P v. ZarateCastillo (3rd Dist.) PC 288.7(b) & 289(a)(1)(A) are Specific Intent Crimes

Mr. ZarateCastillo was convicted by a jury of, among other crimes, two counts of PC 288.7(b), sexual penetration of a child 10 years or younger, and one count of PC 289(a)(1)(A), forced sexual penetration.  The trial judge instructed the jury that these crimes were general intent crimes.

“For you to find a person guilty of these crimes . . . , that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose. However, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime."

This Third District panel finds the instructions erroneous, but finds the error harmless beyond a reasonable doubt.

The correct instruction is as follows.

 “For you to find a person guilty of these crimes . . . , that person must not only intentionally commit the prohibited act or intentionally fail to do the required act, but must do so with the specific intent and/or mental state. The act and the specific intent or mental state required are explained in the instruction for that crime. I will be instructing you as to all of those crimes in a moment.”  

The reason the panel finds the mistake didn't matter was that the instructions given for the specific crimes included the language, "for the purpose of sexual abuse, arousal or gratification".  This language, the panel believes, overcomes any prejudice to ZarateCastillo from the incorrect mental state instruction, because it explicitly tells the jury they must find the applicable "specific intent" to convict on those particular counts.