1112. Lewd or Lascivious Act: Child 14 or 15 Years
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.
To prove that the defendant is guilty of this crime, the People must prove that:<
h3><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;]
<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;
4. When the defendant acted, the child was at least 10 years younger than the defendant.
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.]
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 [21 Cal.Rptr. 373, 855 P.2d 391].)
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].
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[a][iii], [b]-[d] (Matthew Bender).
Lesser Included Offenses
Attempted Lewd Act With Child Under 14. Pen. Code, §§ 664, 288(c)(1); People v. Imler (1992) 9 Cal.App.4th 1178, 1181-1182 [11 Cal.Rptr.2d 915]; People v. Herman (2002) 97 Cal.App.4th 1369, 1389-1390 [119 Cal.Rptr.2d 199].
Simple Assault. Pen. Code, § 240.
Simple Battery. Pen. Code, § 242.
See the Related Issues section of the Bench Notes for CALCRIM No. 1110, Lewd or Lascivious Act: Child Under 14 Years.
(New January 2006)