Sex Offenses

PC 220(a)(1) (Assault w/ Intent to Commit Specified Crimes)

Elements

(1) D did an act that by its nature would directly and probably result in the application of force to a person
(2) D did that act willfully
(3) When the D acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone
(4) When the D acted, he had the present ability to apply force to a person; AND
(5) When the D acted, he intended to commit CRIME SPECIFIED UNDER PC 220(a).

(1) D did an act that by its nature would directly and probably result in the application of force to a person

(2) D did that act willfully

(3) When the D acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone

(4) When the D acted, he had the present ability to apply force to a person; AND

(5) When the D acted, he intended to commit CRIME SPECIFIED UNDER PC 220(a).

Case Law/Statutes/Notes

Specified Crimes: mayhem, rape, sodomy, oral copulation, or any violation of PC 264.1, PC 288, PC 289. (PC 220(a)(1).)
CALCRIM 890

Punishment: Triad 2-4-6
PC 220(a)(2) Triad 5-7-9

PC 243.4(a)(1) (Sexual Battery)

Elements

(1) D [or an accomplice] unlawfully restrained victim
(2) While victim was restrained,
- (2A) D touched an intimate part of victim; OR
- (2B) D caused victim to touch his/her own intimate part or caused victim to touch the intimate part of D [or someone else];
(3) The touching was done against victim’s will; AND
(4) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse

(1) D [or an accomplice] unlawfully restrained victim

(2) While victim was restrained,

(2A) D touched an intimate part of victim; OR

(2B) D caused victim to touch his/her own intimate part or caused victim to touch the intimate part of D [or someone else];

(3) The touching was done against victim’s will; AND

(4) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse

Case Law/Statutes/Notes

Intimate Part is a female’s breast or the anus, groin, sexual organ, or buttocks of anyone (CALCRIM 935.)
Bare Skin. Contact must have been made with victim’s bare skin. This means that:
- (1) D must have touched the bare skin of victim’s intimate part; OR
- (2) Victim’s bare skin must have touched the D’s [or third person’s] intimate part either directly or through his/her clothing (CALCRIM 935.)
Unlawfully restrained. Someone is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another person and the restraint is against his/her will.
- Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching
- A person does not unlawfully restrain someone if he only uses lawful authority for a lawful purpose
Against a person’s will. A touching is against a person’s will if that person does not consent to it. To consent, a person must act freely and voluntarily and know the nature of the touching.
Accomplice. A person is an accomplice if he is subject to prosecution for the identical crime charged against the D. Someone is subject to prosecution if he personally committed the crime or if:
- (1) He knew of the criminal purpose of the person who committed the crime; AND
- (2) He intended to, and did in fact, (aid, facilitate, promote, encourage, or instigate the commission of the crime or participate in a criminal conspiracy to commit the crime).
Reasonable Belief in Consent. D is not guilty of sexual battery if he actually and reasonably, even if mistakenly, believed that the other person consented to the touching [and actually and reasonably believed the she consented throughout the act of touching]. The People have the burden of proving BRD that the D did not actually and reasonably believe that the other person consented.
Specific Intent crime. (People v. Chavez (2000) 84 Cal.App.4th 25, 29.)
CALCRIM 935

Punishment: Triad 2-3-4

PC 243.4(e)(1) (Sex Bat: Misd)

Elements

(1) D touched an intimate part of the victim
(2) The touching was done against the victim’s will
(3) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse

(1) D touched an intimate part of the victim

(2) The touching was done against the victim’s will

(3) The touching was done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse

Case Law/Statutes/Notes

Intimate Part is a female’s breast or the anus, groin, sexual organ, or buttocks of anyone
Specific Intent crime. (People v. Chavez (2000) 84 Cal.App.4th 25, 29.)
CALCRIM 938

Punishment: up to 180d CJ + PC 290 Reg

PC 261(a)(2) (Rape by Force, Fear or Threats)

Elements

(1) D had sexual intercourse with a woman;
(2) The woman did not consent to the intercourse
(3) D accomplished the intercourse by
- (a) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else; OR
- (b) threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the D would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.; OR
- (c) threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

(1) D had sexual intercourse with a woman;

(2) The woman did not consent to the intercourse

(3) D accomplished the intercourse by

(a) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else; OR

(b) threatening to retaliate in the future against the woman or someone else when there was a reasonable possibility that the D would carry out the threat. A threat to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily injury, or death.; OR

(c) threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

Case Law/Statutes/Notes

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]
Consent
- To consent, a woman must act freely and voluntarily and know the nature of the act.
- A woman who initially consents to an act of intercourse may change her mind during the act. If she does so, under the law, the act of intercourse is then committed without her consent if:
  - 1) she communicated through words or acts to the D that she no longer consented to the act of intercourse;
  - 2) a reasonable person would have understood that her words or acts expressed her lack of consent; AND
  - 3) D forcibly continued the act of intercourse despite her objection.
- It is not required that she physically resist or fight back in order to communicate her lack of consent
- Evidence that the D and the woman dated/were married/had been married is not enough by itself to constitute consent
- Evidence that the woman requested/suggested/communicated that the D use a condom or other birth control device is not enough by itself to constitute consent.
Incapable of Consent. A person is incapable of consent if the person “is unable to understand the act, its nature, and possible consequences.” (People v. Lewis (2023) 14 Cal.5th 876, 895.)
- The question is whether the person’s “‘intellectual, emotional, social, [and] psychological’ resources are sufficient to make the decision whether to engage in sexual acts with another.” (People v. Miranda (2011) 199 Cal.App.4th 1403, 1413.)
Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will.
Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do [or submit to] something that she would not do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and her relationship to the D. (CALCRIM 1000.)
- “A threat of retribution sufficient to support a finding of duress … can be purely psychological, coming not at the hand of the defendant, but rather by God, as taught to the victim by the defendant.” (People v. Townes (2025) 108 Cal.App.5th 603, 606.)
- Defendant’s position of authority is a factor in considering duress. (People v. Veale (2008) 160 Cal.App.4th 40, 46.)
Menace means a threat, statement, or act showing an intent to injure someone.
Retribution is a form of payback or revenge.
Intercourse is accomplished by fear if the woman is actually and reasonably afraid [or she is actually but unreasonably afraid and the D knows of her fear and takes advantage of it].
A woman must be alive at the time of the sexual intercourse for the crime of rape to occur
Defense: Reasonable Belief in Consent. The D is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse. The People have the burden of proving BRD that the D did not actually and reasonably believe that the woman consented.
CALCRIM 1000.

Punishment: Triad 3-6-8 // Serious & Violent Felony

PC 261.5(c)/(d) (Unlawful Sexual Intercourse)

Elements

PC 261.5(c)
- (1) D had sexual intercourse with a another person;
- (2) D and the other person were not married to each other at the time of the intercourse; AND
- (3) At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant.
PC 261.5(d)
- (1) D had sexual intercourse with another person;
- (2) D and the other person were not married to each other at the time of the intercourse
- (3) D was at least 21 years old at the time of the intercourse
- (4) The other person was under the age of 16 at the time of the intercourse

PC 261.5(c)

(1) D had sexual intercourse with a another person;

(2) D and the other person were not married to each other at the time of the intercourse; AND

(3) At the time of the intercourse, the other person was under the age of 18 and more than three years younger than the defendant.

PC 261.5(d)

(1) D had sexual intercourse with another person;

(2) D and the other person were not married to each other at the time of the intercourse

(3) D was at least 21 years old at the time of the intercourse

(4) The other person was under the  age of 16 at the time of the intercourse

Case Law/Statutes/Notes

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]
Consent. It is not a defense that the other person may have consented to the intercourse.
Good Faith Belief 18 or Over. D is not guilty of this crime if he reasonably and actually believed that the other person was age 18 or older. (CALCRIM 1071.)
Pregnancy – GBI Allegation. Pregnancy resulting from nonforcible sexual conduct with minor can support finding of GBI under PC 12022.7. (People v. Cross (2008) 45 Cal.4th 58, 59.)
CALCRIM 1071; CALCRIM 1070

Punishment: PC 261.5(c): Triad 16-2-3 // PC 261.5(d): Triad 2-3-4

PC 266h(a) (Pimping)

Elements

(1) D knew that _ was a prostitute; AND
(2) Money/Payment
- (2A) The money/proceeds that _ earned as a prostitute supported D, in whole or in part; OR
- (2B) Money that was loaned to/advanced to/charged against _ by a person who (kept/managed/was a prostitute at) the house or other place where the prostitution occurred, supported the D in whole or in part; OR
- (2C) D asked for payment or received payment for soliciting prostitution customers for _

(1) D knew that _ was a prostitute; AND

(2) Money/Payment

(2A) The money/proceeds that _ earned as a prostitute supported D, in whole or in part; OR

(2B) Money that was loaned to/advanced to/charged against _ by a person who (kept/managed/was a prostitute at) the house or other place where the prostitution occurred, supported the D in whole or in part; OR

(2C) D asked for payment or received payment for soliciting prostitution customers for _

Case Law/Statutes/Notes

Prostitute. A prostitute is a person who engages in sexual intercourse or any lewd act with another person in exchange for money or other compensation.
Lewd Act means physical contact of the genitals, buttocks, or female breast of either the prostitute or customer with some part of the other person’s body for the purpose of sexual arousal or gratification.
General Intent offense. (People v. McNulty (1988) 202 Cal.App.3d 624, 630-631; People v. Vaughn (2022) 77 Cal.App.5th 609, 626.)
Receiving Support. A conviction for living or deriving support from a prostitute’s earnings does not require evidence that the D received money directly from the prostitute, or that the D used money received from the prostitution solely to pay his own living expenses. (People v. Navarro (1922) 60 Cal.App. 180, 182.)
Aiding & Abetting. It’s a thing. “[T]he only criminal intent necessary to aid and abet pimping…is the intent that the perpetrator commit pimping.” (People v. Vaughn (2022) 77 Cal.App.5th 609, 626.)

Punishment: Triad 3-4-6

PC 286(c)(2)(A) (Sodomy by Force or Fear)

Elements

(1) D committed an act of sodomy with another person
(2) The other person did not consent to the act
(3) D accomplished the act by (three options):
- (a) by force, violence, duress, menace, or fear of immediate & unlawful bodily injury to another person;
- (b) by threatening to retaliate against someone when there was a reasonable possibility that the D would carry out the threat; or
- (c) by threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

(1) D committed an act of sodomy with another person

(2) The other person did not consent to the act

(3) D accomplished the act by (three options):

(a) by force, violence, duress, menace, or fear of immediate & unlawful bodily injury to another person;

(b) by threatening to retaliate against someone when there was a reasonable possibility that the D would carry out the threat; or

(c) by threatening to use the authority of a public office to incarcerate, arrest, or deport someone.

Case Law/Statutes/Notes

Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. Ejaculation is not required. (CALCRIM 1030.)
Accomplished by force. An act is accomplished by force if a person uses enough physical force to overcome the other person’s will. (CALCRIM 1030.)
Accomplished by fear. An act is accomplished by fear if the other person is actually and reasonably afraid [or she is actually but unreasonably afraid and the D knows of her fear and takes advantage of it.]. (CALCRIM 1030.)

Punishment: Triad 3-6-8 CDC // Serious & Violent Felony (PC 286(c)(2)(A).)
If V < Age 14 = Triad 9-11-13 CDC (PC 286(c)(2)(B).)
If Age 18 > V > Age 14 = Triad 7-9-11 CDC (PC 286(c)(2)(C).)

PC 287(c)(2)(A) (Oral Copulation by Force, Fear, or Threats)

Elements

(1) D committed an act of oral copulation w/ someone else
(2) The other person did not consent to the act
(3) D accomplished the act by
- (3A) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone; OR
- (3B) threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out; OR
- (3C) threatening to use the authority of a public office to incarcerate, arrest, or deport someone

(1) D committed an act of oral copulation w/ someone else

(2) The other person did not consent to the act

(3) D accomplished the act by

(3A) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone; OR

(3B) threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out; OR

(3C) threatening to use the authority of a public office to incarcerate, arrest, or deport someone

Case Law/Statutes/Notes

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required
A threat to retaliate is a threat to kidnap, unlawfully retrain or confine, or inflict extreme pain, serious bodily injury, or death.
In order to consent, a person must act freely and voluntarily and know the nature of the act
- Evidence that D and the person dated/were married/had been married is not enough by itself to constitute consent
- Evidence that the person requested/suggested/communicated that the D use a condom or other birth control device is not enough by itself to constitute consent
An act is accomplished by force if a persons uses enough physical force to overcome the other person’s will
Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and his/her relationship to the D.
Retribution is a form of payback or revenge
Menace means a threat, statement, or act showing an intent to injure someone.
An act is accomplished by fear if the other person is actually and reasonably afraid [or he/she is actually but unreasonably afraid and the D knows of his/her fear and takes advantage of it].
Consent. D is not guilty of forcible oral copulation if he actually and reasonably believed that the other person consented to the act. P have the burden of proving BRD D did not actually and reasonably believe that the person consented.
CALCRIM 1015.

Punishment: Triad 3-6-8

PC 288(a) (Lewd or Lascivious: Child Under 14 Years)

Elements

(1) D willfully
- (a) touched any part of a child’s body either on the bare skin or through the clothing; OR
- (b) caused a child to touch his/her own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing
(2) D committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself/herself or the child; AND
(3) The child was under the age of 14 years at the time of the act.

(1) D willfully

(a) touched any part of a child’s body either on the bare skin or through the clothing; OR

(b) caused a child to touch his/her own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing

(2) D committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself/herself or the child; AND

(3) The child was under the age of 14 years at the time of the act.

Case Law/Statutes/Notes

Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required. (CALCRIM 1110.)
Consent. It is not a defense that the child may have consented to the act. (CALCRIM 1110.)
Lesser Included Offenses.
- Battery? NO. (People v. Shockley (2013) 58 Cal.4th 400, 403, 406.)
- PC 647.6? NO. (People v. Lopez (1998) 19 Cal.4th 282, 290, 292.)
Minor does not violate PC 288(a) by engaging in lewd conduct with an adult. (People v. Herman (2002) 97 Cal.App.4th 1369, 1380.)
A defendant may commit the crime of attempt to commit a lewd act on a minor under 14 through the medium of text messaging. (People v. Villagran (2016) 5 Cal.App.5th 880, 893.)
CALCRIM 1110.

Punishment: Triad 3-6-8 // Serious & Violent Felony

PC 288(b)(1) (Lewd or Lascivious Act: By Force or Fear)

Elements

(1) D willfully
- (a) touched any part of a child’s body either on the bare skin or through the clothing; OR
- (b) caused a child to touch his/her own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing
(2) D committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself/herself or the child; AND
(3) In committing the act, D used force, violence, duress, menace, or fear of immediate & unlawful bodily injury to the child or someone else
(3) The child was under the age of 14 years at the time of the act.

(1) D willfully

(a) touched any part of a child’s body either on the bare skin or through the clothing; OR

(b) caused a child to touch his/her own body, the defendant’s body, or the body of someone else, either on the bare skin or through the clothing

(2) D committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself/herself or the child; AND

(3) In committing the act, D used force, violence, duress, menace, or fear of immediate & unlawful bodily injury to the child or someone else

(3) The child was under the age of 14 years at the time of the act.

Case Law/Statutes/Notes

Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required. (CALCRIM 1111.)
Consent. It is not a defense that the child may have consented to the act. (CALCRIM 1111.)
Force. The force used must be substantially different from or substantially greater than the force needed to accomplish the act itself. (CALCRIM 1111.)
Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and his/her relationship to the defendant. (CALCRIM 1111.)
- Retribution is a form of payback or revenge. (CALCRIM 1111.)
Menace means a threat, statement, or act showing an intent to injure someone. (CALCRIM 1111.)
Fear. An act is accomplished by fear if the child is actually and reasonably afraid or he/she is actually but unreasonably afraid and the defendant knows of his/her fear and takes advantage of it. (CALCRIM 1111.)
Touching Any Part of Child’s Body Can Be Sufficient. Conviction under the statute has never depended upon contact with the bare skin or “private parts” of the defendant or the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444.)
- Stated differently, a lewd or lascivious act can occur through the victim’s clothing and can involve “any part” of the victim’s body. (Ibid; People v. Carpenter (1955) 137 Cal.App.2d 792, 793.)
CALCRIM 1111.

Punishment: Triad 5-8-10 // Serious & Violent Felony

PC 289(a)(1)(A) (Sex Penetration by Force, Fear, or Threats)

Elements

(1) D committed an act of sexual penetration with another person
(2) The penetration was accomplished by using a foreign object, substance, instrument, device, or unknown object
(3) The other person did not consent to the act
(4) D accomplished the act by
- (4A) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone; OR
- (4B) threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out; OR
- (4C) threatening to use the authority of a public office to incarcerate, arrest, or deport someone

(1) D committed an act of sexual penetration with another person

(2) The penetration was accomplished by using a foreign object, substance, instrument, device, or unknown object

(3) The other person did not consent to the act

(4) D accomplished the act by

(4A) force, violence, duress, menace, or fear of immediate and unlawful bodily injury to someone; OR

(4B) threatening to retaliate against someone when there was a reasonable possibility that the threat would be carried out; OR

(4C) threatening to use the authority of a public office to incarcerate, arrest, or deport someone

Case Law/Statutes/Notes

Sexual penetration means penetration, however slight, of the genital or anal opening of the other person or causing the other person to penetrate, however slightly, the defendant’s or someone else’s genital or anal opening or causing the other person to penetrate, however slightly, his or her own genital or anal opening for the purpose of sexual abuse, arousal, or gratification. (PC 289(k)(1); CALCRIM 1045.)
- PC 289 requires that sexual penetration be “against the victim’s will.” (PC 289(a)(1).)
A foreign object, substance, instrument, or device includes any part of the body except a sexual organ (PC 289(k)(2); CALCRIM 1045.)
An unknown object includes any foreign object, substance, instrument or device, or any part of the body, including a penis, if it is not known what object penetrated the opening. (PC 289(k)(3); CALCRIM 1045.)
In order to consent, a person must act freely and voluntarily and know the nature of the act (CALCRIM 1045.)
- Evidence that D and the person dated/were married/had been married is not enough by itself to constitute consent
- Evidence that the person requested/suggested/communicated that the D use a condom or other birth control device is not enough by itself to constitute consent
An act is accomplished by force if a persons uses enough physical force to overcome the other person’s will (CALCRIM 1045.)
Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and his/her relationship to the D. (CALCRIM 1045.)
Threatening to retaliate means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death. (PC 289(l).)
Menace means a threat, statement, or act showing an intent to injure someone. (CALCRIM 1045.)
An act is accomplished by fear if the other person is actually and reasonably afraid [or he/she is actually but unreasonably afraid and the D knows of his/her fear and takes advantage of it]. (CALCRIM 1045.)
Victim includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person or who otherwise qualifies as a victim under the requirements of this section. (PC 289(m).)
Consent. D is not guilty of forcible oral copulation if he actually and reasonably believed that the other person consented to the act. P have the burden of proving BRD D did not actually and reasonably believe that the person consented. (CALCRIM 1045.)
Specific Intent Offense. (People v. McCoy (2013) 215 Cal.App.4th 1510, 1538.)
Digital Penetration. A finger is a “foreign object” within the meaning of PC 289, sexual assault perpetuated by digital penetration is covered by statute. (People v. Wilcox (1986) 177 Cal.App.3d 715, 717; People v. Fontana (2010) 49 Cal.351, 361-371.)
Multiple Penetrations. PC 289 violation is complete when “slight” penetration occurs. A new and separate violation is completed each time a new and separate penetration, however slight, occurs. (People v. Harrison (1989) 48 Cal.3d 321, 329, 334.)
CALCRIM 1045.

Punishment: Triad 3-6-8 // Serious & Violent Felony
If V < Age 14 = Triad 8-10-12 CDC (PC 289(a)(1)(B).)
If Age 18 > V > Age 14 = Triad 6-8-10 CDC (PC 289(a)(1)(C).)

PC 314 (Indecent Exposure)

Elements

(1) D willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions
(2) When the D exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person.

(1) D willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions

(2) When the D exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person.

Case Law/Statutes/Notes

Lewd Intent
- “A person who exposes his private parts with the intent ‘to direct public attention to his genitals’ is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others.” (People v. Honan (2010) 186 Cal.App.4th 175, 182.)
- Sexual affront means to sexually insult or offend another person. (In re Dallas W. (2000) 85 Cal.App.4th 937, 939.)
- Masturbating under table at Mexican restaurant & ejaculating on floor. (People v. Carbajal (2003) 114 Cal.App.4th 978.)
- Masturbating and “gawking” at person with penis exposed for 30-40 seconds approx. 36 feet away on a set of stairs. (People v. Hubbard (2020) 52 Cal.App.5th 555.)
- Masturbating in a car parked at the curb in front of a high school, on a school day, at school dismissal time, is not simply an act of voyeurism, or an indiscreet gesture, or a sexual indiscretion in violation of PC § 314. (People v. Phillips (2010) 188 Cal.App.4th 1383, 1397.)
- D & V parked in parking lot. D’s vehicle 30-40 feet behind V’s vehicle. V sees D expose himself through rearview mirror. (People v. Williams (1960) 183 Cal.App.2d 689.)
Not Lewd Intent
- Mere Nudity.
  - Sunbathing in the nude on an isolated beach. (In re Smith (1972) 7 Cal.3d 362.)
  - Mooning. (In re Dallas W. (2000) 85 Cal.App.4th 937.)
Specific intent to expose ones genitals. (People v. Massicot (2002) 97 Cal.App.4th 920.)
- A person who exposes his private parts with the intent “to direct public attention to his genitals” is necessarily engaged in a purposeful and aggressive sexual display designed to provoke others. (People v. Honan (2010) 186 Cal.App.4th 175, 182.)
Mental elements for indecent exposure: (1) the D acted “willfully”, meaning essentially that he knew he was exposing his genitals (see In re Smith (1972) 7 Cal.3d 362, 364); (2) he “intended by his conduct to direct public attention to his genitals” (id. at p. 366); and (3) he acted “for purposes of sexual arousal, gratification, or affront” (Ibid.). (People v. Earle (2009) 172 Cal.App.4th 372, 391.)
No requirement someone sees exposed genitals.
- “A conviction for indecent exposure requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant’s genitals.” (People v. Carbajal (2003) 114 Cal.App.4th 978, 986.)
Attempted Indecent Exposure. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758; People v. Hubbard (2020) 52 Cal.App.5th 555.)
Stated differently: “Generally, a conviction for indecent exposure requires proof of two elements:
- (1) the defendant must willfully and lewdly expose the private parts of his person; and
- (2) such exposure must be committed in a public place or in a place where there are other persons to be offended or annoyed thereby.” (People v. Honan (2010) 186 Cal.App.4th 175, 181; People v. Carbajal (2003) 114 Cal.App.4th 978, 982.)
- The Supreme Court has construed willful and lewd exposure to mean “that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (In re Smith (1972) 7 Cal.3d 362, 366.)
CALCRIM 1160.

Punishment: up to 1yr CJ + PC 290 Reg

PC 647(a) (Lewd Conduct in Public)

Elements

(1) D willfully engaged in the touching of his own or another person’s genitals/buttocks/female breast
(2) D did so with the intent to sexually arouse or gratify himself or another person, or to annoy or offend another person
(3) At the time the D engaged in the conduct, he was in a public place/place open to the public/place open to public view
(4) At the time the D engaged in the conduct, someone else who might have been offended was present
(5) D knew or reasonably should have known that another person who might have been offended by his conduct was present

(1) D willfully engaged in the touching of his own or another person’s genitals/buttocks/female breast

(2) D did so with the intent to sexually arouse or gratify himself or another person, or to annoy or offend another person

(3) At the time the D engaged in the conduct, he was in a public place/place open to the public/place open to public view

(4) At the time the D engaged in the conduct, someone else who might have been offended was present

(5) D knew or reasonably should have known that another person who might have been offended by his conduct was present

Case Law/Statutes/Notes

Public place is a place that is open and accessible to anyone who wishes to go there
- Places of business and parking lots of private property, open to the general public, consistently held public places. (People v. Strider (2009) 177 Cal.App.4th 1393, 1402.)
- Parking lot of a market parking lot is a public place. (People v. Vega (1971) 18 Cal.App.3d 954, 958 [PC 12031 context].)
- Hospital parking lot. (People v. Green (1971) 15 Cal.App.3d 766, 771.)
Presence
- “‘The gist of the offense proscribed in [Penal Code section 647] subdivision (a) … is the presence or possibility of the presence of some one to be offended by the conduct.” We agree; even if conduct occurs in a location that is technically a public place, a place open to the public, or one exposed to public view, the state has little interest in prohibiting that conduct if there are no persons present who may be offended.” (Prior v. Municipal Court (1979) 25 Cal.3d 238, 257, citing In re Steinke (1969) 2 Cal.App.3d 569, 576.)
- People v. Rylaarsdam (1982) 130 Cal.App.3d Supp. 1: it is a factual question whether defendant knew or should have known of the other person’s presence
  - Case #1: Adult bookstore, with booths for viewing motion pictures. “glory hole”
  - Case #2: officer in a [5] public restroom observed D seated on a toilet in an open stall masturbating
- In re Anders (1979) 25 Cal.3d 414: D was masturbating in a closed pay toilet stall in a bus station restroom. Door to toilet stall was solid, except for 21 inch wire mesh grate. Ofc peered through the upper grate and observed the conduct.
  - It’s a factual question whether the defendant should have known of the presence of a person outside the stall who could observe him through the opening
- People v. Lake (2007) 156 Cal.App.4th Supp. 1, 9: Statute requires likelihood that third persons be present and be offended by the conduct. As to the degree of likelihood required, the law requires more than mere speculation. In none of the engagement or solicitation cases have the courts upheld convictions where there was only the mere “possibility” that the offending conduct would be observed.
  - Lewd conduct can include risqué, consensual touching that is open to public view, not because the parties specifically intended that others watch, but rather as a result of the participants’ sheer recklessness. An example of such lewd conduct is a couple engaging in a sexual encounter in a public restroom or in a parked car.
CALCRIM 1161

Punishment: up to 180d CJ + Potential PC 290 Reg Under PC 290.006

PC 647(j)(4) (Revenge Porn)

Elements

(1) D intentionally distributes or causes to be distributed
- (a) the intimate body part or parts of another identifiable person; or
- (b) an image of the person depicted engaged in an act of sexual intercourse; or
- (c) an image of the person depicted engaged in an act of masturbation
(2) Under circumstances in which the persons agree or understand that the image shall remain private
(3) D knew or should know distribution of the image will cause serious emotional distress
(4) Person depicted suffers that distress

(1) D intentionally distributes or causes to be distributed

(a) the intimate body part or parts of another identifiable person; or

(b) an image of the person depicted engaged in an act of sexual intercourse; or

(c) an image of the person depicted engaged in an act of masturbation

(2) Under circumstances in which the persons agree or understand that the image shall remain private

(3) D knew or should know distribution of the image will cause serious emotional distress

(4) Person depicted suffers that distress

Case Law/Statutes/Notes

Intimate body part means any portion of the genitals, the anus and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing
Identifiable Person. To establish an “identifiable person” under this section, the prosecutor must show that it is reasonably probable someone (including the victim) could identify or recognize the victim; the People do not have to establish the victim’s identity, prove that the victim has been identified, or show that anyone has actually recognized the victim, and the victim does not have to be identifiable solely from the defendant’s photographs or videos. (People v. Johnson (2015) 234 Cal.App.4th 1432.)
Serious emotional distress does not have a specialized legal meaning. “commonly understood meaning of the terms, such as “significant” or “strong feeling” of “extreme anxiety, sorrow, or pain.” (People v. Iniguez (2016) 247 Cal.App.4th Supp. 1, 12.)

Punishment: up to 180d CJ

PC 647.6(a)(1) (Child Molesting)

Elements

(1) D engaged in conduct directed at a child
(2) A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by D’s conduct
(3) D’s conduct was motivated by an unnatural or abnormal sexual interest in the child;
(4) The child was under the age of 18 years at the time of the conduct

(1) D engaged in conduct directed at a child

(2) A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by D’s conduct

(3) D’s conduct was motivated by an unnatural or abnormal sexual interest in the child;

(4) The child was under the age of 18 years at the time of the conduct

Case Law/Statutes/Notes

Sexual Interest in Child vs. Children. Court rejected argument that offense is only committed if D motivated by an unnatural or abnormal sexual interest in children in general. (People v. Shaw (2009) 177 Cal.App.4th 92, 102-103.)
CALCRIM 1122.

Punishment: up to 1yr CJ + PC 290 Reg