CALCRIM No. 1060

§ 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.]

New January 2006; Revised February 2013, September 2017, March 2022,

September 2022