CALCRIM No. 1145. Possession of Matter Depicting Minor Engaged in Sexual Conduct (Pen. Code, § 311.11(a))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1145.Possession of Matter Depicting Minor Engaged in Sexual
Conduct (Pen. Code, § 311.11(a))
The defendant is charged [in Count ] with possessing matter that
shows a minor engaged in or simulating sexual conduct [in violation of
Penal Code section 311.11(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant possessed or controlled matter that contained [an]
image[s] of a minor personally engaging in or simulating sexual
conduct;
2. The defendant knew that (he/she) possessed or controlled the
matter;
AND
3. The defendant knew that the matter contained [an] image[s] of a
minor personally engaging in or simulating sexual conduct.
Matter, as used in this instruction, means any visual work[s], including
any (film/filmstrip/photograph/negative/slide/photocopy/video recording/
computer-generated media[,]/[or] <insert other item listed in
Pen. Code § 311.11(a)>).
[Matter does not include drawings, figurines, or statues.]
[Matter does not include any film rated by the Motion Picture
Association of America.]
[The matter does not have to be obscene.] <For a definition of obscene, see
CALCRIM 1141>
[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.]
[Two or more people may possess something at the same time.]
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.]
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.
<Sentencing Factors>
927
[If you find the defendant guilty of this crime [as charged in Count[s]
], you must then decide whether the People have proved the
additional allegation[s].] [You must decide whether the People have
proved (this/these) allegation[s] for each crime beyond a reasonable
doubt and return a separate finding for each crime.]
<Give the following paragraph if the defendant is charged with the felony
enhancement under Penal Code section 311.11(b)>
[To prove the prior conviction allegation, the People must prove that the
defendant has at least one prior conviction for violating or attempting to
violate Penal Code section 311.11(a) or for committing or attempting to
commit ( ) <insert description of offense requiring registration
pursuant to Penal Code section 290>.]
<Give the following four paragraphs if the defendant is charged with the
felony enhancement under Penal Code section 311.11(c)(1)>
[To prove the multiple images allegation, the People must prove that:
The matter the defendant knowingly possessed or controlled contained
more than 600 images all of which the defendant knew showed a minor
engaged in or simulating sexual conduct;
AND
The matter contained at least ten or more images involving a
prepubescent minor or a minor under 12 years of age.
Each photograph, picture, computer or computer-generated image, or
any similar visual depiction counts as one image.
Each video, video-clip, movie, or similar visual depiction counts as 50
images.]
<Give the following three paragraphs if the defendant is charged under
Penal Code section 311.11(c)(2)>
[To prove the sexual sadism or sexual masochism allegation, the People
must prove that the matter showed sexual sadism or sexual masochism
involving a minor.
Sexual sadism means intentionally causing pain for purposes of sexual
gratification or stimulation.
Sexual masochism means intentionally experiencing pain for purposes of
sexual gratification or stimulation.]
New March 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. Give the sentencing factors if appropriate.
CALCRIM No. 1145 SEX OFFENSES
928
AUTHORITY
• Elements. Pen. Code, § 311.11(a)-(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).
• 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].
• Personally Defined. People v. Gerber (2011) 196 Cal.App.4th 368, 386 [126
Cal.Rptr.3d 688].
• Possession or Control of Computer Image. Tecklenburg v. Appellate Div. of
Superior Court (2009) 169 Cal.App.4th 1402, 1418-1419 [87 Cal.Rptr.3d 460].
• Simultaneous Possession of Materials at Same Location is One Offense. People
v. Manfredi (2008) 169 Cal.App.4th 622, 624 [86 Cal.Rptr.3d 810].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 94-106, 131.
7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,
§§ 486-492.
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).
1146-1149. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1145
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