F 10.00

F 10.00 n1 Rape: Multiple Penetrations As Separate Offenses (PC 261 & PC 263).

The question of whether three separate vaginal penetrations of the same type in close temporal proximity constitute three separate rapes under PC 261 and PC 263 was before the Supreme Court in People v. Dunbar REV GTD/DISD/DEPUB (AO35448).

Also at issue in Dunbar was the question of what factors are to be considered by the jury in resolving the issue should multiple penetrations be deemed sufficient to constitute multiple offenses.

However, on May 18, 1989, the Supreme Court dismissed Dunbar as improvidently granted and remanded it back to the First District Court of Appeal, Div. 1 (AO35448). [A copy of the Dunbar opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-148.]

See also People v. Volk DEPUBLISHED (91) 234 CA3d 1802 [286 CR 502], holding that defendant may request amplifying instruction relating to multiple penetrations. [A copy of the Volk opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-149.]

RESEARCH NOTES: See Annotation, Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 ALR3d 1228 and Later Case Service.

[Research Note: See FORECITE BIBLIO 10.00, et seq.]

F 10.00 n2 Rape: Entrapment, Sex Crimes (PC 261 & PC 263).

See Annotation, Entrapment Defense in Sex Offense Prosecutions, 12 ALR4th 413 and Later Case Service.

[Research Note: See FORECITE BIBLIO 10.00, et seq.]

F 10.00 n3 Requirement That Victim Be Alive: Sufficiency Of Evidence.

People v. Ramirez (90) 50 C3d 1158, 1175-77 [270 CR 286] and People v. Cain (95) 10 C4th 1, 46 [40 CR2d 481], in dealing with arguments that the evidence was insufficient to support a jury finding that the victim was alive at the time of the sexual conduct, in effect established a presumption that the victim was living at the time. (See Ramirez 50 C3d at 1176-77.) Specifically, Ramirez suggested that the defense was obligated to present evidence that the defendant intended to assault a dead body or that he had a predilection for doing so. Such a presumption violates the federal constitutional right to trial by jury and due process (6th and 14th Amendments) which require the prosecution to present substantial evidence of guilt. (Jackson v. Virginia (79) 443 US 307 [61 LE2d 560; 99 SCt 2781].) [An unpublished opinion recognizing the presumption established by Ramirez and reaching a different result on similar facts is available to FORECITE subscribers, ask for Opinion Bank # O-218.]

F 10.00 n4 Spousal Rape: Scope Of Statute Expanded.

Effective 1/1/94, PC 262(a), which proscribes spousal rape, was expanded to include spousal rape by force on an intoxicated person, on an unconscious person, by threat to retaliate or by threat to use the authority of a public official. CJ 10.05 should be modified to reflect these new statutory elements.

F 10.00 n5 Spousal Rape: No Constitutional Violation For Failure To Include Cohabitants Of The Same Sex.

See People v. Silva (94) 27 CA4th 1160, 1166 [33 CR2d 181].

F 10.00 n6 “Engaged In” vs. “Committed.”

(See FORECITE F 2.23.1 n1.)

F 10.00 n7 Sex Offenses: Capacity To Consent — Definition Of “Developmental Disability.”

People v. Mobley (99) 72 CA4th 761, 788 [85 CR2d 474] held that there is no sua sponte duty to instruct on the definition of developmental disability contained in WI 4512(a) in a sex offense. (E.g., PC 286(g) and PC 288a(g).) However, the court did suggest that such an instruction may be required if requested as a defense pinpoint instruction. (99 DAR at 5315.)

F 10.00 n8 Rape: Belief As To Consent — Evidence Necessary To Warrant Instruction (PC 261 & PC 263).

NOTE: CJ 10.66 was deleted by the CALJIC Committee in the 6th Edition (1997). See FORECITE F 10.66a for the 5th Edition instruction.

In People v. Williams (92) 4 C4th 354 [14 CR2d 441], the court held that “because the Mayberry instruction is premised on mistake of fact, the instruction should not be given absent substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not.” (4 C4th at 362.) Hence, Williams effectively requires the defendant to corroborate his own testimony with conduct by the victim in order to obtain an instruction upon reasonable belief in consent. This requirement raises 14th Amendment due process considerations by precluding the defendant from obtaining a jury determination as to the credibility of the defense upon which he/she has relied. (See U.S. v. Escobar de Bright (9th Cir. 1984) 742 F2d 1196, 1201-02 [failure to instruct on theory of defense supported by the evidence violates due process].)

NOTE: Williams stated that the jury should be further instructed, if appropriate, that a reasonable mistake of fact may not be found if the jury finds that the equivocal conduct on part of the victim was the product of “force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (4 C4th at 364.)

The defense of reasonable belief as to consent is well established. (See People v. Mayberry (75) 15 C3d 143, 157-58 [125 CR 745].) Hence, when the record contains evidence that the defendant had a bona-fide and reasonable belief that the prosecutrix consented to the sexual intercourse, CJ 10.65 and CJ 10.66 (5th Edition, FORECITE F 10.66a) should be given. (See People v. Simmons (89) 213 CA3d 573, 579-80 [261 CR 760].)

However, Simmons teaches that it is not enough to simply present evidence that the defendant and victim engaged in consensual sexual relations on prior occasions. In Simmons, the defendant presented such evidence but did not testify himself and did not present any other evidence either directly or circumstantially bearing on his state of mind at the time of the alleged offense. The Court of Appeal held that the defendant had no right to a Mayberry instruction under these circumstances.

This does not mean that the requisite evidence must come from the defendant. Circumstantial evidence of the defendant’s good faith belief in consent can be provided by the testimony of third persons. (People v. Anderson (83) 144 CA3d 55, 62 [192 CR 409].)

PRACTICE NOTE: Simmons illustrates the importance of obtaining pretrial rulings on jury instructions. (See FORECITE PG I(D).) If there is any question as to the sufficiency of the evidence to warrant a Mayberry instruction counsel could make a pretrial offer of proof — in camera if possible — in order to determine whether or not the proposed evidence will be sufficient to instruct upon the defense and to allow an opportunity to develop additional evidence during trial if necessary. The disposition of this pretrial request should allow counsel to make a more informed choice as to whether or not the defendant should testify.

To avoid premature revelation of defense strategies and evidence, the request and offer of proof could be made at the close of the prosecution’s case. However, by making the request pretrial, counsel will have the added advantage of utilizing cross- examination to cure any anticipated deficiencies in the evidence necessary to obtain the requested instruction.

F 10.00 n9 Rape: Continued Sexual Intercourse Against Person’s Will Is Rape Even Though Initial Penetration Was Consensual.

(See People v. Roundtree (2000) 77 CA4th 846, 851 [91 CR2d 921].)

F 10.00 n10 Rape: Belief As To Consent — Jury Should Consider Defendant’s Intoxication.

See Brief Bank # B-849 for briefing on this issue.

F 10.00 n11 Spousal Rape: Uncharged Acts Of Domestic Violence As Corroboration.

(See People v. Garcia (2001) 89 CA4th 1321, 1334 [107 CR2d 889] [evidence of defendant’s uncharged acts of domestic violence can be used to corroborate victim’s allegation of spousal rape (PC 262(b))].)

F 10.00 n12 Rape: Definition Of Duress And Menace — Sua Sponte Duty.

See FORECITE F 10.10d; but see People v. Elam (2001) 91 CA4th 298 [110 CR2d 185] [trial court need not sua sponte instruct on the meaning of “duress” or “menace” which mean the same as their common dictionary definitions].)

F 10.00 n13 Rape: Consent — Effect Of Withdrawal Of Consent After Commencement Of Intercourse.

In People v. Vela (85) 172 CA3d 237 [218 CR 161], the Fifth District held that forcible rape (PC 261(2)) is not committed where a woman consents to initial penetration by the male but the woman withdraws consent during intercourse and the male continues intercourse against the woman’s will. (Id. at 243.) However, In re John Z. (2003) 29 C4th 756 [128 CR2d 783] overruled Vela and held that a rape conviction may be returned under such circumstances.

(See also FORECITE F 10.00h.)

F 10.00a

Rape: Requirement That Victim Be Alive

(PC 261)

*To be added after element 4(b) of CJ 10.00:

[5. The victim was alive at the moment of penetration.]

Points and Authorities

“The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape …” (PC 263.) “It is manifest that the ‘feelings’ of a female cannot be offended nor does the victim suffer ‘outrage’ where she is dead when sexual penetration has occurred. Thus, the victim must be alive at the moment of penetration in order to support conviction of rape under § 261.” (People v. Stanworth (74) 11 C3d 588, 605, fn 15 [114 CR 250]; see also People v. Ramirez (90) 50 C3d 1158, 1176 [270 CR 286] [applying same rule to sodomy]; People v. Sellers (88) 203 CA3d 1042, 1050-51 [250 CR 345]; People v. Vela (85) 172 CA3d 237, 242 [218 CR 161].)

People v. Carpenter (97) 15 C4th 312, 391 [63 CR2d 1] concluded that the requirement that the victim be alive at the time of intercourse was adequately conveyed by instructions which required that the intercourse be “against the will” of the victim and “accomplished by means of fear or of immediate and unlawful bodily injury….” However, under the current version of CJ 10.00 (6th Ed.) this is not so. The supreme court based its decision in Carpenter upon the premise that a dead body can have neither “will” nor “fear bodily injury.” (Carpenter, 15 C4th at 391.) However, under CJ 10.00 (6th Ed.), against the person’s “will” is defined as “without the consent of the alleged victim.” Obviously, under this definition there is no requirement, either express or implied, that the victim be alive. As to the implication that accomplishing the act by “fear” necessitates a finding that the victim be alive, under the current version of CJ 10.00 “fear” is only one of several means by which the statute may be violated. The other means included in the instruction (e.g., “force” or “violence”) do not require a finding, either express or implied, that the victim be alive at the time of intercourse. Accordingly, notwithstanding Carpenter, under CJ 10.00 (6th Ed.), the element that the victim be alive is not included either expressly or implicitly in the instruction and, hence, that element should be added sua sponte. Additionally, Carpenter makes it clear that, at a minimum, the element should be added if requested by the defendant. (Carpenter, 15 C4th at 391.)

Under the foregoing principles, the existence of a living victim is an element of the offense upon which the court is obligated to instruct. (People v. Kelly (92) 1 C4th 495, 524-28 [3 CR2d 677].)

(See also FORECITE F 8.21 n1.)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]

NOTES

Intercourse with a deceased victim does constitute attempted rape so long as the defendant intended to rape a live victim. (People v. Kelly (92) 1 C4th 495, 524-28 [3 CR2d 677]; People v. Thompson (93) 12 CA4th 195, 202 [15 CR2d 333].)

Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)

See also FORECITE F 14.52 n4 [First Degree Burglary: Requirement That Victim Be Alive.]

RESEARCH NOTES: Annotation, Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 ALR4th 1147 and Later Case Service.

F 10.00b

Rape: Definition Of Force

(PC 261)

*Add to CJ 10.00:

ALERT: People v. Griffin (2004) 33 C4th 1015 disapproved use of the Pitmon/Cicero [People v. Pitmon (85) 170 CA3d 38; People v. Cicero (84) 157 CA3d 465] definition of force in rape prosecutions. The judge is not under a sua sponte obligation to so define the term.

However, “[t]here are several nonlegal definitions of ‘force’ that have been cited in the cases. . . .” (Id. at p. 1023.) Since jurors are not permitted to refer to dictionaries, instruction on a single unified definition should be considered, if requested. (Cf. FORECITE CHK III(B).)

F 10.00c

Proof Necessary To Establish Element Of Fear

(PC 26)

*To be added at end of CJ 10.00:

The element of fear is not established simply by a substantive feeling of fear by __________ [insert name of alleged victim]. The following must be established beyond a reasonable doubt:

1. __________ genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce [him] [her] to submit to sexual intercourse against [his] [her] will, and

2. __________’s fear was reasonable under the circumstances or, if not reasonable, the perpetrator knew of __________’s subjective fear and took advantage of it.

Points and Authorities

The element of fear of immediate and unlawful bodily injury has two components, one subjective, and one objective. The subjective component asks whether the victim genuinely entertained the fear and the objective component asks whether the victim’s fear was reasonable, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it. (People v. Iniguez (94) 7 C4th 847, 857 [30 CR2d 258]; see also People v. Hecker (90) 219 CA3d 1238, 1250 [268 CR 884]; People v. Bergschneider (89) 211 CA3d 144, 154 [259 CR 219].) [See Brief Bank # B-850 for briefing on this issue.]

CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 1000 [Rape By Force, Fear, Or Threats].

F 10.00d

Rape: Use Of Term “Perpetrator” vs. “Defendant”

*Modify CJ 10.00, ¶ 6 as follows. Deleted language is between <<>>:

[“Duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which [she] [he] would not otherwise have performed, or acquiesce in an act to which [she] [he] otherwise would not have submitted. The total circumstances, including the age of the alleged victim, and his or her relationship to the <<[>>perpetrator<<] [defendant]>>, are factors to consider in appraising the existence of the duress.]

Points and Authorities

CJ 10.00, ¶ 6, is defective in that telling the jury to consider the relationship between the victim and the defendant is in effect telling the jury that the court has found that the defendant was the perpetrator. (See People v. Figueroa (86) 41 C3d 714, 725; see also FORECITE PG VII(C)(1) [Failure To Instruct Or Directed Verdict On Element Of Charge]; PG VII(C)(2) [Elimination Of Factual Consideration].)

Compare CJ 10.00, paragraphs 1 and 7, which refer to the “perpetrator.”

F 10.00e

Rape: Good Faith Belief That Victim Was Dead

*Add to CJ 10.00 when appropriate:

It is a defense to the charge of rape that a defendant lacked general criminal intent. There is no general criminal intent if a defendant entertained a reasonable and good faith belief that _____ [insert name of victim] was dead at the commencement of, and the duration of the rape of _____ [insert name of victim]. If from all the evidence you have a reasonable doubt whether the defendant believed _____ [insert name of victim] to be dead at the commencement of, and for the duration of, the rape, you must find him not guilty of rape.

Points and authorities

(See FORECITE F 9.50d.)

For good faith belief as to consent see CJ 10.65 and FORECITE F 10.65 et seq.

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]

F 10.00f

Definition Of Rape Constitutionally Deficient

By Failing To Define “Sexual Intercourse”

*Replace ¶ 3 of CJ 10.00 with the following:

“Sexual intercourse” means any penetration, however slight, of the woman’s vagina* by the man’s penis. [Proof of ejaculation is not required.]

[* But see People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235] [for purposes of PC 289, only penetration of genital opening (labia majora) is required for penetration with a foreign object (PC 289(k)(1)].]

Points and Authorities

CJ 10.00 defines the crime of rape in terms of “sexual intercourse.” However, without specific definition the instruction is constitutionally deficient because the jurors will not necessarily understand that the term “sexual intercourse” is limited to vaginal intercourse. (See, e.g., People v. Failla (66) 64 C2d 560, 564-65 [51 CR 103] [failure to define “felony”]; People v. Valenzuela (85) 175 CA3d 381, 393 [222 CR 405] [failure to define “assault”]; People v. McElheny (82) 137 CA3d 396, 403-04 [187 CR 39] [failure to define “assault”]; People v. Burns (48) 88 CA2d 867, 873-74 [200 P2d 134] [failure to define “traumatic injury”]; but see People v. Holt (97) 15 C4th 619, 676 [63 CR2d 782] [no error in failing to define “sexual intercourse” because “the instructions were placed in context by the parties’ closing arguments”].)

[See Brief Bank # B-891 for briefing on this issue.

CALCRIM INSTRUCTION ON THIS POINT: See CALCRIM 1000 [Rape By Force, Fear, Or Threats].

F 10.00g

Victim’s Lack Of Clothing Insufficient To

Establish Specific Sexual Intent

*Add to CJ 10.00:

You may not find that the defendant had any sexual intent based solely on _______’s (name of victim) lack of clothing.

Points and Authorities

“. . . [T]he victim’s lack of clothing . . . is insufficient to establish specific sexual intent.” (People v. Johnson (93) 6 C4th 1, 41; see also People v. Holloway (2004) 33 C4th 96, 139.)

F 10.00h

Nonconsensual Post-Penetration Intercourse:

Rape Based On Withdrawal Of Consent

*Add to CJ 10.00 as follows:

Even if the prosecution failed to prove beyond a reasonable doubt that ________ (name of alleged victim) did not consent to the initial sexual penetration, the defendant may be still convicted based on nonconsensual post-penetration intercourse. However, sexual intercourse is not transformed into rape merely because a woman changes her mind. Rather, to vote for guilt based on post-penetration intercourse, a juror must find all of the following elements beyond a reasonable doubt:

1. At some point during the [sex act] [intercourse] __________ (name of alleged victim) did not consent to the [sex act] [intercourse]; and

2. __________ (name of alleged victim), by her actions and words clearly communicated her lack of consent; and

3. No reasonable person in the defendant’s situation could have been mistaken regarding __________’s (name of alleged victim) lack of consent.

Points and Authorities

A defendant may be convicted of rape based on nonconsensual post-penetration intercourse provided that the alleged victim “withdrew her consent and, through her actions and words, communicated that fact to the defendant [such that] . . . no reasonable person in the defendant’s position would have believed that [she] continued to consent to the act.” (In re John Z. (2003) 29 C4th 756, 762.)

Regarding the use of “situation” rather then “position” in Element 3, see generally FORECITE F 4.35b.