1140. Showing or Sending Harmful Material to Seduce a Minor

The defendant is charged [in Count ______] with (showing[,]/ sending[,]/ distributing[,]/ [or] offering to show or distribute) harmful material to a minor.

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

1. The defendant (showed[,]/ sent[,]/ caused to be sent[,]/ distributed[,]/ [or] offered to show or distribute) harmful material to a minor [by (electronic mail[,]/ the Internet[,]/ [or] a commercial online service)];

2. When the defendant acted, (he/she) knew the character of the material;

<Alternative 3A—Pen. Code, § 288.2(a)>

[3. When the defendant acted, (he/she) (knew the other person was a minor/ [or] failed to use reasonable care to determine the minor's actual age);]

<Alternative 3B—Pen. Code, § 288.2(b)>

[3. When the defendant acted, (he/she) knew the other person was a minor;]

4. When the defendant acted, (he/she) intended to sexually arouse, appeal to, or gratify the lust, passions, or sexual desires of (himself/herself) or of the minor;

[AND]

5. When the defendant acted, (he/she) intended to seduce the minor(;/.)

<Give element 6 when instructing on "offered to show or distribute" in element 1.>

[AND

6. When the defendant acted, (he/she) intended to show or distribute the material to the minor.]

You must decide whether the material at issue in this case meet[s] the definition of harmful material. Material is harmful if, when considered as a whole:

1. It shows or describes sexual conduct in an obviously offensive way;

2. A reasonable person would conclude that it lacks serious literary, artistic, political, or scientific value for minors;

AND

3. An average adult person, applying contemporary statewide standards, would conclude it appeals to prurient interest.

A prurient interest is a shameful or morbid interest in nudity, sex, or excretion.

Material, as used in this instruction, means any (book, magazine, newspaper, video recording, or other printed or written material[;]/ [or] any picture, drawing, photograph, motion picture, or other pictorial representation[;]/ [or] any statue or other figure[;]/ [or] any recording, transcription, or mechanical, chemical, or electrical reproduction[;]/ [or] any other articles, equipment, machines, or materials). [Material includes live or recorded telephone messages when transmitted or distributed as part of a commercial transaction.]

Applying contemporary statewide standards means using present-day standards and determining the effect of the material on all those whom it is likely to reach within the state, in other words, its impact on the average person in the statewide community. The average adult person is a hypothetical person who represents the entire community, including both men and women; religious and nonreligious people; and adults of varying ages, educational and economic levels, races, ethnicities, and points of view. The contemporary statewide standard means what is acceptable to the statewide community as a whole, not what some person or persons may believe the community ought to accept. The test you must apply is not what you find offensive based on your own personal, social, or moral views. Instead, you must make an objective determination of what would offend the statewide community as a whole.

[You may consider evidence of local community standards in deciding what the contemporary statewide standard is. However, you may not use the standard of a local community, by itself, to establish the contemporary statewide standard.]

The material is not harmful unless a reasonable person would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value. When deciding whether the material is harmful, do not weigh its value against its prurient appeal.

[The depiction of nudity, by itself, does not make material harmful. In order for material containing nudity to be harmful, it must depict sexual activity and it must meet the requirements for harmful material listed above.]

[The depiction of sexual activity, by itself, does not make material harmful. In order for material depicting sexual activity to be harmful, it must meet the requirements for harmful material listed above.]

The People must prove that the defendant knew the character of the material but do not need to prove that the defendant knew whether the material met the definition of harmful material.

To seduce a minor means to entice the minor to engage in a sexual act involving physical contact between the seducer and the minor.

A minor is anyone under the age of 18. [Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]

[If it appears from the nature of the material or the circumstances of its distribution or showing that it is designed for clearly defined deviant sexual groups, the appeal of the material must be judged based on its intended audience.]

[In deciding the material's nature and whether it lacks serious literary, artistic, political, or scientific value, consider whether the circumstances of its (production[,]/ presentation[,]/ sale[,]/ dissemination[,]/ distribution[,]/ publicity) indicate that the material was being commercially exploited because of its prurient appeal. You must determine the weight, if any, to give this evidence.]

[In deciding whether, applying contemporary statewide standards, the material appeals to a prurient interest, you may consider whether similar material is openly shown in the community. You must determine the weight, if any, to give this evidence.]

[Harmful material may be sent or distributed by live or recorded telephone messages.]

[To distribute means to transfer possession, whether or not the transfer is made for money or anything else of value.]

<Defense: Parent providing sex education>

[A parent or guardian is not guilty of this offense if he or she acted to promote legitimate sex education. The People must prove beyond a reasonable doubt that the defendant was not providing legitimate sex education. If the People have not met this burden, you must find the defendant not guilty of this crime.]

<Defense: Legitimate scientific or educational purpose>

[The defendant is not guilty of this crime if (he/she) was engaging in legitimate scientific or educational activities. The People have the burden of proving beyond a reasonable doubt that the defendant was not acting for a legitimate scientific or educational purpose. If the People have not met this burden, you must find the defendant not guilty of this crime.]

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 with a violation of Penal Code section 288.2(b), give the bracketed phrase "by (electronic mail[,]/ the Internet[,]/ [or] a commercial online service)" in element 1 and give alternative 3B in element 3. If the defendant is charged with Penal Code section 288.2(a), do not give the bracketed language in element 1 and give alternative 3A in element 3.

Give bracketed element 6 if the prosecution alleges that the defendant offered to show or distribute the material to a minor.

Give the bracketed sentence 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].)

Give any of the other bracketed paragraphs on request.

Defenses—Instructional Duty

If there is sufficient evidence that the defendant was "acting in aid of legitimate sex education," the court has a sua sponte duty to instruct on that defense. (See Pen. Code, § 288.2(c).) It is unclear who bears the burden of proof and what standard of proof applies to this defense. In the absence of statutory authority or case law stating that the defendant must prove the defense by a preponderance of the evidence, the committee has drafted the instruction to provide that the prosecution must prove beyond a reasonable doubt that the defense does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)

If there is sufficient evidence that the defendant was engaging in legitimate scientific or educational activities, the court has a sua sponte duty to instruct on that defense. (See Pen. Code, § 288.2(d).) It is unclear who bears the burden of proof and what standard of proof applies to this defense. In the absence of statutory authority or case law stating that the defendant must prove the defense by a preponderance of the evidence, the committee has drafted the instruction to provide that the prosecution must prove beyond a reasonable doubt that the defense does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840-841 [10 Cal.Rptr.3d 779] ["legitimate" does not require definition and the trial court erred in giving amplifying instruction based on People v. Marler (1962) 199 Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)

Authority

Elements. Pen. Code, § 288.2(a) & (b).

Harmful Matter Defined. Pen. Code, § 313.

Know Character of Matter. Pen. Code, § 313(e); see People v. Kuhns (1976) 61 Cal.App.3d 735, 756-758 [132 Cal.Rptr. 725] [no error in instructing that it was unnecessary to establish that the accused had knowledge that material was legally obscene].

Means of Distribution. Pen. Code, § 288.2(a) & (b).

Contemporary Community Standards. See Roth v. United States (1957) 354 U.S. 476, 489-490 [77 S.Ct. 1304, 1 L.Ed.2d 1498] [quoting trial court instruction].

Seduce Defined. People v. Jensen (2003) 114 Cal.App.4th 224, 239-240 [7 Cal.Rptr.3d 609]; People v. Hsu (2000) 82 Cal.App.4th 976, 992 [99 Cal.Rptr. 2d 184].

Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77 [127 Cal.Rptr. 317, 545 P.2d 229] [quoting former section 311].

Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp. 1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct 2245, 33 L.Ed.2d 1498].

Matter Designed for Deviant Sexual Group. Pen. Code, § 313(a)(1); see People v. Young (1977) 77 Cal.App.3d Supp. 10, 14-15 [143 Cal.Rptr. 604].

Commercial Exploitation Is Probative of Matter's Nature. Pen. Code, § 313(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748-753 [132 Cal.Rptr. 725].

Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880 [21 Cal.Rptr.2d 373, 855 P.2d 391]; People v. Heller (1979) 96 Cal.App.3d Supp. 1, 7 [157 Cal.Rptr. 830].

Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476, 487 [77 S.Ct. 1304, 1 L.Ed.2d 1498].

Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791, 795-796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105, 108-109 [73 Cal.Rptr. 689, 448 P.2d 385].

Defense of Sex Education. Pen. Code, § 288.2(c).

Defense of Legitimate Scientific or Educational Activity. Pen. Code, § 288.2(d).

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 108.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.21[1][d][iii], [2][c], Ch. 144, Crimes Against Order, § 144.10[2] (Matthew Bender).

Lesser Included Offenses

Attempted Distribution of Harmful Matter to Minor. Pen. Code, §§ 664, 288.2; see, e.g., Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185 [94 Cal.Rptr.2d 453].

Misdemeanor Distribution of Harmful Matter. Pen. Code, § 313.1(a); People v. Jensen (2003) 114 Cal.App.4th 224, 244 [7 Cal.Rptr.3d 609].

Related Issues

Telephone, Cable, or ISPs

A telephone corporation, a cable television company or its affiliates, an Internet service provider, or commercial online service provider does not violate section 288.2 by carrying, broadcasting, or transmitting harmful matter while providing its services. (Pen. Code, § 288.2(e).)

Expert Testimony Not Required

Neither the prosecution nor the defense is required to introduce expert witness testimony regarding the harmful nature of the matter. (Pen. Code, § 312.1 [abrogating In re Giannini (1968) 69 Cal.2d 563, 574 [72 Cal.Rptr. 655, 446 P.2d 535]].)

(New January 2006)