California Criminal Jury Instructions (CALCRIM) (2017)

1142. Distributing or Intending to Distribute Obscene Material

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1142.Distributing or Intending to Distribute Obscene Material
(Pen. Code, § 311.2(a))
The defendant is charged [in Count ] with distributing obscene
material [in violation of Penal Code section 311.2(a)].
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 material into
California [or caused obscene material to be (sent/ [or] brought)
into California];]
<Alternative 1B—possessed>
[1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/
[or] produced[,]/ [or] printed) obscene material in California;]
<Alternative 1C—offered to distribute>
[1. The defendant offered to distribute obscene material to someone
else;]
<Alternative 1D—distributed>
[1. The defendant (distributed/ [or] showed) obscene material to
someone else;]
[AND]
2. When the defendant acted, (he/she) knew the character of the
material(;/.)
<Give element 3 when instructing with alternative 1A, 1B, or 1C; see
Bench Notes.>
[AND
3. When the defendant acted, (he/she) intended to (sell or
distribute/distribute or show/distribute) the material to someone
else.]
You must decide whether the material at issue in this case meet[s] the
definition of obscene material. Material, when considered as a whole, is
obscene if:
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;
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AND
3. An average adult person applying contemporary statewide
standards would conclude that it appeals to a prurient interest.
Aprurient interest is a shameful or morbid interest in nudity, sex, or
excretion.
Material means ([[a] ((book[,]/ [or] magazine[,]/ [or] newspaper[,]/ [or]
[other] printed or written material][(,/;)]/ [or] [a picture[,]/ [or]
drawing[,]/ [or] photograph[,]/ [or] motion picture[,]/ [or] [other]
pictorial representation][(,/;)]/ [or] [a statue or other figure][(,/;)]/ [or] [a
(recording[,]/ [or] transcription[,]/ [or] mechanical, chemical, or
electrical reproduction][(,/;)]/ [or any other article, equipment, or
machine]). [Material also means live or recorded telephone messages
transmitted, disseminated, 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 adult 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 term contemporary statewide
standards means what is acceptable to the statewide community as a
whole, not what some person or persons may believe the community
should 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 standards are. However, you may not
use the standards of a specific local community, by themselves, to
establish the contemporary statewide standards.]
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.
[The depiction of nudity, by itself, does not make material obscene. In
order for material containing nudity to be obscene, it must depict sexual
activity and must meet the requirements for obscenity listed above.]
[The depiction of sexual activity, by itself, does not make material
obscene. In order for material depicting sexual activity to be obscene, it
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must meet the requirements for obscenity listed above.]
[Material is not considered obscene under the law if (all persons under
the age of 18 years depicted in the material are legally emancipated/
[or] it only shows lawful conduct between spouses).]
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 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 material’s character and whether it lacks serious
literary, artistic, political, or scientific value, consider whether the
circumstances of its (production[,]/ [or] presentation[,]/ [or] sale[,]/ [or]
dissemination[,]/ [or] distribution[,]/ [or] publicity) indicate that the
material was being commercially exploited because of its prurient
appeal. You must decide the weight, if any, to give this evidence.]
[In deciding whether the material lacks serious literary, artistic,
political, or scientific value, you may [also] consider whether the
defendant knew that the material showed persons under 16 years old
engaging in sexual conduct. You must decide the weight, if any, to give
this evidence.]
[In deciding whether, according to contemporary statewide standards,
the material appeals to a prurient interest, you may consider whether
similar material is openly shown in the statewide community. You must
decide the weight, if any, to give this evidence.]
[If it appears from the character of the material or the circumstances of
its distribution or showing that it is designed for a clearly defined
deviant sexual group, the appeal of the material 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
control it), either personally or through (another person/other people).]
[A person who possesses obscene material 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
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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 crime if (he/she) was a member [or
agent] of a law enforcement or prosecuting agency and was involved in
the investigation or prosecution of crimes. 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 1A–1D depending on the charges and
evidence in the case. Give element 3 when instructing with alternative 1A, 1B, 1C
or 1D. (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 3. When giving alternative 1B,
select “distribute or show” in element 3. When giving alternative 1C, select
“distribute.” Do not give element 3 with alternative 1D. No published case has held
that distributing or showing obscene material requires specific intent.
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)
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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, § 311.2(a).
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].
• Person Defined. Pen. Code, § 311(c).
• 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
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[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);
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).
LESSER INCLUDED OFFENSES
• Attempted Distribution of Obscene Matter. Pen. Code, §§ 664, 311.1(a).
RELATED ISSUES
Definition of “Sexual Conduct”
“Obscene matter” must depict or describe “sexual conduct in a patently offensive
way . . . .” (Pen. Code, § 311(a).) The statute does not define “sexual conduct.”
Penal Code sections 311.4(d)(1) and 311.3(b) provide definitions of the term
“sexual conduct” as used in those sections. If the court determines that a definition
of “sexual conduct” is necessary, the court may wish to review those statutes. (See
also People v. Spurlock (2003) 114 Cal.App.4th 1122, 1131 [8 Cal.Rptr.3d 372]
[discussing definition of sexual conduct in prosecution for violating Pen. Code,
§§ 311.3 and 311.4].)
See the Related Issues section of CALCRIM No. 1141, Distributing Obscene
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Matter Showing Sexual Conduct by a Minor.
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