1152. Child Procurement
The defendant is charged [in Count ______] with (providing/ causing) a child to engage in a lewd or lascivious act.
To prove that the defendant is guilty of this crime, the People must prove that:
<Alternative 1A—gave/transported a child>
[1. The defendant intentionally (gave/transported/provided/ made available) a child to someone else so the person could engage in a lewd or lascivious act with that child;]
<Alternative 1B—offered to give/transport a child>
[1. The defendant offered to (give/transport/provide/make available) a child to someone else so the person could engage in a lewd or lascivious act with that child;]
<Alternative 1C—caused child to engage in>
[1. The defendant (caused/persuaded/induced) a child to engage in a lewd or lascivious act with someone else;]
2. When the defendant acted, the child was under the age of 16 years(;/).
<Give element 3 when instructing on "offered">
3. When the defendant made the offer, (he/she) intended to (give/transport/provide/make available) a child to someone else so the person could engage in a lewd or lascivious act with that child.]
A lewd or lascivious act is any touching of a child with the intent to sexually arouse either the perpetrator or the child. The touching need not be done in a lewd or sexual manner. Contact with the child's bare skin or private parts is not required. Any part of the child's body or the clothes the child is wearing may be touched. [A lewd or lascivious act includes causing a child to touch his or her own body or someone else's body at the instigation of the other person who has the required intent.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
In element 1, give the appropriate alternative A-C depending on the evidence in the case. When giving alternative 1B, "offered," give element 3 as well.
Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
See CALCRIM Nos. 1110-1112, 1223, relating to lewd and lascivious acts in violation of Penal Code section 288.
Elements. Pen. Code, § 266j.
Any Touching of Child With Intent to Arouse. People v. Martinez (1995) 11 Cal.4th 434, 443-445, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [in context of Pen. Code, § 288; disapproving People v. Wallace (1992) 11 Cal.App.4th 568, 574-580 [14 Cal.Rptr.2d 67] and its progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427-1428 [49 Cal.Rptr.2d 252] [list of examples].
Child Touching Own Body Parts at Defendant's Request. People v. Meacham (1984) 152 Cal.App.3d 142, 152-153 [199 Cal.Rptr. 586] ["constructive" touching; approving Austin instruction in context of Pen. Code, § 288]; People v. Austin (1980) 111 Cal.App.3d 110, 114-115 [168 Cal.Rptr. 401].
Lewd Defined. In re Smith (1972) 7 Cal.3d 362, 365 [102 Cal.Rptr. 335, 497 P.2d 807] [in context of indecent exposure].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 39, 45-46.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.11 (Matthew Bender).
Lesser Included Offenses
Attempted Child Procurement. Pen. Code, §§ 664, 266j.
Corroboration Not Required
A minor victim is not an accomplice and the jury need not be instructed that the minor's testimony requires corroboration. (People v. Mena (1988) 206 Cal.App.3d 420, 425 [254 Cal.Rptr. 10].)
See Related Issues section to CALCRIM No. 1110, Lewd or Lascivious Act: Child Under 14 Years.
(New January 2006)