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SERIES 1100 SEX OFFENSES

F 1142 Distributing Or Intending To Distribute Obscene Material (PC 311.2(a))

TABLE OF CONTENTS
F 1142.1 Titles And Identification Of Parties
F 1142.1 Inst 1 Distributing Or Intending To Distribute Obscene Material—Title
F 1142.1 Inst 2 Identification Of Prosecution And Defendant

F 1142.2 Distributing Or Intending To Distribute Obscene Material—Tailoring To Facts: Persons, Places, Things And Theories
F 1142.2 Inst 1 Tailoring To Facts

F 1142.3 Distributing Or Intending To Distribute Obscene Material—Language That Is Argumentative, Confusing, Etc.
F 1142.3 Inst 1 Jurors Not Required To Decide
F 1142.3 Inst 2 Deletion Of Argumentative Language
F 1142.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence

F 1142.4 Distributing Or Intending To Distribute Obscene Material—Burden Of Proof Issues
F 1142.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1142.4 Inst 2 Modification Of Burden Shifting Language

F 1142.5 Distributing Or Intending To Distribute Obscene Material—Elements And Definitions
F 1142.5 Inst 1 Concurrence Of Act And Intent
F 1142.5 Inst 2 Reasonable Person Standard

F 1142.6 Distributing Or Intending To Distribute Obscene Material—Defense Theories
F 1142.6 Inst 1 Possession: Instructions And Issues

F 1142.7 Distributing Or Intending To Distribute Obscene Material—Preliminary Fact Issues

F 1142.8 Distributing Or Intending To Distribute Obscene Material—Unanimity/Duplicity/Multiplicity [Reserved]

F 1142.9 Distributing Or Intending To Distribute Obscene Material—Lesser Offense Issues [Reserved]

F 1142 Notes
F 1142 Note 1 Distributing Or Intending To Distribute Obscene Material—CALCRIM Cross-References And Research Notes
F 1142 Note 2 Obscenity Statutes Not Barred By Right To Privacy (PC 311)
F 1142 Note 3 Sex Crimes: Entrapment

F 1142 Note 4 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 1142.1 Titles And Identification Of Parties

F 1142.1 Inst 1 Distributing Or Intending To Distribute Obscene Material—Title

See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.


F 1142.1 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 1142.2 Distributing Or Intending To Distribute Obscene Material—Tailoring To Facts: Persons, Places, Things And Theories

F 1142.2 Inst 1 Tailoring To Facts

*Modify CC 1142, Alternative 1C, Element 1, and Alternative 1D, Element 1 and 3, as follow [added language is underlined; deleted language is stricken]:

. . . to someone else _______________ <name of other person>;]

Points and Authorities

See FORECITE F 400.2 Inst 1.


F 1142.3 Distributing Or Intending To Distribute Obscene Material—Language That Is Argumentative, Confusing, Etc.

F 1142.3 Inst 1 Jurors Not Required To Decide

*Modify CC 1142, paragraph 3, as follows [added language is underlined]:

You must attempt to decide whether the material at issue in this case meet[s] the definition of obscene material. Material, when considered as a whole, is obscene if:

*Modify CC 1142, paragraph 7, sentence 1, as follows [added language is underlined; deleted language is stricken]:

[You may consider evidence of local community standards in deciding attempting to decide what the contemporary statewide standards are.

*Modify CC 1142, paragraph 15, as follows [added language is underlined; deleted language is stricken]:

[In deciding attempting to decide the material’s character and whether it lacks serious literary, artistic, political, or scientific value, consider . . .

*Modify CC 1142, paragraph 16, as follows [added language is underlined; deleted language is stricken]:

[In deciding attempting to decide whether the material lacks serious literary, artistic, political, or scientific value, you may [also] consider . . .

*Modify CC 1142, paragraph 17, as follows [added language is underlined; deleted language is stricken]:

[In deciding attempting to decide whether, according to contemporary statewide standards, the material appeals to a prurient interest, you may consider . . .

Points and Authorities

See FORECITE F 100.7 Inst 1.


F 1142.3 Inst 2 Deletion Of Argumentative Language

*Modify CC 1142, paragraph 12, 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 obscene.

Points and Authorities

See FORECITE F 1140.3 Inst 1.


F 1142.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence

See FORECITE F 1140.3 Inst 2.


F 1142.4 Distributing Or Intending To Distribute Obscene Material—Burden Of Proof Issues

F 1142.4 Inst 1 Relating Prosecution Burden To Enumerated Elements

See FORECITE F 400.4 Inst 1.


F 1142.4 Inst 2 Modification Of Burden Shifting Language

*Modify CC 1142, paragraph 22 & 23, as follows [added language is underlined; deleted language is stricken]:

<Defense: Legitimate scientific or educational purpose>

[The defendant is not guilty of this crime if (he/she) was engaging in legitimate medical, 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 medical, scientific, or educational purpose. If the People have not met this burden, you must find the defendant not guilty of this crime.]

<Defense: Law enforcement agent>

[The defendant is not guilty of this offense if (he/she) was a member [or agent] of a law enforcement or prosecuting agency and was involved in the investigation or prosecution of criminal offenses. The People have the burden of proving unless the prosecution has proven beyond a reasonable doubt that the defendant was not acting as a member [or agent] of a law enforcement or prosecuting agency. 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 1142.5 Distributing Or Intending To Distribute Obscene Material—Elements And Definitions

F 1142.5 Inst 1 Concurrence Of Act And Intent

*Modify CC 1142, Alternative 1D, Element 2 and 3, as follows [added language is underlined; deleted language is stricken]:

2. When the defendant acted did so, (he/she) knew the character of the material(;/.)

<Give element 3 when instructing with alternative 1A, 1B, or 1C; see Bench Notes.>

[AND

3. When the defendant acted did so, (he/she) intended to (sell or distribute/distribute or show/distribute) the material to someone else.]

Points and Authorities

See FORECITE F 251 Inst 3.


F 1142.5 Inst 2 Reasonable Person Standard

*Modify CC 1142, paragraph 3, item 2, as follows [added language is underlined]:

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;

*Modify CC 1142, paragraph 8, as follows

The material is not obscene 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 whether the material is obscene, do not weigh its value against its prurient appeal.

Points and Authorities

See FORECITE F 1140.5 Inst 2.


F 1142.6 Distributing Or Intending To Distribute Obscene Material—Defense Theories

F 1142.6 Inst 1 Possession: Instructions And Issues

Re: CC 1142, paragraphs 19 & 20, see FORECITE F 3306.


F 1142.7 Distributing Or Intending To Distribute Obscene Material—Preliminary Fact Issues [Reserved]


F 1142.8 Distributing Or Intending To Distribute Obscene Material—Unanimity/Duplicity/Multiplicity [Reserved]


F 1142.9 Distributing Or Intending To Distribute Obscene Material—Lesser Offense Issues [Reserved]


F 1142 NOTES

F 1142 Note 1 Distributing Or Intending To Distribute Obscene Material—CALCRIM Cross-References And Research Notes

CALCRIM Cross-References:

See FORECITE F 1140 Notes

See FORECITE F 1141 Notes

CALCRIM 1140 [Showing or Sending Harmful Material to Seduce a Minor]
CALCRIM 1141 [Distributing Obscene Matter Showing Sexual Conduct by a Minor]
CALCRIM 1143 [Obscene Live Conduct]

Research Notes:

See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.


F 1142 Note 2 Obscenity Statutes Not Barred By Right To Privacy (PC 311)

California’s obscene matter statutes (PC 311 and PC 311.2) are not invalid as a violation of right to privacy under Art. I, §1 of the California constitution. (People v. Wiener (1994) 29 CA4th 1300, 1307.)

CALJIC NOTE: See FORECITE F 16.194.5 n2.


F 1142 Note 3 Sex Crimes: Entrapment

See FORECITE F 1000 Note 5.


F 1142 Note 4 Law Enforcement Agent Defense: Prosecution Required To Disprove Beyond A Reasonable Doubt Because The Defense Relates To Defendant’s Conduct

See FORECITE F 1141 Note 13.

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