California Criminal Jury Instructions (CALCRIM) (2017)

1070. Unlawful Sexual Intercourse: Defendant 21 or Older

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B. AGAINST MINORS ONLY
(i) Unlawful Sexual Intercourse
1070.Unlawful Sexual Intercourse: Defendant 21 or Older (Pen.
Code, § 261.5(a) & (d))
The defendant is charged [in Count ] with having unlawful
sexual intercourse with a person who was under the age of 16 years at a
time after the defendant had reached (his/her) 21st birthday [in
violation of Penal Code section 261.5(d)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. The defendant and the other person were not married to each
other at the time of the intercourse;
3. The defendant was at least 21 years old at the time of the
intercourse;
AND
4. The other person was under the age of 16 years at the time of
the intercourse.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the
intercourse.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
<Defense: Good Faith Belief 18 or Over>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. In order for
reasonable and actual belief to excuse the defendant’s behavior, there
must be evidence tending to show that (he/she) reasonably and actually
believed that the other person was age 18 or older. If you have a
reasonable doubt about whether the defendant reasonably and actually
believed that the other person was age 18 or older, you must find (him/
her) not guilty.]
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0091
New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
For a discussion of the sua sponte duty to instruct on the defense of mistake of
fact, see CALCRIM No. 3406.
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. (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].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39
Cal.Rptr. 361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716
[51 Cal.Rptr. 735].)
Related Instruction
CALCRIM No. 3406, Mistake of Fact.
AUTHORITY
• Elements. Pen. Code, § 261.5(a) & (d).
Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51].
• Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131
Cal.App.3d 224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by
People v. Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
• Good Faith Belief in Victim’s Age. People v. Zeihm (1974) 40 Cal.App.3d
1085, 1089 [115 Cal.Rptr. 528].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, §§ 45–46.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 20–24.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[3][a] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Unlawful Sexual Intercourse. Pen. Code, §§ 664, 261.5; see, e.g.,
CALCRIM No. 1070 SEX OFFENSES
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0092
People v. Nicholson (1979) 98 Cal.App.3d 617, 622–624 [159 Cal.Rptr. 766].
Contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser
included offense of unlawful sexual intercourse. (People v. Bobb (1989) 207
Cal.App.3d 88, 93–96 [254 Cal.Rptr. 707], disapproved on another ground in
People v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [47 Cal.Rptr.2d 569, 906 P.2d
531].)
RELATED ISSUES
Calculating Age
The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500)
applies. 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. (In re Harris (1993) 5
Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Participant Must be Over 21
One of the two participants in the act of unlawful sexual intercourse must be over
21 and the other person must be under 16. Proof that an aider and abettor was over
21 is insufficient to sustain the aider and abettor’s conviction if neither of the actual
participants was over 21 years old. (See People v. Culbertson (1985) 171
Cal.App.3d 508, 513, 515 [217 Cal.Rptr. 347] [applying same argument to section
288a(c), where perpetrator must be 10 years older than victim under 14].)
Mistaken Belief About Victim’s Age
A defendant is not entitled to a mistake of fact instruction if he claims that he
believed that the complaining witness was over 16. His belief would still constitute
the mens rea of intending to have sex with a minor.(People v. Scott (2000) 83
Cal.App.4th 784, 800–801 [100 Cal.Rptr.2d 70].) However, if he claims that he
believed that the complaining witness was over 18 years old, he is entitled to the
mistake of fact instruction. (See People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673].)
Married Minor Victim
A defendant may be convicted of unlawful sexual intercourse even if the minor
victim is married or was previously married to another person. (People v. Courtney
(1960) 180 Cal.App.2d 61, 62 [4 Cal.Rptr. 274] [construing former statute]; People
v. Caldwell (1967) 255 Cal.App.2d 229, 230–231 [63 Cal.Rptr. 63].)
Sterility
Sterility is not a defense to unlawful sexual intercourse. (People v. Langdon (1987)
192 Cal.App.3d 1419, 1421 [238 Cal.Rptr. 158].)
SEX OFFENSES CALCRIM No. 1070
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