Return to CALJIC Part 9-12 – Contents
F 10.41 n1 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 then 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 (90) 223 CA3d 606, 892-93 [273 CR 757].)
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 (84) 152 CA3d 142, 152-54 [199 CR 586]) or use of the child as an innocent agent (instrumentality) by which the offense was committed (see People v. Austin (80) 111 CA3d 110, 114-15 [168 CR 401]). (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.)
F 10.41 n2 Lewd Act With Child: “Any Touching” Not Sufficient (PC 288(a)).
It is error to instruct the jury that “any touching” with the intent of sexual arousal violates PC 288. (People v. Soto DEPUBLISHED (93) 18 CA4th 1032, 1039-40 [22 CR2d 881].)
F 10.41 n3 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 (90) 54 C3d 140, 175-76 [284 CR 511].)
F 10.41 n4 Lewd Act With Child: Sufficiency Of Showing Of Physical Force (PC 288(a)).
See People v. Babcock (93) 14 CA4th 383, 386-88 [17 CR2d 688], for a discussion of recent cases which conflict regarding what constitutes sufficient evidence of physical force. (See also CJ 10.42 and CJ 10.42.5.)
F 10.41 n5 Lewd Act With Child: Repeat Offender Priors May Be Admitted/Bifurcated (PC 288(a)).
Under the reasoning of People v. Bouzas (91) 53 C3d 467 [279 CR 847], 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 (92) 7 CA4th 575, 578-80 [8 CR2d 904].)
As to bifurcation, see FORECITE F 12.65 n2.
F 10.41 n6 Lewd Act With Child: Mistake of Age Defense Inapplicable (PC 288(a)).
Although a mistake-of-age defense has been allowed with respect to a charge of unlawful sexual intercourse (PC 261.5), the courts have consistently declined to recognize such a defense in the context of PC 288(a) even if the defendant himself is a minor. (People v. Olsen (84) 36 C3d 638, 647 [205 CR 492]; In re Donald R. (93) 14 CA4th 1627, 1629 [18 CR2d 442]; see also People v. Paz (2000) 80 CA4th 293, 294 [95 CR2d 166] [reasonable, good-faith mistake as to victim’s age no defense to charge of lewd acts on 14-year old (PC 288(c)(1)].)
F 10.41 n7 Lewd Act With Child: Definition Of “Force” (PC 288(a)).
In People v. Neel (93) 19 CA4th 1784, 1790 [24 CR2d 293], the Court of Appeal disagreed with People v. Senior (92) 3 CA4th 765, 774 [5 CR2d 14], and People v. Schulz (92) 2 CA4th 999, 1004 [3 CR2d 799], and held that the acts of pulling the victim back and manipulating the victim’s hand while preventing the victim from pulling away, were sufficient to constitute “force” within the meaning of PC 288(b). (See also People v. Bolander (94) 23 CA4th 155, 161 [28 CR2d 365] [agreeing with Neel and Babcock].)
F 10.41 n8 Lewd Act With Child: Specific Intent Required (PC 288(a)).
CJ 10.41 (1993 Rev.) omits the statutory requirement (PC 288(a)) that the touching be done “willfully and lewdly.” Rather, the instruction, by use of brackets, provides an option to omit the specific intent requirement in lieu of the “objectively sexual” requirement found in People v. Wallace (92) 11 CA4th 568, 580-83 [14 CR2d 67]. Omission of the specific intent requirement in lieu of the Wallace requirement would erroneously remove the specific intent element of PC 288 from the jury’s consideration. (See generally, In re Smith (72) 7 C3d 362, 366 [102 CR 335].)
However, in People v. Martinez (95) 11 C4th 434 [45 CR2d 905], the Supreme Court disapproved People v. Wallace (92) 11 CA4th 568 [14 CR2d 67] and held that “any touching” committed with the requisite intent satisfies PC 288. Hence, the bracketed portion of CJ 10.41 and CJ 10.42 relating to whether the act is “objectively reasonable” should be deleted.
F 10.41 n9 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 (94) 9 C4th 331 [36 CR2d 627]. 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.)
F 10.41 n10 Misdemeanor Child Molestation As Lesser Included Offense Of PC 288(a).
People v. Lopez (98) 19 C4th 282 [79 CR2d 195] held that misdemeanor child molestation (PC 647.6) is not a lesser included offense of PC 288(a).
F 10.41 n11 Defendant’s Youth Relevant To Intent.
In re Jerry M. (97) 59 CA4th 289 [69 CR2d 148] 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.
F 10.41 n12 Child’s 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].)
F 10.41 n13 Sexual Offenses Against Minors: The Defense Should Be Allowed To Present Evidence That The Complainant Had Preexisting Knowledge About Sexual Matters.
See Article Bank # A-95 for an article on this issue, “Evidentiary Issues Frequently Arising In Sex Cases” by Dallas Sacher.
F 10.41 n14 Sexual Offenses Against Minors: Defense Counsel Should Be Vigilant In Protecting The Confrontation Clause Against The Constant Erosion Which Is Occurring In Child Molest 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].)
F 10.41a
Definition of Lewd or Lascivious Act
(PC 288)
*Delete bracketed portion of CJ 10.41 relating to whether the act was “objectively reasonable.”
Points and Authorities
In People v. Martinez (95) 11 C4th 434 [45 CR2d 905], the Supreme Court disapproved of People v. Wallace (92) 11 CA4th 568 [14 CR2d 67] and held that “any touching” committed with the requisite intent satisfies PC 288. (See 11 C4th at 449.) Hence, the bracketed portion of CJ 10.41 and CJ 10.42 relating to whether the act was “objectively reasonable” should be deleted.
Prior History
In People v. Wallace (92) 11 CA4th 568, 580-83 [14 CR2d 67], the court concluded that the CALJIC definition of “lewd and lascivious” act was erroneous and that an “objective-standard” instruction should be given instead. (Id. at 579; see also People v. Gaglione (94) 26 CA4th 1291, 1297-99 [32 CR2d 169]; People v. Self (93) 12 CA4th 1222, 1227 [16 CR2d 67]; but see People v. Soto DEPUBLISHED (93) 18 CA4th 1032, fn 4 [22 CR2d 881].) In response to Wallace, the 1993 CALJIC revision to CJ 10.41, CJ 10.42 and CJ 10.42.5 incorporated the “objectively reasonable” language [“which to an objectively reasonable person is sexually indecent or tends to arouse sexual desire”]. The Use Note indicated that older cases “have approved the traditional definition” and that it was up to the trial court to decide “which definition is appropriate.”
People v. Levesque (95) 35 CA4th 530 [41 CR2d 439], while disagreeing with the Wallace definition, held that the trial court erred in giving the jury two definitions and allowing it to choose which definition to follow. The trial court should have selected one of the definitions, rather than allowing the jury to do so. (35 CA4th at 542.)
In People v. Marquez (94) 28 CA4th 1315, 1321-25 [33 CR2d 821], the defendant contended the pre-1993 version of CJ 10.41 removed the jury’s consideration of whether the touching was lewd to an objectively reasonable person. The Court of Appeal rejected this argument and expressly disagreed with Wallace and Self. Reasoning that it is somewhat analogous to conspiracy (the required overt act need not itself be criminal), the court held that a violation of PC 288(a) does not require the touching to be overtly sexual in itself. Looking to the definitions of “lewd” and “lascivious” noted in People v. Pitts (90) 223 CA3d 606, 887 [273 CR 757], the court concluded that the 1993 terms can be synonymous, and can mean, inter alia, tending to arouse or incite sexual desire or imagination. Under these definitions, any touching done with the required specific intent can be an act tending to arouse or incite sexual desire or imagination. The court concluded that the 1993 revision of CJ 10.41 in response to Wallace does not comport with the statute or the generally accepted definition of “lewd” and “lascivious” in that it is more restrictive than either.
In People v. Sharp (94) 29 CA4th 1772, 1794 [36 CR2d 117], the court disagreed with the CJ comment suggesting that it is required that “the act by itself [be] lewd.” Nevertheless, the Sharp court did not quarrel with the alternative definition in CJ 10.41 (July ‘94 Rev.) but did suggest that the instruction could be improved by including the phrase “under the totality of the circumstances in which it occurred.” (Sharp 29 CA4th at 1795, fn 13.)
In People v. Castro (94) 30 CA4th 390, 400 [34 CR2d 839], the court disagreed with both the pre and post Wallace definitions offered by CJ. Moreover, the court observed that the CJ Use Note “presents a serious problem” because it suggests that the trial court should make a choice between giving the pre-Wallace instruction, and thereby committing federal constitutional error, or giving the Wallace instruction. The Castro court concluded that the instruction should be modified to provide as follows: “A lewd or lascivious act is defined as any touching of the body of a child which is sexually indecent or tends to arouse sexual desire.” (30 CA4th at 401.) The Castro court concluded that this definition eliminates the error identified by Wallace without adding any superfluous language which could confuse jurors. (The Castro court noted that use of the term “sexual act” could confuse the jurors into believing that sexual intercourse is a requirement. (30 CA4th at 400, fn 5.)
In People v. Scott (94) 9 C4th 331, 344, fn 7 [36 CR2d 627], the Supreme Court recognized the split in authority regarding whether the act must be “objectively” sexual but did not resolve the issue.
F 10.41b
Lewd Act: Child Abuse Expert – Limiting Instruction
*Add to CJ 10.41 when the expert testifies and at the conclusion of trial:
The expert’s testimony can be considered by you only for the purpose of understanding and explaining the behavior of [one or more of] the victim[s] in this case, and not as proof that the molestation occurred.
[or]
The expert testimony is admissible solely for the purpose of showing the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested. The expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claim is true.
Points and Authorities
In People v. Gilbert (92) 5 CA4th 1372, 1386-87 [7 CR2d 660], the court rejected the defendant’s argument that a “stronger” instruction should have been given while holding that the first above instruction was “clear, accurate and sufficient.”
In People v. Housley (92) 6 CA4th 947, 957-58 [8 CR2d 431], the Court held that the second above instruction should be given sua sponte. (See also FORECITE F 2.80 n2 and FORECITE F 2.012a.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 10.41c
Defense Pinpoint Instruction Regarding Defense
Theory Of Inadvertent, Casual Or Non-Offensive Touching
*Add to CJ 10.41:
Whether the touching is lewd or lascivious and “lewdly” performed depends upon the sexual motivation and intent with which it is committed. Inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify either the lusts, passions or sexual desires of the defendant or the child are insufficient to qualify as a lewd and lascivious touching. If you have a reasonable doubt as to whether _____________ [insert act or omission which is charged] was committed with the required sexual motivation and intent, you must resolve that doubt in favor of the defendant and return a verdict of not guilty.
Points and Authorities
The “any touching” provision of CJ 10.41 and 10.42, regarding a charge of a lewd act with a child under 14 (PC 288(a) and (b)) was upheld by the California Supreme Court in People v. Martinez (95) 11 C4th 434 [45 CR2d 905]. However, Martinez made it clear that whether the touching is lewd or lascivious depends on the sexual motivation and intent with which it is committed. (11 C4th at 449.) In addition, the concurring opinion of Justice Baxter in People v. Lopez (98) 19 C4th 282, 291 [79 CR2d 195] discussed the fact that in inadvertent or casual non-offensive touching that is unaccompanied by direct or circumstantial evidence of an intent to arouse, appeal to, or gratify the lusts, passions or sexual desires of the defendant or the child is insufficient to qualify as lewd and lascivious touching.
While the intent element is included in the CJ recitation of elements, when the defense is based on a theory that the touching was inadvertent or casual non-offensive touching, the defense should have a right to instruction upon that theory. (See FORECITE PG V(B)(1.1) and PG VII(C)(13) [right to theory of case/defense instruction].
Moreover, the defendant should also have a right to specifically relate the burden of proof to the defense theory. (See FORECITE F 4.45a.)