Conflicting intent instructions—where one instruction requires the prosecution to prove intent while another instruction eliminates that requirement—can remove an element of the charge in violation of the Due Process Clause of the federal constitution. (See People v. Maurer (1995) 32 Cal.App.4th 1121, 1128; see also People v. Lee (1987) 43 Cal.3d 666, 673–674.) This is so even where the court’s instructions on the offense itself correctly explain the required intent, because we have “no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict.” (Francis v. Franklin (1985) 471 U.S. 307, 322 [85 L. Ed. 2d 344, 105 S.Ct. 1965]; see also People v. Gay (2008) 42 Cal.4th 1195, 1225–1226.)
People v. Valenti, 243 Cal. App. 4th 1140, 1164-65, 197 Cal. Rptr. 3d 317, 336-37 (2016) held that CC 1122 and CC 370 are one such pair of conflicting instructions. CC 1122 correctly tells the jury that to convict a defendant of violating PC 647.6, the prosecution must prove the defendant was motivated by an unnatural sexual interest in a particular child or in children generally. (See People v. Hillhouse (2002) 27 Cal.4th 469, 503–504.) However, CC 1122 incorrectly instructs that the prosecution does not have to prove motive. Thus, when motive is an element of the charge, the judge errs by giving an unmodified version of CC 370, which is an optional instruction. ( (People v. Maurer (1995) 32 Cal. App. 4th 1121, 1128; see also People v. Romo (1975) 14 Cal.3d 189, 196 [not error to refuse instruction on motive].)
CALCRIM Revision Note – Effective August 26, 2016 the CALCRIM committee modified the bench notes for CC 1121, CC 1122, CC1125, and CC 1126 to add an admonition to not give CC 370 in such cases. See: here.