Judgment reversed where jury was improperly instructed that aider and abettor to violations of Penal Code section 288.7, subdivision (b) had to be at least 18 years old and was not instructed that direct perpetrator must satisfy age requirement. In addition to other offenses, Vital was prosecuted under an aiding and abetting theory of liability for violations of section 288.7, subdivision (b) (oral copulation with a child 10 years old or younger) for encouraging a woman to film herself performing sexual acts with a young child. The court instructed the jury that the prosecutor had to prove the defendant was at least 18 years old at the time of the crime. (See CALCRIM No. 1128.) The jury convicted the defendant and he was sentenced to multiple life terms. He appealed, challenging the section 288.7 convictions. Held: Reversed. For a defendant to be guilty under an aiding and abetting theory, someone other than the defendant must have attempted or committed a crime. After analyzing the statutory language of section 288.7, subdivision (b), the Court of Appeal concluded that the minimum age requirement in the statute applies to the person directly involved in the oral copulation with a child, not an aider and abettor. Here, the jury was instructed that it must find the defendant (rather than the perpetrator) was 18 years old or older when the prohibited act occurred. While there was evidence that Vital was 23 years old at the time of the offenses, there was no evidence of the woman’s age and the jury was not instructed to determine whether the woman satisfied the minimum age requirement. The omission of the instruction to establish the perpetrator’s minimum age requirement was not harmless beyond a reasonable doubt, and the error was thus prejudicial. The section 288.7, subdivision (b) convictions were reversed. [Editor’s Note: In an unpublished portion of the opinion, the court also concluded there was insufficient evidence to support the section 288.7, subdivision (b) convictions. As a result, the trial court was ordered to enter a judgment of acquittal on these counts. Justice Dhanidina dissented on this point.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B288533M.PDF