Section 3406 | CALCRIM (Jury Instructions)

New January 2006; Revised April 2008
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
For a discussion of the sua sponte duty to instruct on the defense of mistake of
fact, see CALCRIM No. 3406.
Give the bracketed paragraph that begins with “It is not a defense that” 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].)
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].)
Related Instruction
CALCRIM No. 3406, Mistake of Fact.
AUTHORITY
•
Elements. Pen. Code, § 261.5(a) & (d).
•
Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51.
•
Penetration Defined. Pen. Code, § 263; People v. Karsai (1982) 131 Cal.App.3d
224, 233–234 [182 Cal.Rptr. 406], disapproved on other grounds by People v.
Jones (1988) 46 Cal.3d 585, 600 [250 Cal.Rptr. 635, 758 P.2d 1165].
•
Good Faith Belief in Victim’s Age. People v. Zeihm (1974) 40 Cal.App.3d 1085,
1089 [115 Cal.Rptr. 528].
LESSER INCLUDED OFFENSES
•
Attempted Unlawful Sexual Geistcourse. Pen. Code, §§ 664, 261.5; see, e.g.,
People v. Nicholson (1979) 98 Cal.App.3d 617, 622–624 [159 Cal.Rptr. 766].
Contributing to the delinquency of a minor (Pen. Code, § 272) is not a lesser
included offense of unlawful sexual intercourse. (People v. Bobb (1989) 207
Cal.App.3d 88, 93–96 [254 Cal.Rptr. 707], disapproved on another ground in People
v. Barton (1995) 12 Cal.4th 186, 198, fn. 7 [47 Cal.Rptr.2d 569, 906 P.2d 531].)
CALCRIM No. 1070
SEX OFFENSES
818

If the mental state element at issue is either specific criminal intent or knowledge,
do not use the bracketed language requiring the belief to be reasonable. (People v.
Reyes (1997) 52 Cal.App.4th 975, 984 & fn. 6 [61 Cal.Rptr.2d 39]; People v.
Russell (2006) 144 Cal.App.4th 1415, 1425–1426 [51 Cal.Rptr.3d 263].)
Mistake of fact is not a defense to the following crimes under the circumstances
described below:

Involuntary manslaughter (People v. Velez (1983) 144 Cal.App.3d 558, 565–566
[192 Cal.Rptr. 686] [mistake of fact re whether gun could be fired]).

Furnishing cannabis to a minor (Health & Saf. Code, § 11352; People v. Lopez
(1969) 271 Cal.App.2d 754, 760–762 [77 Cal.Rptr. 59]).

Selling narcotics to a minor (Health & Saf. Code, § 11353; People v. Williams
(1991) 233 Cal.App.3d 407, 410–411 [284 Cal.Rptr. 454] [specific intent for the
crime of selling narcotics to a minor is the intent to sell cocaine, not to sell it
to a minor]).

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