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					F                         CALIFORNIA
                                Topic Outline


I.   OFFENSES DEFINED

     A.   Aggravated Sexual Assault

     B.   Annoying or Molesting a Child Under the Age of 18

          1.    Elements
          2.    “Annoy” and “Molest” Defined

     C.   Child Abduction/Kidnapping

          1.    Use of Force
                a.      In General
                b.      When a Minor Is Kidnapped
          2.    Parental Kidnapping
          3.    Privilege to Rescue from Violence
          4.    Notification of Parents
          5.    Statute of Limitations

     D.   Child Pornography

          1.    Virtual/Simulated Child Pornography
          2.    Employing a Minor to Produce Pornography
                a.      Elements for Any Person of the Crime of the Use of a Child in the
                        Production of Child Pornography for Commercial Purposes
                b.      Elements for a Parent or Guardian of a Child Under His or Her
                        Control of the Crime of the Use of a Child in the Production of
                        Child Pornography for Commercial Purposes
                c.      “Commercial Purposes” Defined
                d.      “Sexual Conduct” Defined
          3.    Possession of Child Pornography
          4.    Distribution of Child Pornography
                a.      Elements
                b.      Exceptions
          5.    Using a Minor to Pose for Sex Acts
          6.    Offering Child Pornography for Commercial Consideration
                a.      Elements
                b.      “Commercial Consideration” Defined




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E.   Continuous Sexual Abuse

F.   Contributing to the Delinquency of a Minor

G.   Enticement for Purposes of Prostitution

H.   Lewd and Lascivious Act

     1.    Requisite Touching
     2.    Requisite Intent
     3.    “Lewd and Lascivious” Defined
     4.    Lewd and Lascivious Act Accomplished Through Force
           a.     Elements
           b.     “Force” Defined
     5.    Lewd and Lascivious Act Committed on a Victim 14 or 15 Years Old by a
           Defendant at Least 10 Years Older
     6.    Making a Child Available for a Lewd and Lascivious Act

I.   Online Enticement/Solicitation to Travel With the Intent to Engage in Sex
     With a Minor

J.   Oral Copulation

     1.    Oral Copulation With a Person Under 18 Years of Age
     2.    Oral Copulation by One Over 21 on a Person Under 16
     3.    Forcible Oral Copulation

K.   Public Lewd and Dissolute Conduct

L.   Rape (Forcible)

     1.    Use of Threats
     2.    Victim’s Conduct

M.   Sending Harmful Matter With the Intent of Seducing a Minor

     1.    Elements
     2.    “Harmful Matter” Defined

N.   Sexual Abuse

O.   Sexual Battery




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       P.   Sexual Exploitation of a Child

            1.     Elements
            2.     “Sexual Conduct” Defined

       Q.   Sexual Penetration of a Minor

            1.     Elements
            2.     “Sexual Penetration” Defined

       R.   Sodomy

       S.   Unlawful Sexual Intercourse With a Minor

       T.   Transporting Minor for the Purposes of Prostitution

II.    MANDATORY REPORTING

       A.   Who Must Report

            1.     “Childcare Custodian” Defined
            2.     “Reasonable Suspicion” Defined

       B.   What to Report

            1.     “Sexual Abuse” Defined
            2.     “Sexual Assault” Defined

       C.   To Whom Must Abuse Be Reported

       D.   When Must the Report Be Made

       E.   Failure to Make a Report

       F.   Future Events

       G.   Immunity from Liability

III.   SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE

       A.   Search Warrants

            1.     Probable Cause
                   a.     Requirements of a Warrant Affidavit
                   b.     Magistrate’s Determination of Probable Cause
                   c.     Appellate Review
                   d.     The Defendant’s Burden


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           2.     Scope of Search: Particularity Rule
           3.     Staleness

      B.   Anticipatory Warrants

      C.   Methods of Searching

      D.   Types of Searches

           1.     Employer Searches
           2.     Private Searches
           3.     Civilian Searches
           4.     University-Campus Searches
           5.     Warrantless Searches
                  a.      Warrantless Arrests
                  b.      Exception: Exigent Circumstances

      E.   Computer Technician/Repairperson Discoveries

      F.   Photo-Development Discoveries

      G.   Criminal Forfeiture

      H.   Disciplinary Hearings for Federal and State Officers

      I.   Probation and Parolee Rights

IV.   JURISDICTION AND NEXUS

      A.   Jurisdictional Nexus

      B.   Internet Nexus

      C.   State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction

           1.     State
           2.     Federal
           3.     Concurrent

      D.   Interstate Possession of Child Pornography

V.    DISCOVERY AND EVIDENCE

      A.   Timely Review of Evidence

      B.   Defense Requests for Copies of Child Pornography



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C.   Introduction of E-mails into Evidence

     1.     Hearsay/Authentication Issues
            a.    Authentication in General
            b.    Secondary Evidence Rule
     2.     Circumstantial Evidence
     3.     Technical Aspects of Electronic Evidence Regarding Admissibility

D.   Text-Only Evidence

     1.     Introduction into Evidence
     2.     Relevance

E.   Evidence Obtained from Internet Service Providers

     1.     Electronic Communications Privacy Act
     2.     Cable Act
     3.     Patriot Act
            a.      National Trap and Trace Authority
            b.      State-Court-Judge Jurisdictional Limits

F.   Statute of Limitations

     1.    Trial-Court Instructions
     2.    Appellate Review

G.   Use of Informants

H.   Inadmissibility of Evidence

     1.     When to Exclude Evidence
     2.     “Prejudice” Defined

I.   Prior Bad Acts

     1.     Inadmissible
     2.     Admissible
            a.    Prior Sexual Offenses
                  i.     “Sexual Offense” Defined
                  ii.    “Consent” Defined
            b.    Felony Convictions
     3.     Relevance




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J.   Witness Testimony

     1.     Disclosure of Witnesses
     2.     Corroboration of Victim Testimony
     3.     Lay Testimony
     4.     Expert Testimony
            a.     Expert Witness’ Scientific Methods of Proof
            b.     Child-Sexual-Abuse-Accommodation Syndrome
                   i.      Five Stages
                   ii.     Use of Expert Testimony
            c.     Rape-Trauma Syndrome
            d.     Battered-Child Syndrome
                   i.      “Battered-Child Syndrome” Defined
                   ii.     Use of Expert Testimony
            e.     Trauma-Behavior Testimony
            f.     Expert Testimony in Child-Molestation Cases
            g.     Appellate Review
     5.     Child Victims and Witnesses
            a.     Recent-Complaint Doctrine
            b.     Child Too Young to Testify
     6.     Informants
            a.     Informant as Material Witness
            b.     Disclosure of Informants
                   i.      Hearing
                   ii.     Burden
     7.     Testimony on Witness Credibility
            a.     Admissibility
            b.     Evidence of Character Traits
     8.     Disqualification of Witnesses
     9.     Impeaching Witnesses

K.   Rebuttal Evidence

L.   Privileges

     1.     Psychotherapist-Patient Privilege
            a.     General Privilege
            b.     Patient-Litigant Exception
     2.     Attorney-Client Privilege
            a.     “Confidential Communication” Defined
            b.     Burden
     3.     Appellate Review

M.   Evidence of the Date of the Crime




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VI.    AGE OF CHILD VICTIM

VII.   MULTIPLE COUNTS

       A.   What Constitutes an “Item” of Child Pornography?

       B.   Multiple Counts

       C.   Multiple Convictions

       D.   Issues of Double Jeopardy

            1.     “Implied-Acquittal” Doctrine
            2.     “Necessarily Included Offenses” Defined
            3.     Burden of Proof

VIII. DEFENSES

       A.   Specific

            1.     Attempt
            2.     Kidnapping
            3.     Lewd and Lascivious Act
            4.     Soliciting Another to Commit a Lewd and Lascivious Act
            5.     Unlawful Sexual Intercourse With a Person Under 18

       B.   Age

            1.     Of the Victim
            2.     Of the Defendant

       C.   Consent

       D.   Diminished Capacity

            1.     Addiction to the Internet
            2.     Insanity

       E.   Entrapment

            1.     What Is Entrapment?
            2.     What Is Not Entrapment?

       F.   First Amendment




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      G.   Impossibility

           1.     Factual
           2.     Legal

      H.   Mistake of Fact

      I.   Manufacturing Jurisdiction

      J.   Outrageous Conduct

      K.   Researcher

      L.   Sexual Orientation

IX.   SENTENCING ISSUES

      A.   Probation

      B.   Enhancement

           1.     Age
           2.     Distribution/Intent to Traffic
           3.     Number of Images
           4.     Pattern of Activity for Sexual Exploitation
           5.     Sadistic, Masochistic, or Violent Material
           6.     Use of Computers
           7.     Use of a Deadly Weapon

      C.   Mitigating Factors

      D.   Different Punishments Available

      E.   Punishment of Multiple Similar Acts

      F.   “Separate Occasions” and Consecutive Sentences

           1.     Criteria for Deciding Whether to Impose Consecutive Sentences
           2.     “Violent Felonies” Defined
           3.     Consecutive Sentences for Sexual Assault

      G.   Sexually Violent Predators

           1.     “Sexually Violent Predator” Defined
           2.     Previous Convictions




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          3.    “Sexually Violent Offense” Defined
                a.     Victims Under the Age of 14
                b.     “Substantial Sexual Conduct” Defined
                c.     “Masturbation” Defined
          4.    “Diagnosed Mental Disorder” Defined
          5.    Danger to the Health and Safety of Others
          6.    “Recent Over Act” Defined
          7.    “Predatory” Defined

     H.   Cruel and Unusual Punishment

          1.    Three-Prong Test
          2.    Transforming Civil Remedies into Criminal Penalties

X.   SUPERVISED RELEASE




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                                    California
                                        CALIFORNIA
                                            Case List by Court


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       United States Supreme Court

         •    Franks v. Delaware, 438 U.S. 154 (1978)

II.      Supreme Court of California

         •    People v. Barraza, 23 Cal. 3d 675 (1979)
         •    People v. Cochran, 2002 Cal. LEXIS 4352 (2002)
         •    People v. Hill, 23 Cal. 4th 853 (2000)
         •    People v. Lopez, 19 Cal. 4th 282 (1998)
         •    People v. Martinez, 11 Cal. 4th 434 (1995)
         •    People v. Mickle, 54 Cal. 3d 140 (1991)
         •    People v. Murphy, 25 Cal. 4th 136 (2001)
         •    People v. Scott, 9 Cal. 4th 331 (1994)

III.     Court of Appeal of California

         A.       First Appellate District

                  1.       Division One

                           •    In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
                           •    People v. Goldstein, 130 Cal. App. 3d 1024 (1982)
                           •    People v. Shipstead, 19 Cal. App. 3d 58 (1971)

                  2.       Division Two

                           •    In re T.A.J., 62 Cal. App. 4th 1350 (1998)
                           •    Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)
                           •    People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)
                           •    People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)
                           •    People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074 (2002)
                           •    People v. Quintana, 89 Cal. App. 4th 1362 (2001)




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     3.    Division Three

           •   People v. Cantrell, 7 Cal. App. 4th 523 (1992)

     4.    Division Four

           •   People v. Herman, 97 Cal. App. 4th 1369 (2002)
           •   People v. Peppars, 140 Cal. App. 3d 677 (1983)
           •   People v. Trudell, 173 Cal. App. 3d 1221 (1985)
           •   People v. Vincze, 8 Cal. App. 4th 1159 (1992)

     5.    Division Five

           •   People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509 (2002)
           •   People v. Hsu, 82 Cal. App. 4th 976 (2000)
           •   Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

B.   Second Appellate District

     1.    Division One

           •   In re Bryan S., 110 Cal. App. 3d 144 (1980)
           •   People v. Gonzalez, 81 Cal. App. 3d 274 (1978)
           •   People v. Gutierrez, 80 Cal. App. 3d 829 (1978)

     2.    Division Two

           •   In re James P., 115 Cal. App. 3d 681 (1981)
           •   Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App.
               4th 603 (1998)
           •   People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939 (2002)
           •   People v. Kongs, 30 Cal. App. 4th 1741 (1994)
           •   People v. Kurey, 88 Cal. App. 4th 840 (2001)
           •   Surina v. Lucey, 168 Cal. App. 3d 539 (1985)

     3.    Division Three

           •   In re Alva, 89 Cal. App. 4th 785 (2001)
           •   In re Duncan, 189 Cal. App. 3d 1348 (1987)
           •   People v. Luera, 86 Cal. App. 4th 513 (2001)
           •   People v. Meacham, 152 Cal. App. 3d 142 (1984)
           •   People v. Vasquez, 51 Cal. App. 4th 1277 (1996)




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     4.      Division Four

             •   People v. Orellano, 79 Cal. App. 4th 179 (2000)
             •   People v. Yackee, 161 Cal. App. 3d 843 (1984)
             •   Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

     5.      Division Six

             •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)
             •   People v. Pecci, 72 Cal. App. 4th 1500 (1999)
             •   People v. Thompson, 205 Cal. App. 3d 871 (1988)

C.   Third Appellate District

     •    In re Paul C., 221 Cal. App. 3d 43 (1990)
     •    Mathews v. Superior Court, 119 Cal. App. 3d 309 (1981)
     •    People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094 (2002)
     •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)
     •    People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186 (2002)
     •    People v. Mena, 206 Cal. App. 3d 420 (1988)
     •    People v. Shegog, 184 Cal. App. 3d 899 (1986)
     •    People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225
          (1988)

D.   Fourth Appellate District

     •    In re Donald R., 14 Cal. App. 4th 1627 (1993)

     1.      Division One

             •   Angie M. v. Superior Court, 37 Cal. App. 4th 1217 (1995)
             •   Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)
             •   In re Jerry M., 59 Cal. App. 4th 289 (1997)
             •   People v. Blevins, 158 Cal. App. 3d 64 (1984)
             •   People v. Bowker, 203 Cal. App. 3d 385 (1988)
             •   People v. Chambless, 74 Cal. App. 4th 773 (1999)
             •   People v. Scott, 83 Cal. App. 4th 784 (2000)
             •   Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339 (2002)

     2.      Division Two

             •   In re Randy S., 76 Cal. App. 4th 400 (1999)
             •   People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357 (2001)
             •   People v. Jackson, 18 Cal. App. 3d 504 (1971)
             •   People v. Reed, 53 Cal. App. 4th 389 (1996)


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                                  California
              3.      Division Three

                      •   In re Jason L., 222 Cal. App. 3d 1206 (1990)
                      •   In re King, 157 Cal. App. 3d 554 (1984)
                      •   People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

      E.      Fifth Appellate District

              •    People v. Austin, 111 Cal. App. 3d 110 (1980)
              •    People v. Jeff, 204 Cal. App. 3d 309 (1988)
              •    People v. Jones, 155 Cal. App. 3d 153 (1984)
              •    People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744 (2001)
              •    People v. Monroe, 168 Cal. App. 3d 1205 (1985)
              •    People v. Paz, 80 Cal. App. 4th 293 (2000)
              •    People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871 (2002)
              •    People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)
              •    People v. Tate, 164 Cal. App. 3d 133 (1985)

      F.      Sixth Appellate District

              •    People v. Espinoza, 95 Cal. App. 4th 1287 (2002)
              •    People v. Gordon, 92 Cal. App. 4th 342 (2001)
              •    People v. Lazarevich, 95 Cal. App. 4th 416 (2001)
              •    People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818 (2002)
              •    People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790 (2002)
              •    People v. Schulz, 2 Cal. App. 4th 999 (1992)
              •    People v. Senior, 3 Cal. App. 4th 765 (1992)
              •    People v. Smith, 98 Cal. App. 4th 1182 (2002)

IV.   Superior Court of California, Appellate Department, Los Angeles

      •    People v. Moreno, 64 Cal. App. 3d Supp. 23 (Cal. App. Dep’t Super. Ct. 1976)




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F                                       CALIFORNIA
                                      Topic Outline With Cases


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       OFFENSES DEFINED

         A.       Aggravated Sexual Assault

                  •    People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509 (2002)

         B.       Annoying or Molesting a Child Under the Age of 18

                  1.       Elements

                           •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)
                           •    People v. Lopez, 19 Cal. 4th 282 (1998)
                           •    People v. Monroe, 168 Cal. App. 3d 1205 (1985)
                           •    People v. Paz, 80 Cal. App. 4th 293 (2000)
                           •    People v. Tate, 164 Cal. App. 3d 133 (1985)

                  2.       “Annoy” and “Molest” Defined

                           •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)

         C.       Child Abduction/Kidnapping

                  •    Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)
                  •    People v. Hill, 23 Cal. 4th 853 (2000)
                  •    People v. Lazarevich, 95 Cal. App. 4th 416 (2001)
                  •    People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)
                  •    Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)
                  •    Surina v. Lucey, 168 Cal. App. 3d 539 (1985)




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                                                      California
     1.    Use of Force

           a.      In General

                   •   Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)
                   •   People v. Hill, 23 Cal. 4th 853 (2000)

           b.      When a Minor Is Kidnapped

                   •   Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)
                   •   People v. Hill, 23 Cal. 4th 853 (2000)
                   •   People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487
                       (2002)

     2.    Parental Kidnapping

           •    People v. Senior, 3 Cal. App. 4th 765 (1992)

     3.    Privilege to Rescue from Violence

           •    Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

     4.    Notification of Parents

           •    Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

     5.    Statute of Limitations

           •    Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)

D.   Child Pornography

     1.    Virtual/Simulated Child Pornography

           •    People v. Kurey, 88 Cal. App. 4th 840 (2001)

     2.    Employing a Minor to Produce Pornography

           •    People v. Cochran, 2002 Cal. LEXIS 4352 (2002)

           a.      Elements for Any Person of the Crime of the Use of a Child in
                   the Production of Child Pornography for Commercial
                   Purposes

                   •   People v. Cochran, 2002 Cal. LEXIS 4352 (2002)



                                    -15-
                                 California
     b.      Elements for a Parent or Guardian of a Child Under His or
             Her Control of the Crime of the Use of a Child in the
             Production of Child Pornography for Commercial Purposes

             •   People v. Cochran, 2002 Cal. LEXIS 4352 (2002)

     c.      “Commercial Purposes” Defined

             •   People v. Cochran, 2002 Cal. LEXIS 4352 (2002)

     d.      “Sexual Conduct” Defined

             •   In re Alva, 89 Cal. App. 4th 758 (2001)
             •   People v. Cantrell, 7 Cal. App. 4th 523 (1992)
             •   People v. Hsu, 82 Cal. App. 4th 976 (2000)
             •   People v. Kongs, 30 Cal. App. 4th 1741 (1994)

3.   Possession of Child Pornography

     •    In re Alva, 89 Cal. App. 4th 758 (2001)
     •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)
     •    People v. Kurey, 88 Cal. App. 4th 840 (2001)

4.   Distribution of Child Pornography

     a.      Elements

             •   Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)
             •   People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094
                 (2002)
             •   People v. Kurey, 88 Cal. App. 4th 840 (2001)
             •   People v. Luera, 86 Cal. App. 4th 513 (2001)
             •   Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339
                 (2002)

     b.      Exceptions

             •   People v. Luera, 86 Cal. App. 4th 513 (2001)
             •   Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339
                 (2002)

5.   Using a Minor to Pose for Sex Acts

     •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)




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                           California
     6.      Offering Child Pornography for Commercial Consideration

             a.     Elements

                    •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

             b.     “Commercial Consideration” Defined

                    •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

E.   Continuous Sexual Abuse

     •    People v. Vasquez, 51 Cal. App. 4th 1277 (1996)

F.   Contributing to the Delinquency of a Minor

     •    In re James P., 115 Cal. App. 3d 681 (1981)
     •    People v. Vincze, 8 Cal. App. 4th 1159 (1992)

G.   Enticement for Purposes of Prostitution

     •    Mathews v. Superior Court, 119 Cal. App. 3d 309 (1981)
     •    People v. Mena, 206 Cal. App. 3d 420 (1988)

H.   Lewd and Lascivious Act

     •    In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
     •    In re Jerry M., 59 Cal. App. 4th 289 (1997)
     •    In re Randy S., 76 Cal. App. 4th 400 (1999)
     •    In re T.A.J., 62 Cal. App. 4th 1350 (1998)
     •    People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186 (2002)
     •    People v. Herman, 97 Cal. App. 4th 1369 (2002)
     •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)
     •    People v. Lopez, 19 Cal. 4th 282 (1998)
     •    People v. Martinez, 11 Cal. 4th 434 (1995)
     •    People v. Mickle, 54 Cal. 3d 140 (1991)
     •    People v. Murphy, 25 Cal. 4th 136 (2001)
     •    People v. Scott, 9 Cal. 4th 331 (1994)
     •    People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225
          (1988)
     •    People v. Vincze, 8 Cal. App. 4th 1159 (1992)
     •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)




                                     -17-
                                   California
1.   Requisite Touching

     •    In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
     •    In re Randy S., 76 Cal. App. 4th 400 (1999)
     •    People v. Austin, 111 Cal. App. 3d 110 (1980)
     •    People v. Lopez, 19 Cal. 4th 282 (1998)
     •    People v. Martinez, 11 Cal. 4th 434 (1995)
     •    People v. Meacham, 152 Cal. App. 3d 142 (1984)
     •    People v. Murphy, 25 Cal. 4th 136 (2001)
     •    People v. Scott, 9 Cal. 4th 331 (1994)
     •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

2.   Requisite Intent

     •    In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
     •    In re Jerry M., 59 Cal. App. 4th 289 (1997)
     •    In re Paul C., 221 Cal. App. 3d 43 (1990)
     •    In re Randy S., 76 Cal. App. 4th 400 (1999)
     •    People v. Austin, 111 Cal. App. 3d 110 (1980)
     •    People v. Martinez, 11 Cal. 4th 434 (1995)
     •    People v. Meacham, 152 Cal. App. 3d 142 (1984)
     •    People v. Senior, 3 Cal. App. 4th 765 (1992)

3.   “Lewd and Lascivious” Defined

     •    People v. Kongs, 30 Cal. App. 4th 1741 (1994)
     •    People v. Martinez, 11 Cal. 4th 434 (1995)

4.   Lewd and Lascivious Act Accomplished Through Force

     a.      Elements

             •   In re T.A.J., 62 Cal. App. 4th 1350 (1998)
             •   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186
                 (2002)
             •   People v. Espinoza, 95 Cal. App. 4th 1287 (2002)
             •   People v. Martinez, 11 Cal. 4th 434 (1995)

     b.      “Force” Defined

             •   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186
                 (2002)
             •   People v. Espinoza, 95 Cal. App. 4th 1287 (2002)
             •   People v. Schulz, 2 Cal. App. 4th 999 (1992)
             •   People v. Senior, 3 Cal. App. 4th 765 (1992)


                             -18-
                           California
     5.      Lewd and Lascivious Act Committed on a Victim 14 or 15 Years Old
             by a Defendant at Least 10 Years Older

             •   People v. Paz, 80 Cal. App. 4th 293 (2000)

     6.      Making a Child Available for a Lewd and Lascivious Act

             •   People v. Mena, 206 Cal. App. 3d 420 (1988)

I.   Online Enticement/Solicitation to Travel With the Intent to Engage in Sex
     With a Minor

     No state cases reported.

J.   Oral Copulation

     •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)

     1.      Oral Copulation With a Person Under 18 Years of Age

             •   Angie M. v. Superior Court, 37 Cal. App. 4th 1217 (1995)

     2.      Oral Copulation by One Over 21 on a Person Under 16

             •   People v. Scott, 83 Cal. App. 4th 784 (2000)

     3.      Forcible Oral Copulation

             •   People v. Scott, 83 Cal. App. 4th 784 (2000)
             •   People v. Senior, 3 Cal. App. 4th 765 (1992)

K.   Public Lewd and Dissolute Conduct

     •    People v. Monroe, 168 Cal. App. 3d 1205 (1985)
     •    People v. Tate, 164 Cal. App. 3d 133 (1985)

L.   Rape (Forcible)

     •    People v. Jeff, 204 Cal. App. 3d 309 (1988)
     •    People v. Jones, 155 Cal. App. 3d 153 (1984)
     •    People v. Scott, 83 Cal. App. 4th 784 (2000)

     1.      Use of Threats

             •   People v. Jeff, 204 Cal. App. 3d 309 (1988)


                                     -19-
                                   California
             •   People v. Jones, 155 Cal. App. 3d 153 (1984)

     2.      Victim’s Conduct

             •   People v. Jones, 155 Cal. App. 3d 153 (1984)

M.   Sending Harmful Matter With the Intent of Seducing a Minor

     1.      Elements

             •   Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)
             •   People v. Hsu, 82 Cal. App. 4th 976 (2000)

     2.      “Harmful Matter” Defined

             •   Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)
             •   People v. Hsu, 82 Cal. App. 4th 976 (2000)

N.   Sexual Abuse

     •    In re Jason L., 222 Cal. App. 3d 1206 (1990)

O.   Sexual Battery

     •    Angie M. v. Superior Court, 37 Cal. App. 4th 1217 (1995)
     •    People v. Martinez, 11 Cal. 4th 434 (1995)

P.   Sexual Exploitation of a Child

     1.      Elements

             •   In re Duncan, 189 Cal. App. 3d 1348 (1987)

     2.      “Sexual Conduct” Defined

             •   In re Duncan, 189 Cal. App. 3d 1348 (1987)

Q.   Sexual Penetration of a Minor

     1.      Elements

             •   People v. Quintana, 89 Cal. App. 4th 1362 (2001)

     2.      “Sexual Penetration” Defined

             •   People v. Quintana, 89 Cal. App. 4th 1362 (2001)


                                     -20-
                                   California
      R.   Sodomy

           •    People v. Gonzalez, 81 Cal. App. 3d 274 (1978)

      S.   Unlawful Sexual Intercourse With a Minor

           •    Angie M. v. Superior Court, 37 Cal. App. 4th 1217 (1995)
           •    In re T.A.J., 62 Cal. App. 4th 1350 (1998)
           •    People v. Scott, 83 Cal. App. 4th 784 (2000)

      T.   Transporting Minor for the Purposes of Prostitution

           No state cases reported.

II.   MANDATORY REPORTING

      A.   Who Must Report

           •    People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225
                (1988)
           •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)
           •    Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

           1.      “Childcare Custodian” Defined

                   •   Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

           2.      “Reasonable Suspicion” Defined

                   •   People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App.
                       3d 225 (1988)
                   •   Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

      B.   What to Report

           •    People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225
                (1988)
           •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

           1.      “Sexual Abuse” Defined

                   •   Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)




                                          -21-
                                        California
            2.      “Sexual Assault” Defined

                    •    People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App.
                         3d 225 (1988)

       C.   To Whom Must Abuse Be Reported

            •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

       D.   When Must the Report Be Made

            •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

       E.   Failure to Make a Report

            •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

       F.   Future Events

            •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

       G.   Immunity from Liability

            •    Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)

III.   SEARCH AND SEIZURE OF ELECTRONIC EVIDENCE

       A.   Search Warrants

            •    In re Duncan, 189 Cal. App. 3d 1348 (1987)

            1.      Probable Cause

                    •    People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074 (2002)
                    •    People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

                    a.      Requirements of a Warrant Affidavit

                            •   People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074
                                (2002)
                            •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

                    b.      Magistrate’s Determination of Probable Cause

                            •   People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074
                                (2002)


                                            -22-
                                          California
                    •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

            c.      Appellate Review

                    •   People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074
                        (2002)
                    •   People v. Luera, 86 Cal. App. 4th 513 (2001)
                    •   People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)

            d.      The Defendant’s Burden

                    •   Franks v. Delaware, 438 U.S. 154 (1978)
                    •   People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074
                        (2002)
                    •   People v. Luera, 86 Cal. App. 4th 513 (2001)

     2.     Scope of Search: Particularity Rule

            •    People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074 (2002)

     3.     Staleness

            •    People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074 (2002)

B.   Anticipatory Warrants

     No state cases reported.

C.   Methods of Searching

     No state cases reported.

D.   Types of Searches

     1.     Employer Searches

            No state cases reported.

     2.     Private Searches

            •    In re Bryan S., 110 Cal. App. 3d 144 (1980)
            •    People v. Moreno, 64 Cal. App. 3d Supp. 23 (Cal. App. Dep’t Super.
                 Ct. 1976)
            •    People v. Shegog, 184 Cal. App. 3d 899 (1986)
            •    People v. Shipstead, 19 Cal. App. 3d 58 (1971)
            •    People v. Yackee, 161 Cal. App. 3d 843 (1984)


                                       -23-
                                  California
           3.     Civilian Searches

                  No state cases reported.

           4.     University-Campus Searches

                  No state cases reported.

           5.     Warrantless Searches

                  •    People v. Trudell, 173 Cal. App. 3d 1221 (1985)

                  a.      Warrantless Arrests

                          •   People v. Trudell, 173 Cal. App. 3d 1221 (1985)

                  b.      Exception: Exigent Circumstances

                          •   People v. Trudell, 173 Cal. App. 3d 1221 (1985)

      E.   Computer Technician/Repairperson Discoveries

           No state cases reported.

      F.   Photo-Development Discoveries

           No state cases reported.

      G.   Criminal Forfeiture

           No state cases reported.

      H.   Disciplinary Hearings for Federal and State Officers

           No state cases reported.

      I.   Probation and Parolee Rights

           No state cases reported.

IV.   JURISDICTION AND NEXUS

      A.   Jurisdictional Nexus

           No state cases reported.


                                             -24-
                                        California
     B.   Internet Nexus

          No state cases reported.

     C.   State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction

          1.      State

                  No state cases reported.

          2.      Federal

                  No state cases reported.

          3.      Concurrent

                  No state cases reported.

     D.   Interstate Possession of Child Pornography

          No state cases reported.

V.   DISCOVERY AND EVIDENCE

     A.   Timely Review of Evidence

          No state cases reported.

     B.   Defense Requests for Copies of Child Pornography

          •    Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339 (2002)

     C.   Introduction of E-mails into Evidence

          1.      Hearsay/Authentication Issues

                  a.      Authentication in General

                          •   People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)

                  b.      Secondary Evidence Rule

                          •   People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)




                                             -25-
                                        California
     2.      Circumstantial Evidence

             No state cases reported.

     3.      Technical Aspects of Electronic Evidence Regarding Admissibility

             No state cases reported.

D.   Text-Only Evidence

     1.      Introduction into Evidence

             No state cases reported.

     2.      Relevance

             No state cases reported.

E.   Evidence Obtained from Internet Service Providers

     1.      Electronic Communications Privacy Act

             No state cases reported.

     2.      Cable Act

             No state cases reported.

     3.      Patriot Act

             a.     National Trap and Trace Authority

                    No state cases reported.

             b.     State-Court-Judge Jurisdictional Limits

                    No state cases reported.

F.   Statute of Limitations

     •    Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App. 4th 603
          (1998)
     •    People v. Smith, 98 Cal. App. 4th 1182 (2002)




                                        -26-
                                   California
     1.      Trial-Court Instructions

             •    People v. Smith, 98 Cal. App. 4th 1182 (2002)

     2.      Appellate Review

             •    People v. Smith, 98 Cal. App. 4th 1182 (2002)

G.   Use of Informants

     •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)

H.   Inadmissibility of Evidence

     1.      When to Exclude Evidence

             •    People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939 (2002)
             •    People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744 (2001)

     2.      “Prejudice” Defined

             •    People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744 (2001)

I.   Prior Bad Acts

     1.      Inadmissible

             •    People v. Jones, 155 Cal. App. 3d 153 (1984)
             •    People v. Orellano, 79 Cal. App. 4th 179 (2000)
             •    People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871 (2002)

     2.      Admissible

             •    People v. Orellano, 79 Cal. App. 4th 179 (2000)

             a.      Prior Sexual Offenses

                     •    People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744
                          (2001)
                     •    People v. Orellano, 79 Cal. App. 4th 179 (2000)
                     •    People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871 (2002)

                     i.      “Sexual Offense” Defined

                             •   People v. Medina,* 2001 Cal. App. Unpub. LEXIS
                                 1744 (2001)


                                     -27-
                                   California
                   ii.      “Consent” Defined

                            •   People v. Medina,* 2001 Cal. App. Unpub. LEXIS
                                1744 (2001)

           b.      Felony Convictions

                   •     People v. Mickle, 54 Cal. 3d 140 (1991)

     3.    Relevance

           •    People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094 (2002)

J.   Witness Testimony

     1.    Disclosure of Witnesses

           •    People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939 (2002)

     2.    Corroboration of Victim Testimony

           •    People v. Mena, 206 Cal. App. 3d 420 (1988)
           •    People v. Vasquez, 51 Cal. App. 4th 1277 (1996)

     3.    Lay Testimony

           •    People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790 (2002)

     4.    Expert Testimony

           •    People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094 (2002)
           •    People v. Bowker, 203 Cal. App. 3d 385 (1988)
           •    People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186 (2002)
           •    People v. Kurey, 88 Cal. App. 4th 840 (2001)

           a.      Expert Witness’ Scientific Methods of Proof

                   •     People v. Bowker, 203 Cal. App. 3d 385 (1988)

           b.      Child-Sexual-Abuse-Accommodation Syndrome

                   i.       Five Stages

                            •   People v. Bowker, 203 Cal. App. 3d 385 (1988)



                                     -28-
                                   California
             ii.      Use of Expert Testimony

                      •   People v. Bowker, 203 Cal. App. 3d 385 (1988)

     c.      Rape-Trauma Syndrome

             •     People v. Jeff, 204 Cal. App. 3d 309 (1988)

     d.      Battered-Child Syndrome

             i.       “Battered-Child Syndrome” Defined

                      •   People v. Jackson, 18 Cal. App. 3d 504 (1971)

             ii.      Use of Expert Testimony

                      •   People v. Jackson, 18 Cal. App. 3d 504 (1971)

     e.      Trauma-Behavior Testimony

             •     People v. Jeff, 204 Cal. App. 3d 309 (1988)

     f.      Expert Testimony in Child-Molestation Cases

             •     People v. Jeff, 204 Cal. App. 3d 309 (1988)

     g.      Appellate Review

             •     People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094
                   (2002)

5.   Child Victims and Witnesses

     •    In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
     •    People v. Vasquez, 51 Cal. App. 4th 1277 (1996)

     a.      Recent-Complaint Doctrine

             •     People v. Meacham, 152 Cal. App. 3d 142 (1984)

     b.      Child Too Young to Testify

             •     People v. Meacham, 152 Cal. App. 3d 142 (1984)




                               -29-
                             California
     6.      Informants

             a.      Informant as Material Witness

                     •     People v. Luera, 86 Cal. App. 4th 513 (2001)
                     •     People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818 (2002)

             b.      Disclosure of Informants

                     i.       Hearing

                              •   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818
                                  (2002)

                     ii.      Burden

                              •   People v. Luera, 86 Cal. App. 4th 513 (2001)
                              •   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818
                                  (2002)

     7.      Testimony on Witness Credibility

             a.      Admissibility

                     •     People v. Jones, 155 Cal. App. 3d 153 (1984)

             b.      Evidence of Character Traits

                     •     People v. Jones, 155 Cal. App. 3d 153 (1984)

     8.      Disqualification of Witnesses

             •    People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744 (2001)

     9.      Impeaching Witnesses

             •    People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186 (2002)

K.   Rebuttal Evidence

     •    People v. Senior, 3 Cal. App. 4th 765 (1992)




                                        -30-
                                     California
       L.      Privileges

               1.      Psychotherapist-Patient Privilege

                       a.      General Privilege

                               •   People v. Mickle, 54 Cal. 3d 140 (1991)

                       b.      Patient-Litigant Exception

                               •   People v. Mickle, 54 Cal. 3d 140 (1991)

               2.      Attorney-Client Privilege

                       •    People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

                       a.      “Confidential Communication” Defined

                               •   People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366
                                   (2002)

                       b.      Burden

                               •   People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366
                                   (2002)

               3.      Appellate Review

                       •    People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

       M.      Evidence of the Date of the Crime

               •    People v. Jones, 155 Cal. App. 3d 153 (1984)

VI.    AGE OF CHILD VICTIM

       •    People v. Kurey, 88 Cal. App. 4th 840 (2001)

VII.   MULTIPLE COUNTS

       A.      What Constitutes an “Item” of Child Pornography?

               No state cases reported.




                                               -31-
                                             California
     B.   Multiple Counts

          •    People v. Jones, 155 Cal. App. 3d 153 (1984)
          •    People v. Scott, 9 Cal. 4th 331 (1994)
          •    People v. Vasquez, 51 Cal. App. 4th 1277 (1996)

     C.   Multiple Convictions

          •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)
          •    People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509 (2002)
          •    People v. Goldstein, 130 Cal. App. 3d 1024 (1982)
          •    People v. Senior, 3 Cal. App. 4th 765 (1992)

     D.   Issues of Double Jeopardy

          •    People v. Lazarevich, 95 Cal. App. 4th 416 (2001)
          •    People v. Meacham, 152 Cal. App. 3d 142 (1984)
          •    People v. Scott, 83 Cal. App. 4th 784 (2000)

          1.      “Implied-Acquittal” Doctrine

                  •   People v. Scott, 83 Cal. App. 4th 784 (2000)

          2.      “Necessarily Included Offenses” Defined

                  •   People v. Scott, 83 Cal. App. 4th 784 (2000)

          3.      Burden of Proof

                  •   People v. Lazarevich, 95 Cal. App. 4th 416 (2001)

VIII. DEFENSES

     A.   Specific

          1.      Attempt

                  •   People v. Reed, 53 Cal. App. 4th 389 (1996)

          2.      Kidnapping

                  •   People v. Hill, 23 Cal. 4th 853 (2000)
                  •   People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)




                                          -32-
                                        California
     3.      Lewd and Lascivious Act

             •   In re Donald R., 14 Cal. App. 4th 1627 (1993)
             •   In re Jerry M., 59 Cal. App. 4th 289 (1997)
             •   In re Paul C., 221 Cal. App. 3d 43 (1990)
             •   People v. Gutierrez, 80 Cal. App. 3d 829 (1978)
             •   People v. Paz, 80 Cal. App. 4th 293 (2000)
             •   People v. Scott, 83 Cal. App. 4th 784 (2000)
             •   People v. Smith, 98 Cal. App. 4th 1182 (2002)
             •   Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

     4.      Soliciting Another to Commit a Lewd and Lascivious Act

             •   People v. Herman, 97 Cal. App. 4th 1369 (2002)

     5.      Unlawful Sexual Intercourse With a Person Under 18

             •   In re Donald R., 14 Cal. App. 4th 1627 (1993)
             •   People v. Paz, 80 Cal. App. 4th 293 (2000)

B.   Age

     1.      Of the Victim

             •   In re Donald R., 14 Cal. App. 4th 1627 (1993)
             •   In re Paul C., 221 Cal. App. 3d 43 (1990)
             •   People v. Gutierrez, 80 Cal. App. 3d 829 (1978)
             •   People v. Paz, 80 Cal. App. 4th 293 (2000)
             •   People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)

     2.      Of the Defendant

             •   In re Jerry M., 59 Cal. App. 4th 289 (1997)
             •   In re Paul C., 221 Cal. App. 3d 43 (1990)
             •   In re Randy S., 76 Cal. App. 4th 400 (1999)

C.   Consent

     •    Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)

D.   Diminished Capacity

     1.      Addiction to the Internet

             No state cases reported.


                                        -33-
                                   California
     2.      Insanity

             No state cases reported.

E.   Entrapment

     •    People v. Peppars, 140 Cal. App. 3d 677 (1983)

     1.      What Is Entrapment?

             •   In re Duncan, 189 Cal. App. 3d 1348 (1987)
             •   People v. Barraza, 23 Cal. 3d 675 (1979)
             •   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818 (2002)
             •   People v. Peppars, 140 Cal. App. 3d 677 (1983)
             •   People v. Reed, 53 Cal. App. 4th 389 (1996)

     2.      What Is Not Entrapment?

             •   People v. Barraza, 23 Cal. 3d 675 (1979)
             •   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818 (2002)
             •   People v. Peppars, 140 Cal. App. 3d 677 (1983)

F.   First Amendment

     No state cases reported.

G.   Impossibility

     1.      Factual

             •   People v. Peppars, 140 Cal. App. 3d 677 (1983)
             •   People v. Reed, 53 Cal. App. 4th 389 (1996)

     2.      Legal

             •   People v. Peppars, 140 Cal. App. 3d 677 (1983)

H.   Mistake of Fact

     •    Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)

I.   Manufacturing Jurisdiction

     No state cases reported.



                                        -34-
                                   California
      J.   Outrageous Conduct

           No state cases reported.

      K.   Researcher

           No state cases reported.

      L.   Sexual Orientation

           No state cases reported.

IX.   SENTENCING ISSUES

      A.   Probation

           •    People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094 (2002)
           •    People v. Pecci, 72 Cal. App. 4th 1500 (1999)
           •    People v. Thompson, 205 Cal. App. 3d 871 (1988)

      B.   Enhancement

           •    People v. Blevins, 158 Cal. App. 3d 64 (1984)
           •    People v. Jones, 155 Cal. App. 3d 153 (1984)

           1.      Age

                   No state cases reported.

           2.      Distribution/Intent to Traffic

                   No state cases reported.

           3.      Number of Images

                   No state cases reported.

           4.      Pattern of Activity for Sexual Exploitation

                   No state cases reported.

           5.      Sadistic, Masochistic, or Violent Material

                   No state cases reported.




                                              -35-
                                         California
     6.      Use of Computers

             No state cases reported.

     7.      Use of a Deadly Weapon

             •   People v. Blevins, 158 Cal. App. 3d 64 (1984)

C.   Mitigating Factors

     •    People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)
     •    People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)

D.   Different Punishments Available

     •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)
     •    People v. Senior, 3 Cal. App. 4th 765 (1992)

E.   Punishment of Multiple Similar Acts

     •    People v. Senior, 3 Cal. App. 4th 765 (1992)

F.   “Separate Occasions” and Consecutive Sentences

     •    People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)
     •    People v. Catelli, 227 Cal. App. 3d 1434 (1991)
     •    People v. Senior, 3 Cal. App. 4th 765 (1992)

     1.      Criteria for Deciding Whether to Impose Consecutive Sentences

             •   People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)

     2.      “Violent Felonies” Defined

             •   People v. Mena, 206 Cal. App. 3d 420 (1988)

     3.      Consecutive Sentences for Sexual Assault

             •   People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)
             •   People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509 (2002)
             •   People v. Senior, 3 Cal. App. 4th 765 (1992)

G.   Sexually Violent Predators

     •    People v. Chambless, 74 Cal. App. 4th 773 (1999)
     •    People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)


                                        -36-
                                   California
•    People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

1.      “Sexually Violent Predator” Defined

        •    People v. Chambless, 74 Cal. App. 4th 773 (1999)
        •    People v. Gordon, 92 Cal. App. 4th 342 (2001)
        •    People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)
        •    People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

2.      Previous Convictions

        •    People v. Gordon, 92 Cal. App. 4th 342 (2001)
        •    People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)

3.      “Sexually Violent Offense” Defined

        •    People v. Chambless, 74 Cal. App. 4th 773 (1999)

        a.      Victims Under the Age of 14

                •   People v. Chambless, 74 Cal. App. 4th 773 (1999)
                •   People v. Gordon, 92 Cal. App. 4th 342 (2001)

        b.      “Substantial Sexual Conduct” Defined

                •   People v. Chambless, 74 Cal. App. 4th 773 (1999)
                •   People v. Gordon, 92 Cal. App. 4th 342 (2001)

        c.      “Masturbation” Defined

                •   People v. Chambless, 74 Cal. App. 4th 773 (1999)
                •   People v. Gordon, 92 Cal. App. 4th 342 (2001)

4.      “Diagnosed Mental Disorder” Defined

        •    People v. Chambless, 74 Cal. App. 4th 773 (1999)
        •    People v. Gordon, 92 Cal. App. 4th 342 (2001)
        •    People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)

5.      Danger to the Health and Safety of Others

        •    People v. Gordon, 92 Cal. App. 4th 342 (2001)




                                -37-
                              California
            6.      “Recent Over Act” Defined

                    •   People v. Gordon, 92 Cal. App. 4th 342 (2001)

            7.      “Predatory” Defined

                    •   People v. Chambless, 74 Cal. App. 4th 773 (1999)
                    •   People v. Gordon, 92 Cal. App. 4th 342 (2001)

     H.     Cruel and Unusual Punishment

            •    In re Alva, 89 Cal. App. 4th 758 (2001)
            •    In re King, 157 Cal. App. 3d 554 (1984)
            •    People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357 (2001)
            •    People v. Monroe, 168 Cal. App. 3d 1205 (1985)

            1.      Three-Prong Test

                    •   In re Alva, 89 Cal. App. 4th 758 (2001)
                    •   In re King, 157 Cal. App. 3d 554 (1984)
                    •   People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357 (2001)
                    •   People v. Monroe, 168 Cal. App. 3d 1205 (1985)

            2.      Transforming Civil Remedies into Criminal Penalties

                    •   In re Alva, 89 Cal. App. 4th 758 (2001)

X.   SUPERVISED RELEASE

     No state cases reported.




                                            -38-
                                          California
                                        CALIFORNIA
                                              Case Highlights


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

Angie M. v. Superior Court, 37 Cal. App. 4th 1217 (1995)
      A civil cause of action for unlawful seduction/sexual abuse can exist against a 48-year-
      old physician who engages in sexual intercourse with and orally copulates a minor
      female.

Franks v. Delaware, 438 U.S. 154 (1978)
       Where a defendant makes a substantial preliminary showing that a false statement
       knowingly and intentionally, or with reckless disregard for the truth, was included by the
       affiant in a search-warrant affidavit, and if the allegedly false statement is necessary to
       the finding of probable cause, the Fourth Amendment of the U.S. Constitution requires
       that a hearing be held at the defendant’s request. In the event that at that hearing the
       allegation of perjury or reckless disregard is established by the defendant by a
       preponderance of the evidence, and, with the affidavit’s false material set to one side, the
       affidavit’s remaining content is insufficient to establish probable cause, the search
       warrant must be voided and the fruits of the search excluded to the same extent as if
       probable cause was lacking on the face of the affidavit.

Hatch v. Superior Court, 80 Cal. App. 4th 170 (2000)
       The fact that the prosecution cannot show the defendant’s intended victims were in fact
       under 14 years of age is irrelevant to his culpability for attempting the charged crimes
       (sending, by any means, materials with the intent of seducing a minor). If the defendant
       had the specific intent to complete the target crimes, the impossibility of completing the
       crimes does not exonerate him from attempting those offenses.

In re Alva, 89 Cal. App. 4th 758 (2001)
        On an order to show cause by the California Supreme Court, the Court of Appeal stated
        that the defendant, convicted of possession of child pornography, was required to register
        as a sex offender because although a young, first-time offender, the defendant not only
        had an interest in possessing child pornography but he also specifically expressed an
        interest in young boys and a willingness to pay to play with young boys. The defendant
        also offered to “trade” one boy for another. This, to the Court of Appeal, demonstrates
        more than a passing interest in the possession of child pornography and poses a
        significant threat to society, based upon the defendant’s own comments to the undercover
        law-enforcement officer.




                                                         -39-
                                                      California
In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584 (2002)
        The acts described by the child victim, those of the victim orally copulating the defendant
        and the defendant’s kissing the victim and masturbating on her chest, constitute a
        touching with the requisite intent under California Penal Code § 288 (committing a lewd
        and lascivious act on a child).

In re Bryan S., 110 Cal. App. 3d 144 (1980)
        Some minimal official participation or encouragement may bring a private search within
        the constitutional constraints on state action.

In re Donald R., 14 Cal. App. 4th 1627 (1993)
       A reasonable, good-faith mistake of fact as to the age of a victim is not a defense made
       available to a minor in prosecution for committing a lewd and lascivious act upon a child
       under the age of 14 years.

In re Duncan, 189 Cal. App. 3d 1348 (1987)
       A search warrant may properly be issued upon probable cause, supported by affidavit,
       describing property consisting of evidence, which tends to show that sexual exploitation
       of a child has occurred or is occurring.

In re James P., 115 Cal. App. 3d 681 (1981)
        The offense of contributing to the delinquency of a minor is necessarily included in the
        offense of committing a lewd act upon a child.

In re Jason L., 222 Cal. App. 3d 1206 (1990)
        Sexual assault is defined as the intentional touching of the genitals or intimate parts,
        including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing
        covering them, of a child, or of the perpetrator by a child, for the purposes of sexual
        arousal or gratification, or the intentional masturbation of the perpetrator’s genitals in the
        presence of a child.

In re Jerry M., 59 Cal. App. 4th 289 (1997)
        Nothing in California Penal Code § 288(a) (committing a lewd and lascivious act upon a
        child under the age of 14 years) precludes a minor under 14 from violating the statute.

In re King, 157 Cal. App. 3d 554 (1984)
        Sex-offender registration cannot constitutionally be imposed as punishment for persons
        convicted of misdemeanors such as indecent exposure.

In re Paul C., 221 Cal. App. 3d 43 (1990)
       A minor under age 14 may be adjudged responsible for violation of California Penal
       Code § 288(a) (committing a lewd and lascivious act on a child under 14 years of age)
       and 228a(b)(1) (participating in oral copulation with a person under the age of 18).




                                                -40-
                                              California
In re Randy S., 76 Cal. App. 4th 400 (1999)
       The actions of a minor defendant charged with committing a lewd act upon a child, who
       knew he could be in trouble for sexually abusing the child; who had gone into the
       bathroom with the child on at least one occasion and locked the door and proceeded to
       place his fingers in the child’s vagina; and who then attempted to evade the consequences
       of his actions demonstrate that he harbored the requisite intent to arouse his own sexual
       desires through the use of the child. Although he may only have been experimenting
       sexually, his actions clearly evidence an intent to sexually stimulate himself.

In re T.A.J., 62 Cal. App. 4th 1350 (1998)
        California Penal Code § 261.5(b), which makes it a misdemeanor for “any person” to
        have sexual intercourse with a minor who is no more than three years older or younger
        than the perpetrator, does not infringe a constitutional privacy right of minors to engage
        in consensual sexual intercourse.

Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App. 4th 603 (1998)
      In any civil action for recovery of damages suffered as a result of childhood sexual abuse,
      the time for commencement of the action shall be within eight years of the date the
      plaintiff attains the age of majority or within three years of the date the plaintiff discovers
      or reasonably should have discovered that psychological injury or illness occurring after
      the age of majority was caused by the sexual abuse, whichever period expires later.

Mathews v. Superior Court, 119 Cal. App. 3d 309 (1981)
      One who obtains sexual favors for him- or herself by fraud cannot be held to “procure”
      within the meaning of California Penal Code § 266 (fraudulent procurement of a female
      to have illicit carnal connection).

Parnell v. Superior Court, 119 Cal. App. 3d 392 (1981)
       Forcible detention of the victim is an implied element of the crime of kidnapping and,
       therefore, as long as the detention continues, the crime continues.

People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954 (2002)
       The following mitigating factors were taken into consideration when deciding to impose
       consecutive or concurrent sentences: the willingness of the victims to participate; the
       consent of the victims to participate in the photo sessions; the lack of distribution or
       production of commercial child pornography; the defendant’s lack of solicitation of the
       victims; two clinical evaluations that concluded the defendant was not a pedophile; and
       the fact that the crimes alleged were committed closely in time and place as to indicate a
       single period of aberrant behavior.

People v. Austin, 111 Cal. App. 3d 110 (1980)
       The touching necessary to violate California Penal Code § 288 (committing a lewd and
       lascivious act upon a child) may be done by the child victim on his or her own person
       providing such touching was at the instigation of a person who had the required specific
       intent to arouse, or appeal to, or gratify the lust, the passion, or the sexual desire of the
       perpetrator or the child victim.



                                                -41-
                                              California
People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094 (2002)
       Among other factors taken into consideration by the court in denying the defendant
       probation were the defendant’s failure to express remorse for the offenses for which he
       stands convicted, the defendant’s continual offer of contrived explanations for how the
       prosecution came about, and the defendant’s limited ability to comply with probation in
       light of his express desire to continue using a computer. The court also noted the
       defendant’s lack of criminal record, but also that the victims were vulnerable and that the
       defendant induced others to participate in his unlawful conduct.

People v. Barraza, 23 Cal. 3d 675 (1979)
       The proper test for entrapment in California is: was the conduct of the law-enforcement
       agent likely to induce a normally law-abiding person to commit the offense?

People v. Blevins, 158 Cal. App. 3d 64 (1984)
       Any person who is armed with or uses a firearm or any other deadly weapon in the
       commission of an enumerated sex offense must receive a sentencing enhancement for
       each and every such offense.

People v. Bowker, 203 Cal. App. 3d 385 (1988)
       Expert testimony related to child-sexual-abuse-accommodation syndrome must be
       narrowly confined, subject to a proper foundational showing that such evidence is
       necessary to rebut popular misconceptions that would challenge the victim’s credibility.

People v. Cantrell, 7 Cal. App. 4th 523 (1992)
       California Penal Code § 311.4(c) (employing or using a minor under the age of 17 years
       to pose for sexual photographs) is not overbroad, as the statute adequately defines the
       prohibited conduct and includes a scienter requirement.

People v. Catelli, 227 Cal. App. 3d 1434 (1991)
       An undercover law-enforcement officer who repeatedly queried a defendant about his
       proposal to silence his victims, including questions concerning the contents of the notes
       the defendant displayed to him, clearly undertook a course of conduct deliberately
       designed to elicit incriminating statements from the defendant.

People v. Chambless, 74 Cal. App. 4th 773 (1999)
       In order to establish the defendant is a sexually violent predator, the People need to prove
       that he or she had been convicted of two separate sexually violent offenses against two or
       more victims; he or she had served a determinate term; he or she had a diagnosable
       mental disorder; and such disorder made him or her a danger to the health and safety of
       others in that it was likely he or she would engage in sexually violent conduct if released.

People v. Cochran, 2002 Cal. LEXIS 4352 (2002)
       “Commercial purposes” can be shown by the planning and effort required to create the
       images that appeared on a videotape, including various lighting techniques to enhance the
       quality of the video, and the defendant’s possession of other equipment that would further



                                               -42-
                                             California
       his goal of producing pornography for commercial purposes. The commercial purpose
       was also shown by the defendant’s subsequent posting of still photographs from the
       videotape on the Internet. The defendant’s attempt to attract broad attention to the still
       images from the videotape when he posted them on the Internet strongly suggests that at
       the time he produced the tape the defendant intended to commercialize it.

People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357 (2001)
       The determination of whether punishment is cruel and unusual may be based solely on
       the offender. Further, a sentence of 275 years to life was not disproportionate to the
       offenses (nine counts of committing a lewd act on a child) or the offender.

People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509 (2002)
       Once the defendant completed his first act of sodomy on the child victim, all of the
       subsequent offenses were committed in close temporal and spatial proximity. The only
       potentially significant interruption in the sex offenses occurred when the victim was
       permitted to use the bathroom between acts of sodomy. The precise duration of the
       bathroom visit was unspecified in the record; however, the defendant accompanied the
       victim into the bathroom and maintained close watch. The victim was then taken back to
       the same bedroom location where all the previous sexual assaults were committed, and
       the defendant resumed his acts of sodomy. The interruption in sexual conduct was
       relatively brief, and no separate sexual offenses were committed during this interval or at
       any second location within the house. Therefore, all the sex offenses occurred on a single
       occasion for the purposes of sentencing.

People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186 (2002)
       In assessing the sufficiency of the evidence on eight counts of lewd and lascivious
       conduct with a child under 14 years of age by use of force, violence, duress, menace, or
       fear, the court considers the totality of the circumstances. In the case at hand, the
       circumstances included the nature of the specific acts; young age, small size, and
       immaturity of the victims; victims’ relative isolation at the time of the acts; defendant’s
       position of authority and dominance over the victims; defendant’s repetitious exploitation
       of the victim; testimony of the victims that they did not want to engage in the conduct but
       that the defendant made them do it; and victims’ testimony that they were too scared of
       the defendant to refuse his demands.

People v. Espinoza, 95 Cal. App. 4th 1287 (2002)
       The mere fact that the defendant was the victim’s father and larger than the victim,
       combined with the victim’s fear and limited intellectual level are insufficient to establish
       that the lewd acts were accomplished by duress.

People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939 (2002)
       The defense must disclose to the prosecuting attorney the names and addresses of persons
       the defendant intends to call as witnesses at trial and, inter alia relevant written or
       recorded statements of those witnesses, or reports of such statements, at least 30 days
       before trial. When information subject to disclosure becomes known to a party within 30
       days of trial, it must be disclosed immediately unless good cause is shown.



                                               -43-
                                             California
People v. Goldstein, 130 Cal. App. 3d 1024 (1982)
       A trial court may, in its discretion, reject mentally disordered sex-offender proceedings
       where there is no medical or psychiatric evidence of sexual psychopathy.

People v. Gonzalez, 81 Cal. App. 3d 274 (1978)
       Sodomy requires a general, not a specific, intent.

People v. Gordon, 92 Cal. App. 4th 342 (2001)
       The Sexually Violent Predators Act requires a finding, at trial, that the defendant is likely
       to engage in sexually violent predatory criminal behavior if he or she is released, not that
       the defendant’s prior convictions involved predatory acts.

People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417 (2002)
       There was no error when a trial court failed to instruct the jury that a sexually violent
       predator must suffer a mental condition that makes him or her currently unable to control
       his or her behavior.

People v. Gutierrez, 80 Cal. App. 3d 829 (1978)
       A good-faith, reasonable belief that the victim is 14 years of age or older is not a defense
       to a prosecution under California Penal Code § 288 (committing a lewd and lascivious act
       upon a child under the age of 14).

People v. Herman, 97 Cal. App. 4th 1369 (2002)
       A minor does not violate California Penal Code § 288 (committing a lewd and lascivious
       act upon a child) by engaging in lewd conduct with an adult.

People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074 (2002)
       A warrant was not found to be stale when there were no circumstances that in any way
       suggested that evidence of the sexual assault was removed from the defendant’s home
       during the 10-day period before the warrant was issued.

People v. Hill, 23 Cal. 4th 853 (2000)
       In kidnapping cases the requirement of force may be relaxed where the victim is a minor
       who is too young to give his or her legal consent to being taken and the kidnapping was
       done for an improper purpose.

People v. Hsu, 82 Cal. App. 4th 976 (2000)
       California’s statute regarding distributing or exhibiting, or attempting to distribute or
       exhibit, lewd matter to a minor by the Internet is constitutional.

People v. Jackson, 18 Cal. App. 3d 504 (1971)
       A medical diagnosis based on probability – as is the case with the “battered-child-
       syndrome” diagnosis – is admissible expert testimony; the lack of scientific certainty
       does not deprive the medical opinion of its evidentiary value.




                                               -44-
                                             California
People v. Jeff, 204 Cal. App. 3d 309 (1988)
       On a charge of using force to commit a rape, it is not enough for the prosecution to show
       that the sexual intercourse was accomplished against the will of the victim by means of
       fear. There is a further requirement that the victim fear immediate and unlawful bodily
       injury. Even an unreasonable fear may suffice if the accused knowingly takes advantage
       of that fear in order to accomplish sexual intercourse.

People v. Jones, 155 Cal. App. 3d 153 (1984)
       In imposing the upper term of sentencing for counts of forcible rape, the court took into
       consideration the following aggravating factors: all of the victims were young females;
       they were extremely vulnerable as they were the defendant’s stepdaughters or friends of
       his stepdaughters; the number and nature of the offenses occurring over a four-year
       period of time made it clear to the court that the crimes were carried on by this defendant
       on a premeditated, deliberate, and willful manner; and that the defendant had established
       an ongoing, continuing pattern of violent conduct that constituted an extreme danger to
       the community.

People v. Kongs, 30 Cal. App. 4th 1741 (1994)
       The defendant, under the guise of developing photo portfolios for child models,
       diminished his subjects by focusing the camera on their private parts, turning the models
       into sexual objects. Consequently, there was sufficient evidence of exhibition of the
       genitals, pubic, or rectal area for the purpose of sexual stimulation of the viewer to
       sustain the magistrate’s decision to hold the defendant to answer on these charges.

People v. Kurey, 88 Cal. App. 4th 840 (2001)
       The California statute on child pornography requires a real minor and knowledge of
       minority on the part of the perpetrator. Proof of age can be accomplished by the use of
       either direct or circumstantial evidence, or both.

People v. Lazarevich, 95 Cal. App. 4th 416 (2001)
       Double jeopardy does not allow for a defendant who was convicted of child abduction
       and retention in Serbia to be prosecuted for the kidnapping and detention of his children
       in a California court of law.

People v. Lopez, 19 Cal. 4th 282 (1998)
       Child annoyance is not a lesser-included offense of committing a lewd act upon a child
       under 14; therefore, sua sponte instructions are not required.

People v. Luera, 86 Cal. App. 4th 513 (2001)
       The defendant’s claim that California’s possession of child-pornography statute is
       unconstitutional because the provision exempting any film rated by the Motion Picture
       Association of America constitutes an unconstitutional delegation of power, fails.

People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366 (2002)
       When law enforcement seized obscene materials under a valid warrant, they lost any
       privacy interest previously held by the defendant.



                                              -45-
                                            California
People v. Martinez, 11 Cal. 4th 434 (1995)
       California Penal Code § 288 (committing a lewd or lascivious act on a child under the
       age of 14) is violated by any touching of an underage child committed with the intent to
       sexually arouse either the defendant or the child.

People v. Meacham, 152 Cal. App. 3d 142 (1984)
       The evidence establishes that the defendant instructed or posed children in such a manner
       that their hands were caused to be placed upon their own genitalia. These acts of touching
       are imputable to the defendant as if the touching had been actually done by his or her
       own hands. It is a “constructive” touching.

People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744 (2001)
       When a defendant is accused of a sexual offense in a criminal action, that evidence of the
       defendant’s commission of another sexual offense or offenses is admissible. Sexual
       offense includes sexual battery, rape, statutory rape, spousal rape, rape by foreign object,
       sex by misrepresentation, sodomy, lewd or lascivious acts, oral copulation, seduction of a
       minor, continuous sexual abuse of a child, penetration by a foreign object, distribution of
       child pornography, sexual exploitation of a child, employing a child in the sexual
       exploitation of a child, distributing child pornography, possession of child pornography,
       indecent exposure, and child molestation.

People v. Mena, 206 Cal. App. 3d 420 (1988)
       Where a penal statute expressly outlaws conduct against minors, a minor victim of the
       proscribed conduct is not an accomplice, and the jury need not be instructed that the
       minor’s testimony requires corroboration.

People v. Mickle, 54 Cal. 3d 140 (1991)
       Where a defendant commits actual or constructive disrobing of a child for a sexually
       exploitative purpose, such conduct is presumptively harmful and prohibited by California
       Penal Code § 288(a).

People v. Monroe, 168 Cal. App. 3d 1205 (1985)
       A defendant who is convicted of annoyance and molestation of a child may be required to
       register as a sex offender.

People v. Moreno, 64 Cal. App. 3d Supp. 23 (Cal. App. Dep’t Super. Ct. 1976)
       Since the exclusionary rule applies solely to the conduct of a state agent, private searches
       are not illegal, nor are their fruits inadmissible unless a law-enforcement officer is present
       and fails to take any action to prevent a violation of the rights of the individual subjected
       to a search that would be illegal if conducted by a state agent.

People v. Murphy, 25 Cal. 4th 136 (2001)
       An act of oral copulation on a child under 14 years of age by a person more than 10 years
       older than the child is a lewd or lascivious act under the common and ordinary meaning
       of those words.



                                                -46-
                                              California
People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734 (2002)
       There was no substantial evidence of the “commercial consideration” element without
       any indication that the defendant charged or ever intended to charge money for images of
       child pornography.

People v. Neves,* 2002 Cal. App. Unpub. LEXIS 1818 (2002)
       The trial court is not required to instruct the jury on the defense of entrapment unless
       substantial evidence supports the defense.

People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790 (2002)
       Lay opinion about the veracity of particular statements by another is inadmissible on that
       issue. A lay witness is occasionally permitted to express an ultimate opinion based on his
       or her perception, but only where helpful to a clear understanding of his or her testimony
       (i.e., where the concrete observations on which the opinion is based cannot otherwise be
       conveyed).

People v. Orellano, 79 Cal. App. 4th 179 (2000)
       California Evidence Code § 1108 permits evidence of a defendant’s prior sexual offenses
       as evidence of a disposition to commit such crimes.

People v. Paz, 80 Cal. App. 4th 293 (2000)
       A reasonable, good-faith mistake about the age of a 14- or 15-year-old victim is not a
       defense to a charge under California Penal Code § 288(c)(1) (lewd or lascivious acts
       committed upon a victim 14 or 15 years old with the defendant being at least 10 years
       older).

People v. Pecci, 72 Cal. App. 4th 1500 (1999)
       Probation is prohibited for pimping, pandering, and transporting a child under age 16 for
       the commission of a lewd act.

People v. Peppars, 140 Cal. App. 3d 677 (1983)
       Factual impossibility is not a defense to the charge of conspiracy to commit the
       substantive crime.

People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871 (2002)
       Evidence of the defendant’s prior sexual misconduct was properly admitted into
       evidence.

People v. Quintana, 89 Cal. App. 4th 1362 (2001)
       Penetration of the external genital organs is sufficient to constitute sexual penetration and
       to complete the crime of rape even if the rapist does not thereafter succeed in penetrating
       the vagina. Accordingly, contact with the hymen as well as the clitoris and the other
       genitalia inside the exterior of the labia majora constitute sexual penetration.




                                               -47-
                                             California
People v. Reed, 53 Cal. App. 4th 389 (1996)
       Factual impossibility is not a defense to a charge of attempt.

People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487 (2002)
       California Penal Code § 208(b) provides an aggravated punishment for individuals who
       kidnap children under the age of 14. Reasonable mistake of fact as to the victim’s age is
       not a defense to a violation of § 208(b).

People v. Schulz, 2 Cal. App. 4th 999 (1992)
       On a charge of using force, violence, duress, menace, or fear of immediate and unlawful
       bodily injury to commit a lewd and lascivious act upon a child under the age of 14 years,
       the court found duress on the following facts: the victim, then 9 years old, was crying
       while the defendant, her adult uncle, restrained and fondled her. On this occasion the
       defendant took advantage not only of his psychological dominance as an adult authority
       figure, but also of his physical dominance to overcome her resistance to molestation.

People v. Scott, 9 Cal. 4th 331 (1994)
       A violation of California Penal Code § 288 (committing a lewd and lascivious act upon a
       child under 14 years of age) is generally complete as soon as the requisite penetration,
       touching, or contact occurs. A prolonged encounter is not necessary.

People v. Scott, 83 Cal. App. 4th 784 (2000)
       A plea of double jeopardy cannot be raised for the first time on appeal. Further, one who
       commits lewd or lascivious acts with a child, even with a good-faith belief that the child
       is 14 years of age or older, does so at his or her peril.

People v. Senior, 3 Cal. App. 4th 765 (1992)
       Since ordinary oral copulation and digital penetration almost always involve some
       physical contact other than genital, a modicum of holding and even restraining cannot be
       regarded as substantially different or excessive force.

People v. Shegog, 184 Cal. App. 3d 899 (1986)
       Any warrantless examination, search, or use by law-enforcement officers of the results of
       a private search is limited to the scope of the private search, in the absence of plain view
       or other exception to the warrant requirement.

People v. Shipstead, 19 Cal. App. 3d 58 (1971)
       It is clear that the fruits of a private search conducted at the instigation of, or with the
       participation of, law enforcement will be deemed subject to the prohibition of the Fourth
       Amendment.

People v. Smith, 98 Cal. App. 4th 1182 (2002)
       When an appellate court is reviewing a statute of limitations question after a conviction
       for the charged offenses, the proper question is whether the record demonstrates that the
       crime charged actually fell within the applicable statute of limitations.



                                               -48-
                                             California
People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225 (1988)
       Reasonable suspicions of voluntary sexual conduct between a minor under age 14 and a
       person of disparate age must be reported under the Child Abuse and Neglect Reporting
       Act.

People v. Tate, 164 Cal. App. 3d 133 (1985)
       A defendant entering a plea of nolo contendere to a misdemeanor violation (annoying or
       molesting a child under the age of 18 years) may be required to register as a sex offender.

People v. Thompson, 205 Cal. App. 3d 871 (1988)
       California Penal Code § 1203.066(a)(3) denies probation to a person convicted of
       committing a lewd and lascivious act upon a child and who was also a stranger to the
       child victim or made friends with the child victim for the purpose of committing such an
       act. Such statute is constitutional and is not void for vagueness for failing to define acts
       that constitute “making friends.”

People v. Trudell, 173 Cal. App. 3d 1221 (1985)
       Officers investigating the forcible kidnap and rape of a 14-year-old child that same
       morning could reasonably have believed that an immediate arrest, without a warrant, was
       necessary to ensure public safety and forestall the possibility of the defendant’s further
       flight.

People v. Vasquez, 51 Cal. App. 4th 1277 (1996)
       A conviction of sexual abuse of a minor can be legally supported by “generic” testimony
       by the victim, if such testimony describes the kind of acts committed with sufficient
       specificity to assure that a crime occurred and to differentiate among the various acts of
       proscribed conduct; describes the number of acts with sufficient certainty to support each
       of the counts with which the defendant is charged; and describes the general time period
       of the acts, to assure they were committed within the statute of limitations.

People v. Vincze, 8 Cal. App. 4th 1159 (1992)
       Contributing to the delinquency of a minor is not a lesser-included offense to lewd and
       lascivious conduct; therefore, the trial court was not required to instruct the jury sua
       sponte.

People v. Yackee, 161 Cal. App. 3d 843 (1984)
       The Fourth Amendment’s prohibition against unreasonable search and seizure does not
       apply to searches by private citizens. This is so even if the private search is unreasonable
       or unwarranted.

Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245 (1986)
      California’s mandatory reporting-of-child-abuse law does not require the reporting of
      voluntary sexual activity among minors under age 14.




                                               -49-
                                             California
Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671 (1995)
      The defendants, a shelter for girls and the shelter employees, could not be found to have
      interfered with parental custody and rights because the child voluntarily went to the
      shelter and there was no evidence that the defendants induced the child to stay at the
      shelter.

Surina v. Lucey, 168 Cal. App. 3d 539 (1985)
       The consent of the child is no defense to the actions of a parent who unlawfully takes or
       withholds a minor child from the custody of the parent or guardian entitled to such
       custody.

Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339 (2002)
       If the exemption to the statute on possession and distribution of child pornography allows
       the prosecutor to duplicate and distribute the images for prosecution purposes, then the
       prosecutor can duplicate and distribute the images with impunity to any of the players in
       the criminal action – to the court pretrial, to the jury at trial, and/or to the defense as part
       of the prosecutor’s discovery duties.




                                                 -50-
                                               California
F                                       CALIFORNIA
                                             Offenses Defined


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       Aggravated Sexual Assault

         •    Aggravated sexual assault forbids the commission of certain types of sexual offenses
              against a child under 14 years of age and 10 or more years younger than the accused.
              Cal. Pen. Code § 269.
              – People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509, 19 (2002).

II.      Annoying or Molesting a Child Under the Age of 18

         A.       Elements

                  •   It is a misdemeanor offense to annoy or molest any child under the age of 18.
                      Cal. Pen. Code § 647.6(a).
                      – People v. Kongs, 30 Cal. App. 4th 1741, 1749 (1994).
                      – People v. Lopez, 19 Cal. 4th 282, 289 (1998).
                      – People v. Tate, 164 Cal. App. 3d 133, 135 n.2 (1985).

                  •   A touching is not required; however, conduct a normal person would
                      unhesitatingly be irritated by and conduct motivated by an unnatural or
                      abnormal sexual interest in the victim are prohibited.
                      – People v. Lopez, 19 Cal. 4th 282, 289 (1998).
                      – People v. Monroe, 168 Cal. App. 3d 1205, 1211 (1985).
                      – People v. Tate, 164 Cal. App. 3d 133, 138 (1985).

                  •   “Annoy” and “molest” ordinarily relate to offenses against children, with a
                      connotation of abnormal sexual motivation. The forbidden annoyance or
                      molestation is not concerned with the child’s state of mind, but rather refers to
                      the defendant’s objectionable acts that constitute the offense.
                      – People v. Lopez, 19 Cal. 4th 282, 290 (1998).
                      – People v. Monroe, 168 Cal. App. 3d 1205, 1212 (1985).
                      – People v. Tate, 164 Cal. App. 3d 133, 138, 139 (1985).

                  •   To determine whether the defendant’s conduct would unhesitatingly irritate or
                      disturb a normal person, an objective test is employed, not dependent on
                      whether the child was in fact irritated or disturbed.
                      – People v. Lopez, 19 Cal. 4th 282, 290 (1998).
                      – People v. Paz, 80 Cal. App. 4th 293, 300 n.14 (2000).




                                                         -51-
                                                      California
                •    In interpreting California Penal Code § 647.6(a), courts focus on the
                     defendant’s intent and an objective assessment of the defendant’s conduct.
                     – People v. Kongs, 30 Cal. App. 4th 1741, 1749 (1994).

                •    The annoyance or molestation that is forbidden is in no sense a purely
                     subjective state on the part of the child.
                     – People v. Kongs, 30 Cal. App. 4th 1741, 1750 (1994).

                •    The deciding factor for purposes of California Penal Code § 647.6 is that the
                     defendant has engaged in offensive or annoying sexually motivated conduct
                     that invades a child’s privacy and security.
                     – People v. Kongs, 30 Cal. App. 4th 1741, 1752 (1994).

       B.       “Annoy” and “Molest” Defined

                •    “Annoy” and “molest” are synonymous and mean to disturb or irritate,
                     especially by continued and repeated acts to vex, to trouble, to irk, or to
                     offend.
                     – People v. Kongs, 30 Cal. App. 4th 1741, 1749 (1994).

III.   Child Abduction/Kidnapping

       •    Every person who takes, entices away, keeps, withholds, or conceals a child and
            maliciously deprives a lawful custodian of a right to custody, or a person of a right to
            visitation, will be punished. Cal. Pen. Code § 278.5.
            – People v. Lazarevich, 95 Cal. App. 4th 416, 423 (2001).
            – Surina v. Lucey, 168 Cal. App. 3d 539, 543 n.2 (1985).

       •    “Keeps” or “withholds” means to retain physical possession of a child whether or not
            the child resists or objects. Cal. Pen. Code § 277(g).
            – People v. Lazarevich, 95 Cal. App. 4th 416, 423 (2001).

       •    Every person who forcibly, or by any other means of instilling fear, steals or takes, or
            holds, detains, or arrests any person in the State of California, and carries the person
            into another country, state, or county, or into another part of the same county, is
            guilty of kidnapping. Cal. Pen. Code § 207(a).
            – Parnell v. Superior Court, 119 Cal. App. 3d 392, 401 n.1 (1981).
            – People v. Hill, 23 Cal. 4th 853, 856 (2000).
            – People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487, 119 (2002).

       •    California Penal Code § 207, as applied to a person forcibly taking and carrying away
            another, who by reason of immaturity or mental condition is unable to give his or her
            legal consent thereto, should be construed as making the one so acting guilty of
            kidnapping only if the taking and carrying away is done for an illegal purpose or with
            an illegal intent.
            – People v. Hill, 23 Cal. 4th 853, 857 (2000).




                                                      -52-
                                                    California
•    An action can be maintained against one who, with knowledge that the child is away
     from home against the will of the parent, imprisons the child or induces the child,
     whether by affording the child employment or otherwise, not to return home.
     – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681 (1995).

•    No action can be maintained, however, against one who merely gives shelter and
     sustenance to a child known by the actor to have left home without the parent’s
     permission, if the child is not induced by other means to remain away from his or her
     home.
     – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681 (1995).

•    One who is not entitled to custody of a child has no privilege to interfere with the
     legal custody of the child.
     – Surina v. Lucey, 168 Cal. App. 3d 539, 542 (1985).

•    A third party may not interfere with the parents’ right of custody, even if motivated
     by kindness or affection toward the child.
     – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681 (1995).

•    The age of the child, the closeness of the family ties, and other attendant
     circumstances, may ultimately affect the measure of damages or the proof of the
     defendant’s liability but do not affect the plaintiff’s ability to plead a cause of action
     that will survive a demurrer.
     – Surina v. Lucey, 168 Cal. App. 3d 539, 545 (1985).

A.       Use of Force

         1.      In General

                 •    Kidnapping can only be accomplished by the threat of force or the
                      actual use of force.
                      – Parnell v. Superior Court, 119 Cal. App. 3d 392, 401 (1981).

                 •    The kidnapping statute generally requires that the defendant use force
                      or fear.
                      – People v. Hill, 23 Cal. 4th 853, 856 (2000).

                 •    Even though the seizure of a victim is effect without force, a
                      kidnapping conviction will still be upheld if the accused subsequently
                      restrains his or her victim’s liberty by force and compels the victim to
                      accompany him or her further.
                      – Parnell v. Superior Court, 119 Cal. App. 3d 392, 402 (1981).

                 •    The force used against the victim need not be physical. The movement
                      is forcible where it is accomplished through the giving of orders which
                      the victims feels compelled to obey because he or she fears harm or



                                              -53-
                                            California
                  injury from the accused and such apprehension is not unreasonable
                  under the circumstances.
                  – Parnell v. Superior Court, 119 Cal. App. 3d 392, 402 (1981).

              •   The forcible detention of the victim is an implied element of the crime
                  of kidnapping and, therefore, as long as the detention continues, the
                  crime continues.
                  – Parnell v. Superior Court, 119 Cal. App. 3d 392, 407-08 (1981).

     2.       When a Minor Is Kidnapped

              •   Kidnapping of a child under the age of 14 requires proof of the same
                  elements of simple kidnapping plus the victim’s age. Cal. Pen. Code §
                  208(b).
                  – People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487, 134 (2002).

              •   In kidnapping cases the requirement of force may be relaxed where the
                  victim is a minor who is too young to give his or her legal consent to
                  being taken and the kidnapping was done for an improper purpose.
                  – Parnell v. Superior Court, 119 Cal. App. 3d 392, 402 (1981).
                  – People v. Hill, 23 Cal. 4th 853, 857 (2000).

B.   Parental Kidnapping

     •    In the absence of an order or decree affecting the custody of a child, it is
          generally held that a parent does not commit the crime of kidnapping by
          taking exclusive possession of the child.
          – People v. Senior, 3 Cal. App. 4th 765, 780 (1992).

     •    A parent entitled to custody cannot be liable for kidnapping his or her own
          child.
          – People v. Senior, 3 Cal. App. 4th 765, 781 (1992).

     •    While a father entitled to custody ordinarily cannot kidnap his own child, his
          right to physical custody ends when he exercises it for a purpose known to be
          illegal.
          – People v. Senior, 3 Cal. App. 4th 765, 781 (1992).

C.   Privilege to Rescue from Violence

     •    One is not liable for rescuing a child from physical violence inflicted by his or
          her parent in excess of parental privilege.
          – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681 (1995).

     •    To entitle the actor to immunity, however, it must appear reasonably probable
          that the child is about to suffer immediate harm or that the child will be
          subjected to immediate harm if he or she returns home.
          – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681 (1995).


                                          -54-
                                        California
            •   It is also necessary to the actor’s protection that he or she act for the purpose
                of saving the child from the threatening danger or of assisting him or her to
                escape from it.
                – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 681-82 (1995).

      D.    Notification of Parents

            •   Parents must be promptly notified as to the place the minor is being held,
                except where a court, or a peace officer, or social worker if obtaining a court
                order is impracticable, determines the child would be endangered by
                disclosure.
                – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 682 (1995).

      E.    Statute of Limitations

            •   There is no statute of limitation on the prosecution of kidnapping for ransom
                or robbery. Cal. Pen. Code § 799.
                – Parnell v. Superior Court, 119 Cal. App. 3d 392, 406 (1981).

            •   Simple kidnapping is subject to a three-year statute of limitations.
                – Parnell v. Superior Court, 119 Cal. App. 3d 392, 406 (1981).

IV.   Child Pornography

      A.    Virtual/Simulated Child Pornography

            •   The California statute applying to possession of child pornography requires a
                “real” minor and knowledge of minority on the part of the perpetrator.
                – People v. Kurey, 88 Cal. App. 4th 840, 846 (2001).

      B.    Employing a Minor to Produce Pornography

            •   California Penal Code § 311.4 proscribes employing a minor to produce child
                pornography.
                – People v. Cochran, 2002 Cal. LEXIS 4352, 1 (2002).

            •   Every person who, with knowledge that a person is a minor under the age of
                18 years, or who, while in possession of any facts on the basis of which he or
                she should reasonably know that the person is a minor under the age of 18
                years, knowingly promotes, employs, uses, persuades, induces, or coerces a
                minor under the age of 18 years, or any parent or guardian of a minor under
                the age of 18 years under his or her control who knowingly permits the minor,
                to engage in or assist others to engage in either posing or modeling alone or
                with others for purposes of preparing any representation of information, data,
                or image, including, but not limited to, any film, filmstrip, photograph,
                negative, slide, photocopy, videotape, video laser disc, computer hardware,


                                                -55-
                                              California
     computer software, computer floppy disc, data storage media, CD-ROM, or
     computer-generated equipment or any other computer-generated image that
     contains or incorporates in any manner, any film, filmstrip, or a live
     performance involving, sexual conduct by a minor under the age of 18 years
     alone or with other persons or animals, for commercial purposes, is guilty of a
     felony. Cal. Pen. Code § 311.4(b).
     – People v. Cochran, 2002 Cal. LEXIS 4352, 7 n.2 (2002).

1.       Elements for Any Person of the Crime of the Use of a Child in the
         Production of Child Pornography for Commercial Purposes

         •   For any person, the defendant must (1) knowingly have caused a child;
             (2) who is known or should be known to be a child; (3) to participate
             in the production of any representation of sexual conduct by a child;
             (4) for commercial purposes. Cal. Pen. Code § 311.4(b).
             – People v. Cochran, 2002 Cal. LEXIS 4352, 8 (2002).

2.       Elements for a Parent or Guardian of a Child Under His or Her
         Control of the Crime of the Use of a Child in the Production of Child
         Pornography for Commercial Purposes

         •   For a parent or guardian of a child under his or her control, a defendant
             must (1) knowingly have permitted the child; (2) to participate in the
             production of any representation of sexual conduct by a child; (3) for
             commercial purposes. Cal. Pen. Code § 311.4(b).
             – People v. Cochran, 2002 Cal. LEXIS 4352, 8 (2002).

3.       “Commercial Purposes” Defined

         •   Although California Penal Code § 311.4(b) does not define the term
             “commercial purposes,” it is a phrase generally associated with a
             profitmaking enterprise.
             – People v. Cochran, 2002 Cal. LEXIS 4352, 9 (2002).

         •   Commercially trading picture on the Internet with the hopes of
             enriching one’s collection of child pornography is evidence of
             commercial purpose. The profit received by a defendant need not be
             monetary in nature.
             – People v. Cochran, 2002 Cal. LEXIS 4352, 19 (2002).

         •   The defendant need only intend to trade the child pornography for a
             commercial purpose at some point in the future.
             – People v. Cochran, 2002 Cal. LEXIS 4352, 20 (2002).




                                    -56-
                                 California
     4.       “Sexual Conduct” Defined

              •   “Sexual conduct” is defined as “whether actual or simulated: sexual
                  intercourse, oral copulation, anal intercourse, anal-oral copulation,
                  masturbation, bestiality, sexual sadism, sexual masochism, penetration
                  of the vagina or rectum by any object in a lewd or lascivious manner,
                  exhibition of the genitals, pubic, or rectal area for the purpose of
                  sexual stimulation of the viewer, any lewd or lascivious act as defined
                  in § 288, or excretory functions performed in a lewd or lascivious
                  manner, whether or not any of the above conduct is performed alone or
                  between members of the same or opposite sex or between humans and
                  animals. An act is simulated where it gives the appearance of being
                  sexual conduct.” Cal. Pen. Code § 311.4(d).
                  –   In re Alva, 89 Cal. App. 4th 758, 768-69 (2001).
                  –   People v. Cantrell, 7 Cal. App. 4th 523, 539 (1992).
                  –   People v. Hsu, 82 Cal. App. 4th 976, 993 n.10 (2000).
                  –   People v. Kongs, 30 Cal. App. 4th 1741, 1753 n.4 (1994).

C.   Possession of Child Pornography

     •    It is a public offense to knowingly possess or control any matter, the
          production of which involves the use of a person under the age of 14 years,
          knowing that the matter depicts a person under the age of 14 years personally
          engaging in or simulating sexual conduct. Cal. Pen. Code § 311.11(a).
          – In re Alva, 89 Cal. App. 4th 758, 760 (2001).
          – People v. Kongs, 30 Cal. App. 4th 1741, 1756-57 (1994).
          – People v. Kurey, 88 Cal. App. 4th 840, 846 (2001).

D.   Distribution of Child Pornography

     1.       Elements

              •   Every person who knowingly sends or causes to be sent, or brings or
                  causes to be brought, into this state for sale or distribution, or in this
                  state possesses, prepares, publishes, produces, develops, duplicates, or
                  prints any representation of information, data, or image, including, but
                  not limited to, any film, filmstrip, photograph, negative, slide,
                  photocopy, videotape, video laser disc, computer hardware, computer
                  software, computer floppy disc, data storage media, CD-ROM, or
                  computer-generated equipment or any other computer-generated image
                  that contains or incorporates in any manner, any film or filmstrip, with
                  intent to distribute or to exhibit to, or to exchange with, others, or who
                  offers to distribute, distributes, or exhibits to, or exchanges with,
                  others, any obscene matter, knowing that the matter depicts a person
                  under the age of 18 years personally engaging in or personally
                  simulating sexual conduct shall be punished. Cal. Pen. Code §
                  311.11(a).
                  – Hatch v. Superior Court, 80 Cal. App. 4th 170, 191 (2000).


                                           -57-
                                         California
                  –   People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094, 5 n.2 (2002).
                  –   People v. Kurey, 88 Cal. App. 4th 840, 843 n.3 (2001).
                  –   People v. Luera, 86 Cal. App. 4th 513, 518 (2001).
                  –   Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339, 2 n.2 (2002).

              •   It is not necessary to prove that the matter is obscene in order to
                  establish a violation of this section. Cal. Pen. Code § 311.11(c).
                  – People v. Luera, 86 Cal. App. 4th 513, 519 (2001).

     2.       Exceptions

              •   California Penal Code § 311.11(a) does not apply to the activities of
                  law enforcement and prosecuting agencies in the investigation and
                  prosecution of criminal offenses or to legitimate medical, scientific, or
                  educational activities, or to lawful conduct between spouses. Cal. Pen.
                  Code § 311.11(b).
                  – Westerfield v. Superior Court, 2002 Cal. LEXIS 4339, 4 n.3 (2002).

              •   California Penal Code § 311.11(a) does not apply to drawings,
                  figurines, statues, or any film rated by the Motion Picture Association
                  of America, nor does it apply to live or recorded telephone messages
                  when transmitted, disseminated, or distributed as part of a commercial
                  transaction. Cal. Pen. Code § 311.11(d).
                  – People v. Luera, 86 Cal. App. 4th 513, 519 (2001).

E.   Using a Minor to Pose for Sex Acts

     •    It is a felony to knowingly promote, employ, use, persuade, induce, or coerce
          a minor under the age of 17 to engage in or assist others to engage in either
          posing or modeling alone or with others for purposes of preparing a film,
          photograph, negative, slide, or live performance involving sexual conduct by a
          minor under the age of 17 years alone or with other persons or animals. Cal.
          Pen. Code § 311.4(c).
          – People v. Kongs, 30 Cal. App. 4th 1741, 1752 (1994).

F.   Offering Child Pornography for Commercial Consideration

     1.       Elements

              •   Every person who possesses, prepares, publishes, produces, develops,
                  duplicates, or prints any representation of information, data, or image,
                  including, but not limited to, any film, filmstrip, photograph, computer
                  hardware, computer software, computer floppy disk, data storage
                  media, CD-ROM, or computer-generated equipment or any other
                  computer-generated equipment with intent to distribute or to exhibit to,
                  or to exchange with, others for commercial consideration, or who
                  offers to distribute, distributes, or exhibits to, or exchanges with,
                  others for commercial consideration, any obscene matter, knowing that


                                           -58-
                                        California
                           the matter depicts a person under the age of 18 years personally
                           engaging in or personally simulating sexual conduct is guilty of a
                           felony. Cal. Pen. Code § 311.2(b).
                           – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 25-26 (2002).

              2.      “Commercial Consideration” Defined

                      •    The statute does not define “commercial consideration.”
                           – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 26 (2002).

                      •    “Commercial” is a term of common understanding and is generally
                           associated with a profit-making enterprise.
                           – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 28 (2002).

                      •    “Commercial consideration” cannot be reasonably extended to cover
                           the trading or bartering of pornography without financial
                           consideration.
                           – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 28 (2002).

V.    Continuous Sexual Abuse

      •   Any person who either resides in the same home with the minor child or has recurring
          access to the child, who over a period of time, not less than three months in duration,
          engages in three or more acts of substantial sexual conduct or three or more acts of
          lewd and lascivious conduct with a child under the age of 14 years is guilty of the
          offense of continuous sexual abuse. Cal. Pen. Code § 288.5.
          – People v. Vasquez, 51 Cal. App. 4th 1277, 1284, 1287 (1996).

      •   The requirement of a three-month period of time is grammatically attached to the
          requirement of three or more acts, not to the requirement of a shared residence or
          recurring access. Thus the statutory language does not require that the defendant
          reside with, or have access to, the minor continuously for three consecutive months
          for a violation to be found, but would appear to be satisfied if, for example, a child
          regularly spent Christmas, spring, and part of the child’s summer vacations with the
          defendant, and the defendant sexually molested the child during the visits, as long as
          at least three acts of molestation could be proven.
          – People v. Vasquez, 51 Cal. App. 4th 1277, 1284-85 (1996).

VI.   Contributing to the Delinquency of a Minor

      •   Contributing to the delinquency of a minor is any act which causes or tends to cause
          or encourage any person under the age of 18 years to come within the provisions of
          §§ 300, 601, or 602 of the Welfare and Institutions Code or which act contributes
          thereto, or to do or to perform any act or to follow any course of conduct or to so live
          as would cause or manifestly tend to cause any such person to become or to remain a
          person within the provisions of § 300, 601, or 602 of the Welfare and Institutions
          Code. Cal. Pen. Code § 272.


                                                  -59-
                                                California
           – In re James P., 115 Cal. App. 3d 681, 685 (1981).
           – People v. Vincze, 8 Cal. App. 4th 1159, 1162-63 (1992).

       •   The term “every person,” as used in California Penal Code § 272, is all-inclusive. The
           definition includes everyone, irrespective of whether the person is an adult or a
           minor.
           – In re James P., 115 Cal. App. 3d 681, 685 (1981).

       •   Contributing to the delinquency of a minor is a necessarily included offense of the
           crimes of lewd and lascivious conduct and unlawful sexual intercourse.
           – In re James P., 115 Cal. App. 3d 681, 684 (1981).

VII.   Enticement for Purposes of Prostitution

       •   Every person who inveigles or entices any unmarried female, of previous chaste
           character, under the age of 18 years, into any house of ill fame, or of assignation, or
           elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any
           man; and every person who aids or assists in such inveiglement or enticement; and
           every person who, by any false pretenses, false representation, or other fraudulent
           means, procures any female to have illicit carnal connection with any man, shall be
           punished. Cal. Pen. Code § 266.
           – Mathews v. Superior Court, 119 Cal. App. 3d 309, 310-11 (1981).
           – People v. Mena, 206 Cal. App. 3d 420, 424 n.3 (1988).

       •   One who obtains sexual favors for him- or herself by fraud cannot be held to
           “procure” within the meaning of the statute.
           – Mathews v. Superior Court, 119 Cal. App. 3d 309, 311 (1981).

VIII. Lewd and Lascivious Act

       •   It is a felony offense for any person to willfully and lewdly commit any lewd or
           lascivious act on the body of a child under the age of 14 with the intent of arousing
           the lust, passions, or sexual desires of that person or the child. Cal. Pen. Code 288(a).
           –   In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 4 (2002).
           –   In re Jerry M., 59 Cal. App. 4th 289, 295 (1997).
           –   In re Randy S., 76 Cal. App. 4th 400, 405 (1999).
           –   In re T.A.J., 62 Cal. App. 4th 1350, 1365 n.11 (1998).
           –   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 12 (2002).
           –   People v. Herman, 97 Cal. App. 4th 1369, 1379 (2002).
           –   People v. Kongs, 30 Cal. App. 4th 1741, 1753 n.4 (1994).
           –   People v. Lopez, 19 Cal. 4th 282, 289 (1998).
           –   People v. Martinez, 11 Cal. 4th 434, 438, 442 n.5 (1995).
           –   People v. Mickle, 54 Cal. 3d 140, 176 n.17 (1991).
           –   People v. Scott, 9 Cal. 4th 331, 342 (1994).
           –   People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 234 n.3 (1988).
           –   People v. Vincze, 8 Cal. App. 4th 1159, 1162 (1992).
           –   Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 261 (1986).

       •   The crime occurs whenever the trier of fact determines, based on all the
           circumstances, that an underage child was “touched” with the requisite sexual intent.


                                                      -60-
                                                   California
     – People v. Martinez, 11 Cal. 4th 434, 438 (1995).

•    Assuming other elements of the offense are present, a statutory violation is generally
     complete as soon as the requisite penetration, touching, or contact occurs. A
     prolonged encounter is not necessary.
     – People v. Scott, 9 Cal. 4th 331, 341 (1994).

•    An act of oral copulation on a child under 14 years of age by a person more than 10
     years older than the child is a lewd or lascivious act under the common and ordinary
     meaning of those words.
     – People v. Murphy, 25 Cal. 4th 136, 143 (2001).

•    A child under 14 can commit a lewd and lascivious act on another child; however, a
     minor does not violate this section by engaging in lewd and lascivious conduct with
     an adult.
     – In re Jerry M., 59 Cal. App. 4th 289, 297 (1997).
     – People v. Herman, 97 Cal. App. 4th 1369, 1379 (2002).

•    In all cases arising under this statute, the People are required to prove that the
     defendant touched the child in order to obtain immediate sexual gratification.
     – People v. Martinez, 11 Cal. 4th 434, 452 (1995).

•    The trier of fact must find a union of act and sexual intent, and such intent must be
     inferred from all the circumstances.
     – People v. Martinez, 11 Cal. 4th 434, 452 (1995).

•    The only way to determine whether a particular touching is permitted or prohibited is
     by reference to the actor’s intent as inferred from all the circumstances.
     – People v. Martinez, 11 Cal. 4th 434, 450 (1995).

A.       Requisite Touching

         •    A touching is necessary to violate the code section.
              – People v. Austin, 111 Cal. App. 3d 110, 113 (1980).

         •    California Penal Code § 288 is violated by any touching of an underage child
              accomplished with the intent of arousing the sexual desires of either the
              perpetrator or the child.
              – In re Randy S., 76 Cal. App. 4th 400, 405 (1999).
              – People v. Martinez, 11 Cal. 4th 434, 442, 452 (1995).

         •    California Penal Code § 288 prohibits all forms of sexually motivated contact
              with an underage child.
              – In re Randy S., 76 Cal. App. 4th 400, 405 (1999).
              – People v. Martinez, 11 Cal. 4th 434, 442, 444 (1995).




                                               -61-
                                            California
     •   The touching required to violate California Penal Code § 288 may be by the
         child of his or her own person, providing such touching is at the instigation of
         a person having the requisite specific intent.
         – People v. Austin, 111 Cal. App. 3d 110, 113 (1980).
         – People v. Meacham, 152 Cal. App. 3d 142, 153 (1984).

     •   Touching of a sexual organ is not required. Any part of the body may be the
         object of a sexual fetish.
         – In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 5, 6 (2002).
         – People v. Martinez, 11 Cal. 4th 434, 444 (1995).

     •   To constitute a lewd or lascivious act it is not necessary that the bare skin be
         touched. The touching may be through the clothing of the child.
         – People v. Martinez, 11 Cal. 4th 434, 441, 444 (1995).

     •   California Penal Code § 288 permits the conviction of an individual who
         touches a child in a lewd or harmful way, even though there is no evidence
         that a sex crime occurred.
         – People v. Scott, 9 Cal. 4th 331, 344 (1994).

     •   Any touching of a child under the age of 14 violates California Penal Code §
         288(a), even if the touching is outwardly innocuous and inoffensive, if it is
         accompanied by the intent to arouse or gratify the sexual desires of either the
         perpetrator or the victim.
         – In re Randy S., 76 Cal. App. 4th 400, 405 (1999).
         – People v. Lopez, 19 Cal. 4th 282, 289 (1998).
         – People v. Murphy, 25 Cal. 4th 136, 145-46 (2001).

     •   Even a constructive touching (i.e., children’s touching of their own genitalia at
         the instigation of the defendant) may suffice.
         – In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 5 (2002).
         – People v. Meacham, 152 Cal. App. 3d 142, 153 (1984).

     •   Sexual penetration is not required, and the statute may be violated by conduct
         typically referred to as “heavy petting.”
         – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 266 (1986).

     •   The circumstances of the touching remain highly relevant to a California
         Penal Code § 288 violation. The trier of fact must find a union of act and
         sexual intent, and such intent must be inferred from all the circumstances
         beyond a reasonable doubt.
         – In re Randy S., 76 Cal. App. 4th 400, 405 (1999).

B.   Requisite Intent

     •   A violation of the statute requires a touching of the body of a child under the
         age of 14, with the specific intent of arousing, appealing to, or gratifying the
         lust of the child or the accused.


                                          -62-
                                       California
    –   In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 4-5 (2002).
    –   In re Jerry M., 59 Cal. App. 4th 289, 299 (1997).
    –   In re Paul C., 221 Cal. App. 3d 43, 54 (1990).
    –   People v. Senior, 3 Cal. App. 4th 765, 776 (1992).

•   In all cases arising under this statute, the purpose of the perpetrator in
    touching the child is the controlling factor and each case is to be examined in
    the light of the intent with which the act was done.
    – People v. Austin, 111 Cal. App. 3d 110, 115 (1980).
    – People v. Martinez, 11 Cal. 4th 434, 443 (1995).

•   If the intent of the act, although it may have the outward appearance of
    innocence, is to arouse, or appeal to, or gratify the lust, the passion or the
    sexual desire of the perpetrator it stands condemned by the statute, or if it is
    intended to arouse feelings of passion or sexual desire in the child, it likewise
    stands condemned by the statute.
    – People v. Austin, 111 Cal. App. 3d 110, 115 (1980).
    – People v. Martinez, 11 Cal. 4th 434, 443 (1995).

•   Because intent can seldom be proved by direct evidence, it may be inferred
    from the circumstances.
    –   In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 7 (2002).
    –   In re Jerry M., 59 Cal. App. 4th 289, 299 (1997).
    –   In re Paul C., 221 Cal. App. 3d 43, 54 (1990).
    –   People v. Austin, 111 Cal. App. 3d 110, 115 (1980).

•   The trier of fact looks to all the circumstances to determine whether it was
    performed with the required specific intent.
    – People v. Martinez, 11 Cal. 4th 434, 445 (1995).

•   Circumstances which have been considered relevant to proving intent to
    satisfy sexual desires include: age of the defendant, the charged act,
    extrajudicial statements, the relationship of the parties, other acts of lewd
    conduct, coercion or deceit used to obtain the victim’s cooperation, attempts
    to avoid detection, offering of a reward for cooperation, a stealthy approach to
    the victim, admonishment of the victim not to disclose the occurrence,
    physical evidence of sexual arousal, and clandestine meetings.
    – In re Jerry M., 59 Cal. App. 4th 289, 299 (1997).
    – In re Randy S., 76 Cal. App. 4th 400, 405-06 (1999).
    – People v. Martinez, 11 Cal. 4th 434, 445 (1995).

•   While it is not necessary to proof of the offense that the sexual desires of the
    child or of both the child and the defendant were actually affected, whether
    passions were actually aroused is evidence of the intent with which the acts
    were committed.
    – People v. Meacham, 152 Cal. App. 3d 142, 156 (1984).




                                     -63-
                                   California
C.   “Lewd and Lascivious” Defined

     •    A lewd or lascivious act is defined as any touching of the body of a person
          under the age of 14 years with the specific intent to arouse, appeal to, or
          gratify the sexual desires of either party.
          – People v. Martinez, 11 Cal. 4th 434, 441 (1995).

     •    The relevant dictionary meaning of “lewd” is “sexually unchaste or
          licentious,” “dissolute, lascivious,” “suggestive of or tending to moral
          looseness,” “inciting to sensual desire or imagination,” “indecent, obscene,
          salacious.”
          – People v. Martinez, 11 Cal. 4th 434, 449 n.15 (1995).

     •    The word “lascivious” means “tending to arouse sexual desire”; it is
          synonymous with “lewd, lustful,” “libidinous, salacious.”
          – People v. Martinez, 11 Cal. 4th 434, 449 n.15 (1995).

     •    The factors for a fact-finder to consider when determining whether there has
          been a prohibited exhibition of a minor child’s genitals, pubic, or rectal area
          are:
          (1) whether the focal point is on the child’s genitalia or pubic area;
          (2) whether the setting is sexually suggestive (i.e., in a place or pose generally
              associated with sexual activity);
          (3) whether the child is in an unnatural pose, or in inappropriate attire,
              considering the age of the child;
          (4) whether the child is fully or partially clothed or nude;
          (5) whether the child’s conduct suggests sexual coyness or a willingness to
              engage in sexual activity; and
          (6) whether the conduct is intended or designed to elicit a sexual response in
              the viewer.
          – People v. Kongs, 30 Cal. App. 4th 1741, 1754-55 (1994).

     •    The final determination must be made on the overall content of the visual
          depiction and the context of the child’s conduct, taking into account the
          child’s age.
          – People v. Kongs, 30 Cal. App. 4th 1741, 1755 (1994).

D.   Lewd and Lascivious Act Accomplished Through Force

     1.       Elements

              •   A California Penal Code § 288(b) violation occurs when the lewd act
                  is accomplished by use of force, violence, duress, menace, or fear of
                  immediate and unlawful bodily injury on the person or another. Cal.
                  Pen. Code § 288(b).
                  – In re T.A.J., 62 Cal. App. 4th 1350, 1365 n.11 (1998).
                  – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 12 (2002).



                                          -64-
                                        California
         – People v. Espinoza, 95 Cal. App. 4th 1287, 1319 (2002).
         – People v. Martinez, 11 Cal. 4th 434, 442 n.5 (1995).

     •   The essential function of the elements of California Penal Code §
         288(b), such as duress or menace, is to demonstrate that submission to
         the act was not the product of free will.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 13 (2002).

     •   In an appropriate case, the nature of the specific act at issue, whether
         vile, disgusting, unnatural, or painful to the victim, may be evidence in
         support of an inference that the victim would not have submitted to the
         act as an exercise of free will.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 15 (2002).

     •   The nature of the act should be considered in light of the age and
         maturity of the victim.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 15 (2002).

     •   It may be less necessary to employ duress to accomplish some types of
         sexual act with an older child.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 16 (2002).

     •   In assessing the sufficiency of the evidence, the court must consider
         the totality of the circumstances, such as the nature of the specific acts;
         the young age, small size, and immaturity of the victims; the victims’
         relative isolation at the time of the acts; the defendant’s position of
         authority and dominance over the victims; the defendant’s repetitious
         exploitation of the victims; the testimony of the victims that they did
         not want to engage in the conduct but that the defendant made them do
         it; and the victims’ testimony that they were too scared of the
         defendant to refuse his demands.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 17-18 (2002).

2.   “Force” Defined

     •   “Force” means physical force substantially different from or
         substantially in excess of that required for the lewd act.
         – People v. Schulz, 2 Cal. App. 4th 999, 1004 (1992).
         – People v. Senior, 3 Cal. App. 4th 765, 774 (1992).

     •   Physical control can create “duress” without constituting “force.”
         – People v. Espinoza, 95 Cal. App. 4th 1287, 1319-20 (2002).
         – People v. Schulz, 2 Cal. App. 4th 999, 1005 (1992).
         – People v. Senior, 3 Cal. App. 4th 765, 775 (1992).

     •   “Duress” has been defined as a direct or implied threat of force,
         violence, danger, hardship, or retribution sufficient to coerce a
         reasonable person of ordinary susceptibilities to perform an act which


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                              California
    otherwise would not have been performed or to acquiesce in an act to
    which one otherwise would not have submitted.
    –   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 13 (2002).
    –   People v. Espinoza, 95 Cal. App. 4th 1287, 1319-20 (2002).
    –   People v. Schulz, 2 Cal. App. 4th 999, 1005 (1992).
    –   People v. Senior, 3 Cal. App. 4th 765, 775 (1992).

•   Duress can be used through implied as well as express threat.
    – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 13 (2002).

•   Duress involves psychological coercion.
    –   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 14 (2002).
    –   People v. Espinoza, 95 Cal. App. 4th 1287, 1319-20 (2002).
    –   People v. Schulz, 2 Cal. App. 4th 999, 1005 (1992).
    –   People v. Senior, 3 Cal. App. 4th 765, 775 (1992).

•   Duress can arise from various circumstances, including the
    relationship between the defendant and the victim and their relative
    ages and sizes. Where the defendant is a family member and the victim
    is young, the position of dominance and authority of the defendant and
    his or her continuous exploitation of the victim are relevant to the
    existence of duress.
    –   People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 14 (2002).
    –   People v. Espinoza, 95 Cal. App. 4th 1287, 1319-20 (2002).
    –   People v. Schulz, 2 Cal. App. 4th 999, 1005 (1992).
    –   People v. Senior, 3 Cal. App. 4th 765, 775 (1992).

•   Psychological coercion without more does not establish duress. At a
    minimum there must be an implied threat of force, violence, danger,
    hardship, or retribution.
    – People v. Espinoza, 95 Cal. App. 4th 1287, 1320 (2002).

•   In evaluating the element of duress, it is appropriate to consider the
    nature of the specific sexual act committed by the defendant.
    – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 15 (2002).

•   The “force” factor differentiates the charged sex crime from the
    ordinary sex crime. Since ordinary lewd touching often involves some
    additional physical contact, a modicum of holding and even restraining
    cannot be regarded as substantially different or excessive “force.”
    – People v. Schulz, 2 Cal. App. 4th 999, 1004 (1992).
    – People v. Senior, 3 Cal. App. 4th 765, 774 (1992).

•   The evidence is sufficient if the total circumstances support an
    inference that the victim’s participation was impelled at least in part by
    an implied threat.
    – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 14-15 (2002).




                            -66-
                         California
      E.       Lewd and Lascivious Act Committed on a Victim 14 or 15 Years Old by a
               Defendant at Least 10 Years Older

               •   Any person who commits any lewd or lascivious act with the requisite intent,
                   and the victim is a child of 14 or 15 years, and that person is at least 10 years
                   older than the child, shall be punished. Cal. Pen. Code § 288(c)(1).
                   – People v. Paz, 80 Cal. App. 4th 293, 295 n.2 (2000).

      F.       Making a Child Available for a Lewd and Lascivious Act

               •   Any person who intentionally gives, transports, provides, or makes available,
                   or who offers to give, transport, provide or make available to another person, a
                   child under the age of 16 for the purpose of any lewd and lascivious act, or
                   who causes, induces, or persuades a child under the age of 16 to engage in
                   such an act with another person, is guilty of a felony and shall be punished.
                   Cal. Pen. Code § 255j.
                   – People v. Mena, 206 Cal. App. 3d 420, 425 (1988).

IX.   Online Enticement/Solicitation to Travel With the Intent to Engage in Sex With a
      Minor

      No state cases reported.

X.    Oral Copulation

      •    The term “sexual organ” contained in California’s oral-copulation statute, as applied
           to males, refers not only to the penis, but also includes the scrotum.
           – People v. Catelli, 227 Cal. App. 3d 1434, 1448 (1991).

      A.       Oral Copulation With a Person Under 18 Years of Age

               •   Any person who participates in an act of oral copulation with a person under
                   the age of 18 shall be punished. Cal. Pen. Code § 288a(b)(1).
                   – Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1224-25 (1995).

      B.       Oral Copulation by One Over 21 on a Person Under 16

               •   Any person being over 21 years of age who participates in an act of oral
                   copulation with a person under the age of 16 shall be punished. Cal. Pen.
                   Code § 288a(b)(2).
                   – People v. Scott, 83 Cal. App. 4th 784, 791 n.3 (2000).

               •   The elements of unlawful oral copulation by a person over the age of 21 years
                   with a person who is under 16 years of age are: a person engaged in an act of
                   oral copulation with a victim and the victim was under 16 years of age and the
                   other participant was over the age of 21 years. Cal. Pen. Code § 288a(b)(2).
                   – People v. Scott, 83 Cal. App. 4th 784, 794 n.4 (2000).



                                                    -67-
                                                 California
       C.       Forcible Oral Copulation

                •   Forcible oral copulation is an act of oral copulation that is accomplished
                    against the victim’s will by means of force, violence, duress, menace, and fear
                    of immediate and unlawful bodily injury on the victim. Cal. Pen. Code §
                    288a(c).
                    – People v. Scott, 83 Cal. App. 4th 784, 791 n.3 (2000).

                •   The elements of forcible oral copulation are: a person participated in an act of
                    oral copulation with the victim and the act was accomplished against the
                    victim’s will by means of force, violence, duress, menace, or fear of
                    immediate and unlawful bodily injury on the victim or any other person. Cal.
                    Pen. Code § 288a(c)(2).
                    – People v. Scott, 83 Cal. App. 4th 784, 791 n.3 (2000).

                •   Forcible oral copulation does not require a specific intent.
                    – People v. Senior, 3 Cal. App. 4th 765, 777 (1992).

XI.    Public Lewd and Dissolute Conduct

       •    Any person who solicits anyone to engage in or who engages in lewd or dissolute
            conduct in any public place or in any place open to the public or exposed to public
            view is guilty of disorderly conduct. Cal. Pen. Code § 647(a).
            – People v. Monroe, 168 Cal. App. 3d 1205, 1210 n.4 (1985).
            – People v. Tate, 164 Cal. App. 3d 133, 137 n.4 (1985).

       •    The California Supreme Court has construed the California Penal Code § 647(a) to
            prohibit only public solicitation or commission of conduct which involved the
            touching of the genitals, buttocks, or female breast, for purposes of sexual arousal,
            gratification, annoyance or offense, by a person who knows or should know of the
            presence of persons who may be offended by the conduct.
            – People v. Monroe, 168 Cal. App. 3d 1205, 1210-11 (1985).
            – People v. Tate, 164 Cal. App. 3d 133, 137 (1985).

       •    Every person who willfully and lewdly exposes his or her person, or the private parts
            thereof, in any public place, or in any place where there are present other persons to
            be offended or annoyed thereby is guilty of a misdemeanor. Cal. Pen. Code § 314.
            – People v. Monroe, 168 Cal. App. 3d 1205, 1211 n.5 (1985).
            – People v. Tate, 164 Cal. App. 3d 133, 138 (1985).

XII.   Rape (Forcible)

       •    Any act of sexual intercourse accomplished with a person not the spouse of the
            perpetrator where it is accomplished against the person’s will by means of force or
            fear of immediate and unlawful bodily injury on the victim or another is a crime. Cal.
            Pen. Code § 261.
            – People v. Jeff, 204 Cal. App. 3d 309, 324 (1988).


                                                     -68-
                                                   California
           – People v. Jones, 155 Cal. App. 3d 153, 164 (1984).
           – People v. Scott, 83 Cal. App. 4th 784, 791 n.3, 794 n.4 (2000).

      •    It is not enough for the prosecution to show sexual intercourse was accomplished
           against the will of the victim by means of fear. There is a further requirement the
           victim fear immediate and unlawful bodily injury; however, even an unreasonable
           fear may suffice if the accused knowingly takes advantage of that fear in order to
           accomplish sexual intercourse.
           – People v. Jeff, 204 Cal. App. 3d 309, 324 (1988).

      •    Rape may also be committed by acts causing only fear of immediate bodily harm to
           the victim or another.
           – People v. Jeff, 204 Cal. App. 3d 309, 325 (1988).

      A.       Use of Threats

               •   A threat may be inferred by conduct.
                   – People v. Jeff, 204 Cal. App. 3d 309, 326 (1988).
                   – People v. Jones, 155 Cal. App. 3d 153, 173 (1984).

               •   A threat may be implied. It may be expressed by acts and conduct as well as
                   by words.
                   – People v. Jones, 155 Cal. App. 3d 153, 168, 170 (1984).

      B.       Victim’s Conduct

               •   The victim need only make such resistance as will reasonably manifest his or
                   her refusal to consent to the act.
                   – People v. Jones, 155 Cal. App. 3d 153, 170, 173 (1984).

               •   The victim’s conduct must always be measured against the degree of force
                   manifested and each case must be resolved on all of the circumstances
                   present.
                   – People v. Jones, 155 Cal. App. 3d 153, 168, 170 (1984).

               •   The resistance required in each case depends upon the circumstances of that
                   case, such as the relative strength of the parties, the uselessness of resistance,
                   the degree of force manifested, and other factors. The resistance of the
                   prosecutrix need only be such as to make nonconsent and actual resistance
                   reasonably manifest.
                   – People v. Jones, 155 Cal. App. 3d 153, 168, 171 (1984).

XIII. Sending Harmful Matter With the Intent of Seducing a Minor

      A.       Elements

               •   It is a criminal offense to send, by any means, specified harmful matter to a
                   minor with the intent or for the purpose of seducing a minor.


                                                     -69-
                                                  California
                  – Hatch v. Superior Court, 80 Cal. App. 4th 170, 176 (2000).

              •   Every person who, with knowledge that a person is a minor, or who fails to
                  exercise reasonable care in ascertaining the true age of a minor, knowingly
                  distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit
                  by any means, including, but not limited to, live or recorded telephone
                  messages, any harmful matter to a minor with the intent of arousing, appealing
                  to, or gratifying the lust or passions or sexual desires of that person or of a
                  minor, and with the intent or for the purpose of seducing a minor, is guilty of a
                  public offense and shall be punished by imprisonment in the state prison or in
                  a county jail. A person convicted of a second and any subsequent conviction
                  for a violation of this section is guilty of a felony. Cal. Pen. Code § 288.2(a).
                  – Hatch v. Superior Court, 80 Cal. App. 4th 170, 182-83 (2000).

              •   Every person who, with knowledge that a person is a minor, knowingly
                  distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit
                  by electronic mail, the Internet or a commercial online service, any harmful
                  matter to a minor with the intent of arousing, appealing to, or gratifying the
                  lust or passions or sexual desires of that person or of a minor, and with the
                  intent, or for the purpose of seducing a minor, is guilty of a public offense.
                  Cal. Pen. Code § 288.2(b).
                  – Hatch v. Superior Court, 80 Cal. App. 4th 170, 183-84 (2000).
                  – People v. Hsu, 82 Cal. App. 4th 976, 982 n.3 (2000).

              •   California Penal Code § 288.2(b) mandates not only that the accused sender
                  have the particularized intent “of arousing, appealing to, or gratifying the lust
                  or passions or sexual desires of that person or of a minor,” but also that he or
                  she have the particularized intent “of seducing a minor.”
                  – People v. Hsu, 82 Cal. App. 4th 976, 989 (2000).

     B.       “Harmful Matter” Defined

              •   Harmful matter means matter, taken as a whole, which to the average person,
                  applying contemporary statewide standards, appeals to the prurient interest,
                  and is matter which, taken as a whole, depicts or describes in a patently
                  offensive way sexual conduct and which, taken as a whole, lacks serious
                  literary, artistic, political, or scientific value for minors. Cal. Pen. Code § 313.
                  – Hatch v. Superior Court, 80 Cal. App. 4th 170, 183 (2000).
                  – People v. Hsu, 82 Cal. App. 4th 976, 982 n.3, 992 (2000).

XIV. Sexual Abuse

     •    Sexual abuse is defined as either sexual assault or sexual exploitation. Cal. Pen. Code
          § 11165.1.
          – In re Jason L., 222 Cal. App. 3d 1206, 1215 (1990).




                                                   -70-
                                                California
      •    Sexual assault is defined by reference to several criminal sex acts and other conduct
           including the intentional touching of the genitals or intimate parts, including the
           breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them,
           of a child, or of the perpetrator by a child, for the purposes of sexual arousal or
           gratification, or the intentional masturbation of the perpetrator’s genitals in the
           presence of a child. Cal. Pen. Code §§ 11165.1(b)(4)-(5).
           – In re Jason L., 222 Cal. App. 3d 1206, 1215 (1990).

XV.   Sexual Battery

      •    Sexual battery is certain sexually motivated, nonconsensual touchings of an intimate
           part of another person’s body, to wit, sexual organs, anus, groin, or buttock of any
           person, and the breast of a female. Cal. Pen. Code § 243.4.
           – People v. Martinez, 11 Cal. 4th 434, 451 (1995).

      •    A cause of (civil) action for sexual battery requires the batterer intend to cause a
           “harmful or offensive” contact and the batteree suffer a “sexually offensive contact.”
           Cal. Civ. Code § 1708.5.
           – Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1225 (1995).

      •    The section is interpreted to require that the batteree did not consent to the contact.
           – Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1225 (1995).

XVI. Sexual Exploitation of a Child

      A.       Elements

               •   A person is guilty of sexual exploitation of a child when he or she knowingly
                   develops, duplicates, prints, or exchanges any film, photograph, videotape,
                   negative, or slide in which a person under the age of 14 years is engaged in an
                   act of sexual conduct. Cal. Pen. Code § 311.3(a).
                   – In re Duncan, 189 Cal. App. 3d 1348, 1352, 1360 (1987).

               •   California Penal Code § 311.3(a) does not prohibit mere possession, but rather
                   outlaws knowing development, duplication, printing, or exchange of film,
                   photographs, videotapes, negatives, or slides of children engaged in sexual
                   acts.
                   – In re Duncan, 189 Cal. App. 3d 1348, 1358 (1987).

               •   California Penal Code § 311.2(b) prohibits the distribution, possession,
                   preparation, publication, or printing, with the intent to distribute or exhibit for
                   commercial purposes, obscene matter depicting a person under the age of 18
                   years engaged in sexual activity.
                   – In re Duncan, 189 Cal. App. 3d 1348, 1360 (1987).

               •   California Penal Code §§ 311.2(c) and (d) prohibit distribution of or
                   possession with intent to distribute materials depicting a person under the age


                                                    -71-
                                                 California
                 of 17 years engaging in explicit sexual conduct, even without commercial
                 purpose and even though the material is not obscene.
                 – In re Duncan, 189 Cal. App. 3d 1348, 1360 (1987).

      B.     “Sexual Conduct” Defined

             •   “Sexual conduct” means any of the following:
                 (1) sexual intercourse, including genital-genital, oral-genital, or oral-anal,
                     whether between persons of the same or opposite sex or between humans
                     and animals;
                 (2) penetration of the vagina or rectum by any object;
                 (3) masturbation, for the purpose of sexual stimulation of the viewer;
                 (4) sadomasochistic abuse for the purpose of the sexual stimulation of the
                     viewer;
                 (5) exhibition of the genitals, pubic, or rectal areas of any person for the
                     purpose of sexual stimulation of the viewer;
                 (6) defecation or urination for the purpose of sexual stimulation of the viewer.
                 Cal. Pen. Code § 311.3(b).
                 – In re Duncan, 189 Cal. App. 3d 1348, 1353 n.1 (1987).

XVII. Sexual Penetration of a Minor

      A.     Elements

             •   Any person who participates in an act of sexual penetration with another
                 person who is under 14 years of age and who is more than 10 years younger
                 than he or she shall be punished. Cal. Pen. Code § 289(j).
                 – People v. Quintana, 89 Cal. App. 4th 1362, 1365 (2001).

      B.     “Sexual Penetration” Defined

             •   “Sexual penetration” is the act of causing the penetration, however slight, of
                 the genital or anal openings of any person or causing another person to so
                 penetrate the defendant’s or another person’s genital or anal openings for the
                 purpose of sexual arousal, gratification, or abuse by any foreign object,
                 substance, instrument, or device, or by any unknown object.
                 – People v. Quintana, 89 Cal. App. 4th 1362, 1366 (2001).

             •   “Sexual penetration,” when referred to as “penetration, however slight, of the
                 genital opening,” refers to penetration of the labia majora, rather than
                 penetration of the vagina. Cal. Pen. Code § 289(k)(1).
                 – People v. Quintana, 89 Cal. App. 4th 1362, 1364 (2001).

             •   Penetration of the external genital organs is sufficient to constitute sexual
                 penetration and to complete the crime of rape even if the rapist does not
                 thereafter succeed in penetrating the vagina.
                 – People v. Quintana, 89 Cal. App. 4th 1362, 1366 (2001).



                                                 -72-
                                              California
              •   Contact with the hymen as well as the clitoris and the other genitalia inside the
                  exterior of the labia majora constitute “sexual penetration” within the meaning
                  of California Penal Code § 289.
                  – People v. Quintana, 89 Cal. App. 4th 1362, 1371 (2001).

XVIII. Sodomy

      •   The crime of sodomy requires only a general and not specific criminal intent. General
          intent requires only that the actor intend the act that constitutes the crime.
          – People v. Gonzalez, 81 Cal. App. 3d 274, 279 (1978).

XIX. Unlawful Sexual Intercourse With a Minor

      •   Unlawful sexual intercourse is sexual intercourse with a minor who is not a spouse of
          the perpetrator. Cal. Pen. Code § 261.5.
          – Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1224 (1995).
          – In re T.A.J., 62 Cal. App. 4th 1350, 1353 n.2 (1998).

      •   Any person who engages in an act of unlawful sexual intercourse with a minor who is
          more than three years younger than the perpetrator is guilty of either a misdemeanor
          or a felony. Cal. Pen. Code § 261.5(a).
          – Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1224 (1995).

      •   A person over 21 years who willfully and unlawfully engages in an act with a minor
          under 16 years of age shall be punished. Cal. Pen. Code § 261.5(d).
          – People v. Scott, 83 Cal. App. 4th 784, 791 n.3 (2000).

      •   The elements of unlawful sexual intercourse by a person 21 years of age or older with
          a person under the age of 16 years are: a person 21 years of age or older engaged in
          an act of sexual intercourse with a person under the age of 16; and these persons were
          not married to each other at the time of the act of sexual intercourse. Cal. Pen. Code §
          261.5(d).
          – People v. Scott, 83 Cal. App. 4th 784, 794 n.4 (2000).

XX.   Transporting Minor for the Purposes of Prostitution

      No state cases reported.




                                                    -73-
                                                 California
                                   CALIFORNIA
                                    Mandatory Reporting


I.   Who Must Report

     •    California’s Child Abuse Reporting Law requires health care, educational, and other
          professionals whose work brings them into contact with children to report known or
          suspected instances of child abuse to law enforcement or other governmental
          agencies.
          – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 255, 258 (1986).
          – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 678 (1995).

     •    Any childcare custodian, medical practitioner, nonmedical practitioner, or employee
          of a child-protective agency who has knowledge of or observes a child in his or her
          professional capacity or within the scope of his or her employment whom he or she
          knows or reasonably suspects has been the victim of child abuse shall report the
          known or suspected instance of child abuse to a child-protective agency. Cal. Pen.
          Code § 11166(a).
          – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 232 (1988).
          – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 258 (1986).

     •    Professionals subject to the Act must evaluate facts known to them in light of their
          training and experience to determine whether they have an objectively reasonable
          suspicion of child abuse.
          – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 239 (1988).

     •    Nothing in the Act requires professionals such as health practitioners to obtain
          information they would not ordinarily obtain in the course of providing care or
          treatment. Thus the duty to report must be premised on information obtained by the
          health practitioner in the ordinary course of providing care and treatment according to
          standards prevailing in the medical profession.
          – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 239-40 (1988).

     A.       “Childcare Custodian” Defined

              •   A childcare custodian includes, inter alia, an administrator or employee of a
                  public or private organization whose duties require direct contact and
                  supervision of children and an employee of a childcare institution including,
                  but not limited to, group home personnel, and personnel of residential-care
                  facilities. Cal. Pen. Code § 11165.7.
                  – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 679 (1995).




                                                   -74-
                                                California
      B.       “Reasonable Suspicion” Defined

               •   “Reasonable suspicion” means that it is objectively reasonable for a person to
                   entertain such a suspicion, based upon facts that could cause a reasonable
                   person in a like position, drawing when appropriate on his or her training and
                   experience, to suspect child abuse. Cal. Pen. Code § 11166(a).
                   – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 239 n.6
                     (1988).
                   – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 259 (1986).

II.   What to Report

      •    Physical abuse, sexual abuse, willful cruelty, unlawful corporal punishment, and
           neglect must be reported.
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 258 (1986).

      •    The reporting law requires the reporting of reasonable suspicions of voluntary sexual
           conduct between a minor under the age of 14 and a person of disparate age.
           – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 231, 239 (1988).

      •    The reporting law does not require the reporting of voluntary sexual activity among
           minors under age 14.
           – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 232-33, 239 (1988).
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 276 (1986).

      A.       “Sexual Abuse” Defined

               •   “Sexual abuse” consists of “sexual assault” on the minor, including rape and
                   rape in concert, incest, sodomy, lewd and lascivious acts upon a minor under
                   14, oral copulation, rape by instrument, and child molestation.
                   – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 258 (1986).

               •   The definition of “sexual abuse” also includes provisions directed at child
                   pornography.
                   – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 258 n.3 (1986).

      B.       “Sexual Assault” Defined

               •   Conduct described as sexual assault includes, but is not limited to, all of the
                   following:
                   (1) any penetration, however slight, of the vagina or anal opening of one
                       person by the penis of another person, whether or not there is the emission
                       of semen;
                   (2) any sexual contact between the genitals or anal opening of one person and
                       the mouth or tongue of another person;
                   (3) any intrusion by one person into the genitals or anal opening of another
                       person, including the use of any object for this purpose, except that, it does
                       not include acts performed for a valid medical purpose;


                                                    -75-
                                                 California
                   (4) the intentional touching of the genitals or intimate parts, including the
                       breasts, genital area, groin, inner thighs, and buttocks, or the clothing
                       covering them, of a child, or of the perpetrator by a child, for purposes of
                       sexual arousal or gratification, except that, it does not include acts which
                       may reasonably be construed to be normal caretaker responsibilities;
                       interactions with, or demonstrations of affection for, the child; or acts
                       performed for a valid medical purpose;
                   (5) the intentional masturbation of the perpetrator’s genitals in the presence of
                       a child.
                   – People v. Stockton Pregnancy Control Med. Clinic, Inc., 203 Cal. App. 3d 225, 235 n.4
                     (1988).

III.   To Whom Must Abuse Be Reported

       •   The mandatory child abuse report must be made to a child-protective agency (i.e., a
           police or sheriff’s department or a county probation or welfare department).
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 259 (1986).

IV.    When Must the Report Be Made

       •   The professional must make the report immediately or as soon as practically possible
           by telephone.
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 259 (1986).

       •   The professional then has 36 hours in which to prepare and transmit to the agency a
           written report, using a form supplied by the Department of Justice.
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 259 (1986).

V.     Failure to Make a Report

       •   Failure to make a required report is a misdemeanor.
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 259 (1986).

VI.    Future Events

       •   Reporting law does not require the reporting of suspected future events.
           – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 262 (1986).

VII.   Immunity from Liability

       •   Mandated reporters of child abuse are absolutely immune from liability.
           – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 679 (1995).

       •   No childcare custodian who reports a known or suspected instance of child abuse
           shall be civilly or criminally liable for any report required or authorized by this
           article.
           – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 679 (1995).



                                                   -76-
                                                California
•   This absolute immunity extends not only to the making of the initial report, but also
    to conduct giving rise to the obligation to report, such as the collection of data, or the
    observation, examination, or treatment of the suspected victim performed in a
    professional capacity and to subsequent communications between the reporter and the
    public authorities responsible for investigating and prosecuting child abuse.
    – Robbins v. Hamburger Home for Girls, 32 Cal. App. 4th 671, 679 (1995).




                                            -77-
                                         California
                                        CALIFORNIA
                        Search and Seizure of Electronic Evidence


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       Search Warrants

         •    A search warrant may properly be issued upon probable cause, supported by an
              affidavit describing property consisting of evidence that tends to show that sexual
              exploitation of a child has occurred or is occurring.
              – In re Duncan, 189 Cal. App. 3d 1348, 1361 (1987).

         A.       Probable Cause

                  •    California employs the federal totality-of-the-circumstances analysis to
                       determine whether there is probable cause to issue a search warrant.
                       – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 19 (2002).

                  •    Probable cause is assessed by viewing the totality of the circumstances and is
                       established where there is a “fair probability” that the evidence sought will be
                       located at the scene of the search.
                       – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 15 (2002).

                  1.       Requirements of a Warrant Affidavit

                           •    A warrant affidavit must establish a nexus between the suspected
                                criminal activities and the property to be searched.
                                – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 16 (2002).

                           •    The affidavit in support of the search warrant must provide probable
                                cause to believe the material to be seized is still on the premises to be
                                searched when the warrant is sought.
                                – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 21 (2002).

                  2.       Magistrate’s Determination of Probable Cause

                           •    The task of the issuing magistrate is simply to make a practical,
                                common-sense decision whether, given all the circumstances set forth
                                in the affidavit before him or her, there is a fair probability that
                                contraband or evidence of a crime will be found in a particular place.
                                – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 19 (2002).




                                                         -78-
                                                      California
              •   Before issuing a warrant, a magistrate must determine that the
                  supporting affidavit establishes probable cause to believe that the place
                  to be searched contains contraband or evidence of a crime.
                  – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 15 (2002).

     3.       Appellate Review

              •   On appeal the magistrate’s determination is accorded great deference
                  with the appellate court inquiring only whether there was a substantial
                  basis to conclude that the warrant would uncover evidence of a crime.
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 19 (2002).
                  – People v. Neuman,* 2002 Cal. App. Unpub. LEXIS 734, 15-16 (2002).

              •   A reviewing court will consider the totality of the circumstances to
                  determine whether the information contained in an affidavit supporting
                  the application for a warrant establishes a fair probability that a place
                  contained contraband or evidence of a crime.
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 20 (2002).
                  – People v. Luera, 86 Cal. App. 4th 513, 525 (2001).

     4.       The Defendant’s Burden

              •   If a defendant establishes by a preponderance of the evidence that a
                  false statement made knowingly, intentionally, or with reckless
                  disregard for the truth was included in a probable-cause affidavit, and
                  if it was material to establish probable cause, the false information
                  must be excised from the affidavit.
                  – Franks v. Delaware, 438 U.S. 154, 164-65 (1978).
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 32 (2002).
                  – People v. Luera, 86 Cal. App. 4th 513, 524-25 (2001).

B.   Scope of Search: Particularity Rule

     •    The particularity rule requires that the warrant describe the place to be
          searched or things to be seized with sufficient particularity, taking account of
          the circumstances of the case and the types of items involved.
          – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 27 (2002).

     •    The purpose of the particularity rule is to make sure that the warrant describes
          things with reasonable precision, since vague language can cause the officer
          performing the search to seize objects on the mistaken assumption that they
          fall within the magistrate’s authorization.
          – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 27 (2002).

     •    The warrant must be no broader than the probable cause on which it is based.
          – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 28 (2002).




                                         -79-
                                      California
       C.     Staleness

              •   As a general rule, information is stale, and hence unworthy of weight in the
                  magistrate’s consideration of an affidavit, unless the information consists of
                  facts so closely related to the time of the issue of the warrant as to justify a
                  finding of probable cause at that time.
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 21 (2002).

              •   No clear-cut rule tells when the time span must be deemed too attenuated. The
                  length of the time lapse alone is not controlling since even a brief delay may
                  preclude an inference of probable cause in some circumstances while in others
                  a relatively long delay may not do so.
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 22 (2002).

              •   In the absence of other indications, delays exceeding four weeks are uniformly
                  considered insufficient to show present probable cause.
                  – People v. Higgins,* 2002 Cal. App. Unpub. LEXIS 2074, 23 (2002).

II.    Anticipatory Warrants

       No state cases reported.

III.   Methods of Searching

       No state cases reported.

IV.    Types of Searches

       A.     Employer Searches

              No state cases reported.

       B.     Private Searches

              •   The Fourth Amendment’s prohibition against unreasonable search and seizure
                  does not apply to searches by private citizens. This is so even if the private
                  search is unreasonable or unwarranted.
                  – People v. Yackee, 161 Cal. App. 3d 843, 846 (1984).

              •   Since the exclusionary rule applies solely to the conduct of a state agent,
                  private searches are not illegal, nor are their fruits inadmissible unless a law-
                  enforcement officer is present and fails to take any action to prevent a
                  violation of the rights of the individual subjected to a search that would be
                  illegal if conducted by a state agent.
                  – People v. Moreno, 64 Cal. App. 3d Supp. 23, 28 (Cal. App. Dep’t Super. Ct. 1976).




                                                  -80-
                                               California
     •    Any warrantless examination, search, or use by law-enforcement officers of
          the results of a private search is limited to the scope of the private search, in
          the absence of plain view or other exception to the warrant requirement.
          – People v. Shegog, 184 Cal. App. 3d 899, 903 (1986).

     •    Some minimal official participation or encouragement may bring a private
          search within the constitutional constraints on state action.
          – In re Bryan S., 110 Cal. App. 3d 144, 151 (1980).

     •    It is clear that the fruits of a private search conducted at the instigation of, or
          with the participation of, law enforcement will be deemed subject to the
          prohibition of the Fourth Amendment.
          – People v. Shipstead, 19 Cal. App. 3d 58, 73 (1971).

C.   Civilian Searches

     No state cases reported.

D.   University-Campus Searches

     No state cases reported.

E.   Warrantless Searches

     •    The search of a residence without a search warrant, except in certain limited
          circumstances, may not be justified on the basis that it was incident to an
          arrest unless that arrest was based upon a valid warrant.
          – People v. Trudell, 173 Cal. App. 3d 1221, 1231 (1985).

     •    Objects seized in unconstitutional warrantless entries cannot subsequently be
          used as evidence against the individual whose residential policy was violated.
          – People v. Trudell, 173 Cal. App. 3d 1221, 1229 (1985).

     •    The admissibility of a confession depends upon the totality of the
          circumstances. The invalidity of an antecedent arrest becomes a factor in that
          totality of the circumstances to be weighed along with the other circumstances
          in determining whether the confession was a product of free will and an
          intelligent waiver of the defendant’s Fifth Amendment rights. These
          circumstances include the purpose of flagrancy of the official misconduct; the
          temporal proximity of the arrest and confession; the presence of intervening
          circumstances; and most of all, the voluntariness of the statement.
          – People v. Trudell, 173 Cal. App. 3d 1221, 1231-32 (1985).

     1.       Warrantless Arrests

              •   In the absence of exigency or consent, law enforcement may not make
                  a warrantless entry into a residence to effect a felony arrest.


                                          -81-
                                        California
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1228 (1985).

                      •   Law enforcement use of a subterfuge or ruse is prohibited to gain an
                          otherwise impermissible entry of a residence.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1229 (1985).

                      •   An entry obtained by trickery, stealth, or subterfuge renders a search
                          and seizure invalid.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1229 (1985).

              2.      Exception: Exigent Circumstances

                      •   The arrest warrant requirement is excused when exigent circumstances
                          demand immediate law-enforcement action.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1230 (1985).

                      •   “Exigent circumstances” means an emergency situation requiring swift
                          action to prevent imminent danger to life or serious damage to
                          property, or to forestall the imminent escape of a suspect or destruction
                          of evidence.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1230 (1985).

                      •   In each case, the claim of an extraordinary situation must be measured
                          by the facts known to the officers.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1230 (1985).

                      •   An important factor to be considered when determining whether any
                          exigency exists is the gravity of the underlying offense for which the
                          arrest is being made.
                          – People v. Trudell, 173 Cal. App. 3d 1221, 1230-31 (1985).

V.     Computer Technician/Repairperson Discoveries

       No state cases reported.

VI.    Photo-Development Discoveries

       No state cases reported.

VII.   Criminal Forfeiture

       No state cases reported.

VIII. Disciplinary Hearings for Federal and State Officers

       No state cases reported.




                                                 -82-
                                               California
IX.   Probation and Parolee Rights

      No state cases reported.




                                       -83-
                                     California
                                  CALIFORNIA
                                  Jurisdiction and Nexus


I.     Jurisdictional Nexus

       No state cases reported.

II.    Internet Nexus

       No state cases reported.

III.   State Jurisdiction, Federal Jurisdiction, Concurrent Jurisdiction

       A.     State

              No state cases reported.

       B.     Federal

              No state cases reported.

       C.     Concurrent

              No state cases reported.

IV.    Interstate Possession of Child Pornography

       No state cases reported.




                                           -84-
                                         California
                                        CALIFORNIA
                                        Discovery and Evidence


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       Timely Review of Evidence

         No state cases reported.

II.      Defense Requests for Copies of Child Pornography

         •    If the exemption to the statute on possession and distribution of child pornography
              allows the prosecutor to duplicate and distribute the images for prosecution purposes,
              then the prosecutor can duplicate and distribute the images with impunity to any of
              the players in the criminal action – to the court pretrial, to the jury at trial, and/or to
              the defense as part of the prosecutor’s discovery duties.
              – Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339, 7 (2002).

         •    To the extent there is any genuine concern about the disposition of the material
              provided to the defense, the court can issue a protective order limiting disclosure to
              counsel and their agents or order the return of the images to the court for destruction
              at the conclusion of the case.
              – Westerfield v. Superior Court, 2002 Cal. App. LEXIS 4339, 7 (2002).

III.     Introduction of E-mails into Evidence

         A.       Hearsay/Authentication Issues

                  1.       Authentication in General

                           •    Authentication of a writing means the introduction of evidence
                                sufficient to sustain a finding that it is the writing that the proponent of
                                the evidence claims it is or the establishment of such facts by any other
                                means provided by law. Cal. Evid. Code § 1400.
                                – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 29-30 (2002).

                           •    A dispute regarding the accuracy of a document goes to the weight of
                                the evidence but does not prevent its authentication.
                                – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 30 (2002).




                                                         -85-
                                                      California
            2.     Secondary Evidence Rule

                   •    The content of a writing may be proved by otherwise admissible
                        secondary evidence. Cal. Evid. Code § 1521(a).
                        – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 31-32 (2002).

                   •    The court shall exclude secondary evidence of the content of writing if
                        the court determines either of the following: a genuine dispute exists
                        concerning material terms of the writing and justice requires the
                        exclusion; or admission of the secondary evidence would be unfair.
                        Cal. Evid. Code §§ 1521(a)(1)-(2).
                        – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 32 (2002).

      B.    Circumstantial Evidence

            No state cases reported.

      C.    Technical Aspects of Electronic Evidence Regarding Admissibility

            No state cases reported.

IV.   Text-Only Evidence

      A.    Introduction into Evidence

            No state cases reported.

      B.    Relevance

            No state cases reported.

V.    Evidence Obtained from Internet Service Providers

      A.    Electronic Communications Privacy Act

            No state cases reported.

      B.    Cable Act

            No state cases reported.

      C.    Patriot Act

            1.     National Trap and Trace Authority

                   No state cases reported.



                                              -86-
                                            California
                2.       State-Court-Judge Jurisdictional Limits

                         No state cases reported.

VI.    Statute of Limitations

       •    A criminal complaint may be filed within one year of the date of a report to a
            responsible adult or agency by a child under 18 years of age that the child is a victim
            of crimes described in California Penal Code § 288 or 288.5, only if both of the
            following occur:
            (1) the limitation period specific in California Penal Code § 800 or 801 has expired;
                and
            (2) the defendant has committed at least one violation of California Penal Code § 288
                or 288.5 against the same victim within the limitation period specified for that
                crime in either California Penal Code § 800 or 801.
            Cal. Pen. Code § 803(f).
            – People v. Smith, 98 Cal. App. 4th 1182, 1187 (2002).

       •    In any civil action for recovery of damages suffered as a result of childhood sexual
            abuse, the time for commencement of the action shall be within eight years of the date
            the plaintiff attains the age of majority or within three years of the date the plaintiff
            discovers or reasonably should have discovered that psychological injury or illness
            occurring after the age of majority was caused by the sexual abuse, whichever period
            expires later. Cal. Civ. Pro. Code § 340.1(a).
            – Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App. 4th 603, 607 n.1 (1998).

       A.       Trial-Court Instructions

                •    As a general rule, the trial court need only instruct on the statute of limitations
                     when it is placed at issue by the defense as a factual matter in the trial.
                     – People v. Smith, 98 Cal. App. 4th 1182, 1192 (2002).

       B.       Appellate Review

                •    When an appellate court is reviewing a statute of limitations question after a
                     conviction for the charged offenses, the proper question is whether the record
                     demonstrates that the crime charged actually fell within the applicable statute
                     of limitations.
                     – People v. Smith, 98 Cal. App. 4th 1182, 1193 (2002).

VII.   Use of Informants

       •    When on his or her own initiative, rather than at the state’s behest, an informant
            obtains incriminating information from an accused, there is no unlawful interference
            with a defendant’s Sixth Amendment right to representation free of governmental
            intrusion.
            – People v. Catelli, 227 Cal. App. 3d 1434, 1442 (1991).



                                                     -87-
                                                  California
      •    When a government agent, however, including an informant acting at the state’s
           request, deliberately elicits incriminating statements from a represented defendant,
           this action impairs the defendant’s Sixth Amendment right to counsel, and the
           incriminating statements pertaining to pending charges are inadmissible at the trial of
           those charges. This is true even if the incriminating information is obtained during the
           state’s investigation of other, uncharged crimes.
           – People v. Catelli, 227 Cal. App. 3d 1434, 1442 (1991).

VIII. Inadmissibility of Evidence

      A.       When to Exclude Evidence

               •   The court, in its discretion, may exclude evidence if its probative value is
                   substantially outweighed by the probability that its admission will necessitate
                   undue consumption of time or create substantial danger of undue prejudice, of
                   confusing the issues, or of misleading the jury. Cal. Evid. Code § 352.
                   – People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939, 27 n.3 (2002).
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 40 (2001).

               •   Evidence that is excessively prejudicial must be excluded.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 40 (2001).

      B.       “Prejudice” Defined

               •   “Prejudice” does not mean harm because most evidence offered against a
                   party is harmful to the party’s case.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 40-41 (2001).

               •   Rather, “undue prejudice” means the evidence invites a response from the jury
                   that borders on the irrational.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 40-41 (2001).

IX.   Prior Bad Acts

      A.       Inadmissible

               •   Character evidence is generally inadmissible. Cal. Evid. Code § 1101(a).
                   – People v. Orellano, 79 Cal. App. 4th 179, 182 (2000).

               •   The court in its discretion may exclude evidence if its probative value is
                   substantially outweighed by the probability that the admission will necessitate
                   undue consumption of time or create substantial danger of undue prejudice, of
                   confusing the issues, or of misleading the jury. Cal. Evid. Code § 352.
                   – People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871, 15 (2002).




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                                                 California
     •    Evidence of specific instances of bad or good conduct is inadmissible, with
          the exception of a felony conviction, to prove a witness’ character trait to
          attack or support the credibility of the witness.
          – People v. Jones, 155 Cal. App. 3d 153, 182 (1984).

B.   Admissible

     •    Evidence that proves a fact, such as motive or plan, other than disposition is
          admissible. Cal. Evid. Code § 1101(b).
          – People v. Orellano, 79 Cal. App. 4th 179, 182 (2000).

     1.       Prior Sexual Offenses

              •    In a criminal action where the defendant is accused of a sexual
                   offense, evidence of the defendant’s commission of another sexual
                   offense or offenses is not necessarily inadmissible. Evidence of the
                   defendant’s prior sexual offenses is permitted as evidence of a
                   disposition to commit such crimes. Cal. Evid. Code § 1108.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 18 (2001).
                   – People v. Orellano, 79 Cal. App. 4th 179, 182 (2000).
                   – People v. Pulido,* 2002 Cal. App. Unpub. LEXIS 3871, 15 (2002).

              •    California Evidence Code § 1108 allows the introduction of evidence
                   of a defendant’s prior sexual conduct for any purpose.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 18-19 (2001).

              •    Evidence of a defendant’s other sexual assaults may be admitted for its
                   bearing on any matter to which it is relevant.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 45 (2001).

              •    The statute allows the government to offer evidence of a defendant’s
                   prior conduct for the purpose of demonstrating a defendant’s
                   propensity to commit the charged offense.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 45-46 (2001).

              •    The prior sexual conduct does not have to amount to a conviction or
                   even an arrest.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 19 (2001).

              •    The only limitations on the introduction of evidence of prior sexual
                   conduct are a notice requirement and the discretion of the court to
                   exclude the evidence.
                   – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 19 (2001).

              a.       “Sexual Offense” Defined

                       •   A “sexual offense” is a crime under the law of the State of
                           California or of the United States that involves any conduct


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                  that is proscribed under California law as sexual battery, rape,
                  statutory rape, spousal rape, rape by foreign object, sex by
                  misrepresentation, sodomy, lewd or lascivious acts, oral
                  copulation, seduction of a minor, continuous sexual abuse of a
                  child, penetration by a foreign object, distribution of child
                  pornography, sexual exploitation of a child, employing a child
                  in the sexual exploitation of a child, distributing child
                  pornography, possession of child pornography, indecent
                  exposure, and child molestation.
                  – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 34-35 (2001).

              •   “Sexual offense” also includes the following:
                  (1) contact, without consent, between any part of the
                      defendant’s body or an object and the genitals or anus of
                      another person;
                  (2) contact, without consent, between the genitals or anus of
                      the defendant and any part of another person’s body;
                  (3) deriving sexual pleasure or gratification from the infliction
                      of death, bodily injury, or physical pain on another person;
                      or
                  (4) an attempt or conspiracy to engage in such conduct.
                  – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 35 (2001).

     b.       “Consent” Defined

              •   “Consent” is positive cooperation in act or attitude pursuant to
                  an exercise of free will. The person must act freely and
                  voluntarily and have knowledge of the nature of the act or
                  transaction involved. Cal. Pen. Code § 261.6.
                  – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 35 (2001).

              •   A current or previous dating relationship is not sufficient to
                  constitute consent where consent is at issue. Cal. Pen. Code §
                  261.6.
                  – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 36 (2001).

              •   “Consent” does not include consent that is legally ineffective
                  because of the age, mental disorder, or developmental or
                  physical disability of the victim. Cal. Evid. Code § 1108(d).
                  – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 35 (2001).

2.   Felony Convictions

     •    Any prior felony conviction of any person in any criminal proceeding
          shall subsequently be used without limitation for purposes of
          impeachment. Cal. Const. art. I, § 28(f).
          – People v. Mickle, 54 Cal. 3d 140, 171 n.14 (1991).



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     C.    Relevance

           •   Evidence that produces only speculative inferences is irrelevant evidence.
               – People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094, 16 (2002).

X.   Witness Testimony

     A.    Disclosure of Witnesses

           •   The defense generally must disclose to the prosecuting attorney the names and
               addresses of persons the defendant intends to call as witnesses at trial and,
               inter alia, any relevant written or recorded statements of those witnesses, or
               reports of such statements, at least 30 days before trial.
               – People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939, 29 (2002).

           •   When information subject to disclosure becomes known to a party within 30
               days of trial, it must be disclosed immediately unless good cause is shown.
               – People v. Garcia,* 2002 Cal. App. Unpub. LEXIS 3939, 29-30 (2002).

     B.    Corroboration of Victim Testimony

           •   Upon a trial for procuring or attempting to procure an abortion, or aiding or
               assisting therein, or for inveigling, enticing, or taking away an unmarried
               female of previous chaste character, under the age of 18 years, for the purpose
               of prostitution, or aiding or assisting therein, the defendant cannot be
               convicted upon the testimony of the woman upon or with whom the offense
               was committed, unless she is corroborated by other evidence. Cal. Pen. Code
               § 1108.
               – People v. Mena, 206 Cal. App. 3d 420, 424 (1988).

           •   It has long been settled that where a penal statute expressly outlaws conduct
               against minors, a minor who is a victim of the proscribed conduct is not an
               accomplice and the jury need not be instructed that the minor’s testimony
               requires corroboration.
               – People v. Mena, 206 Cal. App. 3d 420, 425 (1988).

           •   A conviction of sexual abuse of a minor can be legally supported by “generic”
               testimony by the victim, if such testimony describes the kind of acts
               committed with sufficient specificity to assure that a crime occurred and to
               differentiate among the various acts of proscribed conduct; describes the
               number of acts with sufficient certainty to support each of the counts with
               which the defendant is charged; and describes the general time period of the
               acts, to assure they were committed within the statute of limitations.
               – People v. Vasquez, 51 Cal. App. 4th 1277, 1286 (1996).




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     •   Generic testimony by the child victim of a sexual offense does not
         impermissibly interfere with constitutional rights.
         – People v. Vasquez, 51 Cal. App. 4th 1277, 1287 (1996).

C.   Lay Testimony

     •   If a witness is not testifying as an expert, his or her testimony in the form of
         an opinion is limited to such an opinion as is permitted by law, including but
         not limited to an opinion that is rationally based on the perception of the
         witness and helpful to a clear understanding of the witness’ testimony.
         – People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790, 23-24 (2002).

     •   Lay opinion about the veracity of particular statements by another is
         inadmissible.
         – People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790, 24 (2002).

     •   A lay witness is occasionally permitted to express an ultimate opinion on his
         or her perception, but only where helpful to a clear understanding of his or her
         testimony (i.e., where the concrete observations on which the opinion is based
         cannot otherwise be conveyed).
         – People v. Nuey,* 2002 Cal. App. Unpub. LEXIS 2790, 24 (2002).

D.   Expert Testimony

     •   A person may testify as an expert if he or she has special knowledge, skill,
         experience, training, or education sufficient to qualify him or her that may be
         shown by any otherwise admissible evidence, including his or her own
         testimony. Cal. Evid. Code § 720.
         – People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094, 14 (2002).
         – People v. Kurey, 88 Cal. App. 4th 840, 847 (2001).

     •   Expert testimony must be relevant and competent on a material issue, subject
         to exclusion, however, if unduly prejudicial.
         – People v. Bowker, 203 Cal. App. 3d 385, 390 (1988).

     •   California Evidence Code § 801 prescribes two preconditions to the
         admissibility of expert-opinion testimony. The testimony must be of
         assistance to the trier of fact and must be reliable. The opinion of the expert
         will assist the fact-finder if the subject of inquiry is “sufficiently beyond
         common experience.” The “reliable matter” upon which an expert’s opinion
         must be based varies with each particular subject.
         – People v. Bowker, 203 Cal. App. 3d 385, 390 (1988).

     •   Psychological evidence, such as “syndrome” evidence, should not be admitted
         to prove a fact, such as prior sexual abuse.
         – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 9 (2002).




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                                      California
•    In an appropriate case, psychological evidence, such as rape-trauma
     syndrome, child-molest syndrome, or battered women’s syndrome, may be
     admitted to disabuse jurors of common-sense misconceptions about the
     behavior of persons in the affected groups.
     – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 10 n.4 (2002).

1.       Expert Witness’ Scientific Methods of Proof

         •    California has adopted the Frye standard of reliability to determine the
              admissibility of new scientific methods of proof.
              – People v. Bowker, 203 Cal. App. 3d 385, 390 (1988).

         •    A scientific technique utilized by an expert witness must be
              sufficiently established to have gained general acceptance in the
              particular field in which it belongs.
              – People v. Bowker, 203 Cal. App. 3d 385, 390 (1988).

2.       Child-Sexual-Abuse-Accommodation Syndrome

         a.       Five Stages

                  •   Stage One is secrecy, an element inherent in the adult-child
                      relationship, where a child understands certain things should
                      not be disclosed. Stage Two is helplessness, the absence of
                      power a child has in a relationship with a parental figure or
                      trusted adult. The first two stages are present in every child and
                      establish a child’s potential to become a victim of sexual abuse.
                      Stages Three through Five occur as the result of abuse.
                      Entrapment and accommodation, the third stage, occurs after
                      the child fails to seek protection. Stage Four, delayed
                      disclosure, occurs when the child tells someone about the
                      sexual abuse. In retraction, the final stage, the child denies
                      abuse has occurred.
                      – People v. Bowker, 203 Cal. App. 3d 385, 389 (1988).

         b.       Use of Expert Testimony

                  •   Expert testimony related to child-sexual-abuse-accommodation
                      syndrome must be narrowly confined, subject to a proper
                      foundational showing that such evidence is necessary to rebut
                      popular misconceptions that would challenge the victim’s
                      credibility. After the testimony has been received, the jury
                      must be admonished so that it understands the limited purpose
                      for admitting such evidence.
                      – People v. Bowker, 203 Cal. App. 3d 385, 387-88 (1988).




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                                  California
3.   Rape-Trauma Syndrome

     •    Rape-trauma syndrome does not meet the Kelly-Frye standard of
          admissibility as a scientifically accepted test for establishing whether a
          rape occurred. Therefore such evidence is not admissible to prove guilt
          in a criminal trial.
          – People v. Jeff, 204 Cal. App. 3d 309, 337 (1988).

4.   Battered-Child Syndrome

     a.       “Battered-Child Syndrome” Defined

              •   Battered-child syndrome means that a child has received
                  repeated and/or serious injuries by non-accidental means;
                  characteristically, these injuries are inflicted by someone who
                  is ostensibly caring for the child.
                  – People v. Jackson, 18 Cal. App. 3d 504, 506 (1971).

              •   There are several elements that are the criteria for the battered-
                  child syndrome. They are:
                  (1) the child is usually younger than 3 years of age;
                  (2) there is evidence of bone injury at different times;
                  (3) there are subdural hematomas with or without skull
                      fractures;
                  (4) there is a seriously injured child who does not have a
                      history given that fits the injuries;
                  (5) there is evidence of soft-tissue injury;
                  (6) there is evidence of neglect.
                  – People v. Jackson, 18 Cal. App. 3d 504, 506 (1971).

     b.       Use of Expert Testimony

              •   An expert-medical witness may give his or her opinion as to
                  the means used to inflict a particular injury, based on his or her
                  deduction from the appearance of the injury itself.
                  – People v. Jackson, 18 Cal. App. 3d 504, 507 (1971).

              •   A medical diagnosis based on probability – as is the case with
                  the “battered-child-syndrome” diagnosis – is admissible; the
                  lack of scientific certainty does not deprive medical opinion of
                  its evidentiary value.
                  – People v. Jackson, 18 Cal. App. 3d 504, 507 (1971).

              •   Whether to admit such testimony is within the discretion of the
                  court.
                  – People v. Jackson, 18 Cal. App. 3d 504, 507 (1971).




                                  -94-
                               California
     5.       Trauma-Behavior Testimony

              •   Opinion-trauma-behavior testimony should be based upon the
                  literature in the field and general, professional experience of the
                  witness rather than upon an analysis and diagnosis based upon a
                  review and evaluation of the facts in the case at hand.
                  – People v. Jeff, 204 Cal. App. 3d 309, 337 (1988).

     6.       Expert Testimony in Child-Molestation Cases

              •   It is not error to admit expert testimony that it is common for child
                  victims to delay reporting incidents of abuse and give inconsistent
                  accounts of such incidents to different people, where such evidence is
                  not offered to prove a molestation in fact occurred, but rather is
                  offered to rebut the inference that the alleged victim is being untruthful
                  as shown by his or her delay and inconsistencies in reporting.
                  – People v. Jeff, 204 Cal. App. 3d 309, 337 (1988).

              •   Such expert testimony is proper so long as it is limited to a discussion
                  of victims as a class (e.g., children) and does not extend to discussion
                  and diagnosis of the witness in the case at hand.
                  – People v. Jeff, 204 Cal. App. 3d 309, 337 (1988).

     7.       Appellate Review

              •   The trial court’s determination of whether a witness qualifies as an
                  expert is a matter of discretion and will not be disturbed absent a
                  showing of manifest abuse.
                  – People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094, 14 (2002).

E.   Child Victims and Witnesses

     •    A conviction for a violation of California Penal Code § 288 (lewd and
          lascivious act) may be supported by a child’s uncorroborated testimony of
          molestation.
          – In re Archie J.,* 2002 Cal. App. Unpub. LEXIS 584, 6 (2002).

     •    Generic testimony by the child victim of a sexual offense does not
          impermissibly interfere with constitutional rights.
          – People v. Vasquez, 51 Cal. App. 4th 1277, 1287 (1996).

     1.       Recent-Complaint Doctrine

              •   In prosecutions for sex offenses, proof of the fact of recent complaints
                  by a minor victim is admissible as original evidence and is not
                  hearsay.
                  – People v. Meacham, 152 Cal. App. 3d 142, 158 (1984).



                                          -95-
                                       California
           •   If the statement is only admitted to show that a complaint was made by
               the victim rather than to show the truth thereof, then the evidence is
               not hearsay at all.
               – People v. Meacham, 152 Cal. App. 3d 142, 158 (1984).

           •   The “recent-complaint” doctrine admits testimony by third persons
               that the victim complained of a sex act by the defendant on the ground
               that it is natural to expect that the victim of such a crime would
               complain of it, and the prosecution can show the fact of complaint to
               forestall the assumption that none was made and that therefore the
               offense did not occur.
               – People v. Meacham, 152 Cal. App. 3d 142, 158 (1984).

           •   The “recent-complaint” doctrine in sex cases is distinct from the
               spontaneous-declaration exception to the hearsay rule. Thus a short
               delay in making a complaint affects only the weight of the testimony
               and not its admissibility.
               – People v. Meacham, 152 Cal. App. 3d 142, 158 (1984).

     2.    Child Too Young to Testify

           •   Evidence that a complaint was made is inadmissible where the
               prosecutrix does not take the stand; however, an exception is made
               where the child is too young to testify.
               – People v. Meacham, 152 Cal. App. 3d 142, 159-60 (1984).

           •   When the child is too young to testify, testimony as to the complaint
               may be given by the person to whom the complaint was made.
               – People v. Meacham, 152 Cal. App. 3d 142, 160 (1984).

F.   Informants

     1.    Informant as Material Witness

           •   An informant is a material witness if it appears there is a reasonable
               possibility the informant could give evidence on the issue of guilt that
               might result in a defendant’s exoneration. Cal. Evid. Code § 1041.
               – People v. Luera, 86 Cal. App. 4th 513, 525-26 (2001).
               – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 8-9 (2002).

           •   The existence of a reasonable possibility an informant could provide
               exonerating evidence must be determined on a case-by-case basis.
               – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 9 (2002).

           •   An informant is not a material witness nor does his or her
               nondisclosure deny the defendant a fair trial where the informant’s


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                                   California
          testimony, although material on the issue of guilt, could only further
          implicate rather than exonerate the defendant.
          – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 13 (2002).

2.   Disclosure of Informants

     a.         Hearing

            •    When in any such criminal proceeding, a party demands
                 disclosure of the identity of the informant on the ground the
                 informant is a material witness on the issue of guilt, the court
                 shall conduct a hearing at which all parties may present evidence
                 on the issue of disclosure. Cal. Evid. Code § 1042.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 7 (2002).

            •    Such a hearing shall be conducted outside the presence of the
                 jury, if any. Cal. Evid. Code § 1042.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 7 (2002).

            •    During the hearing, if the privilege provided for in California
                 Evidence Code § 1041 (to refuse to disclose the identity of a
                 person who has furnished information in confidence to a law-
                 enforcement officer) is claimed by a person authorized to do so
                 or if a person who is authorized to claim such privilege refuses to
                 answer any question on the ground that the answer would tend to
                 disclose the identity of the informant, the prosecuting attorney
                 may request that the court hold an in camera hearing. Cal. Evid.
                 Code § 1042.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 8 (2002).

            •    If such a request is made, the court shall hold such a hearing
                 outside the presence of the defendant and his or her counsel. Cal.
                 Evid. Code § 1042.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 8 (2002).

            •    At the in camera hearing, the prosecution may offer evidence
                 that would tend to disclose or which discloses the identity of the
                 informant to aid the court in its determination whether there is a
                 reasonable possibility that nondisclosure might deprive the
                 defendant of a fair trial. Cal. Evid. Code § 1042.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 8 (2002).

            •    The court shall not order disclosure, nor strike the testimony of
                 the witness who invokes the privilege, nor dismiss the criminal
                 proceeding, if the party offering the witness refuses to disclose
                 the identity of the informant, unless, based upon the evidence
                 presented at the hearing held in the presence of the defendant and


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                               California
                          his or her counsel and the evidence presented at the in camera
                          hearing, the court concludes that there is a reasonable possibility
                          that nondisclosure might deprive the defendant of a fair trial. Cal.
                          Evid. Code § 1042.
                          – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 8 (2002).

             b.       Burden

                      •     A defendant’s showing to obtain disclosure of an informant’s
                            identity must rise above the level of sheer or unreasonable
                            speculation and reach at least the low plateau of reasonable
                            possibility.
                            – People v. Luera, 86 Cal. App. 4th 513, 526 (2001).
                            – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 11 (2002).

                      •     The mere assertion that the informant is a material witness on
                            the issue of guilt, without any plausible support therefore, does
                            not trigger the requirements of California Evidence Code §
                            1042(d).
                            – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 11 (2002).

G.   Testimony on Witness Credibility

     1.      Admissibility

             •    Unless precluded by statute, any evidence is admissible to attack the
                  credibility of a witness if it will establish a fact that has a tendency in
                  reason to disprove the truthfulness of the witness’ testimony, and any
                  evidence is admissible to support the credibility of a witness if it will
                  establish a fact and has a tendency in reason to prove the truthfulness
                  of the witness’ testimony. Cal. Evid. Code § 780.
                  – People v. Jones, 155 Cal. App. 3d 153, 182 (1984).

     2.      Evidence of Character Traits

             •    Evidence of character traits to affect the credibility of a witness is
                  limited to the traits of honesty, veracity, or their opposites. Cal. Evid.
                  Code § 786.
                  – People v. Jones, 155 Cal. App. 3d 153, 182 (1984).

H.   Disqualification of Witnesses

     •    A person is disqualified to be a witness if he or she is:
          (1) incapable of expressing him- or herself concerning the matter so as to be
              understood, either directly or through interpretation by one who can
              understand him or her; or
          (2) incapable of understanding the duty of a witness to tell the truth.


                                          -98-
                                        California
                     Cal. Evid. Code § 701.
                     – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 47 (2001).

                •    The court decides whether a person is competent to be a witness.
                     – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 47 (2001).

                •    The party objecting to the competency of a witness must persuade the court,
                     by a preponderance of the evidence, the witness should be disqualified.
                     – People v. Medina,* 2001 Cal. App. Unpub. LEXIS 1744, 47 (2001).

       I.       Impeaching Witnesses

                •    Judicial policy disfavors attempts to impeach witnesses by means of
                     psychiatric or psychological testimony.
                     – People v. Emerick,* 2002 Cal. App. Unpub. LEXIS 3186, 9 (2002).

XI.    Rebuttal Evidence

       •    Proper rebuttal evidence is restricted to that made necessary by the defendant’s case
            in the sense that he or she has introduced new evidence or made assertions that were
            not implicit in his or her denial of guilt.
            – People v. Senior, 3 Cal. App. 4th 765, 778 (1992).

       •    A defendant’s reiterated denial of guilt and the principal facts that purportedly
            establish it does not justify the prosecution’s introduction of new evidence to
            establish that which the defendant would clearly have denied from the start.
            – People v. Senior, 3 Cal. App. 4th 765, 778 (1992).

       •    Rebuttal testimony may be proper when it is offered as impeachment to meet
            evidence on a point put in dispute.
            – People v. Senior, 3 Cal. App. 4th 765, 778 (1992).

XII.   Privileges

       A.       Psychotherapist-Patient Privilege

                1.       General Privilege

                         •   California Evidence Code § 1014 grants the patient a privilege to
                             refuse to disclose, and to prevent another from disclosing, a
                             confidential communication between patient and psychotherapist.
                             – People v. Mickle, 54 Cal. 3d 140, 189 n.34 (1991).




                                                     -99-
                                                   California
     2.       Patient-Litigant Exception

              •   The Patient-Litigant Exception authorizes disclosure of otherwise
                  privileged matters bearing directly upon an emotional or mental
                  condition voluntarily disclosed by the patient. Cal. Evid. Code § 1016.
                  – People v. Mickle, 54 Cal. 3d 140, 189, 189 n.34 (1991).

              •   The Patient-Litigant Exception recognizes that it would be unfair to
                  allow the patient to describe at length to the jury in a crowded
                  courtroom the details of his or her supposed ailment, and then neatly
                  suppress the available proof of his or her falsities by wielding a
                  weapon, nominally termed a privilege.
                  – People v. Mickle, 54 Cal. 3d 140, 189-90 (1991).

B.   Attorney-Client Privilege

     •    A client, whether or not a party, has a privilege to refuse to disclose, and to
          prevent another from disclosing, a confidential communication between client
          and lawyer. Cal. Evid. Code § 954.
          – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 17 (2002).

     1.       “Confidential Communication” Defined

              •   A confidential communication is information transmitted between a
                  client and his or her lawyer in the course of that relationship and in
                  confidence by a means which, so far as the client is aware, discloses
                  the information to no third persons other than those who are present to
                  further the interest of the client in the consultation of those to whom
                  disclosure is reasonably necessary for the transmission of the
                  information or the accomplishment of the purpose for which the
                  lawyer is consulted and includes a legal opinion formed and the advice
                  given by the lawyer in the course of that relationship. Cal. Evid. Code
                  § 952.
                  – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 17-18 (2002).

              •   Material or information cannot be made confidential by simply
                  transferring it between client and attorney. The communication must
                  have been confidential from its inception.
                  – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 18 (2002).

     2.       Burden

              •   Although the opponent of the existence of the privilege bears the
                  burden of proving the communication was not made in confidence,
                  that burden only arises once the proponent of the privilege proves the
                  preliminary fact that the privilege exists.
                  – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 16-17 (2002).



                                         -100-
                                       California
      C.       Appellate Review

               •   Rules regarding the assertion of privilege are matters within the discretion of
                   the trial court, to be upheld on appeal unless shown to be an abuse of
                   discretion.
                   – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 16 (2002).

XIII. Evidence of the Date of the Crime

      •    When it is alleged that the crime charged was committed “on or about” a certain date,
           if the jury finds the crime was committed it is not necessary that the proof show that
           the crime was committed on that precise date; it is sufficient if the proof shows that
           the crime was committed on or about that date.
           – People v. Jones, 155 Cal. App. 3d 153, 180 (1984).

      •    If the jury believes that the offenses did happen on or about the dates charged and
           within the limitation period, and the defendant is sufficiently apprised of the
           approximate dates of the offenses and is not misled in making his or her defense or
           placed in danger of being twice in jeopardy, no prejudicial error appears.
           – People v. Jones, 155 Cal. App. 3d 153, 181 (1984).




                                                   -101-
                                                 California
                                      CALIFORNIA
                                         Age of Child Victim


•   Proof of age, like proof of any other material fact, can be accomplished by the use of either
    direct or circumstantial evidence, or both.
    – People v. Kurey, 88 Cal. App. 4th 840, 847 (2001).

•   The proof necessary to satisfy the element of age is not limited to documents of actual age.
    – People v. Kurey, 88 Cal. App. 4th 840, 847 (2001).

•   The outward physical appearance of an alleged minor may be considered in judging his or
    her age.
    – People v. Kurey, 88 Cal. App. 4th 840, 847 (2001).




                                                     -102-
                                                   California
                                        CALIFORNIA
                                              Multiple Counts


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       What Constitutes an “Item” of Child Pornography?

         No state cases reported.

II.      Multiple Counts

         •   When there are multiple acts placed before a jury, each being a separate similar
             chargeable offense in itself, the prosecution must elect the act on which the charge
             will stand.
             – People v. Jones, 155 Cal. App. 3d 153, 180 (1984).

         •   Offenses which fit both California Penal Code § 288.5 (continuous sexual abuse) and
             another statute may be prosecuted under either, except that a particular act may not be
             separately charged under a statute other than California Penal Code § 288.5 if the act
             was committed during the same time period as other acts which are charged in the
             same proceeding under California Penal Code § 288.5.
             – People v. Vasquez, 51 Cal. App. 4th 1277, 1286 (1996).

         •   Each individual lewd and lascivious act can result in a new and separate statutory
             violation.
             – People v. Scott, 9 Cal. 4th 331, 346-47 (1994).

III.     Multiple Convictions

         •   Multiple convictions may not be based on necessarily included offenses.
             – People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509, 19 (2002).

         •   Neither sodomy nor oral copulation is necessarily included within the offense of
             aggravated sexual assault.
             – People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509, 19 (2002).

         •   An accused may be convicted for multiple, nonconsensual sex acts of an identical
             nature that follow one another in quick, uninterrupted succession.
             – People v. Catelli, 227 Cal. App. 3d 1434, 1446 (1991).

         •   Multiple repeated sex crimes have not been regarded as a single course of conduct.
             – People v. Senior, 3 Cal. App. 4th 765, 780 (1992).



                                                        -103-
                                                      California
      •   Whether a course of criminal conduct is divisible and therefore gives rise to more
          than one act depends on the intent and objective of the actor. If all of the offenses
          were incident to one objective, the defendant may be punished for any one of such
          offenses but not for more than one.
          – People v. Goldstein, 130 Cal. App. 3d 1024, 1043 (1982).

IV.   Issues of Double Jeopardy

      •   A plea of double jeopardy cannot be raised for the first time on appeal.
          – People v. Scott, 83 Cal. App. 4th 784, 792 (2000).

      •   The California double-jeopardy clause, like the federal Constitution, provides that a
          person may not be subjected to a second prosecution for the same offense for which
          he or she has once been prosecuted and convicted or acquitted.
          – People v. Lazarevich, 95 Cal. App. 4th 416, 421 (2001).

      •   When the defendant is convicted of, acquitted, or has been once placed in jeopardy
          upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another
          prosecution for the offense charged in such accusatory pleading, or for an attempt to
          commit the same, or for an offense necessarily included therein, of which he or she
          might have been convicted under the accusatory pleading. Cal. Pen. Code § 1023.
          – People v. Scott, 83 Cal. App. 4th 784, 793 (2000).

      •   When a jury deadlocks on the greater offense, but convicts the accused of a
          necessarily included lesser offense, the conviction bars a subsequent prosecution for
          the greater offense.
          – People v. Scott, 83 Cal. App. 4th 784, 793-94 (2000).

      •   To determine whether a defendant has been placed once in jeopardy in another
          jurisdiction, the trial court must look at the physical elements of each crime.
          – People v. Lazarevich, 95 Cal. App. 4th 416, 421 (2001).

      •   A defendant may not be convicted after a prior acquittal or conviction in another
          jurisdiction if all the acts constituting the offense in California were necessary to
          prove the offense in the prior prosecution; however, a conviction in California is not
          barred where the offense committed is not the same act but involves an element not
          present in the prior prosecution.
          – People v. Lazarevich, 95 Cal. App. 4th 416, 421 (2001).

      •   To separate a preparatory touching from an unlawful sex act in order to convict and
          punish a defendant for two sex crimes rather than one violates California Penal Code
          § 654 which prohibits double punishment.
          – People v. Meacham, 152 Cal. App. 3d 142, 153 (1984).




                                                   -104-
                                                 California
A.   “Implied-Acquittal” Doctrine

     •   An acquittal barring a second prosecution may be either express or implied by
         a conviction on a lesser-included offense when the jury was given the
         opportunity to return a verdict on the greater offense.
         – People v. Scott, 83 Cal. App. 4th 784, 793 (2000).

     •   Under the “implied-acquittal” doctrine, a guilty verdict on a lesser-included
         offense represents an implied acquittal of the greater offense of which the jury
         could have convicted the defendant.
         – People v. Scott, 83 Cal. App. 4th 784, 793 (2000).

     •   Double-jeopardy principles prohibit a second prosecution when a defendant
         has been implicitly acquitted of an offense; under the “implied-acquittal”
         doctrine, a verdict of guilty on a lesser-included offense constitutes an implied
         acquittal of the greater offense of which the jury could have convicted the
         defendant.
         – People v. Scott, 83 Cal. App. 4th 784, 793 (2000).

B.   “Necessarily Included Offenses” Defined

     •   The applicable definition of “necessarily included offenses” for purposes of
         double-jeopardy law is simply that where an offense cannot be committed
         without necessarily committing another offense, the latter is a necessarily
         included offense. This is commonly referred to as the “elements test.”
         – People v. Scott, 83 Cal. App. 4th 784, 794 (2000).

     •   Under the elements test, an offense is necessarily included if the crimes are
         defined in such a way as to make it impossible to commit the greater offense
         without also committing the lesser.
         – People v. Scott, 83 Cal. App. 4th 784, 791 n.3 (2000).

C.   Burden of Proof

     •   The burden is on the defendant to prove that he or she has been placed in
         double jeopardy by reason of a prior conviction or acquittal.
         – People v. Lazarevich, 95 Cal. App. 4th 416, 421 (2001).




                                         -105-
                                       California
                                        CALIFORNIA
                                                    Defenses


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       Specific

         A.       Attempt

                  •   Factual impossibility is not a defense to a charge of attempt.
                      – People v. Reed, 53 Cal. App. 4th 389, 396 (1996).

                  •   If there is an apparent ability to commit the crime in the way attempted, the
                      attempt is indictable, although, unknown to the person making the attempt, the
                      crime cannot be committed, because the means employed are in fact
                      unsustainable, or because of extrinsic facts, such as the nonexistence of some
                      essential object, or an obstruction by the intended victim, or by a third person.
                      – People v. Reed, 53 Cal. App. 4th 389, 397 (1996).

         B.       Kidnapping

                  •   California’s kidnapping statute does not apply to any person who steals, takes,
                      entices away, detains, conceals, or harbors any child under the age of 14
                      years, if that act is taken to protect the child from danger of imminent harm.
                      – People v. Hill, 23 Cal. 4th 853, 858 n.4 (2000).

                  •   Reasonable mistake of fact as to the victim’s age is not a defense to
                      kidnapping a child under the age of 14.
                      – People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487, 124 (2002).

         C.       Lewd and Lascivious Act

                  •   The right of a parent to discipline a child is no defense to a charge of
                      California Penal Code § 288, which requires that the touching be committed
                      with a sexual intent. Given any contact by a parent on his or her child
                      undertaken with a sexual intent cannot constitute justifiable discipline, a
                      defendant is entitled to argue that he or she lacked any sexual intent when he
                      or she touches a victim, but is not entitled to a sua sponte instruction that
                      parental discipline is a defense to committing a lewd act on a child.
                      – People v. Smith, 98 Cal. App. 4th 1182, 1196 (2002).




                                                        -106-
                                                      California
            •   A child under 14 can commit a lewd and lascivious act, under clear proof of
                the minor’s knowledge of wrongfulness.
                – In re Jerry M., 59 Cal. App. 4th 289, 297 (1997).
                – In re Paul C., 221 Cal. App. 3d 43, 46-47, 49, 50, 52 (1990).

            •   A reasonable mistake as to a minor victim’s age is not a defense to a
                California Penal Code § 288 charge.
                –   In re Donald R., 14 Cal. App. 4th 1627, 1629 (1993).
                –   In re Paul C., 221 Cal. App. 3d 43, 51 (1990).
                –   People v. Gutierrez, 80 Cal. App. 3d 829, 834 (1978).
                –   People v. Paz, 80 Cal. App. 4th 293, 294, 295, 301 (2000).
                –   People v. Scott, 83 Cal. App. 4th 784, 799 (2000).

            •   Because the willing participation or “consent” of the child is no defense to the
                crime, minors under 14 cannot consent legally to any lewd or lascivious act
                upon their persons, including sexual intercourse.
                – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 261 (1986).

      D.    Soliciting Another to Commit a Lewd and Lascivious Act

            •   Because a minor cannot violate California Penal Code § 288 by engaging in
                lewd conduct with an adult, an adult who asks a minor to join him or her in
                such lewd conduct has not committed the crime of soliciting another to
                commit a violation of California Penal Code § 288.
                – People v. Herman, 97 Cal. App. 4th 1369, 1380 (2002).

      E.    Unlawful Sexual Intercourse With a Person Under 18

            •   A defendant’s good faith and reasonable belief a victim was 18 years or older
                can provide a defense to a charge of statutory rape (unlawful sexual
                intercourse with a person under 18) if the evidence proves the defendant
                lacked criminal intent.
                – In re Donald R., 14 Cal. App. 4th 1627, 1629 (1993).
                – People v. Paz, 80 Cal. App. 4th 293, 299 (2000).

II.   Age

      A.    Of the Victim

            •   Reasonable mistake of fact as to the victim’s age is not a defense to
                kidnapping a child under the age of 14.
                – People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487, 124 (2002).

            •   A reasonable mistake as to a minor victim’s age is not a defense to a
                California Penal Code § 288 charge.
                –   In re Donald R., 14 Cal. App. 4th 1627, 1629 (1993).
                –   In re Paul C., 221 Cal. App. 3d 43, 51 (1990).
                –   People v. Gutierrez, 80 Cal. App. 3d 829, 834 (1978).
                –   People v. Paz, 80 Cal. App. 4th 293, 294, 295, 301 (2000).


                                                 -107-
                                               California
                •   A defendant’s good faith and reasonable belief a victim was 18 years or older
                    can provide a defense to a charge of statutory rape (unlawful sexual
                    intercourse with a person under 18) if the evidence proves the defendant
                    lacked criminal intent.
                    – In re Donald R., 14 Cal. App. 4th 1627, 1629 (1993).
                    – People v. Paz, 80 Cal. App. 4th 293, 299 (2000).

       B.       Of the Defendant

                •   A child under 14 can commit a lewd and lascivious act.
                    – In re Jerry M., 59 Cal. App. 4th 289, 297 (1997).
                    – In re Paul C., 221 Cal. App. 3d 43, 46-47, 49, 50, 52 (1990).

                •   When a child under the age of 14 is charged with criminal offenses, he or she
                    may not be found guilty of those offenses unless the prosecution proves the
                    child understood the wrongfulness of his or her conduct. The understanding of
                    wrongfulness must be shown by clear and convincing evidence.
                    – In re Jerry M., 59 Cal. App. 4th 289, 297 (1997).
                    – In re Paul C., 221 Cal. App. 3d 43, 46-47, 49, 50, 52 (1990).

                •   In determining whether the minor knows of the wrongfulness of his or her
                    conduct, the court must often rely on circumstantial evidence, including the
                    minor’s age, experience and understanding, as well as the circumstances of
                    the offense including its method of commission and concealment.
                    – In re Jerry M., 59 Cal. App. 4th 289, 298 (1997).
                    – In re Paul C., 221 Cal. App. 3d 43, 52 (1990).

                •   The closer the minor is to 14 years of age, the more likely the minor
                    understands the wrongfulness of his or her acts. Conversely, the more distant
                    the age of the minor below the age of 14 years, the less likely the minor
                    understands the wrongfulness of his or her acts. Similarly, the younger the
                    minor the less likely his or her acts are with the specific intent of sexual
                    arousal. At some age younger than 14 years, the minor cannot as a matter of
                    law have the specific intent of sexual arousal.
                    – In re Jerry M., 59 Cal. App. 4th 289, 300 (1997).
                    – In re Paul C., 221 Cal. App. 3d 43, 53 (1990).
                    – In re Randy S., 76 Cal. App. 4th 400, 406 (1999).

III.   Consent

       •    Because the willing participation or “consent” of the child is no defense to the crime,
            minors under 14 cannot consent legally to any lewd or lascivious act upon their
            persons, including sexual intercourse.
            – Planned Parenthood v. Van de Kamp, 181 Cal. App. 3d 245, 261 (1986).




                                                    -108-
                                                  California
IV.   Diminished Capacity

      A.       Addiction to the Internet

               No state cases reported.

      B.       Insanity

               No state cases reported.

V.    Entrapment

      •    The defense of entrapment is a question for the jury.
           – People v. Peppars, 140 Cal. App. 3d 677, 684 n.4 (1983).

      A.       What Is Entrapment?

               •   In California, the test for entrapment focuses on law-enforcement conduct and
                   is objective.
                   – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 14 (2002).

               •   The proper standard for evaluating the defense of entrapment is: was the
                   conduct of the law-enforcement agent likely to induce a normally law-abiding
                   person to commit the offense?
                   –   People v. Barraza, 23 Cal. 3d 675, 689-90 (1979).
                   –   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 14 (2002).
                   –   People v. Peppars, 140 Cal. App. 3d 677, 683 (1983).
                   –   People v. Reed, 53 Cal. App. 4th 389, 400 (1996).

               •   Official conduct that does no more than offer the opportunity to the suspect is
                   permissible, but it is impermissible for law enforcement or their agents to
                   pressure the suspect by overbearing conduct such as badgering, cajoling,
                   importuning, or other affirmative acts likely to induce a normally law-abiding
                   person to commit the crime.
                   –   People v. Barraza, 23 Cal. 3d 675, 690 (1979).
                   –   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 14-15 (2002).
                   –   People v. Peppars, 140 Cal. App. 3d 677, 683 (1983).
                   –   People v. Reed, 53 Cal. App. 4th 389, 400 (1996).

               •   Law-enforcement activities that would generate in a law-abiding citizen a
                   motive for the crime other than the typical criminal intent, such as friendship
                   or sympathy, should be considered entrapping behavior, as should
                   inducements based on exorbitant monetary or other consideration or a
                   guarantee that the act in question is not illegal or will not be detected.
                   –   People v. Barraza, 23 Cal. 3d 675, 690 (1979).
                   –   People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 15 (2002).
                   –   People v. Peppars, 140 Cal. App. 3d 677, 683 (1983).
                   –   People v. Reed, 53 Cal. App. 4th 389, 400 (1996).



                                                   -109-
                                                 California
             •   While the inquiry should focus on law-enforcement conduct, such conduct
                 should not be viewed in a vacuum; the examination should include the
                 particular circumstances of the offense, such as what transactions preceded the
                 offense, the suspect’s response to an officer’s inducements, the gravity of the
                 offense, and the difficulty of detecting instances of its commission.
                 – People v. Barraza, 23 Cal. 3d 675, 690 (1979).
                 – People v. Peppars, 140 Cal. App. 3d 677, 683 (1983).
                 – People v. Reed, 53 Cal. App. 4th 389, 400 (1996).

             •   Matters such as the character of the suspect, his or her predisposition to
                 commit the offense, and his or her subjective intent are irrelevant.
                 – People v. Barraza, 23 Cal. 3d 675, 690-91 (1979).

             •   Although the defense of entrapment is available to a defendant who is
                 otherwise guilty, it does not follow that the defendant must admit guilt to
                 establish the defense.
                 – In re Duncan, 189 Cal. App. 3d 1348, 1363 (1987).

      B.     What Is Not Entrapment?

             •   There will be no entrapment when the official conduct is found to have gone
                 no further than necessary to assure the suspect that he or she is not being “set
                 up.”
                 – People v. Barraza, 23 Cal. 3d 675, 690 n.4 (1979).
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 15 (2002).
                 – People v. Peppars, 140 Cal. App. 3d 677, 684 n.4 (1983).

             •   Law enforcement remains free to take reasonable, though restrained, steps to
                 gain the confidence of suspects.
                 – People v. Barraza, 23 Cal. 3d 675, 690 n.4 (1979).
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 15 (2002).

             •   Merely providing people in general an opportunity to commit a crime is not an
                 improper enticement or otherwise entrapment.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 16 (2002).

             •   Ruses, stings, and decoys are permissible stratagems in the enforcement of
                 criminal law, and they become invalid only when badgering or importuning
                 takes place to an extent and degree that is likely to induce an otherwise law-
                 abiding person to commit a crime.
                 – People v. Neves,* 2002 Cal. App. Unpub. LEXIS 4818, 16 (2002).

VI.   First Amendment

      No state cases reported.




                                                -110-
                                              California
VII.   Impossibility

       A.       Factual

                •   Factual impossibility denotes conduct where the objective is proscribed by the
                    criminal law, but a circumstance unknown to the actor prevents him or her
                    from bringing it about.
                    – People v. Peppars, 140 Cal. App. 3d 677, 687 n.5 (1983).

                •   Factual impossibility is not a defense to a charge of attempt.
                    – People v. Reed, 53 Cal. App. 4th 389, 396 (1996).

                •   Factual impossibility is not a defense to the charge of conspiracy to commit
                    the substantive crime.
                    – People v. Peppars, 140 Cal. App. 3d 677, 688 (1983).

       B.       Legal

                •   Legal impossibility denotes conduct where the goal of the actor is not
                    criminal, although he or she believes it to be.
                    – People v. Peppars, 140 Cal. App. 3d 677, 687 n.5 (1983).

VIII. Mistake of Fact

       •    The defendant’s mistake of fact, regarding the victim’s age, is not a defense to the
            crime of attempting to molest girls under 14 years of age.
            – Hatch v. Superior Court, 80 Cal. App. 4th 170, 187 (2000).

IX.    Manufacturing Jurisdiction

       No state cases reported.

X.     Outrageous Conduct

       No state cases reported.

XI.    Researcher

       No state cases reported.

XII.   Sexual Orientation

       No state cases reported.




                                                    -111-
                                                  California
                                        CALIFORNIA
                                             Sentencing Issues


A case with an asterisk (*) indicates a decision that has not been published in official reports, has not been certified
   for publication, and has not been ordered published for purposes of California Rule of Court 977. Rule 977(a)
 prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,
                                          except as specified by Rule 977(b).

I.       Probation

         •   Probation shall not be granted to, nor shall the execution or imposition of sentence be
             suspended for a person convicted of a violation of California Penal Code § 288 and
             who was a stranger to the child victim or made friends with the victim for the purpose
             of committing an act in violation of California Penal Code § 288, unless the
             defendant honestly and reasonably believed the victim was 14 years old or older. Cal.
             Pen. Code § 1203.066(a)(3).
             – People v. Thompson, 205 Cal. App. 3d 871, 876 (1988).

         •   Probation is precluded for transporting a child under age 16 for the commission of a
             lewd act. Cal. Pen. Code § 1203.065(a).
             – People v. Pecci, 72 Cal. App. 4th 1500, 1506 n.4 (1999).

         •   In denying the defendant probation, one court noted that the defendant showed no
             remorse whatsoever for the offenses he stood convicted of, and he continued to offer
             contrived explanations as to how his prosecution came about. Further the defendant
             had a limited ability to comply with probation in light of his express desire to
             continue using computers. The court also noted the defendant’s lack of criminal
             record, but also that the victims were vulnerable and that the defendant induced others
             to participate in his unlawful conduct.
             – People v. Baggett,* 2002 Cal. App. Unpub. LEXIS 2094, 17 (2002).

II.      Enhancement

         •   For any violation of California Penal Code § 261, subdivision (2) or (3), 264.1,
             288(b), 289, or sodomy or oral copulation by force, violence, duress, menace, or
             threat of great bodily harm as provided in California Penal Code § 286 or 288a, the
             number of enhancements which may be imposed shall not be limited, regardless of
             whether such enhancements are pursuant to this or some other section of law. Each of
             such enhancements shall be a full and separately served enhancement and shall not be
             merged with any term or with any other enhancement. Cal. Pen. Code § 1170.1(i).
             – People v. Blevins, 158 Cal. App. 3d 64, 69 (1984).

         •   Aggravating facts that have been considered in some cases include: young age of
             victims; vulnerability of victims to the defendant; number and nature of the offenses;



                                                        -112-
                                                      California
            and the long period of time over which they occurred, which indicated to the court
            that the crimes were carried out by the defendant in a premeditated, deliberate, and
            willful manner; and that the defendant had established an ongoing, continuing pattern
            of violent conduct that constituted an extreme danger to the community.
            – People v. Jones, 155 Cal. App. 3d 153, 185 (1984).

       A.       Age

                No state cases reported.

       B.       Distribution/Intent to Traffic

                No state cases reported.

       C.       Number of Images

                No state cases reported.

       D.       Pattern of Activity for Sexual Exploitation

                No state cases reported.

       E.       Sadistic, Masochistic, or Violent Material

                No state cases reported.

       F.       Use of Computers

                No state cases reported.

       G.       Use of a Deadly Weapon

                •   For each violation of California Penal Code § 261, 264.1, 286, 288, 288a, or
                    289, and in addition to the sentence provided, any person shall receive an
                    enhancement of three years if such person uses a firearm or any other deadly
                    weapon in the commission of such violation or of two years if such person is
                    armed with a firearm or any other deadly weapon. Cal. Pen. Code § 12022.3.
                    – People v. Blevins, 158 Cal. App. 3d 64, 71 (1984).

III.   Mitigating Factors

       •    Courts have taken the following factors into consideration when deciding upon a
            sentence for production of child pornography and various sexual offenses perpetrated
            against a minor: the willingness of the victims to participate, consent of victims, lack
            of distribution or production of commercial child pornography, lack of solicitation of
            victims on the part of the defendant, and the clinical finding that the defendant is not
            a pedophile.


                                                    -113-
                                                  California
           – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 5-6 (2002).

      •    Evidence of diminished capacity or of a mental disorder may be considered by the
           court only at the time of sentencing or other disposition commitment. Cal. Pen. Code
           § 25(c).
           – People v. Schoenhoeft,* 2002 Cal. App. Unpub. LEXIS 1487, 146 (2002).

IV.   Different Punishments Available

      •    An act or omission which is made punishable in different ways by different
           provisions of the Penal Code may be punished under either of such provisions, but in
           no case can it be punished under more than one.
           – People v. Catelli, 227 Cal. App. 3d 1434, 1447 n.6 (1991).
           – People v. Senior, 3 Cal. App. 4th 765, 779 (1992).

V.    Punishment of Multiple Similar Acts

      •    Multiple digital-vaginal penetrations during a single encounter may be separately
           punished, as may be multiple oral copulations.
           – People v. Senior, 3 Cal. App. 4th 765, 780 (1992).

VI.   “Separate Occasions” and Consecutive Sentences

      •    An accused may be separately punished for sex acts of the same nature committed
           during a single encounter.
           – People v. Catelli, 227 Cal. App. 3d 1434, 1447 (1991).

      •    In order to impose consecutive sentences, crimes must be independent of one another
           and must be committed at different times.
           – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 8 (2002).

      •    When a court exercises its discretion to impose a full consecutive term, the court
           ideally should explain choosing consecutive rather than concurrent and full rather
           than subordinate, though the same reason may justify both choices. At a minimum the
           record must reflect a recognition that two sentence choices are involved.
           – People v. Senior, 3 Cal. App. 4th 765, 781 (1992).

      A.       Criteria for Deciding Whether to Impose Consecutive Sentences

               •   The criteria affecting the decision to impose consecutive sentences are:
                   (1) the crimes and their objectives were predominantly independent of each
                       other;
                   (2) the crimes involved separate acts of violence or threats of violence;
                   (3) the crimes were committed at different times or separate places, rather
                       than being committed so closely in time and place as to indicate a single
                       period of aberrant behavior.
                   Cal. R. Ct. 4.425(a).
                   – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 8 n.2 (2002).


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       B.       “Violent Felonies” Defined

                •   A violent felony shall mean any of the following: murder or voluntary
                    manslaughter; mayhem; rape; sodomy by force, violence, duress, menace, or
                    threat of great bodily harm; oral copulation by force, violence, duress,
                    menace, or threat of great bodily harm; lewd acts on a child under 14; any
                    felony punishable by death or imprisonment in the state prison for life; any
                    other felony in which the defendant inflicts great bodily injury on any person
                    other than an accomplice which has been charged and proved. Cal. Pen. Code
                    § 667.5.
                    – People v. Mena, 206 Cal. App. 3d 420, 427 n.11 (1988).

       C.       Consecutive Sentences for Sexual Assault

                •   California Penal Code § 667.61(g) prohibits consecutive sentences for
                    multiple sexual assaults when they occur on a single occasion.
                    – People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509, 12 (2002).

                •   A finding of “separate occasions” does not require a change of location or an
                    obvious break in a perpetrator’s behavior.
                    – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 8 (2002).

                •   The trial court must decide whether the defendant has a reasonable
                    opportunity to reflect upon his or her actions and nevertheless resumes
                    sexually assaultive behavior.
                    – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 8 (2002).
                    – People v. Daigre,* 2002 Cal. App. Unpub. LEXIS 4509, 13 (2002).

                •   A trial court could find a defendant had a reasonable opportunity to reflect
                    upon his or her actions even though the parties never changed physical
                    locations and the parties merely changed positions.
                    – People v. Areas,* 2002 Cal. App. Unpub. LEXIS 3954, 8 (2002).

                •   A full, separate, and consecutive term may be imposed for committing oral
                    copulation by force, violence, duress, menace, or fear of immediate and
                    unlawful bodily injury.
                    – People v. Senior, 3 Cal. App. 4th 765, 781 (1992).

VII.   Sexually Violent Predators

       •    The Sexually Violent Predators Act provides for the continued confinement in the
            custody of the Department of Mental Health of those persons identified as sexually
            violent predators before they have completed their prison or parole revocation terms.
            – People v. Chambless, 74 Cal. App. 4th 773, 776-77 (1999).




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•    The Sexually Violent Predators Act requires a finding that the person is dangerous,
     and, simultaneously, links that finding of dangerousness to a currently diagnosed
     mental disorder characterized by the inability to control dangerous sexual behavior.
     – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 33 (2002).

•    The Sexually Violent Predators Act specifically provides that the jurors shall be
     admonished that they may not find a person a sexually violent predator based on prior
     offenses absent relevant evidence of a currently diagnosed mental disorder that makes
     the person a danger to the health and safety of others in that it is likely that he or she
     will engage in sexually violent criminal behavior. Cal. Wel. & Instit. Code § 6600 et
     seq.
     – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 35 (2002).

A.       “Sexually Violent Predator” Defined

         •   A sexually violent predator is a person who has been convicted of a sexually
             violent offense against two or more victims for which he or she received a
             determinate sentence and who has a diagnosed mental disorder that makes the
             person a danger to the health and safety of others in that it is likely that he or
             she will engage in sexually violent criminal behavior. Cal. Wel. & Inst. Code
             § 6600(a).
             –   People v. Chambless, 74 Cal. App. 4th 773, 777 (1999).
             –   People v. Gordon, 92 Cal. App. 4th 342, 351 (2001).
             –   People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 23 (2002).
             –   People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 32-33, 37 n.11 (2002).

         •   In order to establish a defendant is a sexually violent predator, the People need
             to prove that (1) he or she has been convicted of two separate sexually violent
             offenses against two or more victims; (2) he or she had served a determinate
             term; (3) he or she had a diagnosable mental disorder; and (4) such disorder
             made him or her a danger to the health and safety of others in that it was likely
             he or she would engage in sexually violent conduct if released.
             – People v. Chambless, 74 Cal. App. 4th 773, 782 (1999).

B.       Previous Convictions

         •   The ultimate finding of predatory behavior under the statute reflects that the
             person must now be a predator, not that his or her offenses in the past were
             necessarily predatory.
             – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 37 (2002).

         •   Previous convictions do not themselves qualify the defendant as a sexually
             violent predator, but may support that ultimate finding when used in
             conjunction with other evidence such as indications of a predatory relationship
             with the victim(s). Cal. Wel. & Instit. Code § 6600(a)(3).
             – People v. Mahoney,* 2002 Cal. App. Unpub. LEXIS 366, 37 n.11 (2002).




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     •    The California Supreme Court has concluded that the trier of fact is not
          required to find that a defendant’s prior convictions involved predatory acts.
          – People v. Gordon, 92 Cal. App. 4th 342, 352 (2001).

C.   “Sexually Violent Offense” Defined

     •    A sexually violent offense refers to certain enumerated sex crimes committed
          by force, violence, duress, menace, or fear of immediate and unlawful bodily
          injury on the victim or another person. Cal. Wel. & Inst. Code § 6600(b).
          – People v. Chambless, 74 Cal. App. 4th 773, 777 (1999).

     •    For purposes of the Sexually Violent Predators Act, sexually violent offenses
          may also include a finding of not guilty by reason of insanity of an offense
          described in the Act, a conviction leading to a finding that the person was a
          mentally disordered sex offender, a conviction in another state of an offense
          that includes all the elements of an offense described in the Act, and a
          conviction before July 1, 1977, of an offense enumerated in the Act, even if
          the offender did not receive a determinate sentence for that crime. Cal. Wel. &
          Inst. Code § 6600(a).
          – People v. Chambless, 74 Cal. App. 4th 773, 777 n.4 (1999).

     1.       Victims Under the Age of 14

              •   If the victim of an underlying offense is a child under the age of 14
                  and the offending act(s) involved substantial sexual conduct, the
                  offense shall constitute a sexually violent offense. Cal. Wel. & Inst.
                  Code § 6600.1(a).
                  – People v. Chambless, 74 Cal. App. 4th 773, 777, 784 (1999).
                  – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).

     2.       “Substantial Sexual Conduct” Defined

              •   Substantial sexual conduct means penetration of the vagina or rectum
                  of either the victim or the offender by the penis of the other or by any
                  foreign object, oral copulation, or masturbation of either the victim or
                  the offender.
                  – People v. Chambless, 74 Cal. App. 4th 773, 784 (1999).
                  – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).

     3.       “Masturbation” Defined

              •   The definition of masturbation under the Sexually Violent Predators
                  Act encompasses any touching or contact, however slight, of the
                  genitals of either the victim or the offender, with the requisite intent.
                  – People v. Chambless, 74 Cal. App. 4th 773, 783 (1999).
                  – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).




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      D.       “Diagnosed Mental Disorder” Defined

               •   Although “diagnosed mental disorder” is not fully defined under the Sexually
                   Violent Predators Act, such condition is stated to include a congenital or
                   acquired condition affecting the emotional or volitional capacity that
                   predisposes the person to the commission of criminal sexual acts in a degree
                   constituting the person a menace to the health and safety of others. Cal. Wel.
                   & Inst. Code § 6600(c).
                   – People v. Chambless, 74 Cal. App. 4th 773, 777 n.3 (1999).
                   – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).
                   – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 22-23 (2002).

               •   The Act targets sexual offenders who suffer from a diagnosed “volitional
                   impairment” making them dangerous beyond their control.
                   – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 23 (2002).

               •   The California Sexually Violent Predator statute does not permit commitment
                   on the basis of a personality disorder.
                   – People v. Grant,* 2002 Cal. App. Unpub. LEXIS 3417, 25 (2002).

      E.       Danger to the Health and Safety of Others

               •   Danger to the health and safety of others does not require proof of a recent
                   over act while the offender is in custody.
                   – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).

      F.       “Recent Over Act” Defined

               •   “Recent overt act” means criminal act that manifests a likelihood the actor
                   may engage in sexually violent predatory criminal behavior.
                   – People v. Gordon, 92 Cal. App. 4th 342, 350 (2001).

      G.       “Predatory” Defined

               •   The Sexually Violent Predators Act defines “predatory” as an act directed
                   toward a stranger, a person of casual acquaintance with whom no substantial
                   relationship exists, or an individual with whom a relationship has been
                   established or promoted for the primary purpose of victimization. Cal. Wel. &
                   Inst. Code § 6600(e).
                   – People v. Chambless, 74 Cal. App. 4th 773, 778 n.5 (1999).
                   – People v. Gordon, 92 Cal. App. 4th 342, 351 (2001).

VIII. Cruel and Unusual Punishment

      •    A sentence may constitute cruel and unusual punishment if, although not cruel and
           unusual in its method, it is so disproportionate to the crime for which it is inflicted
           that it shocks the conscience and offends fundamental notions of human dignity.
           – In re Alva, 89 Cal. App. 4th 758, 767 (2001).


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     – People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357, 6 (2001).
     – People v. Monroe, 168 Cal. App. 3d 1205, 1209 (1985).

•    Sex-offender registration cannot constitutionally be imposed as punishment for
     persons convicted of misdemeanors under California Penal Code §314.1 (indecent
     exposure).
     – In re King, 157 Cal. App. 3d 554, 558 (1984).

A.       Three-Prong Test

         •   To aid in the administration of the rule:
             (1) examine the nature of the offense and/or the offender, with particular
                 regard to the degree of danger both present to society;
             (2) compare the challenged penalty with punishments prescribed in the same
                 jurisdiction for other, more serious offenses; and
             (3) compare the challenged penalty with punishments prescribed for the same
                 offense in sister jurisdictions.
             – In re King, 157 Cal. App. 3d 554, 557 (1984).
             – People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357, 6-7 (2001).
             – People v. Monroe, 168 Cal. App. 3d 1205, 1209-10 (1985).

         •   In considering the first prong, the nature of the offense and the offender, the
             court may take into account such factors as the defendant’s motive, the way
             the offense was committed, the extent of the defendant’s involvement, the
             consequences of the defendant’s actions, along with facts relating to the
             defendant such as age, prior criminal record, personal characteristics, and state
             of mind.
             – In re Alva, 89 Cal. App. 4th 758, 768 (2001).

         •   The Supreme Court of California has held, however, that provided a
             punishment is proportionate to the defendant’s individual culpability, there is
             no requirement that it be proportionate to the punishments imposed in other
             similar cases.
             – People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357, 7 (2001).

         •   It is permissible to base the determination of whether the punishment is cruel
             and unusual solely on the offense and the offender.
             – People v. Collins,* 2001 Cal. App. Unpub. LEXIS 2357, 7 (2001).

B.       Transforming Civil Remedies into Criminal Penalties

         •   The following factors are considered when determining if what was clearly
             intended as a civil remedy has actually been transformed into a criminal
             penalty:
             (1) whether the sanction involves an affirmative disability or restraint;
             (2) whether it has historically been regarded as a punishment;
             (3) whether it comes into play only on a finding of scienter;



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    (4) whether its operation will promote the traditional aims of punishment –
        retribution and deterrence;
    (5) whether the behavior to which it applies is already a crime;
    (6) whether an alternative purpose to which it may rationally be connected is
        assignable for it; and
    (7) whether it appears excessive in relation to the alternative purpose
        assigned.
    – In re Alva, 89 Cal. App. 4th 758, 764 (2001).

•   These factors must be considered in relation to the statute on its face, and only
    the clearest proof will suffice to override legislative intent and transform what
    has been denominated a civil remedy into a criminal penalty.
    – In re Alva, 89 Cal. App. 4th 758, 764 (2001).




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                           CALIFORNIA
                           Supervised Release


No state cases reported.




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