People v. Wimer (2022) 74 Cal.App.5th 113, 134-35 concluded that the trial court misstated the law when it instructed the jury on the fourth element of [PC 311.2(b).
Element four of CALCRIM-1141-A stated: “When the defendant acted, he intended to distribute, show, or exchange the matter to someone else for money or other commercial benefit.” The trial court equated “commercial benefit” with “the trade of obscene matter through the internet” and later responded to a jury question by stating: “The dissemination of obscene matter, as defined, on the internet with the intent to trade or induce others to trade the pornographic material is a ‘commercial purpose.’ To disseminate such material on the internet without such intent to trade or induce others to trade is ‘non commercial.’ ” (Italics added.) The court’s instructions to the jury made clear that the element of commercial consideration required nothing more than an intent to trade or induce others to trade in obscene matter over the Internet. As we have explained, that is an erroneous construction of [PC 311.2(b).] Commercial consideration requires proof that when the defendant disseminated the obscene matter, he intended to receive money or some other form of recompense as part of a commercial or profitmaking venture.
Accordingly, a definition such as the following should be added to CC 1141:
Commercial benefit means receipt of, or intent to receive, financial value or compensation.
* The CALCRIM committee has recommended adding such a definition in September 2022. See https://www.courts.ca.gov/documents/calcrim22-01.pdf
