California Criminal Jury Instructions (CALCRIM) (2017)

1126. Going to Meeting With Minor for Lewd Purpose (Pen. Code, § 288.4(b))

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1126.Going to Meeting With Minor for Lewd Purpose (Pen. Code,
§ 288.4(b))
The defendant is charged [in Count ] with going to a meeting
with a minor for a lewd purpose [in violation of Penal Code section
288.4(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant arranged a meeting with (a minor/ [or] a person
(he/she) believed to be a minor);
2. When the defendant did so, (he/she) was motivated by an
unnatural or abnormal sexual interest in children;
3. At that meeting, the defendant intended to (expose (his/her)
genitals or pubic or rectal area/ [or] have the minor expose (his/
her) genitals or pubic or rectal area/ [or] engage in lewd or
lascivious behavior);
AND
4. The defendant went to the arranged meeting place at or about
the arranged time.
<Give the bracketed language at the beginning of the following sentence if
instructing on other offenses mentioning children for which the definition
given here does not apply.>
[For the purposes of this instruction,] (A/a) child or minor 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.]
[Lewd and lascivious behavior includes any touching of a person with the
intent to sexually arouse the perpetrator or the other person. Lewd or
lascivious behavior includes touching any part of the person’s body,
either on the bare skin or through the clothes the person is wearing. [A
lewd or lascivious act includes causing someone to touch his or her own
body or someone else’s body at the instigation of the perpetrator who
has the required intent.]]
New August 2009; Revised April 2010, February 2013, August 2016, March 2017
858
0150
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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].)
It is unclear how violations of Pen. Code, § 288.4(b), which involve actually going
to an arranged meeting, correlate to violations of Pen. Code, § 288.4(a) (cf.
CALCRIM No. 1125, Arranging Meeting With Minor for Lewd Purpose).
Violations of section 288.4(a) may be lesser included offenses of violations of
section 288.4(b). In the alternative, a violation of section 288.4(b) could be
characterized as sentence enhancement of a violation of section 288.4(a). This
matter must be left to the trial court’s discretion until courts of review provide
guidance.
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,
§ 288.4(b), 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.
There is no sua sponte duty to instruct that the “motivated by” element of the
offense must have been a substantial factor in its commission. (People v. Fromuth
(2016) 206 Cal.Rptr.3d 83, 2 Cal.App.5th 91, 106–109].)
AUTHORITY
• Elements and Enumerated Offenses. Pen. Code, § 288.4.
Lewd Defined. See 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].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Meaning of Child and Minor. People v. Yuksel (2012) 207 Cal.App.4th 850,
854–855 [143 Cal.Rptr.3d 823].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 66, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.21 (Matthew Bender).
SEX OFFENSES CALCRIM No. 1126
859
0151
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
CALCRIM No. 1126 SEX OFFENSES
860
0152