Return to CALJIC Part 14-17 – Contents
F 16.440 n1 Child Annoyance: Improper To Give CJ 2.51 re: Motive (PC 647.6).
[See FORECITE F 2.51 n2]
F 16.440 n2 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
Child Annoyance: Objective Test
*Add to end of CJ 16.440:
On the other hand, even if the act[s] actually disturbed of irritated the child, or if defendant actually touched the child, the defendant may not be found guilty unless a normal person would have been disturbed or irritated.
Points and Authorities
In People v. Lopez (98) 19 C4th 282, 290-91 [79 CR2d 195] the court employed an objective test not dependent on whether the child was in fact irritated or disturbed to determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person as required by PC 647.6. CJ 16.440 informs the jury that the defendant can be convicted even if the conduct did not “actually disturb or irritate the child” or did not actually touch the child. However, this is only half the story. The objective standard makes the converse true as well: the defendant may still be found not guilty even if the child is actually disturbed or irritated or touched.
Accordingly, the foregoing instruction should be given because the federal constitution requires balanced instructions that do not favor the prosecution. (Reagan v. United States (1895) 157 US 301, 310 [39 LEd 709; 15 SCt 610]; People v. Moore (54) 43 C2d 517, 526-27 [275 P2d 485] [“There should be absolute impartiality as between the People and the defendant in the matter of instructions”]; FORECITE PG VII(C)(21).)