SERIES 1000 SEX OFFENSES
F 1002.1 Titles And Identification Of Parties
F 1002.2 Rape Of Intoxicated Woman Or Spouse—Tailoring To Facts: Persons, Places, Things And Theories
F 1002.3 Rape Of Intoxicated Woman Or Spouse—Language That Is Argumentative, Confusing, Etc.
F 1002.4 Rape Of Intoxicated Woman Or Spouse—Burden Of Proof Issues
TABLE OF CONTENTS
F 1002.1 Titles And Identification Of Parties
F 1002.1 Inst 1 Rape Of Intoxicated Woman Or Spouse —Title
F 1002.1 Inst 2 Identification Of Prosecution And Defendant
F 1002.2 Rape Of Intoxicated Woman Or Spouse—Tailoring To Facts: Persons, Places, Things And Theories
F 1002.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
F 1002.2 Inst 2 Element 2: Tailoring To Facts
F 1002.2 Inst 3 Elements 3 and 4: Tailoring To Facts
F 1002.2 Inst 4 Tailor To Facts: “Prevented From Resisting”—Specification Of “The Act”
F 1002.3 Rape Of Intoxicated Woman Or Spouse—Language That Is Argumentative, Confusing, Etc.
F 1002.3 Inst 1 Deletion Of Argumentative Language
F 1002.4 Rape Of Intoxicated Woman Or Spouse—Burden Of Proof Issues
F 1002.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1002.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1002.4 Inst 3 Improper To Direct Verdict On Element
Return to Series 1000 Table of Contents.
F 1002.1 Titles And Identification Of Parties
F 1002.1 Inst 1 Rape Of Intoxicated Woman Or Spouse —Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1002.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1002.2Rape Of Intoxicated Woman Or Spouse—Tailoring To Facts: Persons, Places, Things And Theories
F 1002.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
See FORECITE F 1000.2 Inst 1.
F 1002.2 Inst 2 Element 2: Tailoring To Facts
See FORECITE F 1000.2 Inst 2.
F 1002.2 Inst 3 Elements 3 and 4: Tailoring To Facts
*Modify CC 1002, Elements 3 and 4 as follows [added language is underlined; deleted language is stricken]:
3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman _______________ <name of alleged victim> from resisting;
AND
4. The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman _______________ <name of alleged victim> from resisting.
Points and Authorities
See FORECITE F 400.2 Inst 2.
F 1002.2 Inst 4 Tailor To Facts: “Prevented From Resisting”—Specification Of “The Act”
*Modify CC 102, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent to _______________ <specify act, e.g., penetration of her genitalia or vagina>. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act _______________ <specify act, e.g., penetration of her genitalia or vagina>, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1002.3 Rape Of Intoxicated Woman Or Spouse—Language That Is Argumentative, Confusing, Etc.
F 1002.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1000, paragraph 3, as follows [deleted language is stricken]:
. . ., no matter how slight, . . .
*Modify CC 1000, paragraph 3, as follows [deleted language is stricken]:
[Ejaculation is not required.]
[NOTE: Paragraph 3 should be included in Element 1. (See FORECITE F 402.5 Inst 6.)]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1002.4 Rape Of Intoxicated Woman Or Spouse—Burden Of Proof Issues
F 1002.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1002.4 Inst 2Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1002.4 Inst 3 Improper To Direct Verdict On Element
*Modify CC 1002, paragraph 5, as follows [deleted language is stricken]:
[ _____________ <If appropriate, insert controlled substance> (is/are) [a] controlled substance[s].]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Directed Verdicts On Any Essential Fact Or Element Are Unconstitutional—Whenever an instruction removes a factual question from the jury’s consideration by stating that ” _____ is a ____,” there is a danger that the instruction will improperly usurp the jury’s responsibility to decide the removed issue. (See e.g., People v. Figueroa (1986) 41 C3d 714, 725, People v. Wilkins (1993) 14 CA4th 761, 776-780, People v. Godinez (1992) 2 CA4th 492, 502, People v. Beltran (1989) 210 CA3d 1295, 1303; see also People v. Lara (1994) 30 CA4th 658, 668 [instruction was improper but did not entirely remove the element]; People v. Jarrell (1987) 196 CA3d 604, 607 [same]; but see People v. Brown (1988) 46 C3d 432, 444 fn 6 [Figueroa distinguished].)
“Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation].” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) Directing the jury to find an element against the defendant violates the state (Art. I § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (Figueroa, 41 C3d at 725; see also, U.S. v. Gaudin (1995) 515 US 506 [132 LEd2d 444; 115 SCt 2310] Carella v. California (1989) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; U.S. v. Medjuck (9th Cir 1995) 48 F3d 1107, 1110.) “[I]f a court direct[s] a verdict for the prosecution in a criminal trial by jury … the state cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” (Rose v. Clark (1986) 478 US 570, 578 [92 LEd2d 460; 106 SCt 3101]; see also Figueroa, 41 C3d at 723-34.)
This danger is present even when the instruction falls short of directing a verdict. “The prohibition against directed verdicts ‘includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.’ (United States v. Hayward (DC Cir. 1969) 420 F2d 142, 144.) As one panel of the Fifth Circuit has stated, ‘[N]o fact, not even an undisputed fact, may be determined by the judge.’ (Roe v. U.S. (5th Cir. 1961) 287 F2d 435, 440, cert. den. (61) US 824 [7 LEd2d 29; 82 SCt 43]; accord U.S. v. Musgrave (5th Cir. 1971) 444 F2d 755, 762.)” (Figueroa, 42 C3d at 724.)
In the context of an enhancement, this error has been characterized as one of state law and not of federal constitutional dimension. (People v. Wims (1995) 10 C4th 293, 304-09.) However, Apprendi v. New Jersey (2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362], Jones v. U.S. (1999) 526 US 227 [143 LEd2d 311; 119 SCt 1215] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] make it clear that the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) apply to any non-recidivist sentencing enhancement which increases the defendant’s sentencing exposure. (See FORECITE EA V(L).)
Moreover, when an element of a special circumstance (e.g., poison or destructive device) is also used to establish an element of first degree murder per PC 189 (see CJ 8.23), the error effectively directs a verdict on an element of the underlying charge and, thus, violates the federal constitution. (But see Stanton v. Benzler (9th Cir. 1998) 146 F3d 726 [CJ 8.81.19 is not constitutionally invalid for allowing trial court to instruct as a matter of law whether a substance is a poison].)
The federal constitutional rights to due process and fair trial by jury fully apply to any essential finding which increases the range of applicable punishments by making the defendant death eligible. (See DP II [Checklist Of Selected 6th/8th/14th Amendment Principles] # 19.)
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 8.81.19a.
