SERIES 1000 SEX OFFENSES
F 1000.5 Rape Or Spousal Rape By Force, Fear, Or Threats—Elements And Definitions
TABLE OF CONTENTS
F 1000.5 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
F 1000.5 Inst 2 Element 4A (Force Or Fear): Include Material Definition
F 1000.5 Inst 3 Withdrawal Of Consent: Reasonable Person Standard
F 1000.5 Inst 4 Duress: Reasonable Person Standard
F 1000.5 Inst 5 Victim Alive As Element
F 1000.5 Inst 6 Definition Of Kidnap And False Imprisonment
F 1000.5 Inst 7 Alternative 4A: Include Definitions In Elements
F 1000.5 Inst 8 Proof Necessary To Establish Element Of Fear (PC 26)
F 1000.5 Inst 9 Forcible Sex Offenses: Definition Of Duress
Return to Series 1000 Table of Contents.
F 1000.5 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
See FORECITE F 1000.2 Inst 1.
F 1000.5 Inst 2Element 4A (Force Or Fear): Include Material Definition
*Add to Element 4A, any of the following definitions if material:
Force [Paragraph 8]
Duress [Paragraph 9]
Menace [Paragraph 11]
Fear [Paragraph 12]
Points and Authorities
See FORECITE F 417.5 Inst 2; compare CC 1000, Elements 4B and 4C.
F 1000.5 Inst 3 Withdrawal Of Consent: Reasonable Person Standard
*Modify paragraph 5, item 2, as follows [added language is underlined; deleted language is stricken]:
2. She _______________ <name of alleged victim> communicated her objection through words or acts that a reasonable person in the defendant’s situation [and viewed as it appeared to the defendant, and in light of what the defendant actually knew,] [considering all the circumstances as they appeared to and were known to the defendant,] would have understood as showing her lack of consent;
Points and Authorities
See FORECITE F 820.5 Inst 3 [objective reasonable person standard].
F 1000.5 Inst 4 Duress: Reasonable Person Standard
*Modify CC 1000, paragraph 9 as follows [added language is underlined]:
[Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person in the same situation, [viewed as it appeared to the person and in light of what the person actually knew,] [considering all the circumstances as they appeared to and were known to the defendant,] to do [or submit to] something that she would not do [or submit to] otherwise. When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman’s age and her relationship to the defendant.]
Points and Authorities
See FORECITE F 820.5 Inst 3.
F 1000.5 Inst 5 Victim Alive As Element
*Add to Elements of Alternatives A and B:
_______________ <name of alleged victim> was alive at the moment of the penetration.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
An Element Of Rape Is That The Victim Was Alive At The Time Of Penetration—CALCRIM 1000 improperly excludes the above requirement from the listing of elements. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068]; see also FORECITE F 10.00a.) To simply append the requirement to the end of the instruction as suggested in CALCRIM 1000 fails to assure that the jurors will understand it to be among the elements which the prosecution must prove beyond a reasonable doubt. [See FORECITE PG X(D)(5) [Applying Instructional Principle To One Aspect Of The Charge And Not To Another].]
Tailoring: Name Of Victim—See FORECITE F 400.2 Inst 2.
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]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: Requirement That Victim Be Alive: Sufficiency Of Evidence—People v. Ramirez (1990) 50 C3d 1158, 1175-77 and People v. Cain (1995) 10 C4th 1, 46, 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 (1979) 443 US 307 [61 LE2d 560; 99 SCt 2781].)
CALJIC NOTE: See FORECITE F 10.00 n3.
F 1000.5 Inst 6Definition Of Kidnap And False Imprisonment
*Add to CC 1000, Alternative B, when appropriate:
To prove the defendant threatened to [kidnap] [falsely imprison] _______________ <name of alleged victim>, the prosecution must prove all of the following beyond a reasonable doubt:
[Insert elements of kidnaping.]
[Insert elements of false imprisonment.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Without definitions the jurors will not be able to make the required determination. (See FORECITE F 402.5 Inst 6; F 417.5 Inst 2; compare e.g., CC 541C and CC 1001 which admonishes “<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON ALL UNDERLYING FELONIES, AIDING AND ABETTING, AND CONSPIRACY ARE GIVEN.>” [Emphasis and capitalization by CALCRIM.].)
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]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1000.5 Inst 7 Alternative 4A: Include Definitions In Elements
*Add to CC 1000, Alternative 4A:
[To prove that the _______________ <type of act, e.g., penetration> was committed by force, the prosecution must prove beyond a reasonable doubt that the defendant used enough physical force to overcome _______________’s <name of alleged victim> will.]
[To prove that the _______________ <type of act, e.g., penetration> was committed by duress, the prosecution must prove beyond a reasonable doubt that the defendant made a direct or implied threat that actually and reasonably caused _______________ <name of alleged victim> to submit to penetration of her genitalia or vagina which she would not have submitted to otherwise. In evaluating whether _______________ <name of alleged victim> acted reasonably, consider what a reasonable person in the same situation would have done.]
[To prove that the _______________ <type of act, e.g., penetration> was committed by menace, the prosecution must prove beyond a reasonable doubt that the defendant made a threat, statement or committed an act showing and intent to injure someone.]
[To prove that the _______________ <type of act, e.g., penetration> was accomplished by fear, the prosecution must prove beyond a reasonable doubt that _______________ <name of alleged victim> was actually and reasonably afraid and the defendant knew of her fear and took advantage of it. In evaluating whether _______________ <name of alleged victim> acted reasonably, consider what a reasonable person in the same situation would have done.]
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 1000.5 Inst 8 Proof Necessary To Establish Element Of Fear (PC 26)
*Replace CC 1000 paragraph 12 with the following:
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
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: Failure To Specify Requisite Elements Of Fear —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 (1994) 7 C4th 847, 857; see also People v. Hecker (1990) 219 CA3d 1238, 1250; People v. Bergschneider (1989) 211 CA3d 144, 154.) [See Brief Bank # B-850forbriefing on this issue.]
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]
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 10.00c.
F 1000.5 Inst 9 Forcible Sex Offenses: Definition Of Duress
See FORECITE F 1111.5 Inst 2.
