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Name: People v. ZarateCastillo
Case #: C079049
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 02/17/2016

Trial court erred by instructing jury that certain child sexual offenses are general intent crimes, but the error was harmless. Defendant was convicted of numerous sexual offenses committed against his cousin’s daughter when she was seven years old. On appeal, he claimed the court erred in instructing the jury that sexual penetration of a child 10 years or younger (Pen. Code, § 288.7, subd. (b)) and forcible sexual penetration (Pen. Code, § 289, subd. (a)(1)(A)) were general intent crimes. Held: Affirmed. The court instructed the jury on general intent, including the offenses of sexual penetration of a child 10 years or younger and forcible sexual penetration in that instruction. This was error, as each of these offenses require the act of penetration “to be done with the intent to gain sexual arousal or gratification or to inflict abuse on the victim” (disagreeing with People v. Dillon (2009) 174 Cal.App.4th 1367 [holding forcible sexual penetration is a general intent crime]). However, when the trial court instructed the jury on the elements of each individual crime, the court identified and defined sexual penetration as one of the necessary elements, stating that the penetration must be for the purpose of sexual abuse, arousal, or gratification. Therefore, the general intent instruction was error but harmless beyond a reasonable doubt because the court actually instructed on the specific intent required for the offenses, even though it failed to correctly identify them as specific intent crimes.

The full opinion is available on the court’s website here: