California Criminal Jury Instructions (CALCRIM) (2017)

1144. Using a Minor to Perform Prohibited Acts (Pen. Code, § 311.4(b), (c))

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1144.Using a Minor to Perform Prohibited Acts (Pen. Code,
§ 311.4(b), (c))
The defendant is charged [in Count ] with using a minor to
perform prohibited acts [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>
[1. The defendant (promoted/ [or] employed/ [or] used/ [or]
persuaded/ [or] induced/ [or] coerced) a minor who was under
(18/14) years old at the time to pose or model or assist others to
pose or model, alone or with others;
[1. The defendant knew that (he/she) was (promoting/ [or]
employing/ [or] using/ [or] persuading/ [or] inducing/ [or]
coercing) a minor of that age to pose or model or assist others to
pose or model;]
<Alternative 1B>
[1. The defendant was the (parent/ [or] guardian) in control of a
minor who was under (18/14) years old at the time and the
defendant permitted that minor to pose or model or assist others
to pose or model, alone or with others;
[1. At the time the defendant gave permission to the minor, (he/she)
knew that the minor would pose or model or assist others to
pose or model, alone or with others;]
2. The purpose of the posing or modeling was to prepare matter
containing [or incorporating] sexual conduct;
3. The minor participated in the sexual conduct alone[, or with
other persons][, or with animals];
4. The defendant was aware of the character of the matter or live
conduct;
[AND]
5. The defendant knew, or reasonably should have known, based on
facts of which (he/she) was aware, that the minor was under (18/
14) years of age;
[AND
6. When the defendant acted, (he/she) intended that the matter
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would be used for commercial purposes.]
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). For the purpose of
this instruction matter does not include material (in which all of the
persons depicted under the age of 18 are legally emancipated/ [or] that
only depicts lawful conduct between spouses).
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
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.
[Use for commercial purposes includes intending to trade the matter
depicting sexual conduct for a commercial purpose at some point in the
future. A commercial purpose does not have to include financial gain.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
<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 April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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
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instruct on that defense. (See 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, 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, § 311.4(b), (c).
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).
• Defendant Need Not Directly Engage in Posing or Modeling Victim. People v.
Hobbs (2007) 152 Cal.App.4th 1, 5–7 [60 Cal.Rptr.3d 685].
• Minor Under Age of 14. Pen. Code, § 311.4(f).
• Commercial Purposes Defined. People v. Cochran (2002) 28 Cal.4th 396,
402–407 [121 Cal.Rptr.2d 595, 48 P.3d 1148].
• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61
Cal.App.3d 735, 756–758 [132 Cal.Rptr. 725].
• Calculating Age. Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813,
849–850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, § 96.
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).
1145–1149. Reserved for Future Use
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