Section 1161 | CALCRIM (Jury Instructions)

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“Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25
Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
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Lewd Conduct Defined. Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256
[158 Cal.Rptr. 330, 599 P.2d 636].
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Public Place Defined. In re Zorn (1963) 59 Cal.2d 650, 652 [30 Cal.Rptr. 811,
381 P.2d 635]; People v. Strider (2009) 177 Cal.App.4th 1393, 1401 [100
Cal.Rptr. 3d 66].
RELATED ISSUES
Need Not Prove Someone Was Offended
“It is not the burden of the prosecution to prove that the observer was in fact
offended by the conduct but only that the conduct was such that defendant should
know that the observer ‘may be offended.’ ” (People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 11 [181 Cal.Rptr. 723].)
Does Not Apply to Live Theater Performance
“It seems evident from the foregoing that the vagrancy law, [Penal Code] section
647, subdivision (a), was not intended to apply to live performances in a theater
before an audience.” (Barrows v. Municipal Court (1970) 1 Cal.3d 821, 827–828
[83 Cal.Rptr. 819, 464 P.2d 483].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 67–68.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.20 (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1161
SEX OFFENSES
934

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
One court has held that the person solicited must actually receive the solicitous
communication. (People v. Saephanh (2000) 80 Cal.App.4th 451, 458–459 [94
Cal.Rptr.2d 910].) In Saephanh, the defendant mailed a letter from prison containing
a solicitation to harm the fetus of his girlfriend. (Id. at p. 453.) The letter was
intercepted by prison authorities and, thus, never received by the intended person.
(Ibid.) If there is an issue over whether the intended person actually received the
communication, give bracketed element 7.
AUTHORITY
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Elements. Pen. Code, § 647(a); Pryor v. Municipal Court (1979) 25 Cal.3d 238,
256–257 [158 Cal.Rptr. 330, 599 P.2d 636]; People v. Rylaarsdam (1982) 130
Cal.App.3d Supp. 1, 8–9 [181 Cal.Rptr. 723].
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Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102,
107 [51 Cal.Rptr.2d 402].
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Likely Defined. People v. Lake (2007) 156 Cal.App.4th Supp. 1 [67 Cal.Rptr.3d
452].
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Solicitation Requires Specific Intent. People v. Norris (1978) 88 Cal.App.3d
Supp. 32, 38 [152 Cal.Rptr. 134].
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Solicitation Defined. People v. Superior Court (1977) 19 Cal.3d 338, 345–346
[138 Cal.Rptr. 66, 562 P.2d 1315].
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Person Solicited Must Receive Communication. People v. Saephanh (2000) 80
Cal.App.4th 451, 458–459 [94 Cal.Rptr.2d 910].
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“Lewd” and “Dissolute” Synonymous. Pryor v. Municipal Court (1979) 25
Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636].
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Lewd Conduct Defined. Pryor v.