SERIES 1100 SEX OFFENSES
F 1110 NOTES
TABLE OF CONTENTS
F 1110 Note 1 Lewd Or Lascivious Act: Child Under 14 Years—CALCRIM Cross-References And Research Notes
F 1110 Note 2 Lewd Act With Child: Constructive Touching: Specific Intent (PC 288(a))
F 1110 Note 3 Lewd Act With Child: Removal of Clothes As Lewd Act (PC 288(a))
F 1110 Note 4 Lewd Act With Child: Repeat Offender Priors May Be Admitted/Bifurcated (PC 288(a))
F 1110 Note 5 Lewd Act With Child: Multiple Convictions For Single Incident (PC 288(a))
F 1110 Note 6 Defendant’s Youth Relevant To Intent
F 1110 Note 7 Sexual Offenses Against Minors: Evidence Of Victim’s Sexual Activity With Third Party To Show Child’s Ability To Describe Sex Acts
F 1110 Note 8 Sexual Offenses Against Minors: Defense Should Be Allowed To Present Evidence That The Complainant Had Preexisting Knowledge About Sexual Matter
F 1110 Note 9 Sexual Offenses Against Minors: Defense Counsel Should Be Vigilant In Protecting The Confrontation Clause Against The Constant Erosion Which Is Occurring In Child Molestation Cases
F 1110 Note 10 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1110 Note 1 Lewd Or Lascivious Act: Child Under 14 Years—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1000 Notes
CALCRIM 1111 [Lewd or Lascivious Act: By Force or Fear]
CALCRIM 1112 [Lewd or Lascivious Act: Child 14 or 15 Years]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1110 Note 2 Lewd Act With Child: Constructive Touching: Specific Intent (PC 288(a))
Where the prosecution proceeds upon the theory that the requisite touching was done by the child on his own person at the defendant’s instigation, it is error to instruct the jury upon an aiding and abetting theory absent evidence that the child had the requisite lewd intent. (People v. Pitts (1990) 223 CA3d 606, 892-93.)
Rather, the jury must be instructed that the defendant’s liability is as a principal, predicated on the theory of constructive touching (see People v. Meacham (1984) 152 CA3d 142, 152-54) or use of the child as an innocent agent (instrumentality) by which the offense was committed (see People v. Austin (1980) 111 CA3d 110, 114-15). (Pitts at 889-90.) To establish such a theory, the prosecution must prove that the child touched its own person at the instigation of the defendant who had the required specific intent. (Meacham, 152 CA3d at 153.)
CALJIC NOTE: See FORECITE F 10.41 n1.
F 1110 Note 3 Lewd Act With Child: Removal of Clothes As Lewd Act (PC 288(a))
The jury may also find a lewd act within the meaning of PC 288(a) if the defendant with the requisite specific intent, compels the victim to remove his/her clothes. (People v. Mickle (1990) 54 C3d 140, 175-76.)
CALJIC NOTE: See FORECITE F 10.41 n3.
F 1110 Note 4 Lewd Act With Child: Repeat Offender Priors May Be Admitted/Bifurcated (PC 288(a))
Under the reasoning of People v. Bouzas (1991) 53 C3d 467, a defendant charged with a violation of PC 288 as a repeat offender per PC 667.51, may admit the prior conviction allegations to avoid allowing them to go to the jury. This is so because PC 667.51 establishes a punishment, not a discrete crime. (People v. Webb (1992) 7 CA4th 575, 578-80.)
As to bifurcation, see FORECITE F 12.65 n2.
CALJIC NOTE: See FORECITE F 10.41 n5.
F 1110 Note 5 Lewd Act With Child: Multiple Convictions For Single Incident (PC 288(a))
The question of whether multiple convictions are permissible under PC 288 for distinct, undefined lewd acts during a single incident was decided by the California Supreme Court in People v. Scott (1994) 9 C4th 331. The court held that fondling activities are not necessarily indivisible from other sex crimes committed on the same occasion; each distinct act can result in a separate violation of PC 288 and is consistent with the manner in which violations are calculated under statutes prohibiting other sexual acts. Scott held that as long as each unlawful sexual act is completed, i.e., the perpetrator has stopped and resumed unlawful activity during a sexual assault, it may form the basis of a separate conviction. (Scott, 9 C4th at 345.)
CALJIC NOTE: See FORECITE F 10.41 n9.
F 1110 Note 6 Defendant’s Youth Relevant To Intent
In re Jerry M. (1997) 59 CA4th 289 held that an 11-year old may be guilty of committing a lewd act on a child under 14 (PC 288(a)) even if younger than the victim, so long as the 11-year old has the requisite intent and the act is not consensual; however, in determining requisite intent, including the intent for sexual arousal, the young age of the defendant will be a factor. To violate the statute the minor must understand the wrongfulness of the conduct and act with the requisite intent, which includes the intent to sexually arouse.
CALJIC NOTE: See FORECITE F 10.41 n11.
F 1110 Note 7 Sexual Offenses Against Minors: Evidence Of Victim’s Sexual Activity With Third Party To Show Child’s Ability To Describe Sex Acts
It has been recognized that evidence of the prosecuting witness’s prior sexual experience with other persons may be admissible for purposes of showing an alternative source of the child’s ability to describe sex acts. (See Imwinkelried and Garland Exculpatory Evidence (2d Ed. 1996) § 9-4(b); Annotation, “Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child’s ability to describe sex acts” 83 ALR 4th 685 (1991); Note, “The Sexual Innocence Inference Theory As A Basis For The Admissibility Of A Child Molestation Victim’s Prior Sexual Conduct” (1993) 91 Mich. L. Rev. 827; Franklin v. Henry (9th Cir. 1997) 122 F3d 1270, 1273 [exclusion of defendant’s testimony that child had previously accused mother of similar act of sexual abuse denied defendant due process]; Commonwealth v. Scheffer (Mass. 1990) 683 NE2d 1043 [jury is entitled to determine whether child’s knowledge of sexual activity was the result of her experience with the accused, or the result of her experience with a third party].)
CALJIC NOTE: See FORECITE F 10.41 n12.
F 1110 Note 8 Sexual Offenses Against Minors: Defense Should Be Allowed To Present Evidence That The Complainant Had Preexisting Knowledge About Sexual Matter
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
CALJIC NOTE: See FORECITE F 10.41 n13.
F 1110 Note 9 Sexual Offenses Against Minors: Defense Counsel Should Be Vigilant In Protecting The Confrontation Clause Against The Constant Erosion Which Is Occurring In Child Molestation Cases
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
ALERT: Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] reaffirmed the importance of the defendant’s 6th Amendment right to confrontation. (See FORECITE PG VII(C)(43) [Crawford update].)
CALJIC NOTE: See FORECITE F 10.41 n14.
F 1110 Note 10 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
