Section 1060 | CALCRIM (Jury Instructions)

dependent person, give bracketed element 4 and the bracketed sentence that begins
with “The force must be substantially different.” (See People v. Pitmon (1985) 170
Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [court has sua sponte duty to define “force”
as used in Pen. Code, § 288(b)(1)]; People v. Griffın (2004) 33 Cal.4th 1015,
1018–1019 [16 Cal.Rptr.3d 891, 94 P.3d 1089].) On request, give any of the
relevant bracketed definitions of duress, menace, or fear.
In the paragraph defining “caretaker,” insert applicable caretaker facilities listed in
Penal Code section 288(f)(1), such as a 24-hour health facility, a home health
agency, or a community care or respite care facility, depending on the facts of the
case.
Penal Code section 288(b)(2) or (c)(2) does not apply to a caretaker who is a spouse
of, or who is in an equivalent domestic relationship with, the dependent person.
(Pen. Code, § 288(h).)
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Defenses—Instructional Duty
Give the bracketed paragraph that begins with “It is not a defense that” on request,
if there is evidence that the dependent adult consented to the act. (People v.
Montoya (2021) 68 Cal.App.5th 980, 999 [284 Cal.Rptr.3d 18] [“nothing in the
language of section 288, subdivisions (a) and (c)(2) indicates that lack of consent is
an element of lewd conduct by a caretaker upon a dependent person.”].)
AUTHORITY
•
Elements. Pen. Code, § 288(b)(2) & (c)(2).
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Caretaker Defined. Pen. Code, § 288(f)(1) & (g).
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Dependent Person Defined. Pen. Code, § 288(f)(3).
•
Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869]; People v. Pitmon, supra, 170 Cal.App.3d at p. 50; People v.
Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416].
•
Elder Defined. See Pen. Code, § 368(g).
•
Menace Defined. See Pen. Code, § 261(c) [in context of rape].
•
Actual Arousal Not Required. See People v. McCurdy, supra, 60 Cal.App. at p.

•
Any Touching With Intent to Arouse. See People v. Martinez (1995) 11 Cal.4th
434, 444, 452 [45 Cal.Rptr.2d 905, 903 P.2d 1037] [disapproving People v.
Wallace (1992) 11 Cal.App.4th 568, 574–580 [14 Cal.Rptr.2d 67] and its
progeny]; see People v. Diaz (1996) 41 Cal.App.4th 1424, 1427–1428 [49
Cal.Rptr.2d 252] [list of examples].
•
Dependent Person Touching Own Body Parts at Defendant’s Instigation. See
People v. Meacham (1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586]
[“constructive” touching; approving Austin instruction]; People v. Austin (1980)
CALCRIM No. 1060
SEX OFFENSES
814

111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
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Fear Defined. See People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940 [26
Cal.Rptr.2d 567]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258,
872 P.2d 1183] [in context of rape].
•
Force Defined. People v. Cicero (1984) 157 Cal.App.3d 465, 474 [204 Cal.Rptr.
582]; People v. Pitmon, supra, 170 Cal.App.3d at p. 52;