Section 1120 | CALCRIM (Jury Instructions)

[It is not a defense that the child may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2013
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
If the court gives the definition of “lewd and lascivious conduct,” the definition of
“willfully” must also be given.
Give the bracketed sentence that begins, “Actually arousing, appealing to,” on
request. (People v. McCurdy (1923) 60 Cal.App. 499, 502 [213 P. 59].)
Give the bracketed paragraph that begins with “It is not a defense that the child,” on
request, if there is evidence that the minor consented to the act. (See People v.
Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
AUTHORITY
•
Elements. Pen. Code, § 288.5(a); People v. Vasquez (1996) 51 Cal.App.4th 1277,
1284–1285, 1287 [59 Cal.Rptr.2d 389].
•
Substantial Sexual Conduct Defined. Pen. Code, § 1203.066(b).
•
Unanimity on Specific Acts Not Required. Pen. Code, § 288.5(b); People v.
Adames (1997) 54 Cal.App.4th 198, 208 [62 Cal.Rptr.2d 631].
•
Actual Arousal Not Required. People v. McCurdy (1923) 60 Cal.App. 499, 502
[213 P. 59].
•
Any Touching of Child With Intent to Arouse. 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].
•
Child Touching Own Body Parts at Defendant’s Instigation. People v. Meacham
(1984) 152 Cal.App.3d 142, 152–153 [199 Cal.Rptr. 586]; People v. Austin
(1980) 111 Cal.App.3d 110, 114–115 [168 Cal.Rptr. 401].
•
Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21 Cal.App.4th
927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta in context of lewd or lascivious act].
•
Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
CALCRIM No. 1120
SEX OFFENSES
858

for continuous sexual abuse. (People v. Torres (2002) 102 Cal.App.4th 1053, 1060
[126 Cal.Rptr.2d 92].)
Masturbation
For a discussion of the term masturbation, see People v. Chambless (1999) 74
Cal.App.4th 773, 783–784, 786–787 [88 Cal.Rptr.2d 444] [construing term for
purposes of finding defendant committed sexually violent offenses under the
Sexually Violent Predators Act].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 62–64, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.21[1][c][ii], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1120
SEX OFFE