Section 1144 | CALCRIM (Jury Instructions)

would be used for commercial purposes.]
Matter means any representation of information, data, or image,
including any
(film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser
disc/computer hardware or software/computer floppy disk/data storage
medium/CD-ROM/computer-generated equipment/ [or] computer-
generated image that contains any film or filmstrip). For the purpose of
this instruction matter does not include material (in which all of the
persons depicted under the age of 18 are legally emancipated/ [or] that
only depicts lawful conduct between spouses).
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
Sexual conduct means actual or simulated (sexual intercourse/ [or] oral
copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]
<insert other sexual conduct as defined in Pen. Code,
§ 311.4(d)(1)>). An act is simulated when it gives the appearance of being
sexual conduct.
[Use for commercial purposes includes intending to trade the matter
depicting sexual conduct for a commercial purpose at some point in the
future. A commercial purpose does not have to include financial gain.]
[A person accused of committing this crime can be an individual,
partnership, firm, association, corporation, limited liability company, or
other legal entity.]
<Defense: Legitimate scientific or educational purpose>
[The defendant is not guilty of this crime if (he/she) was engaging in
legitimate medical, scientific, or educational activities. The People have
the burden of proving beyond a reasonable doubt that the defendant was
not acting for a legitimate medical, scientific, or educational purpose. If
the People have not met this burden, you must find the defendant not
guilty of this crime.]
New April 2010
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Defenses—Instructional Duty
If there is sufficient evidence that the defendant was engaging in legitimate medical,
scientific, or educational activities, the court has a sua sponte duty to instruct on
SEX OFFENSES
CALCRIM No. 1144
907

that defense. (See Pen. Code, § 311.8(a).) It is unclear who bears the burden of
proof and what standard of proof applies to this defense. In the absence of statutory
authority or case law stating that the defendant must prove the defense by a
preponderance of the evidence, the committee has drafted the instruction to provide
that the prosecution must prove beyond a reasonable doubt that the defense does not
apply. (See People v. Mower (2002) 28 Cal.4th 457, 478–479 [122 Cal.Rptr.2d 326,
49 P.3d 1067]; see also People v. Woodward (2004) 116 Cal.App.4th 821, 840–841
[10 Cal.Rptr.3d 779] [“legitimate” does not require definition and the trial court
erred in giving amplifying instruction based on People v. Marler (1962) 199
Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)
AUTHORITY
•
Elements. Pen. Code, § 311.4(b), (c).
•
Sexual Conduct De