California Criminal Jury Instructions (CALCRIM) (2017)

1143. Obscene Live Conduct

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1143.Obscene Live Conduct (Pen. Code, § 311.6)
The defendant is charged [in Count ] with (engaging or
participating in[,]/ [or] managing[,]/ [or] producing[,]/ [or] sponsoring[,]/
[or] presenting or showing) obscene live conduct [in violation of Penal
Code section 311.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (engaged or participated in[,]/ [or] managed[,]/
[or] produced[,]/ [or] sponsored[,]/ [or] presented or showed)
obscene live conduct;
2. The defendant knew of the character of the conduct;
AND
3. The obscene live conduct occurred in front of an audience of at
least one person in (a public place/ [or] a place open to the
public[, or a segment of the public,] or to public view).
Live conduct means physical activity by a person acting alone or with
someone else[, including but not limited to (dancing[,]/ [or] acting[,]/
[or] simulating[,]/ [or] pantomiming[,]/ [or] singing[,]/ [or] speaking)].
You must decide whether the conduct at issue in this case meets the
definition of obscene live conduct. Live conduct, 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;
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.
Applying contemporary statewide standards means using present-day
standards and determining the effect of the conduct 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,
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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 conduct 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 conduct is obscene, do not
weigh the value of the conduct against its prurient appeal.
[The depiction of nudity, by itself, does not make conduct obscene. In
order for conduct involving 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 conduct
obscene. In order for conduct depicting sexual activity to be obscene, it
must meet the requirements for obscenity listed above.]
The People must prove that the defendant knew the character of the
conduct but do not need to prove that the defendant knew whether the
conduct met the definition of obscene.
[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 conduct’s character and whether it lacks serious
literary, artistic, political, or scientific value, consider whether the
circumstances of its (production[,]/ [or] presentation[,]/ [or]
advertising[,]/ [or] showing) indicate that the conduct was being
commercially exploited because of its prurient appeal. You must decide
the weight, if any, to give this evidence.]
[In deciding whether the conduct lacks serious literary, artistic, political,
or scientific value, you may [also] consider whether the defendant knew
that the conduct showed persons under 16 years old engaging in sexual
activities. You must decide the weight, if any, to give this evidence.]
[In deciding whether, according to contemporary statewide standards,
the conduct appeals to a prurient interest, you may consider whether
similar conduct is openly shown in the statewide community. You must
decide the weight, if any, to give this evidence.]
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[If it appears from the character of the conduct or the circumstances of
its presentation or showing that it is designed for a clearly defined
deviant sexual group, the appeal of the conduct must be judged based
on its intended audience.]
<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.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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. (Pen. Code, § 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]; 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, § 311.6.
Obscene Live Conduct Defined. Pen. Code, § 311(g); see In re Giannini
(1968) 69 Cal.2d 563, 575 [72 Cal.Rptr. 655, 446 P.2d 535] [not all topless
dancing obscene]; Miller v. California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607,
37 L.Ed.2d 419]; 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].
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• Person Defined. Pen. Code, § 311(c).
• 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 Conduct’s
Nature. Pen. Code, § 311(g)(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, § 311.8.
• 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].
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).
RELATED ISSUES
See the Related Issues section of CALCRIM No. 1141, Distributing Obscene
Matter Showing Sexual Conduct by a Minor, and CALCRIM No. 1142,
Distributing or Intending to Distribute Obscene Material.
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