Section 1070 | CALCRIM (Jury Instructions)

RELATED ISSUES
Calculating Age
The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500)
applies. A person attains a given age as soon as the first minute of his or her
birthday has begun, not on the day before the birthday. (In re Harris (1993) 5
Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Participant Must be Over 21
One of the two participants in the act of unlawful sexual intercourse must be over
21 and the other person must be under 16. Proof that an aider and abettor was over
21 is insufficient to sustain the aider and abettor’s conviction if neither of the actual
participants was over 21 years old. (See People v. Culbertson (1985) 171
Cal.App.3d 508, 513, 515 [217 Cal.Rptr. 347] [applying same argument to section
287(c), where perpetrator must be 10 years older than victim under 14].)
Mistaken Belief About Victim’s Age
A defendant is not entitled to a mistake of fact instruction if he claims that he
believed that the complaining witness was over 16. His belief would still constitute
the mens rea of intending to have sex with a minor. (People v. Scott (2000) 83
Cal.App.4th 784, 800–801 [100 Cal.Rptr.2d 70].) However, if he claims that he
believed that the complaining witness was over 18 years old, he is entitled to the
mistake of fact instruction. (See People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673].)
Married Minor Victim
A defendant may be convicted of unlawful sexual intercourse even if the minor
victim is married or was previously married to another person. (People v. Courtney
(1960) 180 Cal.App.2d 61, 62 [4 Cal.Rptr. 274] [construing former statute]; People
v. Caldwell (1967) 255 Cal.App.2d 229, 230–231 [63 Cal.Rptr. 63].)
Sterility
Sterility is not a defense to unlawful sexual intercourse. (People v. Langdon (1987)
192 Cal.App.3d 1419, 1421 [238 Cal.Rptr. 158].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 53–54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 22–26, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[3][a] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES
CALCRIM No. 1070
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§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rprtr.2d 373, 855 P.2d
391].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
•
Elements. Pen. Code, § 261.5(a) & (c).
•
Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51 [34
P.2d 502].
•
Mistake of Fact Regarding Age. People v. Her