CALCRIM No. 1140. Distributing, Sending, or Exhibiting Harmful Material (Pen. Code, § 288.2(a)(1) & (2))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
C. OTHER SEX RELATED OFFENSES
(i) Obscene or Harmful Matter
1140.Distributing, Sending, or Exhibiting Harmful Material (Pen.
Code, § 288.2(a)(1) & (2))
The defendant is charged [in Count ] with (exhibiting[,]/
sending[,]/ distributing[,]/ [or] offering to exhibit or distribute) harmful
material to a minor [or to a person the defendant believed was a minor]
[in violation of Penal Code section 288.2].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Give alternative paragraph 1A for violations of Penal Code section
288.2(a)(1)>
[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/
distributed[,]/ [or] offered to exhibit or distribute) harmful
material depicting a minor or minors engaging in sexual conduct
to another person by any means;]
<Give alternative paragraph 1B for violations of Penal Code section
288.2(a)(2)>
[1. The defendant (exhibited[,]/ sent[,]/ caused to be sent[,]/
distributed[,]/ [or] offered to exhibit or distribute) harmful
material to another person by any means;]
2. When the defendant acted, (he/she) knew the character of the
material;
3. When the defendant acted, (he/she) knew, should have known, or
believed that the other person was a minor;
4. When the defendant acted, (he/she) intended to arouse, appeal to,
or gratify the lust, passions, or sexual desires of (himself/herself)
or of the other person;
AND
5. When the defendant acted, (he/she) intended to engage in sexual
intercourse, sodomy, or oral copulation with the other person or
to have either person touch an intimate body part of the other
person.
You must decide whether the material at issue in this case meet[s] the
definition of harmful material. Material is harmful if, when considered as
a whole:
901
1. It shows or describes sexual conduct in an obviously offensive
way;
2. A reasonable person would conclude that it lacks serious literary,
artistic, political, or scientific value for minors;
AND
3. An average adult person, applying contemporary statewide
standards, would conclude it appeals to prurient interest.
For the purpose of this instruction, an intimate body part includes the
sexual organ, anus, groin, or buttocks of any person, or the breasts of a
female.
Aprurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Material, as used in this instruction, means any (book, magazine,
newspaper, video recording, or other printed or written material[;]/ [or]
any picture, drawing, photograph, motion picture, or other pictorial
representation[;]/ [or] any statue or other figure[;]/ [or] any recording,
transcription, or mechanical, chemical, or electrical reproduction[;]/ [or]
any other articles, equipment, machines, or materials). [Material includes
live or recorded telephone messages when transmitted or distributed as
part of a commercial transaction.]
Applying contemporary statewide standards means using present-day
standards and determining the effect of the material on all those whom it
is likely to reach within the state, in other words, its impact on the
average person in the statewide community. The average adult person is a
hypothetical person who represents the entire community, including both
men and women; religious and nonreligious people; and adults of
varying ages, educational and economic levels, races, ethnicities, and
points of view. The contemporary statewide standard means what is
acceptable to the statewide community as a whole, not what some person
or persons may believe the community ought to accept. The test you
must apply is not what you find offensive based on your own personal,
social, or moral views. Instead, you must make an objective
determination of what would offend the statewide community as a whole.
[You may consider evidence of local community standards in deciding
what the contemporary statewide standard is. However, you may not use
the standard of a local community, by itself, to establish the
contemporary statewide standard.]
The material is not harmful unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value for minors. When deciding whether the material is
harmful, do not weigh its value against its prurient appeal.
CALCRIM No. 1140 SEX OFFENSES
902
[The depiction of nudity, by itself, does not make material harmful. In
order for material containing nudity to be harmful, it must depict sexual
activity and it must meet the requirements for harmful material listed
above.]
[The depiction of sexual activity, by itself, does not make material
harmful. In order for material depicting sexual activity to be harmful, it
must meet the requirements for harmful material listed above.]
The People must prove that the defendant knew the character of the
material but do not need to prove that the defendant knew whether the
material met the definition of harmful material.
Aminor is anyone 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.]
[If it appears from the nature of the material or the circumstances of its
distribution or showing that it is designed for clearly defined deviant
sexual groups, the appeal of the material must be judged based on its
intended audience.]
[In deciding the material’s nature and whether it lacks serious literary,
artistic, political, or scientific value, consider whether the circumstances
of its (production[,]/ presentation[,]/ sale[,]/ dissemination[,]/
distribution[,]/ publicity) indicate that the material was being
commercially exploited because of its prurient appeal. You must
determine the weight, if any, to give this evidence.]
[In deciding whether, applying contemporary statewide standards, the
material appeals to a prurient interest, you may consider whether
similar material is openly shown in the community. You must determine
the weight, if any, to give this evidence.]
[Harmful material may be sent or distributed by live or recorded
telephone messages.]
[To distribute means to transfer possession, whether or not the transfer is
made for money or anything else of value.]
<Defense: Parent providing sex education>
[A parent or guardian is not guilty of this offense if he or she acted to
promote legitimate sex education. The People must prove beyond a
reasonable doubt that the defendant was not providing legitimate sex
education. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
<Defense: Legitimate scientific or educational purpose>
[The defendant is not guilty of this crime if (he/she) was engaging in
SEX OFFENSES CALCRIM No. 1140
903
legitimate scientific or educational activities. The People have the burden
of proving beyond a reasonable doubt that the defendant was not acting
for a legitimate scientific or educational purpose. If the People have not
met this burden, you must find the defendant not guilty of this crime.]
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Give the bracketed sentence 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].)
Penal Code section 288.2(a) was amended effective January 1, 2014.
Give any of the other bracketed paragraphs on request.
Defenses - Instructional Duty
If there is sufficient evidence that the defendant was “acting in aid of legitimate sex
education,” the court has a sua sponte duty to instruct on that defense. (See Pen.
Code, § 288.2(f).) It is unclear who bears the burden of proof and what standard of
proof applies to this defense. In the absence of statutory authority or case law
stating that the defendant must prove the defense by a preponderance of the
evidence, the committee has drafted the instruction to provide that the prosecution
must prove beyond a reasonable doubt that the defense does not apply. (See People
v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)
If there is sufficient evidence that the defendant was engaging in legitimate scientific
or educational activities, the court has a sua sponte duty to instruct on that defense.
(See Pen. Code, § 288.2(g).) It is unclear who bears the burden of proof and what
standard of proof applies to this defense. In the absence of statutory authority or
case law stating that the defendant must prove the defense by a preponderance of
the evidence, the committee has drafted the instruction to provide that the
prosecution must prove beyond a reasonable doubt that the defense does not apply.
(See People v. Mower (2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49
P.3d 1067]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840-841 [10
Cal.Rptr.3d 779] [“legitimate” does not require definition and the trial court erred in
giving amplifying instruction based on People v. Marler (1962) 199 Cal.App.2d
Supp. 889 [18 Cal.Rptr. 923]].)
AUTHORITY
• Elements. Pen. Code, § 288.2(a)(1), (2).
• Harmful Matter Defined. Pen. Code, § 313.
• Know Character of Matter. Pen. Code, § 313(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756-758 [132 Cal.Rptr. 725] [no error in instructing that it was
CALCRIM No. 1140 SEX OFFENSES
904
unnecessary to establish that the accused had knowledge that material was
legally obscene].
• Means of Distribution. Pen. Code, § 288.2(a)(1), (2).
• Contemporary Community Standards. See Roth v. United States (1957) 354
U.S. 476, 489-490 [77 S.Ct. 1304, 1 L.Ed.2d 1498] [quoting trial court
instruction].
• Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77
[127 Cal.Rptr. 317, 545 P.2d 229] [quoting former Pen. Code, § 311].
• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d
Supp. 1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92
S.Ct. 2245, 33 L.Ed.2d 312].
• Matter Designed for Deviant Sexual Group. Pen. Code, § 313(a)(1); see People
v. Young (1977) 77 Cal.App.3d Supp. 10, 14-15 [143 Cal.Rptr. 604].
• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,
§ 313(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748-753 [132 Cal.Rptr.
725].
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp. 1, 7 [157 Cal.Rptr.
830].
• Obscenity Contrasted With Sex. Roth v. United States (1957) 354 U.S. 476,
487 [77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,
795-796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,
108-109 [73 Cal.Rptr. 689, 448 P.2d 385].
• Defense of Sex Education. Pen. Code, § 288.2(f).
• Defense of Legitimate Scientific or Educational Activity. Pen. Code, § 288.2(g).
• Prior Version of This Instruction Was Correct. People v. Richardson (2007)
151 Cal.App.4th 790, 803 [60 Cal.Rptr.3d 458].
LESSER INCLUDED OFFENSES
Under prior version of Penal Code section 288.2, in effect until December 31, 2013,
the following were held to be lesser included offenses:
• Attempted Distribution of Harmful Matter to Minor. Pen. Code, §§ 664, 288.2;
see, e.g., Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185 [94
Cal.Rptr.2d 453].
• Misdemeanor Distribution of Harmful Matter. Pen. Code, § 313.1(a); People v.
Jensen (2003) 114 Cal.App.4th 224, 244 [7 Cal.Rptr.3d 609].
RELATED ISSUES
Telephone, Cable, or ISPs
A telephone corporation, a cable television company or its affiliates, an Internet
service provider, or commercial online service provider does not violate section
SEX OFFENSES CALCRIM No. 1140
905
288.2 by carrying, broadcasting, or transmitting harmful matter while providing its
services. (Pen. Code, § 288.2(e).)
Expert Testimony Not Required
Neither the prosecution nor the defense is required to introduce expert witness
testimony regarding the harmful nature of the matter. (Pen. Code, § 312.1
[abrogating In re Giannini (1968) 69 Cal.2d 563, 574 [72 Cal.Rptr. 655, 446 P.2d
535]].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 125.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.21[1][d][iii], [2][c], Ch. 144, Crimes Against Order,
§ 144.10[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1140 SEX OFFENSES
906

© Judicial Council of California.