Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Sex Offenses CALCRIM No. 1060. Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))

CALCRIM No. 1060. Lewd or Lascivious Act: Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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(v) Lewd and Lascivious Act

1060.Lewd or Lascivious Act: Dependent Person (Pen. Code,

§ 288(b)(2) & (c)(2))

The defendant is charged [in Count ] with a lewd or lascivious act

on a dependent person [by force or fear] [in violation of Penal Code

section 288].

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

prove that:

1. The defendant was a caretaker of a dependent person;

2. The defendant willfully (committed/conspired to commit/aided

and abetted/facilitated) a lewd or lascivious act on a person;

[AND]

3. The defendant (committed/conspired to commit/aided and

abetted/facilitated) the act with the intent of arousing, appealing

to, or gratifying the lust, passions, or sexual desires of (himself/

herself) or the dependent person(;/.)

[AND

4. In (committing/conspiring to commit/aiding and abetting/

facilitating) the act, the defendant used force, violence, duress,

menace, or fear of immediate and unlawful bodily injury to the

dependent person or someone else.]

Alewd or lascivious act is any touching of a person with the intent to

sexually arouse the perpetrator or the other person. A lewd or lascivious

act includes touching any part of the person’s body, either on the bare

skin or through the clothes the person is wearing. [A lewd or lascivious

act includes causing someone to touch his or her own body or someone

else’s body at the instigation of the 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.

Acaretaker is an owner, operator, administrator, employee, independent

contractor, agent, or volunteer of a public or private facility, including

(a/an) <insert specific facility from Pen. Code, § 288(f)(1)>,

that provides care for dependent persons or for those aged 65 or older.

Adependent person is someone who has physical or mental impairments

812

that substantially restrict his or her ability to carry out normal activities

or to protect his or her rights. This definition includes, but is not limited

to, those who have developmental disabilities or whose physical or

mental abilities have been significantly diminished by age.

[Actually arousing, appealing to, or gratifying the lust, passions, or

sexual desires of the perpetrator or dependent person is not required.]

[The force used must be substantially different from or substantially

greater than the force needed to accomplish the lewd and lascivious act

itself.]

[Duress is a direct or implied threat of force, violence, danger, hardship,

or retribution that causes a reasonable person to do [or submit to]

something that he or she would not do [or submit to] otherwise. When

deciding whether the act was accomplished by duress, consider all the

circumstances, including the age of the dependent person 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 dependent person 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 dependent person may have consented to the

act.]

New January 2006; Revised February 2013, September 2017, March 2022,

September 2022

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

asua 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.

If the defendant is charged with using force or fear in committing the lewd act on a

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dependent person, give bracketed element 4 and the bracketed sentence that begins

with “The force must be substantially different.” (See People v. Pitmon (1985) 170

Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [court has sua sponte duty to define “force”

as used in Pen. Code, § 288(b)(1)]; People v. Griffın (2004) 33 Cal.4th 1015,

1018-1019 [16 Cal.Rptr.3d 891, 94 P.3d 1089].) On request, give any of the

relevant bracketed definitions of duress, menace, or fear.

In the paragraph defining “caretaker,” insert applicable caretaker facilities listed in

Penal Code section 288(f)(1), such as a 24-hour health facility, a home health

agency, or a community care or respite care facility, depending on the facts of the

case.

Penal Code section 288(b)(2) or (c)(2) does not apply to a caretaker who is a spouse

of, or who is in an equivalent domestic relationship with, the dependent person.

(Pen. Code, § 288(h).)

Give the bracketed sentence that begins, “Actually arousing, appealing to,” on

request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)

Defenses - Instructional Duty

Give the bracketed paragraph that begins with “It is not a defense that” on request,

if there is evidence that the dependent adult consented to the act. (People v.

Montoya (2021) 68 Cal.App.5th 980, 999 [284 Cal.Rptr.3d 18] [“nothing in the

language of section 288, subdivisions (a) and (c)(2) indicates that lack of consent is

an element of lewd conduct by a caretaker upon a dependent person.”].)

AUTHORITY

• Elements. Pen. Code, § 288(b)(2) & (c)(2).

• Caretaker Defined. Pen. Code, § 288(f)(1) & (g).

• Dependent Person Defined. Pen. Code, § 288(f)(3).

• Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004-1010 [16

Cal.Rptr.3d 869]; People v. Pitmon, supra, 170 Cal.App.3d at p. 50; People v.

Cochran (2002) 103 Cal.App.4th 8, 13-14 [126 Cal.Rptr.2d 416].

• Elder Defined. See Pen. Code, § 368(g).

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

• Actual Arousal Not Required. See People v. McCurdy, supra, 60 Cal.App. at p.

502.

• Any Touching With Intent to Arouse. See 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].

• Dependent Person Touching Own Body Parts at Defendant’s Instigation. See

People v. Meacham (1984) 152 Cal.App.3d 142, 152-153 [199 Cal.Rptr. 586]

[“constructive” touching; approving Austin instruction]; People v. Austin (1980)

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111 Cal.App.3d 110, 114-115 [168 Cal.Rptr. 401].

• Fear Defined. See 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, supra, 170 Cal.App.3d at p. 52; see also People v.

Griffın, supra, 33 Cal.4th at pp. 1018-1019 [discussing Cicero and Pitmon].

• Lewd Defined. See 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].

• Defendant Need Not Be Victim’s Caretaker. People v. Montoya, supra, 68

Cal.App.5th at p. 1001.

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, supra, 170 Cal.App.3d at

p. 52 [force]; see People v. Cardenas, supra, 21 Cal.App.4th at pp. 939-940 [fear];

People v. Iniguez, supra, 7 Cal.4th at pp. 856-857 [fear in context of rape].) The

Court of Appeal has held that the definition of “force” as used in Penal Code

section 288(b), subsection (1) (lewd acts by force with a minor) is different from the

meaning of “force” as used in other sex offense statutes. (People v. Cicero, supra,

157 Cal.App.3d at p. 474 disapproved on other grounds by People v. Soto (2011) 51

Cal.4th 229, 241-244 [119 Cal.Rptr.3d 775, 245 P.3d 410].) 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,

supra, 33 Cal.4th at pp. 1018-1019.) 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, supra, 157 Cal.App.3d at p. 474] [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.) It would seem that this definition of “force” would also apply to

the crime of lewd acts with a dependant person, under Penal Code section 288(b),

subsection (2).

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, supra, 170 Cal.App.3d at p. 52 [duress].) Optional definitions are provided

for the court to use at its discretion. The definition of “duress” is based on People v.

Leal, supra, 33 Cal.4th at pp. 1004-1010, and People v. Pitmon, supra, 170

Cal.App.3d at p. 50. The definition of “menace” is based on the statutory definition

contained in Penal Code section 261 (rape). (See People v. Cochran, supra, 103

Cal.App.4th at pp. 13-14 [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

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statutory definition of “duress” contained in Penal Code sections 261 and former

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 With Dependent Person. Pen. Code, §§ 664, 288(c)(2).

• Attempted Lewd Act by Force With Dependent Person. Pen. Code, §§ 664,

288(b)(2).

• Simple Battery Not Lesser Included Offense of Lewd Act on Dependent Person

Under the Statutory Elements Test. People v. Chenelle (2016) 4 Cal.App.5th

1255, 1263-1264 [209 Cal.Rptr.3d 371].

RELATED ISSUES

Developmental Disability

If the dependent person has a developmental disability, arguably there is no sua

sponte duty to define “developmental disability” under Welfare and Institutions Code

section 4512(a) or Penal Code section 1370.1(a)(1). The Legislature did not intend

to limit this phrase in other code sections to such technical medical or legal

definitions, although a pinpoint instruction may be requested if it helps the jury in

any particular case. (See People v. Mobley (1999) 72 Cal.App.4th 761, 781-783 [85

Cal.Rptr.2d 474] [in context of oral copulation of disabled person].)

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and

Crimes Against Decency, §§ 41, 47-55, 178.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes

Against the Person, § 142.21[1][a][iv], [v], [b]-[d] (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19

(The Rutter Group).

1061-1069. Reserved for Future Use

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Page last reviewed May 2024