SERIES 1100 SEX OFFENSES
F 1140 Showing Or Sending Harmful Material To Seduce A Minor (PC 288.2(a) & (b))
TABLE OF CONTENTS
F 1140.1 Titles And Identification Of Parties
F 1140.1 Inst 1 Showing Or Sending Harmful Material To Seduce A Minor—Title
F 1140.1 Inst 2 Identification Of Prosecution And Defendant
F 1140.2 Showing Or Sending Harmful Material To Seduce A Minor—Tailoring To Facts: Persons, Places, Things And Theories
F 1140.2 Inst 1 Tailoring To Facts
F 1140.3 Showing Or Sending Harmful Material To Seduce A Minor—Language That Is Argumentative, Confusing, Etc.
F 1140.3 Inst 1 Deletion Of Argumentative Language
F 1140.3 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1140.4 Showing Or Sending Harmful Material To Seduce A Minor—Burden Of Proof Issues
F 1140.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1140.4 Inst 2 Modification Of Burden Shifting Language
F 1140.5 Showing Or Sending Harmful Material To Seduce A Minor—Elements And Definitions
F 1140.5 Inst 1 Concurrence Of Act And Intent
F 1140.5 Inst 2 Jurors Not Required To Decide; Reasonable Person Standard
F 1140.5 Inst 3 Jurors Must Consider Relevant Evidence
F 1140.5 Inst 4 Harmful Matter To Minor: Definition Of Harmful Matter (PC 288.2)
F 1140.5 Inst 5 Harmful Matter To Minor (PC 288.2(b): Definition Of “Seduce”
F 1140.6 Showing Or Sending Harmful Material To Seduce A Minor—Defense Theories [Reserved]
F 1140.7 Showing Or Sending Harmful Material To Seduce A Minor—Preliminary Fact Issues [Reserved]
F 1140.8 Showing Or Sending Harmful Material To Seduce A Minor—Unanimity/Duplicity/Multiplicity [Reserved]
F 1140.9 Showing Or Sending Harmful Material To Seduce A Minor—Lesser Offense Issues [Reserved]
F 1140 Notes
F 1140 Note 1 Showing Or Sending Harmful Material To Seduce A Minor—CALCRIM Cross-References And Research Notes
F 1140 Note 2 Harmful Matter: Constitutionality Alert
F 1140 Note 3 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1140.1 Titles And Identification Of Parties
F 1140.1 Inst 1 Showing Or Sending Harmful Material To Seduce A Minor—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1140.1 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 1140.2 Showing Or Sending Harmful Material To Seduce A Minor—Tailoring To Facts: Persons, Places, Things And Theories
F 1140.2 Inst 1 Tailoring To Facts
*Modify CC 1140 as follows [added language is underlined; deleted language is stricken]:
[Change “a minor” or “the minor” to “_______________ <name of alleged victim>“]
Points and Authorities
See FORECITE F 1110.2 Inst 1.
F 1140.3 Showing Or Sending Harmful Material To Seduce A Minor—Language That Is Argumentative, Confusing, Etc.
F 1140.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1140, paragraph 11, as follows [deleted language is stricken]:
The People must prove that the defendant knew the character of the material but do not need to prove that the defendant knew whether the material met the definition of harmful material.
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 1140.3 Inst 2.)
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 1140.3 Inst 2 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1140, paragraph 11 [if the argumentative language in that paragraph is not deleted; but see FORECITE F 1140.3 Inst 1]:
Alternative a [fact not disputed]:
However, the fact that the defendant did not know the material met the definition of harmful 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 the defendant knew the material met the definition of harmful 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 1140.4 Showing Or Sending Harmful Material To Seduce A Minor—Burden Of Proof Issues
F 1140.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1140.4 Inst 2 Modification Of Burden Shifting Language
*Modify CC 1140, paragraph 21 & 22, as follows [added language is underlined; deleted language is stricken]:
<Defense: Parent providing sex education.>
[A parent or guardian is not guilty of this offense if he or she acted to promote legitimate sex education. The People must prove unless the prosecution has proven beyond a reasonable doubt that the defendant was not providing legitimate sex education. If the People have not met this burden, you must find the defendant not guilty of this crime.]
<Defense: Legitimate scientific or educational purpose.>
[The defendant is not guilty of this crime if (he/she) was engaging in legitimate scientific or educational activities. The People have the burden of proving unless the prosecution has proven beyond a reasonable doubt that the defendant was not acting for a legitimate scientific or educational purpose. If the People have not met this burden, you must find the defendant not guilty of this crime.]
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 1140.5 Showing Or Sending Harmful Material To Seduce A Minor—Elements And Definitions
F 1140.5 Inst 1 Concurrence Of Act And Intent
*Modify CC 1140, Elements 2, 3, 4, 5 and 6 as follows [added language is underlined; deleted language is stricken]:
[Change “When the defendant acted . . .” to “When the defendant did so . . .“]
Points and Authorities
See FORECITE F 251 Inst 3.
F 1140.5 Inst 2 Jurors Not Required To Decide; Reasonable Person Standard
*Modify CC 1140, paragraph 3, as follows [added language is underlined]:
You must attempt to decide whether the prosecution has proven beyond a reasonable doubt that the material at issue in this case meet[s] the definition of harmful material. Material is harmful if, when considered as a whole:
. . .
2. A reasonable person, in the same situation, considering all the circumstances as they were known to and appeared to the person at the time, would conclude that it lacks serious literary, artistic, political, or scientific value for minors;
*Modify CC 1140, paragraph 8, as follows [added language is underlined; deleted language is stricken]:
The material is not harmful unless a reasonable person, in the same situation, considering all the circumstances as they were known to and appeared to the person at the time, would conclude that, taken as a whole, it lacks serious literary, artistic, political, or scientific value. When deciding attempting to decide whether the material is harmful, do not weigh its value against its prurient appeal.
*Modify CC 1140, paragraph 15, as follows [added language is underlined; deleted language is stricken]:
[In deciding attempting to decide the material’s nature and whether it lacks serious literary, artistic, political, or scientific value, consider . . .
*Modify CC 1140, paragraph 17, as follows [added language is underlined; deleted language is stricken]:
[In deciding attempting to decide whether, applying contemporary statewide standards, the material appeals to a prurient interest, you may consider whether similar material is openly shown in the community. You must determine the weight, if any, to give this evidence.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
No Duty To Decide—See FORECITE F 100.7 Inst 1.
Reasonable Person Standard—See FORECITE F 820.5 Inst 3.
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 1140.5 Inst 3 Jurors Must Consider Relevant Evidence
*Modify CC 1140, paragraph 17, as follows [deleted language is stricken]:
[In deciding whether, applying contemporary statewide standards, the material appeals to a prurient interest, you may consider whether similar material is openly shown in the community. You must determine the weight, if any, to give this evidence.]
Points and Authorities
See FORECITE F 105.2 Inst 1.
F 1140.5 Inst 4 Harmful Matter To Minor: Definition Of Harmful Matter (PC 288.2)
*Add to CC 1140 as follows:
“Harmful matter” means matter which, taken as a whole to the average person applying contemporary statewide standards, appeals to the prurient interests and depicts or describes in a patently offensive way sexual conduct and lacks serious literary, artistic, political, or scientific value for minors.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Harmful Matter—Harmful matter is defined in PC 313(a). That section was amended in 1988. (See also People v. Jensen (2003) 114 CA4th 224, 242 [re: defining harmful matter].)
Even if the definition of “harmful matter” in PC 313 fails to comport with federal constitutional definitions of obscenity, the state may still regulate such matter if it is necessary to further a significant government interest such as protecting minors. (See American Booksellers Association, Inc. v. Superior Court (1982) 129 CA3d 197, 202.)
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.
CALJIC NOTE: See FORECITE F 18.01a.
F 1140.5 Inst 5 Harmful Matter To Minor (PC 288.2(b): Definition Of “Seduce”
*Replace CC 1140 definition of “seduce” with the following:
An element of the charge is that the defendant committed the alleged conduct with the intent or purpose of seducing a minor. To establish this element the prosecution must prove beyond a reasonable doubt that the defendant:
1. Intended to entice _______________ <name of alleged victim> to engage in a sexual act involving actual physical conduct between the defendant and _______________ <name of alleged victim>; and
2. Intended that the sexual act be committed in partnership with the defendant.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Required Intent—The statutory element of “the intent, or for the purpose of seducing a minor” requires an intent by the perpetrator to engage in a sexual act with the minor. (People v. Jensen (2003) 114 CA4th 224, 239-40 held that, as used in PC 288.2(b), “the word ‘seducing’ was not intended to have the vague meaning of ‘lead[ing] astray’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1057) but to have the precise meaning of ‘carry[ing] out the physical seduction of: entic[ing] to sexual intercourse.’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1057.) And, in this context, ‘sexual intercourse’ clearly refers to ‘intercourse involving genital contact between individuals’ rather than ‘heterosexual intercourse involving penetration of the vagina by the penis.’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1074.) The ‘seducing’ intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor. Hence, intending to entice a male minor to masturbate himself does not satisfy this ‘seducing’ intent element of PC 288.2(b).” (See People v. Jensen (2003) 114 CA4th 224, 244 [trial court prejudicially erred in defining “intent or purpose of seducing” element of attempted Penal Code section 288.2(b) (exhibition of harmful matter to minor over the Internet) to include masturbation as sexual conduct because it permitted jury to base conviction on defendant’s intent to persuade undercover cops posing as children to masturbate alone rather than requiring an intent to persuade them to participate in sexual activity in partnership with defendant]; see also People v. Hsu (2000) 82 CA4th 976.)
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.
CALJIC NOTE: See FORECITE F 18.01b.
F 1140.6 Showing Or Sending Harmful Material To Seduce A Minor—Defense Theories [Reserved]
F 1140.7 Showing Or Sending Harmful Material To Seduce A Minor—Preliminary Fact Issues [Reserved]
F 1140.8 Showing Or Sending Harmful Material To Seduce A Minor—Unanimity/Duplicity/Multiplicity [Reserved]
F 1140.9 Showing Or Sending Harmful Material To Seduce A Minor—Lesser Offense Issues [Reserved]
F 1140 NOTES
F 1140 Note 1 Showing Or Sending Harmful Material To Seduce A Minor—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1141 [Distributing Obscene Matter Showing Sexual Conduct by a Minor]
CALCRIM 1142 [Distributing or Intending to Distribute Obscene Material]
CALCRIM 1143 [Obscene Live Conduct]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1140 Note 2 Harmful Matter: Constitutionality Alert
See Hatch v. Superior Court (2000) 80 CA4th 170, 206, dissenting opinion; see also People v. Hsu (2000) 82 CA4th 976 [commerce and free speech clauses of federal constitution not violated by Penal Code prohibition on Internet transmittal of harmful material to minor with intent of arousing minor’s sexual desires for seduction purposes (PC 288.2); even though statute is content-based, it is narrowly drafted].)
CALJIC NOTE: See FORECITE F 18.01a.
F 1140 Note 3 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.