SERIES 1100 SEX OFFENSES
F 1110 Lewd Or Lascivious Act: Child Under 14 Years (PC 288(a))
TABLE OF CONTENTS
F 1110.1 Titles And Identification Of Parties
F 1110.1 Inst 1 Lewd Or Lascivious Act: Child Under 14 Years—Title
F 1110.1 Inst 2 Identification Of Prosecution And Defendant
F 1110.2 Lewd Or Lascivious Act: Child Under 14 Years—Tailoring To Facts: Persons, Places, Things And Theories
F 1110.2 Inst 1 Tailoring To Facts: Naming Of Alleged Victim
F 1110.3 Lewd Or Lascivious Act: Child Under 14 Years—Language That Is Argumentative, Confusing, Etc.
F 1110.3 Inst 1 Deletion Of Argumentative Language
F 1110.3 Inst 2 Willfully: Argumentative
F 1110.4 Lewd Or Lascivious Act: Child Under 14 Years—Burden Of Proof Issues
F 1110.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1110.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1110.5 Lewd Or Lascivious Act: Child Under 14 Years—Elements And Definitions
F 1110.5 Inst 1 Lewd or Lascivious Act: Child Under 14 Years—Willfully As Separately Enumerated Element
F 1110.5 Inst 2 Willfully: Knowledge
F 1110.6 Lewd Or Lascivious Act: Child Under 14 Years—Defense Theories
F 1110.6 Inst 1 (a & b) Defense Pinpoint Instruction Regarding Defense Theory Of Inadvertent, Casual Or Non-Offensive Touching
F 1110.7 Lewd Or Lascivious Act: Child Under 14 Years—Preliminary Fact Issues [Reserved]
F 1110.8 Lewd Or Lascivious Act: Child Under 14 Years—Unanimity/Duplicity/Multiplicity [Reserved]
F 1110.9 Lewd Or Lascivious Act: Child Under 14 Years—Lesser Offense Issues [Reserved]
Return to Series 1000 Table of Contents.
F 1110.1 Titles And Identification Of Parties
F 1110.1 Inst 1 Lewd Or Lascivious Act: Child Under 14 Years—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1110.1 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 1110.2 Lewd Or Lascivious Act: Child Under 14 Years—Tailoring To Facts: Persons, Places, Things And Theories
F 1110.2 Inst 1 (b) Tailoring To Facts: Naming Of Alleged Victim
*Modify CC 1110, Elements 1-3, as follows [added language is underlined; deleted language is stricken]
[Change “a child” or “the child” to “_______________ <name of alleged victim>“]
*Add as element:
_______________ <name of alleged victim> was under 14 years old at that time.
Points and Authorities
Tailoring To Facts—See FORECITE F 820.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 1110.3 Lewd Or Lascivious Act: Child Under 14 Years—Language That Is Argumentative, Confusing, Etc.
F 1110.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1110, paragraph 3 & 5, as follows [deleted language is stricken]:
The touching need not be done in a lewd or sexual manner.
[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1110.3 Inst 2 Willfully: Argumentative
See FORECITE F 820.3 Inst 1.
F 1110.4 Lewd Or Lascivious Act: Child Under 14 Years—Burden Of Proof Issues
F 1110.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1110.4 Inst 2Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1110.5 Lewd Or Lascivious Act: Child Under 14 Years—Elements And Definitions
F 1110.5 Inst 1 Lewd or Lascivious Act: Child Under 14 Years—Willfully As Separately Enumerated Element
*Modify CC 1110, Element 1A and 1B as follows:
[Delete “willfully”]
*Modify Element 2 as follows [added language is underlined; deleted language is stricken]:
2. The defendant committed the act [touched _______________ <name of alleged victim>] [caused _______________ <name of alleged victim> to touch (himself/herself)]:
A. Willfully;
AND
B. With the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;
Points and Authorities
See FORECITE F 840.5 Inst 3.
F 1110.5 Inst 2 Willfully: Knowledge
See FORECITE F 820.5 Inst 1.
F 1110.6 Lewd Or Lascivious Act: Child Under 14 Years—Defense Theories
F 1110.6 Inst 1 (a & b) Defense Pinpoint Instruction Regarding Defense Theory Of Inadvertent, Casual Or Non-Offensive Touching
*Add to CC 1110:
Alternative a [CC 3400 adaption]:
The prosecution must prove that the defendant touched _______________ <name of alleged victim> with an intent to arouse, appeal to, or gratify either the lusts, passions or sexual desires of the defendant or the child. The defendant contends (he/she) did not touch _______________ <name of alleged victim> with such sexual motivation or intent and that any touching was inadvertent or casual. The prosecution must prove that the defendant had the required intent. The defendant does not need to prove that the touching was inadvertent or casual. If you have a reasonable doubt that the defendant had the required sexual intent, you must find (him/her) not guilty.
Alternative b:
Whether the touching is lewd or lascivious depends on whether it was committed with the required sexual motivation and intent. An inadvertent or casual non-offensive touching is not a lewd and lascivious touching unless the touching was done with and intent to arouse, appeal to, or gratify either the lusts, passions or sexual desires of the defendant or the child. 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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction—See FORECITE F 315.1.2 Inst 2.
Non-Lewd Touching As Defense Theory—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 (1995) 11 C4th 434; 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 (1998) 19 C4th 282, 291 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 CALCRIM 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 F 315.1.2 Inst 2.)
Moreover, the defendant has the right to specifically relate the burden of proof to the defense theory. (See e.g., CC 3500 [Alibi].)
CALJIC NOTE: See FORECITE F 10.41c.
F 1110.7 Lewd Or Lascivious Act: Child Under 14 Years—Preliminary Fact Issues [Reserved]
F 1110.8 Lewd Or Lascivious Act: Child Under 14 Years—Unanimity/Duplicity/Multiplicity [Reserved]
F 1110.9 Lewd Or Lascivious Act: Child Under 14 Years—Lesser Offense Issues [Reserved]
