SERIES 1000 SEX OFFENSES
F 1000.6 Rape Or Spousal Rape By Force, Fear, Or Threats—Defense Theories
TABLE OF CONTENTS
F 1000.6 Inst 1 (a & b) Forcible Sex Offenses: Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Intercourse
F 1000.6 Inst 2 Withdrawal Of Consent: Reasonable Person Standard
F 1000.6 Inst 3 Duress: Reasonable Person Standard
F 1000.6 Inst 4 Reasonable Belief In Consent: Modification Of Burden Shifting Language; Objective Reasonable Person Standard
F 1000.6 Inst 5 (a & b) Sex Offense: Good Faith Belief That Victim Was Dead
F 1000.6 Inst 6 Forcible Sex Offenses: Consent Defined—Deletion Of Prior “Dating” Relationship
F 1000.6 Inst 7 Forcible Sex Offenses: Prior “Dating” Relationship Should Not Be Ignored (PC 261.6)
F 1000.6 Inst 8 Pre-Penetration Withdrawal Of Consent Must Be Communicated Through Word Or Act
Return to Series 1000 Table of Contents.
F 1000.6 Inst 1 (a & b) Forcible Sex Offenses: Modification Of Consent Element When Prosecution Alleges Consent Was Withdrawn During The Intercourse
See FORECITE F 1000.4 Inst 3.
F 1000.6 Inst 2 Withdrawal Of Consent: Reasonable Person Standard
See FORECITE F 1000.5 Inst 3.
F 1000.6 Inst 3 Duress: Reasonable Person Standard
See FORECITE F 1000.5 Inst 4.
F 1000.6 Inst 4 Reasonable Belief In Consent: Modification Of Burden Shifting Language; Objective Reasonable Person Standard
See FORECITE F 1000.4 Inst 4.
F 1000.6 Inst 5 (a & b) Sex Offense: Good Faith Belief That Victim Was Dead
*Add to CC 1000 when appropriate:
Alternative a [CALCRIM 3400 Format]:
The prosecution must prove that the defendant had general criminal intent. The defendant contends (he/she) did not have criminal intent because (he/she) honestly and reasonably believed _______________ <name of alleged victim> consented to the alleged _______________ <describe alleged act>. The defendant does not need to prove that (he/she) honestly and reasonably believed that _______________ <name of alleged victim> consented. It is the prosecution’s burden to prove that the defendant did not have such a belief [as well as all other essential facts and elements of the charge]. If you have a reasonable doubt that the defendant had the required criminal intent, you must find (him/her) not guilty.
Alternative b:
It is a defense to the charge of ___________<insert charged sex offense> 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 ___________<insert charged sex offense> 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 the alleged ___________<insert charged sex offense>, you must find him not guilty of ___________<insert charged sex offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Defense Theory Instruction That Related The Theory To The Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Good Faith Belief In Consent As Defense Theory—Under the reasoning of People v. Mayberry (1975) 15 C3d 143, good faith belief that the victim was dead prior to the required asportation negates the knowledge/general criminal intent element of kidnapping. If the victim of an alleged kidnapping is dead, he or she is no longer a “person” who can be kidnapped. (See FORECITE F 9.50c.)
Cases from other jurisdictions are in accord. (People v. Miles (1969) 23 NY2d 527, 536-538 [245 NE2d 688] [defendants could not be guilty of kidnapping if they believed their victim was dead]; see also Gribble v. State (Tex.Crim.App. 1990) 808 SW2d 65, 72, fn 16 [“moving [a dead body] from place to place does not under any circumstances constitute the offense of kidnapping”].)
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.
Note: As to the requirement that the victim be alive, see F 1000.5 Inst 5.
NOTES
See also People v. Tolbert DEPUBLISHED (9/12/96, E015955) 49 CA4th 275 [See Brief Bank # B-710and B-746 for the Tolbert briefing on this issue.]
CALJIC NOTE: See FORECITE F 10.00e.
F 1000.6 Inst 6 Forcible Sex Offenses: Consent Defined—Deletion Of Prior “Dating” Relationship
*Modify CC 1000, paragraph 6, as follows [deleted language is stricken]:
[Evidence that the defendant and the woman (dated/were married/had been married) is not enough by itself to constitute consent.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The Dating Language Should Be Deleted—CALCRIM 1000, paragraph 6, includes a dating instruction based on PC 261.6; however, this instruction should be deleted for several reasons.
First, the instruction is argumentative and unfairly favors the prosecution. (See FORECITE F 416.3 Inst 4.)
Second, there is no reference in PC 261.6 to any requirement that the jury be so instructed. If the legislature had intended such an instruction to be given, they could have included it as a specific instructional statute as they did with PC 1127d in the same legislative session.
Third, the definition of consent as embodied in PC 261.6 and CJ 1.23.1 is an “unnecessary” instruction. (People v. Carapeli (1988) 201 CA3d 589, 593.) Because the dating language adds nothing to the standard consent instructions there is no sua sponte duty to give the instruction and, in fact, it is not error to refuse a request for the instruction. (Carapeli, 201 CA3d at 593.)
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 5.4.1 [Instructions That Suggest An Opinion as To An Essential Fact, An Element Or Guilt]
FORECITE CG 5.4.2 [Argumentative Instructions Not Suggesting Opinion On Guilt]
FORECITE CG 5.4.3 [Undue Emphasis Of Specific Evidence]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
NOTE: If the “dating relationship” instruction is given, the statutory language should be modified to avoid any implication that the prior dating relationship may not be considered at all. [See FORECITE F 1000.6 Inst 7.]
CALJIC NOTE: See FORECITE F 1.23.1 n1.
F 1000.6 Inst 7 Forcible Sex Offenses: Prior “Dating” Relationship Should Not Be Ignored (PC 261.6)
*Replace paragraph 6 of CC 1000 with the following:
A current or prior dating relationship does not by itself constitute consent; however, it is a circumstance to consider together with the other evidence in making a determination on the question of the consent.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Balancing Language—If the “dating relationship” instruction is given (but see FORECITE F 1000.6 Inst 4), the language should be modified to avoid any implication that the prior dating relationship may not be considered at all. Even if the prior relationship is not sufficient to establish consent, it is a factor which the jury should consider together with the other evidence to determine the question of consent. Moreover, such a modification is justified when consent based upon the prior relationship is relied upon as a theory of the defense. [See FORECITE F 416.3 Inst 4.]
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 4.5 [Right To Present Evidence And Fair Opportunity To Defend]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
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 1.23.1a.
F 1000.6 Inst 8 Pre-Penetration Withdrawal Of Consent Must Be Communicated Through Word Or Act
*Modify CC 1000, sentence 1 and Element 2 and 3 of paragraph 8, as follows [added language is underlined]:
[A woman who initially consents to an act of intercourse may change her mind before or during the act.
. . .
2. She communicated her objection before the act through words or acts that a reasonable person would have understood as showing her lack of consent;
AND
3. The defendant forcibly commenced or continued the act of intercourse despite her objection.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—See People v. Ireland (2010) 188 CA4th 328, 339-40 [agreeing that language of CC 1000 could be confusing when the prosecution alleges that withdrawal of consent was communicated prior to penetration]. (See FORECITE F 1000.6 Inst 8.)
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 1000.7 Rape Or Spousal Rape By Force, Fear, Or Threats—Preliminary Fact Issues[Reserved]
F 1000.8 Rape Or Spousal Rape By Force, Fear, Or Threats—Unanimity/ Duplicity/ Multiplicity[Reserved]
F 1000.9 Rape Or Spousal Rape By Force, Fear, Or Threats—Lesser Offense Issues[Reserved]
