Section 3516 | CALCRIM (Jury Instructions)

Imler (1992) 9 Cal.App.4th 1178, 1181–1182 [11 Cal.Rptr.2d 915]; People v.
Herman (2002) 97 Cal.App.4th 1369, 1389–1390 [119 Cal.Rptr.2d 199].
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Battery Is Not a Lesser Included Offense of This Crime. (People v. Shockley
(2013) 58 Cal.4th 400, 403, 406 [165 Cal.Rptr.3d 497, 314 P.3d 798].)
Annoying or molesting a child under the age of 18 (Pen. Code, § 647.6) is not a
lesser included offense of section 288(a). (People v. Lopez (1998) 19 Cal.4th 282,
290, 292 [79 Cal.Rptr.2d 195, 965 P.2d 713].)
RELATED ISSUES
Any Act That Constitutes Sexual Assault
A lewd or lascivious act includes any act that constitutes a crime against the person
involving sexual assault as provided in title 9 of part 1 of the Penal Code (Pen.
Code, §§ 261–368). (Pen. Code, § 288(a).) For example, unlawful sexual intercourse
on the body of a child under 14 can be charged as a lewd act under section 288 and
as a separate offense under section 261.5. However, these charges are in the
alternative and, in such cases, the court has a sua sponte duty to give CALCRIM
No. 3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction
Prohibited. (See Pen. Code, § 654(a); People v. Nicholson (1979) 98 Cal.App.3d
617, 625 [159 Cal.Rptr. 766].)
Calculating Age
The “birthday rule” of former Civil Code section 26 (now see Fam. Code, § 6500)
applies so that a person attains a given age as soon as the first minute of his or her
birthday has begun, not on the day before the birthday. (See In re Harris (1993) 5
Cal.4th 813, 844–845, 849 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Minor Perpetrator
A minor under age 14 may be convicted for violating Penal Code section 288(a) on
clear proof of the minor’s knowledge of wrongfulness and the minor’s intent to
arouse his or her own sexual desires. (See Pen. Code, § 26; In re Randy S. (1999)
76 Cal.App.4th 400, 406–408 [90 Cal.Rptr.2d 423]; see also In re Paul C. (1990)
221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369] [in context of oral copulation].) The age
of the minor is a factor to consider when determining if the conduct was sexually
motivated. (In re Randy S., supra, 76 Cal.App.4th at pp. 405–406 [90 Cal.Rptr.2d
423].)
Solicitation to Violate Section 288
Asking a minor to engage in lewd conduct with the person making the request is
not punishable as solicitation of a minor to commit a violation of Penal Code
section 288. (People v. Herman (2002) 97 Cal.App.4th 1369, 1379 [119 Cal.Rptr.2d
199] [conviction for solicitation under Penal Code section 653f(c) reversed].) “[A]
minor cannot violate section 288 by engaging in lewd conduct with an adult.” (Id. at
p. 1379.)
Mistaken Belief About Victim’s Age
A defendant charged with a lewd act on a child under Penal Code section 288(a) is
not entitled to a mistake of fact instruction regarding the victim’s age. (People v.
CALCRIM No. 1110
SEX OFFENSES
848

[11 Cal.Rptr.2d 884]; see Pen. Code, § 288a(a).
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“Recurring Access” Is Commonly Understand Term Not Requiring Sua Sponte
Definitional Instruction. People v