California Criminal Jury Instructions (CALCRIM) (2017)

1121. Annoying or Molesting a Child in a Dwelling

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1121.Annoying or Molesting a Child in a Dwelling (Pen. Code,
§ 647.6(a)–(c))
The defendant is charged [in Count ] with annoying or molesting
a child in an inhabited dwelling [in violation of Penal Code section
647.6(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant entered an inhabited (dwelling house/part of a
building/trailer coach) without consent;
2. After entering the (house/building/trailer coach), the defendant
engaged in conduct directed at a child;
3. A normal person, without hesitation, would have been disturbed,
irritated, offended, or injured by the defendant’s conduct;
4. The defendant’s conduct was motivated by an unnatural or
abnormal sexual interest in the child;
AND
5. The child was under the age of 18 years at the time of the
conduct.
[It is not necessary that the child actually be irritated or disturbed.] [It
is [also] not necessary that the child actually be touched.]
[It is not a defense that the child may have consented to the act.]
[A (house/part of a building/trailer coach) is inhabited if someone uses it
as a dwelling, whether or not someone is inside at the time of the
alleged conduct.]
[A (house/part of a building/trailer coach) is inhabited if someone used it
as a dwelling and left only because a natural or other disaster caused
him or her to leave.]
[A (house/part of a building/trailer coach) is not inhabited if the former
residents have moved out and do not intend to return, even if some
personal property remains inside.]
[A house includes any (structure/garage/office/ <insert other
description>) that is attached to the house and functionally connected
with it.]
[A trailer coach is a vehicle without its own mode of power, designed to
be pulled by a motor vehicle. It is made for human habitation or human
occupancy and for carrying property.]
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[A trailer coach is [also] a park trailer that is intended for human
habitation for recreational or seasonal use only and
(1) has a floor area of no more than 400 square feet;
(2) is not more than 14 feet wide;
(3) is built on a single chassis;
AND
(4) may be transported on public highways only with a permit.]
[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 Over 18>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the child was at least 18 years of age. The People
have the burden of proving beyond a reasonable doubt that the
defendant did not reasonably and actually believe the child was at least
18 years of age. If the People have not met this burden, you must find
the defendant not guilty of this crime.]
New January 2006; Revised 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]; People v. Epps (1981) 122
Cal.App.3d 691, 703–704 [176 Cal.Rptr. 332].) However, child annoyance or
molestation may be committed by a single act or a repetitive course of conduct.
There is no sua sponte duty to give a unanimity instruction when a defendant’s
conduct clearly constituted a single course of conduct. (People v. Moore (1986) 185
Cal.App.3d 1005, 1014–1016 [230 Cal.Rptr. 237].) The court must determine if a
unanimity instruction is required and 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.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of the crime. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165 [197
Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126–1127 [38
Cal.Rptr.2d 335].)
SEX OFFENSES CALCRIM No. 1121
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If the defendant is charged with a prior conviction for a violation of Penal Code
section 647.6 or any other specified sexual offense (see Pen. Code, § 647.6(c)), give
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No.
3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the
truth of the prior conviction. (People v. Merkley (1996) 51 Cal.App.4th 472, 476
[58 Cal.Rptr.2d 21]; see People v. Bouzas (1991) 53 Cal.3d 467, 477–480 [279
Cal.Rptr. 847, 807 P.2d 1076].)
Give the bracketed sentence that begins, “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].)
If appropriate, give any of the bracketed definitions of “inhabited,” “house” or
“trailer coach” on request.
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].)
If the defendant was charged with simple annoying or molesting a child without
any allegations about entering an inhabited house, building, or trailer coach, do not
give this instruction. Give CALCRIM No. 1122, Annoying or Molesting a Child.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably believed that the child
was over 18 years of age, the court has a sua sponte duty to instruct on the
defense. (See People v. Atchison (1978) 22 Cal.3d 181, 183 [148 Cal.Rptr. 881, 583
P.2d 735]; People v. Paz (2000) 80 Cal.App.4th 293, 300 [95 Cal.Rptr.2d 166].)
AUTHORITY
• Elements. Pen. Code, § 647.6(a)–(c).
Inhabitation Defined. See Pen. Code, § 459 [in context of burglary].
• Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
• Acts Motivated by Unnatural or Abnormal Sexual Interest. People v. Maurer
(1995) 32 Cal.App.4th 1121, 1126–1127 [38 Cal.Rptr.2d 335]; In re Gladys R.
(1970) 1 Cal.3d 855, 867 [83 Cal.Rptr. 671, 464 P.2d 127].
• Annoy and Molest Defined; Objective Standard. People v. Lopez (1998) 19
Cal.4th 282, 289–290 [79 Cal.Rptr.2d 195]; People v. Kongs (1994) 30
Cal.App.4th 1741, 1749–1750 [37 Cal.Rptr.2d 327]; People v. Pallares (1952)
112 Cal.App.2d Supp. 895, 901–902 [246 P.2d 173].
• Lewd Act Not Required. People v. Thompson (1988) 206 Cal.App.3d 459,
465–466 [253 Cal.Rptr. 564].
• 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 act].
• Minor Need Not Actually Be Annoyed. People v. Lopez (1998) 19 Cal.4th
282, 290 [79 Cal.Rptr.2d 195, 965 P.2d 713].
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• Actual Touching Not Required. People v. Memro (1995) 11 Cal.4th 786, 871
[47 Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Lopez (1998) 19 Cal.4th 282,
289 [79 Cal.Rptr.2d 195].
• House Not Inhabited If Former Residents Not Returning. People v. Cardona
(1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 80, 81.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.21[4], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
COMMENTARY
See the Commentary section of the Bench Notes for CALCRIM No. 1122,
Annoying or Molesting a Child.
LESSER INCLUDED OFFENSES
• Attempted Annoying or Molesting of Minor. Pen. Code, §§ 664, 647.6(b).
Annoying or molesting a child without entering an inhabited dwelling is a
misdemeanor and lesser included offense. (Pen. Code, § 647.6(a).)
Neither simple assault (People v. Greene (1973) 34 Cal.App.3d 622, 654–655 [110
Cal.Rptr. 160]) or contributing to the delinquency of a minor (People v. Romero
(1975) 48 Cal.App.3d 752, 757 [121 Cal.Rptr. 800] [construing former versions of
Pen. Code, §§ 272 and 647.6]) is a necessarily included lesser offense of annoying
or molesting a child.
RELATED ISSUES
After Entering
The statute does not require that the defendant engage in the molesting conduct
while still in the home. (People v. Mendoza (2004) 118 Cal.App.4th 571, 575–576
[13 Cal.Rptr.3d 195].) It is sufficient if the defendant engaged in the conduct after
entering the home and there is a “nexus between the residential entry and the
molesting conduct.” (Id. at p. 576.)
See the Related Issues section of the Bench Notes for CALCRIM No. 1122,
Annoying or Molesting a Child.
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