Return to Non-CALJIC Offenses – Contents
F 18.01 n1 Harmful Matter To Minor (PC 288.2(b): Distribution Of Harmful Matter (PC 313.1) As Lesser Included Offense.
(See People v. Jensen (2003) 114 CA4th 224, 244 [PC 313.1 is a lesser included offense of the wobbler offense described in PC 288.2(b), and the trial court is obligated to instruct on the misdemeanor offense if there is substantial evidence that defendant was guilty only of the misdemeanor].)
F 18.01 n2 Seducing Minor Over The Internet: Requirement Of Physical Contact.
(See People v. Jensen (2003) 114 CA4th 224.)
Harmful Matter To Minor: Proposed Instruction
Every person who, with knowledge that a person is a minor or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means any harmful matter as defined below to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the minor, with the intent, or for the purpose of seducing the minor, is guilty of a violation of PC 288.2.
“Harmful matter” means matter which, taken as a whole to the average person applying contemporary statewide standards, appeals to the prurient interests and depicts or describes in a patently offensive way sexual conduct and lacks serious literary, artistic, political, or scientific value for minors.
In order to prove this crime the prosecution must establish each of the following elements:
1. __________ [insert name of victim] was a minor at the time of the alleged offense.
2. Defendant knew that __________ was a minor or failed to exercise reasonable care in ascertaining the minor’s true age.
3. Defendant knowingly distributed, sent, caused to be sent, exhibited, or offered to distribute or exhibit by any means, harmful matter to the minor.
[4. Defendant had the specific intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [himself] [herself] or the minor.]
[4. Defendant also had the specific intent of seducing the minor.]
Points and Authorities
PC 288.2, effective January 1, 1990, includes both specific intents set forth in the above instruction.
PC 288.2(b) and PC 288.2(c) provide defenses for material distributed in the aid of legitimate scientific or educational purposes.
Harmful matter is defined in PC 313(a). That section was amended in 1988. (See also People v. Jensen (2003) 114 CA4th 224, 242 [re: defining harmful matter].)
Even if the definition of “harmful matter” in PC 313 fails to comport with federal constitutional definitions of obscenity the state may still regulate such matter if it is necessary to further a significant government interest such as protecting minors. (See American Booksellers Association, Inc. v. Superior Court (82) 129 CA3d 197, 202 [181 CR 33].)
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).]
CONSTITUTIONALITY ALERT: See Hatch v. Superior Court (2000) 80 CA4th 170, 206 [94 CR2d 453], dissenting opinion; see also People v. Hsu (2000) 82 CA4th 976 [99 CR2d 184] [commerce and free speech clauses of federal constitution not violated by Penal Code prohibition on internet transmittal of harmful material to minor with intent of arousing minor’s sexual desires for seduction purposes (PC 288.2); even though statute is content-based, it is narrowly drafted].)
Harmful Matter To Minor (PC 288.2(b):
Definition Of “Seduce”
An element of the charge is that the defendant committed the alleged conduct with the intent or purpose of seducing a minor. To establish this element the prosecution must prove beyond a reasonable doubt that the defendant:
1. Intended to entice the minor to engage in a sexual act involving actual physical conduct between the defendant and the minor; and
2. Intended that the sexual act be committed in partnership with the defendant.
Points and Authorities
The statutory element of “the intent, or for the purpose of seducing a minor” requires an intent by the perpetrator to engage in a sexual act with the minor. (People v. Jensen (2003) 114 CA4th 224, 239-40 held that, as used in PC 288.2(b), “the word `seducing’ was not intended to have the vague meaning of `lead[ing] astray’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1057) but to have the precise meaning of `carry[ing] out the physical seduction of: entic[ing] to sexual intercourse.’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1057.) And, in this context, `sexual intercourse’ clearly refers to `intercourse involving genital contact between individuals’ rather than `heterosexual intercourse involving penetration of the vagina by the penis.’ (Webster’s Collegiate Dict. (10th ed. 1999) p. 1074.) The `seducing’ intent element of the offense requires that the perpetrator intend to entice the minor to engage in a sexual act involving physical contact between the perpetrator and the minor. Hence, intending to entice a male minor to masturbate himself does not satisfy this `seducing’ intent element of PC 288.2(b).” (See People v. Jensen (2003) 114 CA4th 224, 244 [trial court prejudicially erred in defining “intent or purpose of seducing” element of attempted Penal Code section 288.2(b) (exhibition of harmful matter to minor over the Internet) to include masturbation as sexual conduct because it permitted jury to base conviction on defendant’s intent to persuade undercover cops posing as children to masturbate alone rather than requiring an intent to persuade them to participate in sexual activity in partnership with defendant]; see also People v. Hsu (2000) 82 CA4th 976.)