Is sexual penetration of a child a general intent crime?

Sexual penetration of a child under section 288.7, subdivision (b), is a specific intent crime. (People v. Ngo (2014) 225 Cal.App.4th 126, 157.) The specific intent required is described in section 289the act must be done for the purpose of sexual arousal, gratification, or abuse. (People v. Ngo, supra, at p. 157.) Accordingly, the court erred in instructing the jury that sexual penetration of a child was a general intent crime. (Id. at pp. 161-162.)

The question remains whether the error was prejudicial. Defendant contends we must apply the "harmless beyond a reasonable doubt" standard for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24) because the erroneous instruction relieved the prosecutor of her burden to prove each element of the crime, violation of defendant's due process rights. As we discuss below, the instructions as a whole did not relieve the prosecutor of her burden of proof, suggesting that the standard

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of prejudice for state law errors (People v. Watson (1956) 46 Cal.2d 818, 836) should apply.