CALCRIM No. 1122. Annoying or Molesting a Child (Pen. Code, § 647.6(a)-(c))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1122.Annoying or Molesting a Child (Pen. Code, § 647.6(a)-(c))
The defendant is charged [in Count ] with annoying or molesting
a child [in violation of Penal Code section 647.6].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant engaged in conduct directed at a child;
2. A normal person, without hesitation, would have been disturbed,
irritated, offended, or injured by the defendant’s conduct;
3. The defendant’s conduct was motivated by an unnatural or
abnormal sexual interest in the child;
AND
4. The child was under the age of 18 years at the time of the
conduct.
[It is not necessary that the child actually be irritated or disturbed.] [It
is [also] not necessary that the child actually be touched.]
[It is not a defense that the child may have consented to the act.]
[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 Over 18>
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the child was at least 18 years of age. The
People have the burden of proving beyond a reasonable doubt that the
defendant did not actually and reasonably believe the child was at least
18 years of age. If the People have not met this burden, you must find
the defendant not guilty of this crime.]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Do not give CALCRIM No. 370, Motive, with this instruction because motive is an
element of the crime. (People v. Valenti (2016) 243 Cal.App.4th 1140, 1165 [197
Cal.Rptr.3d 317]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1126-1127 [38
Cal.Rptr.2d 335].)
If the defendant is charged in a single count with multiple alleged acts, the court has
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asua sponte duty to instruct on unanimity. (People v. Jones (1990) 51 Cal.3d 294,
321-322 [270 Cal.Rptr. 611, 792 P.2d 643]; People v. Epps (1981) 122 Cal.App.3d
691, 703-704 [176 Cal.Rptr. 332].) However, child annoyance or molestation may
be committed by either a single act or a repetitive course of conduct. There is no
sua sponte duty to give a unanimity instruction when a defendant’s conduct clearly
constituted a single course of conduct. (People v. Moore (1986) 185 Cal.App.3d
1005, 1014-1016 [230 Cal.Rptr. 237].) The court must determine if a unanimity
instruction is required and whether it is appropriate to give the standard unanimity
instruction, CALCRIM No. 3500, Unanimity, or the modified unanimity instruction,
CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented.
Review the discussion in the bench notes to these two instructions and People v.
Jones,supra, 51 Cal.3d at pp. 321-322.
If the defendant is charged with a prior conviction for a violation of Penal Code
section 647.6 or any other specified sexual offense (see Pen. Code, § 647.6(c)), give
CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No.
3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the
truth of the prior conviction. (People v. Merkley (1996) 51 Cal.App.4th 472, 476 [58
Cal.Rptr.2d 21]; see People v. Bouzas (1991) 53 Cal.3d 467, 477-480 [279 Cal.Rptr.
847, 807 P.2d 1076].)
Give the bracketed paragraph that begins with “It is not a defense that the child,” 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].)
If the defendant was charged with annoying or molesting a child after entering an
inhabited house, building, or trailer coach, do not give this instruction. Give
CALCRIM No. 1121, Annoying or Molesting a Child in a Dwelling.
Defenses - Instructional Duty
If there is sufficient evidence that the defendant reasonably believed that the child
was over 18 years of age, the court has a sua sponte duty to instruct on the
defense. (See People v. Atchison (1978) 22 Cal.3d 181, 183 [148 Cal.Rptr. 881, 583
P.2d 735]; People v. Paz (2000) 80 Cal.App.4th 293, 300 [95 Cal.Rptr.2d 166].)
AUTHORITY
• Elements. Pen. Code, § 647.6(a)-(c).
• Acts Motivated by Unnatural or Abnormal Sexual Interest. People v. Maurer
(1995) 32 Cal.App.4th 1121, 1126-1127 [38 Cal.Rptr.2d 335]; In re Gladys R.
(1970) 1 Cal.3d 855, 867 [83 Cal.Rptr. 671, 464 P.2d 127].
• Annoy and Molest Defined; Objective Standard. People v. Lopez (1998) 19
Cal.4th 282, 289-290 [79 Cal.Rptr.2d 195, 965 P.2d 713]; People v. Kongs
(1994) 30 Cal.App.4th 1741, 1749-1750 [37 Cal.Rptr.2d 327]; People v. Pallares
(1952) 112 Cal.App.2d Supp. 895, 901-902 [246 P.2d 173].
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• Lewd Act Not Required. People v. Thompson (1988) 206 Cal.App.3d 459,
465-466 [253 Cal.Rptr. 564].
• Minor’s Consent Not a Defense. See People v. Cardenas (1994) 21
Cal.App.4th 927, 937, fn. 7 [26 Cal.Rptr.2d 567] [dicta, in context of lewd act].
• Minor Need Not Actually Be Annoyed. People v. Lopez (1998) 19 Cal.4th 282,
290 [79 Cal.Rptr.2d 195, 965 P.2d 713].
• Actual Touching Not Required. People v. Memro (1995) 11 Cal.4th 786, 871
[47 Cal.Rptr.2d 219, 905 P.2d 1305]; People v. Lopez (1998) 19 Cal.4th 282, 289
[79 Cal.Rptr.2d 195, 965 P.2d 713].
COMMENTARY
“Annoy” and “molest” are synonymous and generally refer to conduct designed to
disturb, irritate, offend, injure, or at least tend to injure, another person. (People v.
Lopez (1998) 19 Cal.4th 282, 289 [79 Cal.Rptr.2d 195, 965 P.2d 713]; People v.
Carskaddon (1957) 49 Cal.2d 423, 426 [318 P.2d 4].) “Annoy means to disturb or
irritate, especially by continued or repeated acts. . . . [¶] ‘[M]olest’ [means] . . . ‘to
interfere with or meddle with unwarrantably so as to injure or disturb.’ ” (People v.
Pallares (1952) 112 Cal.App.2d Supp. 895, 901 [246 P.2d 173].) A photographer
can “annoy” a minor by taking the minor’s photograph in a public place in an
offensive and irritating manner. (See Ecker v. Raging Waters Group, Inc. (2001) 87
Cal.App.4th 1320, 1325 [105 Cal.Rptr.2d 320].) A lewd act is not required. (People
v. Thompson (1988) 206 Cal.App.3d 459, 465-466 [253 Cal.Rptr. 564].)
LESSER INCLUDED OFFENSES
• Attempted Annoying or Molesting of Minor. Pen. Code, §§ 664, 647.6(a).
Annoying or Molesting a minor is a misdemeanor unless the defendant is charged
with one of the specified prior convictions. (Pen. Code, § 647.6(a).) If the defendant
is charged with a felony based on a qualifying prior conviction, the misdemeanor is
a lesser included offense.
Neither simple assault (People v. Greene (1973) 34 Cal.App.3d 622, 654-655 [110
Cal.Rptr. 160]) or contributing to the delinquency of a minor (People v. Romero
(1975) 48 Cal.App.3d 752, 757 [121 Cal.Rptr. 800] [construing former versions of
Pen. Code, §§ 272 and 647.6]) is a necessarily included lesser offense of annoying
or molesting a child.
RELATED ISSUES
Minor Perpetrator
A minor under age 14 may be convicted for violating Penal Code section 647.6 on
clear proof of the minor’s knowledge of wrongfulness. (See Pen. Code, § 26; In re
Gladys R. (1970) 1 Cal.3d 855, 862, 869 [83 Cal.Rptr. 671, 464 P.2d 127] [12-year-
old may be declared ward of court for annoying or molesting another minor].)
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SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 80, 81.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.21[4], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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