9.11.10: CALCRIM No. 1060. Lewd or Lascivious Act - Dependent Person (Pen. Code, § 288(b)(2) & (c)(2))

The defendant is charged [in Count ] with a lewd or lascivious act on a dependent person [by force or fear] [in violation of Penal Code section 288].

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

1. The defendant was a caretaker of a dependent person;

2. The defendant willfully (committed/conspired to commit/aided and abetted/facilitated) a lewd or lascivious act on a person;

[AND]

3.    The defendant (committed/conspired to commit/aided and abetted/facilitated) the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the dependent person(;/.)

<Give element 4 when instructing on force or violence>

[AND

4.    In (committing/conspiring to commit/aiding and abetting/facilitating) the act, the defendant used force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the dependent person or someone else.]

A lewd or lascivious act is any touching of a person with the intent to sexually arouse the perpetrator or the other person. A lewd or lascivious act includes touching any part of the person’s body, either on the bare skin or through the clothes the person is wearing. [A lewd or lascivious act includes causing someone to touch his or her own body or someone else’s body at the instigation of the perpetrator who has the required intent.]Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

A caretaker is an owner, operator, administrator, employee, independent contractor, agent, or volunteer of a public or private facility, including(a/an) <insert specific facility from Pen. Code, § 288(f)(1)>,that provides care for dependent persons or for those aged 65 or older.A dependent person is someone who has physical or mental impairments that substantially restrict his or her ability to carry out normal activities or to protect his or her rights. This definition includes, but is not limited to, those who have developmental disabilities or whose physical or mental abilities have been significantly diminished by age.[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or dependent person is not required.][The force used must be substantially different from or substantially greater than the force needed to accomplish the lewd and lascivious act itself.][Duress is 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 do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the dependent person and (his/her)relationship to the defendant.][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 dependent person 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].][It is not a defense that the dependent person may have consented to the act.

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