California Criminal Jury Instructions (CALCRIM) (2017)

1120. Continuous Sexual Abuse

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(vi) Other Offenses
1120.Continuous Sexual Abuse (Pen. Code, § 288.5(a))
The defendant is charged [in Count ] with continuous sexual
abuse of a child under the age of 14 years [in violation of Penal Code
section 288.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (lived in the same home with/ [or] had recurring
access to) a minor child;
2. The defendant engaged in three or more acts of (substantial
sexual conduct/ [or] lewd or lascivious conduct) with the child;
3. Three or more months passed between the first and last acts;
AND
4. The child was under the age of 14 years at the time of the acts.
[Substantial sexual conduct means oral copulation or masturbation of
either the child or the perpetrator, or penetration of the child’s or
perpetrator’s vagina or rectum by (the other person’s penis/ [or] any
foreign object).]
[Oral copulation is any contact, no matter how slight, between the
mouth of one person and the sexual organ or anus of another person.
Penetration is not required.]
[Lewd or lascivious conduct is any willful touching of a child
accomplished with the intent to sexually arouse the perpetrator or the
child. Contact with the child’s bare skin or private parts is not required.
Any part of the child’s body or the clothes the child is wearing may be
touched.] [Lewd or lascivious conduct [also] includes causing a child to
touch his or her own body or someone else’s body at the instigation of a
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.]
You cannot convict the defendant unless all of you agree that (he/she)
committed three or more acts over a period of at least three months,
but you do not all need to agree on which three acts were committed.
[Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or child is not required for lewd or
lascivious conduct.]
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[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 February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the court gives the definition of “lewd and lascivious conduct,” the definition of
“willfully” must also be given.
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 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].)
AUTHORITY
• Elements. Pen. Code, § 288.5(a); People v. Vasquez (1996) 51 Cal.App.4th
1277, 1284–1285, 1287 [59 Cal.Rptr.2d 389].
• Substantial Sexual Conduct Defined. Pen. Code, § 1203.066(b).
• Unanimity on Specific Acts Not Required. Pen. Code, § 288.5(b); People v.
Adames (1997) 54 Cal.App.4th 198, 208 [62 Cal.Rptr.2d 631].
• 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]; People v.
Austin (1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
• 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 in context of lewd or
lascivious act].
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• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240,
1242–1243 [11 Cal.Rptr.2d 884]; see Pen. Code, § 288a(a).
• “Recurring Access” Is Commonly Understand Term Not Requiring Sua Sponte
Definitional Instruction. People v. Rodriguez (2002) 28 Cal.4th 543, 550 [122
Cal.Rptr.2d 348, 49 P.3d 1085] [disapproving People v. Gohdes (1997) 58
Cal.App.4th 1520, 1529 [68 Cal.Rptr.2d 719].
• Necessary Intent in Touching. People v. Cuellar (2012) 208 Cal.App.4th 1067,
1070–1072 [145 Cal.Rptr.3d 898].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 51–53.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.21[1][c][ii], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
COMMENTARY
Penal Code section 288.5 does not require that the defendant reside with, or have
access to, the child continuously for three consecutive months. It only requires that
a period of at least three months passes between the first and last acts of
molestation. (People v. Vasquez (1996) 51 Cal.App.4th 1277, 1284–1285, 1287 [59
Cal.Rptr.2d 389].)
Section 288.5 validly defines a prohibited offense as a continuous course of
conduct and does not unconstitutionally deprive a defendant of a unanimous jury
verdict. (People v. Avina (1993) 14 Cal.App.4th 1303, 1309–1312 [18 Cal.Rptr.2d
511].)
LESSER INCLUDED OFFENSES
• Simple Assault. Pen. Code, § 240.
Simple Battery. Pen. Code, § 242.
Since a conviction under Penal Code section 288.5 could be based on a course of
substantial sexual conduct without necessarily violating section 288 (lewd or
lascivious conduct), the latter is not necessarily included within the former and no
sua sponte instruction is required. (People v. Avina (1993) 14 Cal.App.4th 1303,
1313–1314 [18 Cal.Rptr.2d 511]; see People v. Palmer (2001) 86 Cal.App.4th 440,
444–445 [103 Cal.Rptr.2d 301].)
RELATED ISSUES
Alternative Charges
Under Penal Code section 288.5(c), continuous sexual abuse and specific sexual
offenses pertaining to the same victim over the same time period may only be
charged in the alternative. In these circumstances, multiple convictions are
precluded. (People v. Johnson (2002) 28 Cal.4th 240, 245, 248 [121 Cal.Rptr.2d
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197, 47 P.3d 1064] [exception to general rule in Pen. Code, § 954 permitting
joinder of related charges].) In such cases, the court has a sua sponte duty to give
CALCRIM No. 3516, Multiple Counts: Alternative Charges for One Event—Dual
Conviction Prohibited. If a defendant is erroneously convicted of both continuous
sexual abuse and specific sexual offenses and a greater aggregate sentence is
imposed for the specific offenses, the appropriate remedy is to reverse the
conviction for continuous sexual abuse. (People v. Torres (2002) 102 Cal.App.4th
1053, 1060 [126 Cal.Rptr.2d 92].)
Masturbation
For a discussion of the term masturbation, see People v. Chambless (1999) 74
Cal.App.4th 773, 783–784, 786–787 [88 Cal.Rptr.2d 444] [construing term for
purposes of finding defendant committed sexually violent offenses under the
Sexually Violent Predators Act].
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