Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Sex Offenses CALCRIM No. 1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor (Pen. Code, §§ 311.1(a), 311.2(b))

CALCRIM No. 1141. Distributing Obscene Matter Showing Sexual Conduct by a Minor (Pen. Code, §§ 311.1(a), 311.2(b))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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1141.Distributing Obscene Matter Showing Sexual Conduct by a

Minor (Pen. Code, §§ 311.1(a), 311.2(b))

The defendant is charged [in Count ] with distributing obscene

matter that shows a minor engaging in sexual conduct [in violation of

<insert appropriate code section[s]>].

To prove that the defendant is guilty of this crime, the People must

prove that:

[1. The defendant (sent/ [or] brought) obscene matter into California

[or caused obscene matter to be (sent/ [or] brought) into

California];]

[1. The defendant (possessed[,]/ [or] prepared[,]/ [or] published[,]/

[or] produced[,]/ [or] developed[,]/ [or] duplicated[,]/ [or] printed)

obscene matter;]

[1. The defendant offered to distribute obscene matter to someone

else;]

[1. The defendant (distributed/ [or] showed/ [or] exchanged) obscene

matter (to/with) someone else;]

2. When the defendant acted, (he/she) knew the character of the

matter;

[AND]

3. When the defendant acted, (he/she) knew that the matter showed

a person under the age of 18 years who was personally

participating in or simulating sexual conduct(;/.)

<Give element 4 when instructing with alternative 1A, 1B, or 1C; see

Bench Notes>

[AND

4. When the defendant acted, (he/she) intended to (sell or distribute/

distribute, show, or exchange/distribute) the matter to someone

else [for money or other commercial benefit].]

You must decide whether the matter at issue in this case meets the

definition of obscene matter. Matter is obscene if, when considered as a

whole:

889

1. It shows or describes sexual conduct in an obviously offensive

way;

2. A reasonable person would conclude that it lacks serious literary,

artistic, political, or scientific value;

AND

3. An average adult person, applying contemporary statewide

standards, would conclude it appeals to a prurient interest.

Aprurient interest is a shameful or morbid interest in nudity, sex, or

excretion.

Matter means any representation of information, data, or image,

including any

(film/filmstrip/photograph/negative/slide/photocopy/videotape/video laser

disc/computer hardware or software/computer floppy disk/data storage

medium/CD-ROM/computer-generated equipment/ [or] computer-

generated image that contains any film or filmstrip).

Applying contemporary statewide standards means using present-day

standards and determining the effect of the matter on all those whom it

is likely to reach within the state, in other words, its impact on the

average person in the statewide community. The average adult person is a

hypothetical person who represents the entire community, including both

men and women; religious and nonreligious people; and adults of

varying ages, educational and economic levels, races, ethnicities, and

points of view. The contemporary statewide standard means what is

acceptable to the statewide community as a whole, not what some person

or persons may believe the community ought to accept. The test you

must apply is not what you find offensive based on your own personal,

social, or moral views. Instead, you must make an objective

determination of what would offend the statewide community as a whole.

[You may consider evidence of local community standards in deciding

what the contemporary statewide standard is. However, you may not use

the standard of a local community, by itself, to establish the

contemporary statewide standard.]

The material is not obscene unless a reasonable person would conclude

that, taken as a whole, it lacks serious literary, artistic, political, or

scientific value. When deciding whether the material is obscene, do not

weigh its value against its prurient appeal.

[Matter is not considered obscene under the law if (all persons under the

age of 18 depicted in the matter are legally emancipated/ [or] it only

shows lawful conduct between spouses).]

[The depiction of nudity, by itself, does not make matter obscene. In

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order for matter containing nudity to be obscene, it must depict sexual

activity and it must meet the requirements for obscenity listed above.]

[The depiction of sexual activity, by itself, does not make matter obscene.

In order for matter depicting sexual activity to be obscene, it must meet

the requirements for obscenity listed above.]

Sexual conduct means actual or simulated (sexual intercourse/ [or] oral

copulation[,]/ [or] anal intercourse[,]/ [or] anal oral copulation[,]/ [or]

<insert other sexual conduct as defined in Pen. Code,

§ 311.4(d)(1)>). An act is simulated when it gives the appearance of being

sexual conduct.

The People must prove that the defendant knew the obscene nature of

the matter but do not need to prove that the defendant knew whether

the matter met the definition of obscene.

[To distribute means to transfer possession, whether or not the transfer is

made for money or anything else of value.]

[Commercial benefit means receipt of, or intent to receive, financial value

or compensation.]

[A person accused of committing this crime can be an individual,

partnership, firm, association, corporation, limited liability company, or

other legal entity.]

[In deciding the matter’s nature and whether it lacks serious literary,

artistic, political, or scientific value, consider whether the circumstances

of its (production[,]/ presentation[,]/ sale[,]/ dissemination[,]/

distribution[,]/ publicity) indicate that the matter was being

commercially exploited because of its prurient appeal. You must decide

the weight, if any, to give this evidence.]

[In deciding whether the matter lacks serious literary, artistic, political,

or scientific value, you may [also] consider whether the defendant knew

that the matter showed persons under the age of 16 years engaging in

sexual conduct. You must decide the weight, if any, to give this evidence.]

[In deciding whether, applying contemporary statewide standards, the

matter appeals to a prurient interest, you may consider whether similar

matter is openly shown in the community. You must decide the weight, if

any, to give this evidence.]

[If it appears from the nature of the matter or the circumstances of its

distribution or showing that it is designed for clearly defined deviant

sexual groups, the appeal of the matter must be judged based on its

intended audience.]

[Two or more people may possess something at the same time.]

[A person does not have to actually hold or touch something to possess

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it. It is enough if the person has (control over it/ [or] the right to control

it), either personally or through (another person/other people).]

[A person who possesses obscene matter for his or her own personal use

is not guilty of this crime.]

<Defense: Legitimate scientific or educational purpose>

[The defendant is not guilty of this crime if (he/she) was engaging in

legitimate medical, scientific, or educational activities. The People have

the burden of proving beyond a reasonable doubt that the defendant was

not acting for a legitimate medical, scientific, or educational purpose. If

the People have not met this burden, you must find the defendant not

guilty of this crime.]

<Defense: Law enforcement agent>

[The defendant is not guilty of this offense if (he/she) was a member [or

agent] of a law enforcement or prosecuting agency and was involved in

the investigation or prosecution of criminal offenses. The People have the

burden of proving beyond a reasonable doubt that the defendant was not

acting as a member [or agent] of a law enforcement or prosecuting

agency. If the People have not met this burden, you must find the

defendant not guilty of this crime.

[A person is an agent of a law enforcement or prosecuting agency if he

or she does something at the request, suggestion, or direction of a law

enforcement or prosecuting agency.]]

New January 2006; Revised September 2022

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the

crime.

In element 1, give one of the alternatives A-D depending on the charges and

evidence in the case. Give element 4 when instructing with alternative 1A, 1B, or

1C. (People v. Young (1977) 77 Cal.App.3d Supp. 10, 12 [143 Cal.Rptr. 604];

People v. Burrows (1968) 260 Cal.App.2d 228, 231 [67 Cal.Rptr. 28]; In re Klor

(1966) 64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].) When giving

alternative 1A, select “sell or distribute” in element 4. When giving alternative 1B,

select “distribute, show, or exchange” in element 4. When giving alternative 1C,

select “distribute.” Do not give element 4 with alternative 1D. No published case

has held that distributing or showing obscene material requires specific intent. Give

the bracketed phrase “for money or other commercial benefit” in element 4 if the

defendant is charged under Penal Code section 311.2(b).

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Give any of the other bracketed paragraphs on request.

Defenses - Instructional Duty

If there is sufficient evidence that the defendant was engaging in legitimate medical,

scientific, or educational activities, the court has a sua sponte duty to instruct on

that defense. (See Pen. Code, §§ 311.2(e); 311.8(a).) It is unclear who bears the

burden of proof and what standard of proof applies to this defense. In the absence

of statutory authority or case law stating that the defendant must prove the defense

by a preponderance of the evidence, the committee has drafted the instruction to

provide that the prosecution must prove beyond a reasonable doubt that the defense

does not apply. (See People v. Mower (2002) 28 Cal.4th 457, 478-479 [122

Cal.Rptr.2d 326, 49 P.3d 1067]; see also People v. Woodward (2004) 116

Cal.App.4th 821, 840-841 [10 Cal.Rptr.3d 779] [“legitimate” does not require

definition and the trial court erred in giving amplifying instruction based on People

v. Marler (1962) 199 Cal.App.2d Supp. 889 [18 Cal.Rptr. 923]].)

If there is sufficient evidence that the defendant was acting as a law enforcement

agent, the court has a sua sponte duty to instruct on that defense. (See Pen. Code,

§ 311.2(e).) It is unclear who bears the burden of proof and what standard of proof

applies to this defense. In the absence of statutory authority or case law stating that

the defendant must prove the defense by a preponderance of the evidence, the

committee has drafted the instruction to provide that the prosecution must prove

beyond a reasonable doubt that the defense does not apply. (See People v. Mower,

supra, 28 Cal.4th at pp. 478-479.)

AUTHORITY

• Elements. Pen. Code, §§ 311.1(a), 311.2(b).

• Specific Intent to Distribute or Exhibit. People v. Young, supra, 77 Cal.App.3d

Supp. at p. 12 [possession with intent to distribute or exhibit]; see People v.

Burrows, supra, 260 Cal.App.2d at p. 231 [preparation or publication with

specific intent to distribute]; In re Klor, supra, 64 Cal.2d at p. 819.

• Obscene Matter Defined. Pen. Code, § 311(a); see Bloom v. Municipal Court

(1976) 16 Cal.3d 71, 77, 81 [127 Cal.Rptr. 317, 545 P.2d 229]; Miller v.

California (1973) 413 U.S. 15, 24 [93 S.Ct. 2607, 37 L.Ed.2d 419]; see also

Pope v. Illinois (1987) 481 U.S. 497, 500-501 [107 S.Ct. 1918, 95 L.Ed.2d 439].

• Contemporary Community Standards. See Roth v. United States (1957) 354 U.S.

476, 489-490 [77 S.Ct. 1304, 1 L.Ed.2d 1498].

• Prurient Interest Defined. Bloom v. Municipal Court, supra, 16 Cal.3d at p. 77.

• Sexual Conduct Defined. Pen. Code, § 311.4(d)(1); see People v. Spurlock (2003)

114 Cal.App.4th 1122, 1130-1131 [8 Cal.Rptr.3d 372].

• Person Defined. Pen. Code, § 311(c).

• Distribute Defined. Pen. Code, § 311(d).

• Knowingly Defined. Pen. Code, § 311(e); see People v. Kuhns (1976) 61

Cal.App.3d 735, 756-758 [132 Cal.Rptr. 725].

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• Exhibit Defined. Pen. Code, § 311(f).

• Matter Designed for Deviant Sexual Group. Pen. Code, § 311(a)(1); see People

v. Young, supra, 77 Cal.App.3d Supp. at pp. 14-15.

• Commercial Exploitation Is Probative of Matter’s Nature. Pen. Code,

§ 311(a)(2); People v. Kuhns, supra, 61 Cal.App.3d at pp. 748-753.

• Knowledge That Matter Depicts Child Under 16 Is Probative of Matter’s Nature.

Pen. Code, § 311(a)(3).

• Similar Matter Shown in Community. In re Harris (1961) 56 Cal.2d 879, 880

[16 Cal.Rptr. 889, 366 P.2d 305]; People v. Heller (1979) 96 Cal.App.3d Supp.

1, 7 [157 Cal.Rptr. 830].

• Exceptions to Statutory Prohibitions. Pen. Code, §§ 311.1(b)-(d), 311.2(e)-(g);

Pen. Code, § 311.8.

• Agent Defined. See People v. McIntire (1979) 23 Cal.3d 742, 748 [153 Cal.Rptr.

237, 591 P.2d 527] [in context of entrapment].

• Taken or Considered as a Whole. People v. Goulet (1971) 21 Cal.App.3d Supp.

1, 3 [98 Cal.Rptr. 782]; Kois v. Wisconsin (1972) 408 U.S. 229, 231 [92 S.Ct.

2245, 33 L.Ed.2d 312].

• Obscenity Contrasted With Sex. Roth v. United States, supra, 354 U.S. at p. 487.

• Obscenity Contrasted With Nudity. People v. Noroff (1967) 67 Cal.2d 791,

795-796 [63 Cal.Rptr. 575, 433 P.2d 479]; In re Panchot (1968) 70 Cal.2d 105,

108-109 [73 Cal.Rptr. 689, 448 P.2d 385].

• Possessing For Personal Use Not a Crime. Stanley v. Georgia (1969) 394 U.S.

557, 568 [89 S.Ct. 1243, 22 L.Ed.2d 542].

• Constructive vs. Actual Possession. People v. Barnes (1997) 57 Cal.App.4th 552,

556 [67 Cal.Rptr.2d 162].

• Commercial Benefit Defined. People v. Wimer (2022) 74 Cal.App.5th 113, 129

[289 Cal.Rptr.3d 164].

LESSER INCLUDED OFFENSES

• Attempted Distribution of Obscene Matter. Pen. Code, §§ 664, 311.1(a).

• Attempted Distribution of Obscene Matter for Commercial Consideration. Pen.

Code, §§ 664, 311.2(b).

RELATED ISSUES

Advertising Obscene Matter Involving Minors

It is a felony to advertise for sale or distribution any obscene matter knowing that it

depicts a minor engaged in sexual conduct. (Pen. Code, § 311.10.)

Employing or Using Minor to Pose in Film

It is a felony to employ, use, or persuade a minor to engage in or assist others in

posing or modeling for the purpose of preparing a commercial or noncommercial

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film or other medium involving sexual conduct by a minor. (See Pen. Code,

§ 311.4(b), (c).) Producing child pornography and posting it on the Internet to

induce others to trade such pornography without making a monetary profit satisfies

the “commercial purposes” requirement of Penal Code section 311.4(b). (People v.

Cochran (2002) 28 Cal.4th 396, 406-407 [121 Cal.Rptr.2d 595, 48 P.3d 1148].)

Excluded Conduct

Neither section 311.1 nor 311.2 applies to law enforcement and prosecuting agencies

investigating or prosecuting criminal offenses, to legitimate medical, scientific, or

educational activities, or to lawful conduct between spouses. (Pen. Code,

§§ 311.1(b), 311.2(e); see Pen. Code, § 311.8(a) [“defense” that act committed in aid

of legitimate scientific or educational purpose].) Nor do these sections apply to

depictions of a minor who is legally emancipated. (Pen. Code, §§ 311.1(c), 311.2(f);

see Fam. Code, § 7000 et seq. [emancipation of minors].)

Telephone Services

A telephone corporation (see Pub. Util. Code, § 234) does not violate section 311.1

or 311.2 by carrying or transmitting messages described in these sections, or by

performing related activities in providing telephone services. (Pen. Code,

§§ 311.1(d), 311.2(g).)

Expert Testimony Not Required

Neither the prosecution nor the defense is required to introduce expert witness

testimony regarding the obscene nature of the matter. (Pen. Code, § 312.1

[abrogating In re Giannini (1968) 69 Cal.2d 563, 574 [72 Cal.Rptr. 655, 446 P.2d

535]].)

SECONDARY SOURCES

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and

Crimes Against Decency, §§ 94-106, 131.

7 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law,

§§ 486-492.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes

Against Order, § 144.12 (Matthew Bender).

Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17

(The Rutter Group).

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Page last reviewed May 2024