SERIES 1100 SEX OFFENSES
F 1141 NOTES
TABLE OF CONTENTS
F 1141 Note 1 Distributing Obscene Matter Showing Sexual Conduct By A Minor—CALCRIM Cross-References And Research Notes
F 1141 Note 2 Federal Internet Pornography Statute Held Not To Violate The First Amendment
F 1141 Note 3 Multiple Convictions: Downloading Of Child Pornography
F 1141 Note 4 Possession Of Child Pornography: Expert Testimony As To Apparent Age Of Child (PC 311.11)
F 1141 Note 5 Possession Of Child Pornography: Commercial Purposes (PC 311.4(b))
F 1141 Note 6 Child Pornography: Felony Possession
F 1141 Note 7 Child Pornography: Federal Internet Offenses
F 1141 Note 8 Child Pornography: Virtual Images Do Not Violate The Federal Child Pornography Protection Act
F 1141 Note 9 Child Pornography (PC 311.2): Nudity Not Required
F 1141 Note 10 Child Pornography: “Sexual Conduct”—Whether Court Is Required To Instruct Sua Sponte On The Meaning Of “Exhibition Of The Genitals” Or “For The Purpose Of Sexual Stimulation Of The Viewer”
F 1141 Note 11 Child Pornography Felony
F 1141 Note 12 Sex Crimes: Entrapment
F 1141 Note 13 Law Enforcement Agent Defense: Prosecution Required To Disprove Beyond A Reasonable Doubt Because The Defense Relates To Defendant’s Conduct
Return to Series 1100 Table of Contents.
F 1141 Note 1 Distributing Obscene Matter Showing Sexual Conduct By A Minor—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1140 [Showing or Sending Harmful Material to Seduce 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 1141 Note 2 Federal Internet Pornography Statute Held Not To Violate The First Amendment
Ashcroft v. Free Speech Coalition (2002) 535 US 234 [152 LEd2d 403; 122 SCt 1389] held that the 1998 Child Online Protection Act is not unconstitutionally overbroad and does not improperly regulate speech on the Internet; however, the court did not resolve how Congress may regulate speech on the web, and the ultimate resolution of the statute is still unclear.
In Reno v. American Civil Liberties Union (1997) 521 US 844 [138 LEd2d 874; 117 SCt 2329], the United States Supreme Court invalidated the 1996 Communications Decency Act as unconstitutionally overbroad. The 1998 Child Online Protection Act was enacted in response to Reno making it a crime to “knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, [make] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.” (47 USC 231(a)(1).)
“Material that is harmful to minors” is defined in 47 USC 231(e)(6).
CALJIC NOTE: See FORECITE F 10.80 n1.
F 1141 Note 3 Multiple Convictions: Downloading Of Child Pornography
(See FORECITE F 3515.2 Note 17 [17.02 n16].)
CALJIC NOTE: See FORECITE F 10.80 n2.
F 1141 Note 4 Possession Of Child Pornography: Expert Testimony As To Apparent Age Of Child (PC 311.11)
(See People v. Kurey (2001) 88 CA4th 840, 847 [proof that children in pornographic films were under 18 was properly established by expert testimony as to their apparent age].)
CALJIC NOTE: See FORECITE F 10.80 n3.
F 1141 Note 5 Possession Of Child Pornography: Commercial Purposes (PC 311.4(b))
People v. Cochran (2002) 28 C4th 396 held that the Court of Appeal erred when it focused solely on whether the defendant had financially profited from his “video making enterprise.” (Cochran, 28 C4th at 407.)
CALJIC NOTE: See FORECITE F 10.80 n4.
F 1141 Note 6 Child Pornography: Felony Possession
Assembly Bill 1012 amended PC 311.11. Effective January 1, 2001, it is a felony to possess child pornography if the person has a prior conviction for any of the offenses specified, including possession of child pornography; sale, distribution, or production of matter depicting sexual conduct by a minor; and use of a minor to produce matter depicting sexual conduct by a minor (PC 311.2(b) and PC 311.4(b)). (Stats. 2001, Ch. 559.)
CALJIC NOTE: See FORECITE F 10.80 n5.
F 1141 Note 7 Child Pornography: Federal Internet Offenses
The California child pornography statute includes liability for Internet-related violations. (See PC 311.2(b).) [See Article Bank # A-90foran article discussing defending internet child pornography cases.]
CALJIC NOTE: See FORECITE F 10.80 n6.
F 1141 Note 8 Child Pornography: Virtual Images Do Not Violate The Federal Child Pornography Protection Act
The Child Pornography Protection Act of 1996 expanded the federal prohibition on child pornography to include not only pornographic images made using actual children (18 USC 2256(8)(A)) but also “any visual depiction including any photograph, film, video, picture or computer or computer-generated image or picture” of a minor. (18 USC 2256(8)(B).) Thus, 18 USC 2256(8)(B) banned a range of sexually explicit images, sometimes called “virtual child pornography.” However, in Ashcroft v. Free Speech Coalition (2002) 535 US 234 [152 LEd2d 403; 122 SCt 1389], the Supreme Court held that the prohibitions of the Child Pornography Act (18 USC 2256(8)(B) and 18 USC 2256(8)(D) were overbroad and unconstitutional under the teachings of Miller v. California (1973) 413 US 15 [37 LEd2d 419; 93 SCt 2607] and New York v. Ferber (1982) 458 US 747 [73 LEd2d 1113; 102 SCt 3348].
CALJIC NOTE: See FORECITE F 10.80 n7.
F 1141 Note 9 Child Pornography (PC 311.2): Nudity Not Required
(See People v. Spurlock (2003) 114 CA4th 1122 [exhibition of genitals is required, but that exhibition includes clothed genitals; a depiction of genitals created for the sexual stimulation of the viewer suffices as an exhibition of genitals].)
CALJIC NOTE: See FORECITE F 10.80 n8.
F 1141 Note 10 Child Pornography: “Sexual Conduct”—Whether Court Is Required To Instruct Sua Sponte On The Meaning Of “Exhibition Of The Genitals” Or “For The Purpose Of Sexual Stimulation Of The Viewer”
In People v. Spurlock (2003) 114 CA4th 1122 the trial court instructed the jury on the meaning of “sexual conduct” by providing the jury with the exact language of the statute. The jury was instructed, “Sexual conduct means any of the following, whether actual or simulated: … exhibition of genitals, pubic or rectal area for the purposes of sexual stimulation of the viewer ….” (See PC 311.3(b) and PC 311.4(d)(1).) The defendant did not seek any further instruction on this point, but on appeal contended that the trial court should have given the jury special instructions further explaining what an “exhibition of the genitals” was and what “for the purpose of sexual stimulation of the viewer” meant by perhaps instructing the jury on the Dost factors. (See United States v. Dost (S.D.Cal. 1986) 636 FSupp 828, 831, affirmed sub nom. U.S. v. Wiegand (9th Cir. 1987) 812 F2d 1239.)
The Dost factors, a widely adopted set of considerations used to help determine whether there has been a prohibited exhibition of a minor child’s genitals, pubic, or rectal area are:
1) whether the focal point is on the child’s genitalia or pubic area;
2) whether the setting is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the child’s conduct suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the conduct is intended or designed to elicit a sexual response in the viewer. (See Dost, 636 FSupp at 832; People v. Kongs (1994) 30 CA4th 1741, 1754-1755.)
CALJIC NOTE: See FORECITE F 10.80 n9.
F 1141 Note 11 Child Pornography Felony
(See People v. Baird (2004) 116 CA4th 1318 [violation of PC 311(d) must be punished as a felony, even for a first time offender, rather than as a misdemeanor under section PC 311.9(a)].)
CALJIC NOTE: See FORECITE F 10.80 n10.
F 1141 Note 12 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
F 1141 Note 13 Law Enforcement Agent Defense: Prosecution Required To Disprove Beyond A Reasonable Doubt Because The Defense Relates To Defendant’s Conduct
The Bench Notes for CALCRIM 1141 state that it is “unclear who bears the burden of proof and what standard of proof applies” to the defense specified under PC 311.2(e) [immunity given to law enforcement agents]. However, because the defense relates to the defendant’s conduct, the burden should be on the prosecution to disprove it beyond a reasonable doubt.
See FORECITE F 3403 Inst 4.
