California Criminal Jury Instructions (CALCRIM) (2017)

1124. Contacting Minor With Intent to Commit Certain Felonies (Pen. Code, § 288.3(a))

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1124.Contacting Minor With Intent to Commit Certain Felonies
(Pen. Code, § 288.3(a))
The defendant is charged [in Count ] with contacting a minor
with the intent to commit <insert enumerated offense from
statute> [in violation of Penal Code section 288.3(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (contacted or communicated with/ [or] attempted
to contact or communicate with) a minor;
2. When the defendant did so, (he/she) intended to commit
<insert enumerated offense from statute> involving
that minor;
AND
3. The defendant knew or reasonably should have known that the
person was a minor.
Aminor is a person under the age of 18.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
Contacting or communicating with a minor includes direct and indirect
contact or communication. [That contact or communication may take
place personally or by using (an agent or agency/ [or] any print
medium/ [or] any postal service/ [or] a common carrier/ [or]
communication common carrier/ [or] any electronic communications
system/ [or] any telecommunications/ [or] wire/ [or] computer/ [or]
radio communications [device or system]).]
To decide whether the defendant intended to commit
<specify sex offense[s] listed in Pen. Code, § 288.3(a)>, please refer to the
separate instructions that I (will give/have given) you on (that/those)
crime[s].
New August 2009; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The court has a sua sponte duty to define the elements of the underlying/target sex
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offense. (See People v. Hughes (2002) 27 Cal.4th 287, 349 [116 Cal.Rptr.2d 401,
39 P.3d 432 and People v. May (1989) 213 Cal.App.3d 118, 129 [261 Cal.Rptr.
502].)
The court has a sua sponte duty to instruct on the good faith belief that the victim
was not a minor as a defense for certain sex crimes with minors, including
statutory rape, when that defense is supported by evidence. Until courts of review
clarify whether this defense is available in prosecutions for violations of Pen. Code,
§ 288.3(a), the court will have to exercise its own discretion. Suitable language for
such an instruction is found in CALCRIM No. 1070, Unlawful Sexual Intercourse:
Defendant 21 or Older.
AUTHORITY
• Elements and Enumerated Offenses. Pen. Code, § 288.3(a).
Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
LESSER INCLUDED OFFENSES
Attempted oral copulation is not a necessarily included offense of Penal Code
section 288.3 under the statutory elements test, because luring can be committed
without a direct act. (People v. Medelez (2016) 206 Cal.Rptr.3d 402, 2 Cal.App.5th
659, 663].)
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 67, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.21 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1124
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