CALCRIM No. 1072. Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant’s Age (Pen. Code, § 261.5(a) & (b))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1072.Misdemeanor Unlawful Sexual Intercourse: Minor Within
Three Years of Defendant’s Age (Pen. Code, § 261.5(a) & (b))
The defendant is charged [in Count ] with unlawful sexual
intercourse with a minor whose age was within three years of the
defendant’s age [in violation of Penal Code section 261.5(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had sexual intercourse with another person;
2. The defendant and the other person were not married to each
other at the time of the intercourse;
AND
3. At the time of the intercourse, the other person was under the
age of 18 but not more than three years (younger/older) than the
defendant.
Sexual intercourse means any penetration, no matter how slight, of the
vagina or genitalia by the penis. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the
intercourse.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
<Defense: Good Faith Belief 18 or Over>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
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].)
841
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].)
AUTHORITY
• Elements of Misdemeanor Offense. Pen. Code, § 261.5(a) & (b).
• Minor’s Consent Not a Defense. People v. Kemp (1934) 139 Cal.App. 48, 51
[34 P.2d 502].
• Mistake of Fact Regarding Age. People v. Hernandez (1964) 61 Cal.2d 529,
535-536 [39 Cal.Rptr. 361, 393 P.2d 673]; see People v. Zeihm (1974) 40
Cal.App.3d 1085, 1089 [115 Cal.Rptr. 528] [belief about age is a defense],
disapproved on other grounds in People v. Freeman (1988) 46 Cal.3d 419, 428,
fn. 6 [250 Cal.Rptr. 598, 758 P.2d 1128].
• 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].
LESSER INCLUDED OFFENSES
• Attempted Unlawful Sexual Intercourse. Pen. Code, §§ 664, 261.5; see, e.g.,
People v. Nicholson (1979) 98 Cal.App.3d 617, 622-624 [159 Cal.Rtpr. 707].
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].)
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older, and CALCRIM No. 1071, Unlawful Sexual
Intercourse: Minor More Than Three Years Younger.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, §§ 53-54.
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 22-26, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[3][a] (Matthew Bender).
CALCRIM No. 1072 SEX OFFENSES
842
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
1073-1079. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1072
843

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