Section 1110 | CALCRIM (Jury Instructions)

Olsen (1984) 36 Cal.3d 638, 647 [205 Cal.Rptr. 492, 685 P.2d 52] [adult defendant];
In re Donald R. (1993) 14 Cal.App.4th 1627, 1629–1630 [18 Cal.Rptr.2d 442]
[minor defendant].) The mistake of fact defense can apply to attempted lewd acts on
a child under 14 years of age. (People v. Hanna (2013) 218 Cal.App.4th 455, 461
[160 Cal.Rptr.3d 210].)
Multiple Lewd Acts
Each individual act that meets the requirements of section 288 can result in a new
and separate statutory violation. (People v. Scott (1994) 9 Cal.4th 331, 346–347 [36
Cal.Rptr.2d 627, 885 P.2d 1040]; see People v. Harrison (1989) 48 Cal.3d 321, 329,
334 [256 Cal.Rptr. 401, 768 P.2d 1078] [in context of sexual penetration].) For
example, if a defendant fondles one area of a victim’s body with the requisite intent
and then moves on to fondle a different area, one offense has ceased and another
has begun. There is no requirement that the two be separated by a hiatus or period
of reflection. (People v. Jimenez (2002) 99 Cal.App.4th 450, 456 [121 Cal.Rptr.2d
426].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 41–46, 53–55, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][a][i], [b]–[d] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES
CALCRIM No. 1110
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52; see also People v. Griffın, supra, 33 Cal.4th at pp. 1026–1028.)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 288 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071] and People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definitions
contained in Penal Code sections 261 and 262 [rape]. (See People v. Cochran
(2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in
case involving forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at p. 1007,
the court held that the statutory definition of “duress” contained in Penal Code
sections 261 and 262 does not apply to the use of that term in any other statute. The
court did not discuss the statutory definition of “menace.” The court should consider
the Leal opinion before giving the definition of “menace.”
LESSER INCLUDED OFFENSES
•
Attempted Lewd Act by Force With Child Under 14. Pen. Code, §§ 664, 288(b).
•
Lewd or Lascivious Act on Child Under 14. Pen. Code, § 288(a).
RELATED ISSUES
Evidence of Duress
In looking at the totality of the circumstances to determine if duress was used to
commit forcible lewd acts on a child, “relevant factors include threats to harm the
victim,