SERIES 1100 SEX OFFENSE
F 1121 Annoying Or Molesting A Child In A Dwelling (PC 647.6(a)–(c))
TABLE OF CONTENTS
F 1121.1 Titles And Identification Of Parties
F 1121.1 Inst 1 Annoying Or Molesting A Child In A Dwelling—Title
F 1121.1 Inst 2 Identification Of Prosecution And Defendant
F 1121.2 Annoying Or Molesting A Child In A Dwelling—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1121.3 Annoying Or Molesting A Child In A Dwelling—Language That Is Argumentative, Confusing, Etc.
F 1121.3 Inst 1 Deletion Of Argumentative Language
F 1121.3 Inst 2 Deletion Of Argumentative Language
F 1121.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1121.4 Annoying Or Molesting A Child In A Dwelling—Burden Of Proof Issues
F 1121.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1121.4 Inst 2 Actual And Reasonable Belief That Victim Was 18 Or Over—Modification Of Burden Shifting Language
F 1121.4 Inst 3 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1121.5 Annoying Or Molesting A Child In A Dwelling—Elements And Definitions
F 1121.5 Inst 1 Inhabited Element: Separate Enumeration Incorporating Definition
F 1121.5 Inst 2 Lack Of Consent: Separate Enumeration
F 1121.5 Inst 3 Prohibited Acts Must Be “Committed”
F 1121.5 Inst 4 Objective Reasonableness
F 1121.6 Annoying Or Molesting A Child In A Dwelling—Defense Theories [Reserved]
F 1121.7 Annoying Or Molesting A Child In A Dwelling—Preliminary Fact Issues [Reserved]
F 1121.8 Annoying Or Molesting A Child In A Dwelling—Unanimity/Duplicity/Multiplicity [Reserved]
F 1121.9 Annoying Or Molesting A Child In A Dwelling—Lesser Offense Issues [Reserved]
F 1121 Notes
F 1121 Note 1 Annoying Or Molesting A Child In A Dwelling—CALCRIM Cross-References And Research Notes
F 1121 Note 2 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1121.1 Titles And Identification Of Parties
F 1121.1 Inst 1 Annoying Or Molesting A Child In A Dwelling—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1121.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1121.2 Annoying Or Molesting A Child In A Dwelling—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1121.3 Annoying Or Molesting A Child In A Dwelling—Language That Is Argumentative, Confusing, Etc.
F 1121.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1121, paragraph 4, as follows [deleted language is stricken]:
[It is not a defense that the child may have consented to the act.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1121.3 Inst 2 Deletion Of Argumentative Language
*Modify CC 1121, paragraph 3, as follows [deleted language is stricken]:
[It is not necessary that the child actually be irritated or disturbed.] [It is [also] not necessary that the child actually be touched.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 1121.3 Inst 3.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 1121.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1121, paragraph 3:
Alternative a [fact not disputed]:
However, the fact that _______________ <name of alleged victim> was not actually touched, irritated or disturbed is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged ______________] [_____________<insert specific element to which the evidence relates>.
Alternative b [fact disputed]:
However, whether or not _______________ <name of alleged victim> was not actually touched, irritated or disturbed is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [________________<insert specific element to which the evidence relates>.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1121.4 Annoying Or Molesting A Child In A Dwelling—Burden Of Proof Issues
F 1121.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1121.4 Inst 2 Actual And Reasonable Belief That Victim Was 18 Or Over—Modification Of Burden Shifting Language
See FORECITE F 1070.4 Inst 2.
F 1121.4 Inst 3 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1121.5 Annoying Or Molesting A Child In A Dwelling—Elements And Definitions
F 1121.5 Inst 1 Inhabited Element: Separate Enumeration Incorporating Definition
*Modify CC 1121 Element 1 as follows [added language is underlined; deleted language is stricken]:
1. The defendant entered an inhabited a (dwelling house/part of a building/trailer coach) without consent;
AND
[2. When the defendant entered the (dwelling house/part of a building/trailer coach) [someone] [ _______________ <name of alleged inhabitant>] was using it as a dwelling whether or not (he/she/they) were inside at the time of the alleged conduct; AND]
[2. When the defendant entered the (dwelling house/part of a building/trailer coach) [someone] [ _______________ <name of alleged inhabitant>] had been using it as a dwelling house but had left only because a natural or other disaster caused him or her to leave; AND]
3. The defendant did so without consent;
AND
[Renumber remaining elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Separate Enumeration: Inhabited And Lack Of Consent—Because the inhabited and lack of consent requirements are discrete elements, they should be separately enumerated. (See FORECITE F 3500.2 Inst 1.)
Incorporate Definition In Element—See FORECITE F 417.5 Inst 2.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1121.5 Inst 2 Lack Of Consent: Separate Enumeration
See FORECITE F 1121.5 Inst 1.
F 1121.5 Inst 3 Prohibited Acts Must Be “Committed”
*Modify CC 1121, Element 2, as follows [added language is underlined; deleted language is stricken]:
[Change “engaged in” to “committed“]
Points and Authorities
See FORECITE F 1120.5 Inst 1.
F 1121.5 Inst 4 Objective Reasonableness
*Modify CC 1121, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. A normal person reasonable person in _______________’s <name of alleged victim> situation, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct;
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Objective Reasonableness—See FORECITE F 820.5 Inst 3, see also People v. Lopez (1998) 18 C4th 282, 289-90.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1121.6 Annoying Or Molesting A Child In A Dwelling—Defense Theories[Reserved]
F 1121.7 Annoying Or Molesting A Child In A Dwelling—Preliminary Fact Issues [Reserved]
F 1121.8 Annoying Or Molesting A Child In A Dwelling—Unanimity/Duplicity/Multiplicity [Reserved]
F 1121.9 Annoying Or Molesting A Child In A Dwelling—Lesser Offense Issues[Reserved]
F 1121 NOTES
F 1121 Note 1 Annoying Or Molesting A Child In A Dwelling—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1120 Notes
CALCRIM 1112 [Lewd or Lascivious Act: Child 14 or 15 Years]
CALCRIM 1120 [Continuous Sexual Abuse]
CALCRIM 1122 [Annoying or Molesting a Child]
CALCRIM 1123 [Aggravated Sexual Assault of Child Under 14 Years]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1121 Note 2 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
