California Criminal Jury Instructions (CALCRIM) (2017)

1111. Lewd or Lascivious Act: By Force or Fear

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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.]
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0125
[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.]
New January 2006; Revised April 2011, August 2014, August 2016
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.3d
775, 245 P.3d 410]; People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
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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 (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41–45, 178.
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)
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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).
Lewd or Lascivious Act on Child Under 14. Pen. Code, § 288(a).
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.
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