Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2025) Sex Offenses CALCRIM No. 1142. Distributing or Intending to Distribute Obscene Material (Pen. Code, § 311.2(a))

CALCRIM No. 1142. Distributing or Intending to Distribute Obscene Material (Pen. Code, § 311.2(a))

Judicial Council of California Criminal Jury Instructions (2025 edition)

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1142.Distributing or Intending to Distribute Obscene Material

(Pen. Code, § 311.2(a))

The defendant is charged [in Count ] with distributing obscene

material [in violation of Penal Code section 311.2(a)].

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

prove that:

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

California [or caused obscene material to be (sent/ [or] brought)

into California];]

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

[or] produced[,]/ [or] printed) obscene material in California;]

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

else;]

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

someone else;]

[AND]

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

material(;/.)

<Give element 3 when instructing with alternative 1A, 1B, or 1C; see

Bench Notes.>

[AND

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

distribute or show/distribute) the material to someone else.]

You must decide whether the material at issue in this case meet[s] the

definition of obscene material. Material, when considered as a whole, is

obscene if:

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

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3. An average adult person applying contemporary statewide

standards would conclude that it appeals to a prurient interest.

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

excretion.

Material means ([[a] ((book[,]/ [or] magazine[,]/ [or] newspaper[,]/ [or]

[other] printed or written material][(,/;)]/ [or] [a picture[,]/ [or]

drawing[,]/ [or] photograph[,]/ [or] motion picture[,]/ [or] [other]

pictorial representation][(,/;)]/ [or] [a statue or other figure][(,/;)]/ [or] [a

(recording[,]/ [or] transcription[,]/ [or] mechanical, chemical, or electrical

reproduction][(,/;)]/ [or any other article, equipment, or machine]).

[Material also means live or recorded telephone messages transmitted,

disseminated, or distributed as part of a commercial transaction.]

Applying contemporary statewide standards means using present-day

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

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

average adult 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 term contemporary statewide standards means

what is acceptable to the statewide community as a whole, not what

some person or persons may believe the community should 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 standards are. However, you may not

use the standards of a specific local community, by themselves, to

establish the contemporary statewide standards.]

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.

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

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

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

[The depiction of sexual activity, by itself, does not make material

obscene. In order for material depicting sexual activity to be obscene, it

must meet the requirements for obscenity listed above.]

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

the age of 18 years depicted in the material are legally emancipated/ [or]

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it only shows lawful conduct between spouses).]

The People must prove that the defendant knew the character of the

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

material 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.]

[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 material’s character and whether it lacks serious

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

circumstances of its (production[,]/ [or] presentation[,]/ [or] sale[,]/ [or]

dissemination[,]/ [or] distribution[,]/ [or] publicity) indicate that the

material was being commercially exploited because of its prurient

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

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

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

that the material showed persons under 16 years old engaging in sexual

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

[In deciding whether, according to contemporary statewide standards,

the material appeals to a prurient interest, you may consider whether

similar material is openly shown in the statewide community. You must

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

[If it appears from the character of the material or the circumstances of

its distribution or showing that it is designed for a clearly defined

deviant sexual group, the appeal of the material 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

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 material 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.]

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<Defense: Law Enforcement Agent>

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

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

the investigation or prosecution of crimes. 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

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 1A-1D depending on the charges and

evidence in the case. Give element 3 when instructing with alternative 1A, 1B, 1C

or 1D. (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 3. When giving alternative 1B,

select “distribute or show” in element 3. When giving alternative 1C, select

“distribute.” Do not give element 3 with alternative 1D. No published case has held

that distributing or showing obscene material requires specific intent.

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,

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§ 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

(2002) 28 Cal.4th 457, 478-479 [122 Cal.Rptr.2d 326, 49 P.3d 1067].)

AUTHORITY

• Elements. Pen. Code, § 311.2(a).

• Specific Intent to Distribute or Exhibit. People v. Young (1977) 77 Cal.App.3d

Supp. 10, 12 [143 Cal.Rptr. 604] [possession with intent to distribute or exhibit];

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

[preparation or publication with specific intent to distribute]; In re Klor (1966)

64 Cal.2d 816, 819 [51 Cal.Rptr. 903, 415 P.2d 791].

• 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 (1976) 16 Cal.3d 71, 77

[127 Cal.Rptr. 317, 545 P.2d 229].

• 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].

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

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

v. Young (1977) 77 Cal.App.3d Supp. 10, 14-15 [143 Cal.Rptr. 604].

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

§ 311(a)(2); People v. Kuhns (1976) 61 Cal.App.3d 735, 748-753 [132 Cal.Rptr.

725].

• 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);

311.8.

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

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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 (1957) 354 U.S. 476, 487

[77 S.Ct. 1304, 1 L.Ed.2d 1498].

• 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].

LESSER INCLUDED OFFENSES

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

RELATED ISSUES

Definition of “Sexual Conduct”

“Obscene matter” must depict or describe “sexual conduct in a patently offensive

way . . . .” (Pen. Code, § 311(a).) The statute does not define “sexual conduct.”

Penal Code sections 311.4(d)(1) and 311.3(b) provide definitions of the term “sexual

conduct” as used in those sections. If the court determines that a definition of

“sexual conduct” is necessary, the court may wish to review those statutes. (See also

People v. Spurlock (2003) 114 Cal.App.4th 1122, 1131 [8 Cal.Rptr.3d 372]

[discussing definition of sexual conduct in prosecution for violating Pen. Code,

§§ 311.3 and 311.4].)

See the Related Issues section of CALCRIM No. 1141, Distributing Obscene Matter

Showing Sexual Conduct by a Minor.

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 April 2025