CALCRIM No. 1180. Incest (Pen. Code, § 285)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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(v) Other Offenses
1180.Incest (Pen. Code, § 285)
The defendant is charged [in Count ] with incest [in violation of
Penal Code section 285].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. When the defendant did so, (he/she) was at least 14 years old;
3. When the defendant did so, the other person was at least 14 years
old;
AND
4. The defendant and the other person are related to each other as
<insert description of relationship from Family Code
section 2200>.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[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 June 2007, October 2010, February 2012, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
This instruction focuses on incestuous sexual intercourse with a minor, which is the
most likely form of incest to be charged. Incest is also committed by intercourse
between adult relatives within the specified degree of consanguinity, or by an
incestuous marriage. (See Pen. Code, § 285.)
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].)
AUTHORITY
• Elements. Pen. Code, § 285.
• Incestuous Marriages. Fam. Code, § 2200.
• Sexual Intercourse Defined. See Pen. Code, § 263; People v. Karsai (1982) 131
964
Cal.App.3d 224, 233-234 [182 Cal.Rptr. 406], disapproved on other grounds by
People v. Jones (1988) 46 Cal.3d 585 [250 Cal.Rptr. 635, 758 P.2d 1165].
LESSER INCLUDED OFFENSES
• Attempted Incest. Pen. Code, §§ 664, 285.
RELATED ISSUES
Accomplice Instructions
A minor is a victim of, not an accomplice to, incest. Accomplice instructions are not
appropriate in a trial for incest involving a minor. (People v. Tobias (2001) 25
Cal.4th 327, 334 [106 Cal.Rptr.2d 80, 21 P.3d 758]; see People v. Stoll (1927) 84
Cal.App. 99, 101-102 [257 P. 583].) An exception may exist when two minors
engage in consensual sexual intercourse, and thus both are victims of the other’s
crime. (People v. Tobias,supra, 25 Cal.4th at p. 334; see In re T.A.J. (1998) 62
Cal.App.4th 1350, 1364-1365 [73 Cal.Rptr.2d 331] [minor perpetrator under Pen.
Code, § 261.5].) An adult woman who voluntarily engages in the incestuous act is
an accomplice, whose testimony must be corroborated. (See People v. Stratton
(1904) 141 Cal. 604, 609 [75 P. 166].)
Half-Blood Relationship
Family Code section 2200 prohibits sexual relations between brothers and sisters of
half blood, but not between uncles and nieces of half blood. (People v. Baker (1968)
69 Cal.2d 44, 50 [69 Cal.Rptr. 595, 442 P.2d 675] [construing former version of
§ 2200].) However, sexual intercourse between persons the law deems to be related
is proscribed. A trial court may properly instruct on the conclusive presumption of
legitimacy (see Fam. Code, § 7540) if a defendant uncle asserts that the victim’s
mother is actually his half sister. The presumption requires the jury to find that if
the defendant’s mother and her potent husband were living together when the
defendant was conceived, the husband was the defendant’s father, and thus the
defendant was a full brother of the victim’s mother. (People v. Russell (1971) 22
Cal.App.3d 330, 335 [99 Cal.Rptr. 277].)
Lack of Knowledge as Defense
No reported cases have held that lack of knowledge of the prohibited relationship is
a defense to incest. (But see People v. Patterson (1894) 102 Cal. 239, 242-243 [36
P. 436] [dictum that party without knowledge of relationship would not be guilty];
see also People v. Vogel (1956) 46 Cal.2d 798, 801, 805 [299 P.2d 850] [good faith
belief is defense to bigamy].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 140-143, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[3] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1180
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