California Criminal Jury Instructions (CALCRIM) (2017)

1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor

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1141.Distributing Obscene Matter Showing Sexual Conduct by a
Minor (Pen. Code, §§ 311.1(a), 311.2(b))
The defendant is charged [in Count ] with distributing obscene
matter that shows a minor engaging in sexual conduct [in violation of
<insert appropriate code section[s]>].
To prove that the defendant is guilty of this crime, the People must
prove that:
<Alternative 1A—sent or brought>
[1. The defendant (sent/ [or] brought) obscene matter into
California [or caused obscene matter to be (sent/ [or] brought)
into California];]
<Alternative 1B—possessed>
[1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/
[or] produced[,]/ [or] developed[,]/ [or] duplicated[,]/ [or]
printed) obscene matter;]
<Alternative 1C—offered to distribute>
[1. The defendant offered to distribute obscene matter to someone
else;]
<Alternative 1D—distributed>
[1. The defendant (distributed/ [or] showed/ [or] exchanged) obscene
matter (to/with) someone else;]
2. When the defendant acted, (he/she) knew the character of the
matter;
[AND]
3. When the defendant acted, (he/she) knew that the matter showed
a person under the age of 18 years who was personally
participating in or simulating sexual conduct(;/.)
<Give element 4 when instructing with alternative 1A, 1B or 1C; see
Bench Notes>
[AND
4. When the defendant acted, (he/she) intended to (sell or
distribute/distribute, show, or exchange/distribute) the matter to
someone else [for money or other commercial benefit].]
You must decide whether the matter at issue in this case meets the
definition of obscene matter. Matter is obscene if, when considered as a
whole:
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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;
AND
3. An average adult person, applying contemporary statewide
standards, would conclude it appeals to a prurient interest.
Aprurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Matter means any representation of information, data, or image,
including any
(film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser
disc/computer hardware or software/computer floppy disk/data storage
medium/CD-ROM/computer-generated equipment/ [or] computer-
generated image that contains any film or filmstrip).
Applying contemporary statewide standards means using present-day
standards and determining the effect of the matter 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 obscene unless a reasonable person would conclude
that, taken as a whole, it lacks serious literary, artistic, political, or
scientific value. When deciding whether the material is obscene, do not
weigh its value against its prurient appeal.
[Matter is not considered obscene under the law if (all persons under
the age of 18 depicted in the matter are legally emancipated/ [or] it only
shows lawful conduct between spouses).]
[The depiction of nudity, by itself, does not make matter obscene. In
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order for matter containing nudity to be obscene, it must depict sexual
activity and it must meet the requirements for obscenity listed above.]
[The depiction of sexual activity, by itself, does not make matter
obscene. In order for matter depicting sexual activity to be obscene, it
must meet the requirements for obscenity listed above.]
Sexual conduct means actual or simulated (sexual intercourse/ [or] oral
copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]
<insert other sexual conduct as defined in Pen. Code,
§ 311.4(d)(1)>). An act is simulated when it gives the appearance of
being sexual conduct.
The People must prove that the defendant knew the obscene nature of
the matter but do not need to prove that the defendant knew whether
the matter met the definition of obscene.
[To distribute means to transfer possession, whether or not the transfer
is made for money or anything else of value.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
[In deciding the matter’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 matter was being
commercially exploited because of its prurient appeal. You must decide
the weight, if any, to give this evidence.]
[In deciding whether the matter lacks serious literary, artistic, political,
or scientific value, you may [also] consider whether the defendant knew
that the matter showed persons under the age of 16 years engaging in
sexual conduct. You must decide the weight, if any, to give this
evidence.]
[In deciding whether, applying contemporary statewide standards, the
matter appeals to a prurient interest, you may consider whether similar
matter is openly shown in the community. You must decide the weight,
if any, to give this evidence.]
[If it appears from the nature of the matter or the circumstances of its
distribution or showing that it is designed for clearly defined deviant
sexual groups, the appeal of the matter must be judged based on its
intended audience.]
[Two or more people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to
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control it), either personally or through (another person/other people).]
[A person who possesses obscene matter for his or her own personal use
is 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
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant
was not acting for a legitimate medical, scientific, or educational
purpose. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
<Defense: Law enforcement agent>
[The defendant is not guilty of this offense if (he/she) was a member [or
agent] of a law enforcement or prosecuting agency and was involved in
the investigation or prosecution of criminal offenses. The People have
the burden of proving beyond a reasonable doubt that the defendant
was not acting as a member [or agent] of a law enforcement or
prosecuting agency. If the People have not met this burden, you must
find the defendant not guilty of this crime.
[A person is an agent of a law enforcement or prosecuting agency if he
or she does something at the request, suggestion, or direction of a law
enforcement or prosecuting agency.]]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
In element 1, give one of the alternatives A–D depending on the charges and
evidence in the case. Give element 4 when instructing with alternative 1A, 1B, or
1C. (People v. Young (1977) 77 Cal.App.3d Supp. 10, 12 [143 Cal.Rptr. 604];
People v. Burrows (1968) 260 Cal.App.2d 228, 231 [67 Cal.Rptr. 28]; In re Klor
(1966) 64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].) When giving
alternative 1A, select “sell or distribute” in element 4. When giving alternative 1B,
select “distribute, show, or exchange” in element 4. When giving alternative 1C,
select “distribute.” Do not give element 4 with alternative 1D. No published case
has held that distributing or showing obscene material requires specific intent. Give
the bracketed phrase “for money or other commercial benefit” in element 4 if the
defendant is charged under Penal Code section 311.2(b).
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Give any of the other bracketed paragraphs on request.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was engaging in legitimate
medical, scientific, or educational activities, the court has a sua sponte duty to
instruct on that defense. (See Pen. Code, §§ 311.2(e); 311.8(a).) 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]].)
If there is sufficient evidence that the defendant was acting as a law enforcement
agent, the court has a sua sponte duty to instruct on that defense. (See Pen. Code,
§ 311.2(e).) 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].)
AUTHORITY
• Elements. Pen. Code, §§ 311.1(a), 311.2(b).
Specific Intent to Distribute or Exhibit. People v. Young (1977) 77
Cal.App.3d Supp. 10, 12 [143 Cal.Rptr. 604] [possession with intent to
distribute or exhibit]; see People v. Burrows (1968) 260 Cal.App.2d 228, 231
[67 Cal.Rptr. 28] [preparation or publication with specific intent to distribute];
In re Klor (1966) 64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].
• Obscene Matter Defined. Pen. Code, § 311(a); see Bloom v. Municipal Court
(1976) 16 Cal.3d 71, 77, 81 [127 Cal.Rptr. 317, 545 P.2d 229]; Miller v.
California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d 419]; see also
Pope v. Illinois (1987) 481 U.S. 497, 500–501 [107 S.Ct. 1918, 95 L.Ed.2d
439].
• Contemporary Community Standards. See Roth v. United States (1957) 354
U.S. 476, 489–490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].
• Prurient Interest Defined. Bloom v. Municipal Court (1976) 16 Cal.3d 71, 77
[127 Cal.Rptr. 317, 545 P.2d 229].
• Sexual Conduct Defined. Pen. Code, § 311.4(d)(1); see People v. Spurlock
(2003) 114 Cal.App.4th 1122, 1130–1131 [8 Cal.Rptr.3d 372].
• Person Defined. Pen. Code, § 311(c).
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• Distribute Defined. Pen. Code, § 311(d).
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Exhibit Defined. Pen. Code, § 311(f).
• Matter Designed for Deviant Sexual Group. Pen. Code, § 311(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,
§ 311(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748–753 [132 Cal.Rptr.
725].
• Knowledge That Matter Depicts Child Under 16 Is Probative of Matter’s
Nature. Pen. Code, § 311(a)(3).
• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880
[16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp.
1, 7 [157 Cal.Rptr. 830].
• Exceptions to Statutory Prohibitions. Pen. Code, §§ 311.1(b)–(d), 311.2(e)–(g);
Pen. Code, § 311.8.
• Agent Defined. See People v. McIntire (1979) 23 Cal.3d 742, 748 [153
Cal.Rptr. 237, 591 P.2d 527] [in context of entrapment].
• 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].
• 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].
• Possessing For Personal Use Not a Crime. Stanley v. Georgia (1969) 394
U.S. 557, 568 [89 S.Ct. 1243, 22 L.Ed.2d 542].
• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th
552, 556 [67 Cal.Rptr.2d 162].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 79–91.
7 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law,
§§ 435–438.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, § 144.12 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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LESSER INCLUDED OFFENSES
• Attempted Distribution of Obscene Matter. Pen. Code, §§ 664, 311.1(a).
• Attempted Distribution of Obscene Matter for Commercial Consideration. Pen.
Code, §§ 664, 311.2(b).
RELATED ISSUES
Advertising Obscene Matter Involving Minors
It is a felony to advertise for sale or distribution any obscene matter knowing that
it depicts a minor engaged in sexual conduct. (Pen. Code, § 311.10.)
Employing or Using Minor to Pose in Film
It is a felony to employ, use, or persuade a minor to engage in or assist others in
posing or modeling for the purpose of preparing a commercial or noncommercial
film or other medium involving sexual conduct by a minor. (See Pen. Code,
§ 311.4(b), (c).) Producing child pornography and posting it on the Internet to
induce others to trade such pornography without making a monetary profit satisfies
the “commercial purposes” requirement of Penal Code section 311.4(b). (People v.
Cochran (2002) 28 Cal.4th 396, 406–407 [121 Cal.Rptr.2d 595, 48 P.3d 1148].)
Excluded Conduct
Neither section 311.1 nor 311.2 applies to law enforcement and prosecuting
agencies investigating or prosecuting criminal offenses, to legitimate medical,
scientific, or educational activities, or to lawful conduct between spouses. (Pen.
Code, §§ 311.1(b), 311.2(e); see Pen. Code, § 311.8(a) [“defense” that act
committed in aid of legitimate scientific or educational purpose].) Nor do these
sections apply to depictions of a minor who is legally emancipated. (Pen. Code,
§§ 311.1(c), 311.2(f); see Fam. Code, § 7000 et seq. [emancipation of minors].)
Telephone Services
A telephone corporation (see Pub. Util. Code, § 234) does not violate section 311.1
or 311.2 by carrying or transmitting messages described in these sections, or by
performing related activities in providing telephone services. (Pen. Code,
§§ 311.1(d), 311.2(g).)
Expert Testimony Not Required
Neither the prosecution nor the defense is required to introduce expert witness
testimony regarding the obscene 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]].)
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