California Criminal Jury Instructions (CALCRIM) (2017)

1152. Child Procurement

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1152.Child Procurement (Pen. Code, § 266j)
The defendant is charged [in Count ] with (providing/causing) a
child to engage in a lewd or lascivious act [in violation of Penal Code
section 266j].
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;]
[AND]
2. When the defendant acted, the child was under the age of 16
years(;/.)
<Give element 3 when instructing on “offered.”>
[AND
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.]
Alewd or lascivious act is any touching of a child with the intent to
sexually arouse either the perpetrator or the child. 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.]
New January 2006; Revised February 2013
900
0192
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 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].)
Related Instructions
See CALCRIM Nos. 1110–1112, relating to lewd and lascivious acts in violation of
Penal Code section 288.
AUTHORITY
• 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].
Secondary Sources
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[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Child Procurement. Pen. Code, §§ 664, 266j.
RELATED ISSUES
Corroboration Not Required
Aminor 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].)
SEX OFFENSES CALCRIM No. 1152
901
0193
See CALCRIM Nos. 1110–1112, relating to lewd and lascivious acts in violation of
Penal Code section 288.
CALCRIM No. 1152 SEX OFFENSES
902
0194