California Criminal Jury Instructions (CALCRIM) (2017)

1112. Lewd or Lascivious Act: Child 14 or 15 Years

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1112.Lewd or Lascivious Act: 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.]
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New January 2006; Revised August 2012, August 2014
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].
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• Mistake of Fact Defense May Apply to Attempted Lewd Acts on a Child 14 or
15. People v. Hanna (2013) 218 Cal.App.4th 455, 461 [160 Cal.Rptr.3d 210].
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
• 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.
1113–1119. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1112
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