Return to CALJIC Part 9-12 – Contents
F 10.42 n1 Lewd Act With Child: Definition Of “Menace” (PC 288(b)).
The CALJIC comment to CJ 10.42 refers to CC 1569 and CC 1570 for a definition of the term “menace.” However, that term is now defined, for purposes of rape, in PC 261(c). The definition in PC 261(c) is “any threat, declaration, or act which shows an intention to inflict injury upon another.” The definition in CC 1570 — “unlawful and violent injury to the person or property of [another]” — does not include the intent element of PC 261(c). Hence, the recent Penal Code definition of menace should be given rather than the Civil Code version proposed by CALJIC since any doubt or conflict about the correct statutory definition should be resolved in favor of the defendant. (See People v. Bradley (83) 146 CA3d 721, 725 [194 CR 549].)
Moreover, PC 288(a) and PC 261 are in pari materia because they relate to the same subject or object (i.e., sex offenses). (Ballantine’s Law Dictionary, 3d Ed. 1969.) It is well settled that a word common to two statutes which are in pari materia must be given the same meaning in each enactment. (See Gonzales & Co. v. Dept. of Alc. Bev. Control (84) 151 CA3d 172, 178 [198 CR 479]; see also Dieckmann v. Superior Court (85) 175 CA3d 345, 356 [220 CR 602] [where the same term or phrase is used in a similar manner in two related statutes concerning the same subject, the same meaning should be attributed to the term in both statutes unless countervailing indications require otherwise].)
F 10.42 n2 Lewd Act With Child: Definition Of “Force” (PC 288(b)).
In People v. Neel (93) 19 CA4th 1784, 1790 [24 CR2d 293], the Court of Appeal disagreed with People v. Senior (92) 3 CA4th 765, 774 [5 CR2d 14], and People v. Schulz (92) 2 CA4th 999, 1004 [3 CR2d 799], and held that the acts of pulling the victim back and manipulating the victim’s hand while preventing the victim from pulling away, were sufficient to constitute “force” within the meaning of PC 288(b). (See also People v. Bolander (94) 23 CA4th 155, 161 [28 CR2d 365] [agreeing with Neel and Babcock].)
F 10.42 n3 Child’s Sexual Offenses Against Minors: Evidence Of Victim’s Sexual Activity With Third Party To Show Alternative Source Of Child’s Ability To Describe Sex Acts.
(See FORECITE F 10.41 n12.)
F 10.42 n4 Defense Pinpoint Instruction Regarding Defense Theory Of Inadvertent Or Casual Or Non-Offensive Touching.
(See FORECITE F 10.41c.)
F 10.42 n5 Lewd Act With Child: Whether Duress Includes Threat Of Hardship.
People v. Leal (2004) 33 C4th 999, 1001-02 held that the 1993 amendments of the rape and spousal rape statutes, to delete the term “hardship” from the definition of “duress” in rape, and incorporate that definition into spousal rape did not alter the previously existing judicial definition of the term “duress” as used in PC 288(b)(1), which did, and continues to, include a threat of hardship.
However, the practical result of this decision will allow “practically all sexual touchings of a child [to] fall under [PC 288(b)]. A definition of duress that includes the threat to inflict hardship, however, will have such an effect. ‘Hardship’ is a vague and amorphous concept. It has been defined as ‘suffering’ or ‘privation’ (Webster’s 3d New Internat. Dict. (2002) p. 1033), a ‘lack of comfort’ (Random House Webster’s Unabridged Dict. (2d ed. 2001) p. 872), and ‘difficulty or suffering caused by a lack of something, especially money’ (Encarta World English Dict. (1999) p. 816). A threat to withhold a child’s promised allowance might well fall within these definitions, as would innumerable other threats.” (People v. Leal, 33 C4th at 1012-13 dissent of Kennard, J.)
F 10.42 n6 Lewd Act With Child: Improper To Define “Menace” With Civil Code Definition.
In a forcible sexual act prosecution it is error to instruct the jury with a Civil Code definition that “menace includes the threat of unlawful confinement of the person, or of an ancestor of such party.” The official Comment to CJ 10.42 suggests that “menace” may be defined with the definitions contained in CC 1569 and CC 1570. However, providing a Civil Code definition (enacted with contract law principles in mind) is incorrect in a forcible sexual offense prosecution. [See Brief Bank # B-965 for briefing on this issue.]
Definition of Lewd or Lascivious Act
*Modify CJ 10.42 as follows:
[See FORECITE F 10.41a.]
Modification Required Where ID At Issue
*Modify final sentence of the last ¶ of CJ 10.42 to provide as follows [added language is capitalized; deleted language is between <<>>]::
The total circumstances, including the age of the victim, and [his] [her] relationship to <<defendant>> THE PERPETRATOR, are factors to consider in appraising the existence of duress.
Points and Authorities
Use of the term “defendant” creates an impermissible presumption that the defendant is the perpetrator. Hence, especially when identification is a material issue raised by the evidence, CJ 10.42 should be modified as set forth above.
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).]
Lewd Act With Child: Definition Of Duress And Menace
*Modify CJ 10.42, 6th ¶, as follows. Deleted language is between << >>:
[The term “duress” means a direct or implied threat of force, violence, danger, <<hardship>> or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed, or (2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and [his] [her] relationship to defendant, are factors to consider in appraising the existence of duress.]
Points and Authorities
See FORECITE F 10.10d.
Lewd Act With Child:
Use Of Term “Perpetrator” vs. “Defendant”
*Modify CJ 10.42, ¶ 6 as follows. Added language is capitalized; deleted language is between << >>:
[The term “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed, or (2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and [his] [her] relationship to <<defendant>> THE PERPETRATOR, are factors to consider in appraising the existence of duress.]
Points and Authorities
See FORECITE F 10.00d.