California Criminal Jury Instructions (CALCRIM) (2017)

442. Solicitation of a Minor

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442.Solicitation of a Minor (Pen. Code, § 653j)
The defendant is charged [in Count ] with soliciting a minor to
commit a crime [in violation of Penal Code section 653j].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant voluntarily (asked/ [or] encouraged / [or] induced/
[or] intimidated) a minor to commit the crime of
<insert target offense>;
2. (He/She) intended that the minor commit the crime of
<insert target offense>;
[AND]
3. At the time of the offense, the defendant was at least 18 years
old(;/.)
[AND]
<Alternative 4—defendant five years older>
[4. At the time of the offense, the minor was 16 or 17 years old, and
the defendant was at least 5 years older than the minor(;/.)]
<Give element 5 when instructing that person solicited must receive
message; see Bench Notes.>
[AND
5. The minor received the communication containing the request.]
To decide whether the defendant intended that the minor commit
<insert target offense>, please refer to the separate
instructions that I (will give/have given) you on that crime.
Aminor is a person under the age of 18.
[If you find the defendant guilty of solicitation, you must decide how
many crimes (he/she) solicited. When deciding this question, consider
the following factors:
1. Were the crimes solicited part of a plan with a single objective
or motive or did each crime solicited have a different objective
or motive?
2. Were the crimes solicited to be committed at the same time?
3. Were the crimes solicited to be committed in the same place?
4. Were the crimes solicited to be committed in the same way?
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5. Was the payment, if any, for the crimes solicited one amount or
were different amounts solicited for each crime?
Consider all of these factors when deciding whether the defendant’s
alleged acts were a single crime or <insert number of
solicitations alleged by the People> separate crimes of solicitation.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If the minor is 16 or 17 years old, the jury must find that the defendant is at least 5
years older and the court must instruct sua sponte on element 3A. (Pen. Code,
§ 653j(a).) Give element 3B if element 3A does not apply.
The court has a sua sponte duty to instruct on the elements of the target offense.
(See People v. Baskins (1946) 72 Cal.App.2d 728, 732 [165 P.2d 510].) Give all
relevant instructions on the target crime alleged. Penal Code section 653j lists those
offenses that may be the target of a solicitation of a minor. If the crime is
solicitation to commit murder, do not instruct on implied malice murder. (People v.
Bottger (1983) 142 Cal.App.3d 974, 980–981 [191 Cal.Rptr. 408].)
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison
containing a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The
letter was intercepted by prison authorities and, thus, never received by the
intended person. (Ibid.) If there is an issue over whether the intended person
actually received the communication, give bracketed element 4.
Authority is divided on whether the judge or jury is to determine the number of
solicitations if multiple crimes were solicited by the defendant. The bracketed
portion at the end of the instruction should be given if multiple solicitations have
been charged and the trial court determines that this is a question for the jury.
(Compare People v. Davis (1989) 211 Cal.App.3d 317, 322–323 [259 Cal.Rptr.
348] with People v. Morocco (1987) 191 Cal.App.3d 1449, 1454 [237 Cal.Rptr.
113].) If the court decides to present this issue to the jury, multiple target offenses
must be inserted in elements 1 and 2, and the paragraph immediately following the
elements.
AUTHORITY
• Elements. Pen. Code, § 653j.
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 34.
CALCRIM No. 442 AIDING AND ABETTING
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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.10, 141.11 (Matthew Bender).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 441, Solicitation: Elements.
AIDING AND ABETTING CALCRIM No. 442
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