal Code section 288(b) for using force, the prosecution must show that the force you used was substantially greater and different from the force needed to commit the lewd or lascivious act itself.

Duress refers to the use of a direct or implied threat of force, violence, or danger that is sufficient to cause a reasonable person to do something he or she would not otherwise do. In other words, in order for you to be found guilty of using duress, you must have coerced or forced the minor to commit the act. To decide if you used duress, the court is allowed to look at all of the surrounding circumstances, including the age of the child and the relationship between you and the child.

The term “menace” means a threat, statement or act that shows you have intent to injure another person.

In order for you to be found guilty of using fear to commit the act, the child must have been actually and reasonably afraid. In the alternative, you can be found to have used fear even if the child is unreasonably afraid of the force, but you knew of the child’s fear and took advantage of that fear.

The language of California Penal Code section 288(b) is provided below for your review.

 

Lewd or Lascivious Acts upon a Minor Aged 14 or 15 (PC 288(c) and CALCRIM 1112)

Under California Penal Code section 288(c), you can face charges for lewd or lascivious acts upon a minor if the minor is 14 or 15 years old and you were at least ten years older than the minor when you committed the act.

All of the same elements that must be proven under California Penal Code section 288(a) must also be proven to convict you under California Penal Code section 288(c). The only difference is that the prosecution must show you were at least ten years older than the 14 or 15 year old minor. To determine if you were at least ten years older than the child the court will measure from your birth date to the child’s birth date. If there is a ten year gap between the two dates you can be convicted under this section so long as all of the other elements for California Penal Code section 288(a) are met.

The language of California Penal Code section 288(c) is provided below for your review.

 

Continuous Sexual Abuse of a Child PC 288.5

If the molestation continued for a period of time you may be charged with continuous sexual abuse of a child. According to California Penal Code section 288.5, you can be convicted of continuous sexual abuse of a child if the prosecution can prove all of the following:

(1)    You resided in the same home as the minor child or had recurring access to the child;

(2)    You engaged in three or more acts of sexual conduct with the child over a three month period of time; and

(3)    The child was under the age of 14 at the time the sexual conduct occurred.

Continuous sexual abuse of a child carries even harsher consequences than other child molestation offenses under California Penal Code section 288. For that reason, it is important that you have an experienced and knowledgeable defense attorney on your side. For your reference, the exact language of California Penal Code section 288.5 is provided below.

 

Jury Instructions that will be Given if Your Child Molestation Case Goes to Trial

We have added the jury instructions that the judge will provide the jury in the event that your case goes to trial. In addition, you will find below an explanation of various California Supreme Court and California Courts of Appeals decisions that relate to the jury instructions that must be given in a child molestation case.

Before making the decision to go to trial in a child molestation case it is vital that you review the jury instructions the jury will be read if your case was to go to trial. This will help you and your lawyer make an intelligent decision as to your trial strategy.

If you would like to know what jury instructions are provided at trial for other California crimes, you can access the jury instructions here.

 

Call Wallin & Klarich Today

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Contact an experienced Wallin & Klarich attorney today

If you or a loved one is facing criminal charges related to lewd or lascivious acts upon a minor under California Penal Code section 288, the sexual assault lawyers at Wallin & Klarich can help. Charges for lewd or lascivious acts with a minor have severe consequences and can substantially alter your life. It is important that you contact an experienced attorney who is knowledgeable about this area of law to ensure that you are able to present a strong defense in your case.

If you would like to know more about how Wallin & Klarich can help you, call us today at 1-877-4-NO-JAIL (1-877-466-5245). We have offices located in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville. We will get through this together.

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California Penal Code Section 288

(a) Except as provided in subdivision (i), any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years.

(b) (1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, with the intent described in subdivision (a), is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years.

(c) (1) Any person who commits an act described in subdivision (a) with the intent described in that subdivision, and the victim is a child of 14 or 15 years, and that person is at least 10 years older than the child, is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year. In determining whether the person is at least 10 years older than the child, the difference in age shall be measured from the birth date of the person to the birth date of the child.

(2) Any person who is a caretaker and commits an act described in subdivision (a) upon a dependent person, with the intent described in subdivision (a), is guilty of a public offense and shall be punished by imprisonment in the state prison for one, two, or three years, or by imprisonment in a county jail for not more than one year.

(d) In any arrest or prosecution under this section or Section 288.5, the peace officer, district attorney, and the court shall consider the needs of the child victim or dependent person and shall do whatever is necessary, within existing budgetary resources, and constitutionally permissible to prevent psychological harm to the child victim or to prevent psychological harm to the dependent person victim resulting from participation in the court process.

(e) Upon the conviction of any person for a violation of subdivision (a) or (b), the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed ten thousand dollars ($10,000). In setting the amount of the fine, the court shall consider any relevant factors, including, but not limited to, the seriousness and gravity of the offense, the circumstances of its commission, whether the defendant derived any economic gain as a result of the crime, and the extent to which the victim suffered economic losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs pursuant to Section 13837. If the court orders a fine imposed pursuant to this subdivision, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.

(f) For purposes of paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c), the following definitions apply:

(1) “Caretaker” means an owner, operator, administrator, employee, independent contractor, agent, or volunteer of any of the following public or private facilities when the facilities provide care for elder or dependent persons:

(A) Twenty-four hour health facilities, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(B) Clinics.

(C) Home health agencies.

(D) Adult day health care centers.

(E) Secondary schools that serve dependent persons and postsecondary educational institutions that serve dependent persons or elders.

(F) Sheltered workshops.

(G) Camps.

(H) Community care facilities, as defined by Section 1402 of the Health and Safety Code, and residential care facilities for the elderly, as defined in Section 1569.2 of the Health and Safety Code.

(I) Respite care facilities.

(J) Foster homes.

(K) Regional centers for persons with developmental disabilities.

(L) A home health agency licensed in accordance with Chapter 8 (commencing with Section 1725) of Division 2 of the Health and Safety Code.

(M) An agency that supplies in-home supportive services.

(N) Board and care facilities.

(O) Any other protective or public assistance agency that provides health services or social services to elder or dependent persons, including, but not limited to, in-home supportive services, as defined in Section 14005.14 of the Welfare and Institutions Code.

(P) Private residences.

(2) “Board and care facilities” means licensed or unlicensed facilities that provide assistance with one or more of the following activities:

(A) Bathing.

(B) Dressing.

(C) Grooming.

(D) Medication storage.

(E) Medical dispensation.

(F) Money management.

(3) “Dependent person” means any person who has a physical or mental impairment that substantially restricts his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have significantly diminished because of age. “Dependent person” includes any person who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(g) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) apply to the owners, operators, administrators, employees, independent contractors, agents, or volunteers working at these public or private facilities and only to the extent that the individuals personally commit, conspire, aid, abet, or facilitate any act prohibited by paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c).

(h) Paragraph (2) of subdivision (b) and paragraph (2) of subdivision (c) do not apply to a caretaker who is a spouse of, or who is in an equivalent domestic relationship with, the dependent person under care.

(i) (1) Any person convicted of a violation of subdivision (a) shall be imprisoned in the state prison for life with the possibility of parole if the defendant personally inflicted bodily harm upon the victim.

(2) The penalty provided in this subdivision shall only apply if the fact that the defendant personally inflicted bodily harm upon the victim is pled and proved.

(3) As used in this subdivision, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit the offense.

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California Penal Code Section 288.5

(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct, as defined in Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.

 

(b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.

 

(c) No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative. A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.

 

California Jury Instructions Relating to a CA PC 288 Case

Judicial Council of California Criminal Jury Instruction 1110: Lewd or Lascivious Act on a Child Under 14 Years (Pen. Code § 288(a))

The defendant is charged [in Count ] with committing a lewd or lascivious act on a child under the age of 14 years [in violation of Penal Code section 288(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—defendant touched child>

[1A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;]

[OR]

<Alternative 1B—child touched defendant>

[1B. The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;]

2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;

AND

3. The child was under the age of 14 years at the time of the act. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.] [It is not a defense that the child may have consented to the act.] [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the defendant is charged in a single count with multiple alleged acts, the court has a sua sponte duty to instruct on unanimity. (People v. Jones (1990) 51 Cal.3d 294, 321–322 [270 Cal.Rptr. 611, 792 P.2d 643].) The court must determine whether it is appropriate to give the standard unanimity instruction, CALCRIM No. 3500, Unanimity, or the modified unanimity instruction, CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented. Review the discussion in the bench notes to these two instructions and People v. Jones, supra, 51 Cal.3d at pp. 321–322.

In element 1, give alternative 1A if the prosecution alleges that the defendant touched the child. Give alternative 1B if the prosecution alleges that the defendant cause the child to do the touching.

Give the bracketed sentence that begins, “Actually arousing, appealing to,” on request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)

Give the bracketed paragraph that begins with “It is not a defense that” on request, if there is evidence that the minor consented to the act. (People v. Soto (2011) 51 Cal.4th 229, 233 [119 Cal.Rptr.3d 775, 245 P.3d 410] [“the victim’s consent is not a defense to the crime of lewd acts on a child under age 14 under any circumstances”].)

Give the final bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

AUTHORITY

• Elements. Pen. Code, § 288(a).

• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].

• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11 Cal.4th 434, 444, 452 [903 P.2d 1037] [disapproving People v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of examples].

• Child’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta].

• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive” touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].

• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497 P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and

CALCRIM No. 1110 SEX OFFENSES Crimes Against Decency, §§ 37–40, 44–46.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.21[1][a][i], [b]–[d] (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).

LESSER INCLUDED OFFENSES

• Attempted Lewd Act With Child Under 14. Pen. Code, §§ 664, 288(a); People v. Imler (1992) 9 Cal.App.4th 1178, 1181–1182 [11 Cal.Rptr.2d 915]; People v. Herman (2002) 97 Cal.App.4th 1369, 1389–1390 [119 Cal.Rptr.2d 199].

• Simple Assault. Pen. Code, § 240.

• Simple Battery. Pen. Code, § 242.

Annoying or molesting a child under the age of 18 (Pen. Code, § 647.6) is not a lesser included offense of section 288(a). (People v. Lopez (1998) 19 Cal.4th 282, 290, 292 [79 Cal.Rptr.2d 195, 965 P.2d 713].)

RELATED ISSUES

Any Act That Constitutes Sexual Assault

A lewd or lascivious act includes any act that constitutes a crime against the person involving sexual assault as provided in title 9 of part 1 of the Penal Code (Pen. Code, §§ 261–368). (Pen. Code, § 288(a).) For example, unlawful sexual intercourse on the body of a child under 14 can be charged as a lewd act under section 288 and as a separate offense under section 261.5. However, these charges are in the alternative and, in such cases, the court has a sua sponte duty to give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited. (See Pen. Code, § 654(a); People v. Nicholson (1979) 98 Cal.App.3d 617, 625 [159 Cal.Rptr. 766].)

Calculating Age

The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500) applies so that a person attains a given age as soon as the first minute of his or her birthday has begun, not on the day before the birthday. (See In re Harris (1993) 5 Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

Minor Perpetrator

A minor under age 14 may be convicted for violating Penal Code section 288(a) on clear proof of the minor’s knowledge of wrongfulness and the minor’s intent to arouse his or her own sexual desires. (See Pen. Code, § 26; In re Randy S. (1999) 76 Cal.App.4th 400, 406–408 [90 Cal.Rptr.2d 423]; see also In re Paul C. (1990) 221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369] [in context of oral copulation].) The age of the minor is a factor to consider when determining if the conduct was sexually motivated. (In re Randy S., supra, 76 Cal.App.4th at pp. 405–406 [90 Cal.Rptr.2d 423].)

Solicitation to Violate Section 288

Asking a minor to engage in lewd conduct with the person making the request is not punishable as solicitation of a minor to commit a violation of Penal Code section 288. (People v. Herman (2002) 97 Cal.App.4th 1369, 1379 [119 Cal.Rptr.2d 199] [conviction for solicitation under Penal Code section 653f(c) reversed].) “[A] minor cannot violate section 288 by engaging in lewd conduct with an adult.” (Id. at p. 1379.)

Mistaken Belief About Victim’s Age

A defendant charged with a lewd act on a child under Penal Code section 288(a) is not entitled to a mistake of fact instruction regarding the victim’s age. (People v. Olsen (1984) 36 Cal.3d 638, 647 [205 Cal.Rptr. 492, 685 P.2d 52] [adult defendant]; In re Donald R. (1993) 14 Cal.App.4th 1627, 1629–1630 [18 Cal.Rptr.2d 442] [minor defendant].)

Multiple Lewd Acts

Each individual act that meets the requirements of section 288 can result in a new and separate statutory violation. (People v. Scott (1994) 9 Cal.4th 331, 346–347 [36 Cal.Rptr.2d 627, 885 P.2d 1040]; see People v. Harrison (1989) 48 Cal.3d 321, 329, 334 [256 Cal.Rptr. 401, 768 P.2d 1078] [in context of sexual penetration].) For example, if a defendant fondles one area of a victim’s body with the requisite intent and then moves on to fondle a different area, one offense has ceased and another has begun. There is no requirement that the two be separated by a hiatus or period of reflection. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [121 Cal.Rptr.2d 426].)

Judicial Council of California Criminal Jury Instruction 1111: Lewd or Lascivious Act By Force or Fear (Pen. Code, § 288(b)(1))

The defendant is charged [in Count ] with a lewd or lascivious act by force or fear on a child under the age of 14 years [in violation of Penal Code section 288(b)(1)].

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—defendant touched child>

[1A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;]

[OR]

<Alternative 1B—child touched defendant>

[1B. The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;]

2. In committing the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the child or someone else;

3. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;

AND

4. The child was under the age of 14 years at the time of the act.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.]

The force used must be substantially different from or substantially greater than the force needed to accomplish the act itself.

[Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and (his/her) relationship to the defendant.]

[Retribution is a form of payback or revenge.] [Menace means a threat, statement, or act showing an intent to injure someone.] [An act is accomplished by fear if the child is actually and reasonably afraid [or (he/she) is actually but unreasonably afraid and the defendant knows of (his/her) fear and takes advantage of it].]

[It is not a defense that the child may have consented to the act.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the defendant is charged in a single count with multiple alleged acts, the court has a sua sponte duty to instruct on unanimity. (People v. Jones (1990) 51 Cal.3d 294, 321–322 [270 Cal.Rptr. 611, 792 P.2d 643].) The court must determine whether it is appropriate to give the standard unanimity instruction, CALCRIM No. 3500, Unanimity, or the modified unanimity instruction, CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented. Review the discussion in the bench notes to these two instructions and People v. Jones, supra, 51 Cal.3d at pp. 321–322.

Give the bracketed sentence that begins, “Actually arousing, appealing to,” on request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)

Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].) Defenses—Instructional Duty Lack of consent by a minor is not an element of lewd act or lascivious act against a child under 14 in violation of Penal Code section 288, subdivision (b), whether accomplished by force, duress, or otherwise. Likewise, consent by the child is not an affirmative defense to such a charge. (People v. Soto (2011) 51 Cal.4th 229, 232 [119 Cal.Rptr.3d 775, 245 P.3d 410].) The bracketed paragraph that begins “It is not a defense that the child” may be given on request if there is evidence of consent.

AUTHORITY

• Elements. Pen. Code, § 288(b)(1).

• Duress Defined. People v. Soto (2011) 51 Cal.4th 229, 232 [119 Cal.Rptr.3d775, 245 P.3d 410]; People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216 Cal.Rptr. 221]; People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416].

• Menace Defined. Pen. Code, § 261(c) [in context of rape].

• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].

• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11 Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of examples].

• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive” touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].

• Fear Defined. People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940 [26 Cal.Rptr.2d 567]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [in context of rape].

• Force Defined. People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582]; People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221]; see also People v. Griffın (2004) 33 Cal.4th 1015, 1018–1019 [16 Cal.Rptr.3d 891, 94 P.3d 1089] [discussing Cicero and Pitmon].

• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497 P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 37–38.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.21[1][a][ii], [b]–[d] (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).

 

COMMENTARY

The instruction includes definitions of “force” and “fear” because those terms have meanings in the context of the crime of lewd acts by force that are technical and may not be readily apparent to jurors. (People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [force]; see People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940 [26 Cal.Rptr.2d 567] [fear]; People v. Iniguez (1994) 7 Cal.4th 847, 856–857 [30 Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].) The definition of “force” as used in Penal Code section 288(b)(1) is different from the meaning of “force” as used in other sex offense statutes. (People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582].) In other sex offense statutes, such as Penal Code section 261 defining rape, “force” does not have a technical meaning and there is no requirement to define the term. (People v. Griffın (2004) 33 Cal.4th 1015, 1018–1019 [16 Cal.Rptr.3d 891 94 P.3d 1089].) In Penal Code section 288(b)(1), on the other hand, “force” means force “substantially different from or substantially greater than” the physical force normally inherent in the sexual act. (Id. at p. 1018 [quoting People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr. 582]] [emphasis in Griffın].) The court is required to instruct sua sponte in this special definition of “force.” (People v. Pitmon, supra, 170 Cal.App.3d at p. 52; see also People v. Griffın, supra, 33 Cal.4th at pp. 1026–1028.)

The court is not required to instruct sua sponte on the definition of “duress” or “menace” and Penal Code section 288 does not define either term. (People v. Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional definitions are provided for the court to use at its discretion. The definition of “duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16 Cal.Rptr.3d 869, 94 P.3d 1071] and People v. Pitmon (1985) 170 Cal.App.3d 38, 50 [216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definitions contained in Penal Code sections 261 and 262 [rape]. (See People v. Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in case involving forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at p. 1007, the court held that the statutory definition of “duress” contained in Penal Code sections 261 and 262 does not apply to the use of that term in any other statute. The court did not discuss the statutory definition of “menace.” The court should consider the Leal opinion before giving the definition of “menace.”

LESSER INCLUDED OFFENSES

• Attempted Lewd Act by Force With Child Under 14. Pen. Code, §§ 664, 288(b).

• Simple Assault. Pen. Code, § 240. • Simple Battery. Pen. Code, § 242.

RELATED ISSUES

Evidence of Duress

In looking at the totality of the circumstances to determine if duress was used to commit forcible lewd acts on a child, “relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family. . . . The fact that the victim testifies the defendant did not use force or threats does not require a finding of no duress; the victim’s testimony must be considered in light of her age and her relationship to the defendant.” (People v. Cochran, supra, 103 Cal.App.4th at p. 14.)

See the Related Issues section of the Bench Notes for CALCRIM No. 1110, Lewd or Lascivious Act: Child Under 14 Years.

Judicial Council of California Criminal Jury Instruction 1112: Lewd or Lascivious Act on a Child 14 or 15 Years (Pen. Code § 288(c)(1))

The defendant is charged [in Count ] with a lewd or lascivious act on a 14- or 15-year-old child who was at least 10 years younger than the defendant [in violation of Penal Code section 288(c)(1)].

To prove that the defendant is guilty of this crime, the People must prove that:

<Alternative 1A—defendant touched child>

[1A. The defendant willfully touched any part of a child’s body either on the bare skin or through the clothing;]

[OR]

<Alternative 1B—child touched defendant>

[1B. The defendant willfully caused a child to touch (his/her) own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing;]

2. The defendant committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;

3. The child was (14/15) years old at the time of the act;

AND

4. When the defendant acted, the child was at least 10 years younger than the defendant.

The touching need not be done in a lewd or sexual manner.

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.]

[It is not a defense that the child may have consented to the act.]

[In determining whether a person is at least 10 years older than a child, measure from the person’s birthdate to the child’s birthdate.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the defendant is charged in a single count with multiple alleged acts, the court has a sua sponte duty to instruct on unanimity. (People v. Jones (1990) 51 Cal.3d 294, 321–322 [270 Cal.Rptr. 611, 792 P.2d 643].) The court must determine whether it is appropriate to give the standard unanimity instruction, CALCRIM No. 3500, Unanimity, or the modified unanimity instruction, CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented. Review the discussion in the bench notes to these two instructions and People v. Jones, supra, 51 Cal.3d at pp. 321–322.

Give the bracketed sentence that begins, “Actually arousing, appealing to,” on request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)

Give the bracketed paragraph that begins with “It is not a defense that the child,” on request, if there is evidence that the minor consented to the act. (See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)

Give the bracketed paragraphs about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [855 P.2d 391].)

AUTHORITY

• Elements. Pen. Code, § 288(c)(1).

• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].

• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11 Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of examples].

• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586] [“constructive” touching; approving Austin instruction]; People v. Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].

• Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497 P.2d 807] [in context of indecent exposure]; see Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256–257, fn. 13 [158 Cal.Rptr. 330, 599 P.2d 636].

• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta].

• Mistaken Belief About Victim’s Age Not a Defense. People v. Paz (2000) 80 Cal.App.4th 293, 298 [95 Cal.Rptr.2d 166].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 37–40, 44–46.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.21[1][a][iii], [b]–[d] (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).

LESSER INCLUDED OFFENSES

• Simple Assault. Pen. Code, § 240.

• Simple Battery. Pen. Code, § 242.

• Attempted Lewd Act on a Child of 14 or 15. In re Lesansky (2001) 25 Cal.4th 11, 13].

RELATED ISSUES

See the Related Issues section of the Bench Notes for CALCRIM No. 1110, Lewd or Lascivious Act: Child Under 14 Years.

Judicial Council of California Criminal Jury Instruction 1120: Continuous Sexual Abuse (Pen. Code § 288.5(a))

The defendant is charged [in Count ] with continuous sexual abuse of a child under the age of 14 years [in violation of Penal Code section 288.5(a)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant (lived in the same home with/ [or] had recurring access to) a minor child;

2. The defendant engaged in three or more acts of (substantial sexual conduct/ [or] lewd or lascivious conduct) with the child;

3. Three or more months passed between the first and last acts;

AND

4. The child was under the age of 14 years at the time of the acts. [Substantial sexual conduct means oral copulation or masturbation of either the child or the perpetrator, or penetration of the child’s or perpetrator’s vagina or rectum by (the other person’s penis/ [or] any foreign object).] [Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.] [Lewd or lascivious conduct is any willful touching of a child accomplished with the intent to sexually arouse the perpetrator or the child. Contact with the child’s bare skin or private parts is not required. Any part of the child’s body or the clothes the child is wearing may be touched.] [Lewd or lascivious conduct [also] includes causing a child to touch his or her own body or someone else’s body at the instigation of a perpetrator who has the required intent.] [Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.]

You cannot convict the defendant unless all of you agree that (he/she) committed three or more acts over a period of at least three months, but you do not all need to agree on which three acts were committed.

[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct.]

[It is not a defense that the child may have consented to the act.]

[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

BENCH NOTES

Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime.

If the court gives the definition of “lewd and lascivious conduct,” the definition of “willfully” must also be given.

Give the bracketed sentence that begins, “Actually arousing, appealing to,” on request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)

Give the bracketed paragraph that begins with “It is not a defense that the child,” on request, if there is evidence that the minor consented to the act. (See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)

Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)

AUTHORITY

• Elements. Pen. Code, § 288.5(a); People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284–1285, 1287 [59 Cal.Rptr.2d 389].

• Substantial Sexual Conduct Defined. Pen. Code, § 1203.066(b).

• Unanimity on Specific Acts Not Required. Pen. Code, § 288.5(b); People v. Adames (1997) 54 Cal.App.4th 198, 208 [62 Cal.Rptr.2d 631].

• Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].

• Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11 Cal.4th 434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v. Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49 Cal.Rptr.2d 252] [list of examples].

• Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586]; People v. Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].

• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta in context of lewd or lascivious act].

• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884]; see Pen. Code, § 288a(a).

• “Recurring Access” Is Commonly Understand Term Not Requiring Sua Sponte Definitional Instruction. People v. Rodriguez (2002) 28 Cal.4th 543, 550 [122 Cal.Rptr.2d 348, 49 P.3d 1085] [disapproving People v. Gohdes (1997) 58 Cal.App.4th 1520, 1529 [68 Cal.Rptr.2d 719].

• Necessary Intent in Touching. People v. Cuellar (2012) 208 Cal.App.4th 1067, 1070–1072 [145 Cal.Rptr.3d 898].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 51–53.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.21[1][c][ii], [2] (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17 (The Rutter Group).

COMMENTARY

Penal Code section 288.5 does not require that the defendant reside with, or have access to, the child continuously for three consecutive months. It only requires that a period of at least three months passes between the first and last acts of molestation. (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284–1285, 1287 [59 Cal.Rptr.2d 389].)

Section 288.5 validly defines a prohibited offense as a continuous course of conduct and does not unconstitutionally deprive a defendant of a unanimous jury verdict. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309–1312 [18 Cal.Rptr.2d 511].)

LESSER INCLUDED OFFENSES

• Simple Assault. Pen. Code, § 240. • Simple Battery. Pen. Code, § 242.

Since a conviction under Penal Code section 288.5 could be based on a course of substantial sexual conduct without necessarily violating section 288 (lewd or lascivious conduct), the latter is not necessarily included within the former and no sua sponte instruction is required. (People v. Avina (1993) 14 Cal.App.4th 1303, 1313–1314 [18 Cal.Rptr.2d 511]; see People v. Palmer (2001) 86 Cal.App.4th 440, 444–445 [103 Cal.Rptr.2d 301].)

RELATED ISSUES

Alternative Charges

Under Penal Code section 288.5(c), continuous sexual abuse and specific sexual offenses pertaining to the same victim over the same time period may only be charged in the alternative. In these circumstances, multiple convictions are precluded. (People v. Johnson (2002) 28 Cal.4th 240, 245, 248 [121 Cal.Rptr.2d 197, 47 P.3d 1064] [exception to general rule in Pen. Code, § 954 permitting joinder of related charges].) In such cases, the court has a sua sponte duty to give CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited. If a defendant is erroneously convicted of both continuous sexual abuse and specific sexual offenses and a greater aggregate sentence is imposed for the specific offenses, the appropriate remedy is to reverse the conviction for continuous sexual abuse. (People v. Torres (2002) 102 Cal.App.4th 1053, 1060 [126 Cal.Rptr.2d 92].)

Masturbation

For a discussion of the term masturbation, see People v. Chambless (1999) 74 Cal.App.4th 773, 783–784, 786–787 [88 Cal.Rptr.2d 444] [construing term for purposes of finding defendant committed sexually violent offenses under the Sexually Violent Predators Act].

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