SERIES 1000 SEX OFFENSES
F 1000.4 Rape Or Spousal Rape By Force, Fear, Or Threats—Burden Of Proof Issues
TABLE OF CONTENTS
F 1000.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1000.4 Inst 2 Consent: Modification Of Burden Shifting Language; Include In Element 3
F 1000.4 Inst 3 (a & b) Forcible Sex Offenses: Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Intercourse
F 1000.4 Inst 4 Reasonable Belief In Consent: Modification Of Burden Shifting Language; Objective Reasonable Person Standard
F 1000.4 Inst 5 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1000.4 Inst 6 Modification Required Where ID At Issue
Return to Series 1000 Table of Contents.
F 1000.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1000.4 Inst 2 Consent: Modification Of Burden Shifting Language; Include In Element 3
*Modify CC 1000, Element 3, as follows [added language is underlined; deleted language is stricken]:
3. The woman _______________ <name of alleged victim> did not, knowing the nature of the act, freely and voluntarily consent to the intercourse penetration;
[Delete definition of consent later in instruction]
Points and Authorities
See FORECITE F 404.2 Inst 1.
F 1000.4 Inst 3 (a & b) Forcible Sex Offenses: Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Intercourse
*Replace Element 3 [when appropriate]:
Alternative a:
The prosecution contends that during the penetration _______________ <name of alleged victim> withdrew her consent to it. To prove this contention the prosecution must prove beyond a reasonable doubt that:
1. _______________ <name of alleged victim> communicated to the defendant that she objected to the act of intercourse and attempted to stop the act;
2. _______________ <name of alleged victim> communicated her objection through words or acts that a reasonable person in the defendant’s situation and knowing what the defendant knew would have understood as showing her lack of consent;
AND
3. The defendant forcibly continued the act of intercourse despite her objection.
If you have a reasonable doubt whether the prosecution has proven all three of the above requirements beyond a reasonable doubt, you must find the defendant not guilty.
Alternative b:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Necessity Of Relating Defense Theory To Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
The CALCRIM Deficiency—CALCRIM 1000 fails to clearly and expressly relate the requirements for withdrawal of consent to the prosecution’s burden of proof. (See People v. Wright (1988) 45 C3d 1126; compare e.g., CC 860 [defendant did not act in self-defense]; CC 965 [same].) Therefore, the withdrawal of consent language should be modified as set forth above, and the language should be included under Element 3 of CC 1000, when withdrawal of consent is at issue.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.]. By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1000.4 Inst 4 Reasonable Belief In Consent: Modification Of Burden Shifting Language; Objective Reasonable Person Standard
*Modify CC 1000, last paragraph <Defense: Reasonable Belief in Consent> as follows [added language is underlined; deleted language is stricken]:
[The defendant is not guilty of rape if he actually and unless the prosecution has proven beyond a reasonable doubt that the defendant did not reasonably believed that the woman _______________ <name of alleged victim> consented to the intercourse penetration and that his belief was reasonable under the circumstances. That is a reasonable person in the defendant’s situation, considering all the circumstances as they were known to and appeared to the defendant, would have believed that _______________ <name of alleged victim> consented to the penetration; however, the defendant does ot need to prove this contention. The People have the burden of proving prosecution must prove beyond a reasonable doubt either that the defendant did not actually and reasonably believe that the woman _______________ <name of alleged victim> consented or that the defendant’s belief was unreasonable. If you have a reasonable doubt whether the People have not prosecution met this burden, you must find the defendant not guilty.]
Points and Authorities
Name Of Alleged Victim Vs. “The Woman”—See FORECITE F 400.2 Inst 1.
“Penetration” Vs. “Intercourse”—See FORECITE F 1000.2 Inst 1.
Prosecution Burden To Disprove— See FORECITE F 100.1 Inst 1; F 315.1.2 Inst 2.
Correction Of Burden Shifting Language—See FORECITE F 404.2 Inst 1.
See also CALCRIM 1070(a) [Reasonable belief that alleged victim was 18 or older].
F 1000.4 Inst 5 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
*Add to CC 1000:
You may not find that the defendant had sexual intent based solely on _______’s <name of victim> lack of clothing.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Propriety OF Instruction On Matters Which Are Not Sufficient To Convict—See F 370 Inst 8.
Lack Of Clothing Insufficient—“. . . [T]he victim’s lack of clothing . . . is insufficient to establish specific sexual intent.” (People v. Johnson (1993) 6 C4th 1, 41; see also People v. Holloway (2004) 33 C4th 96, 139.) Nor is the fact that the defendant was not fully dressed sufficient to “establish specific sexual attack.” (Johnson, supra.)
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.5 [Failure To Fully, Clearly And Accurately Instruct On An Element]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 10.00g.
F 1000.4 Inst 6 Modification Required Where ID At Issue
*Modify CC 1000, paragraph 9, sentence 2 as follows [added language is underlined; deleted language is stricken]:
When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and her relationship to the defendant perpetrator.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: Improper Presumption That The Defendant Is The Perpetrator—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, CC 1000 should be modified as set forth above. [See generally FORECITE F 416.3 Inst 4.]
Use Of The Term “Defendant”—The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant” in this instructional request, the defense does not withdraw the request.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.2 [Directed Verdict On Element]
FORECITE CG 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 10.42b.
