SERIES 1000 SEX OFFENSES
F 1022 Oral Copulation While In Custody (PC 288a(a), (e))
TABLE OF CONTENTS
F 1022.1 Titles And Identification Of Parties
F 1022.1 Inst 1 Oral Copulation While In Custody—Title
F 1022.1 Inst 2 Identification Of Prosecution And Defendant
F 1022.2 Oral Copulation While In Custody—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1022.3 Oral Copulation While In Custody—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 1022.4 Oral Copulation While In Custody—Burden Of Proof Issues
F 1022.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1022.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1022.5 Oral Copulation While In Custody—Elements And Definitions
F 1022.5 Inst 1 (a & b) Unlawful Sodomy: Prisoner—Defendant And Victim Must Be Inmates (PC 286(e))
F 1022.6 Oral Copulation While In Custody—Defense Theories
F 1022.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
F 1022.7 Oral Copulation While In Custody—Preliminary Fact Issues [Reserved]
F 1022.8 Oral Copulation While In Custody—Unanimity/Duplicity/Multiplicity [Reserved]
F 1022.9 Oral Copulation While In Custody—Lesser Offense Issues [Reserved]
F 1022 Notes
F 1022 Note 1 Oral Copulation While In Custody—CALCRIM Cross-References And Research Notes
F 1022 Note 2 Sex Crimes: Entrapment
Return to Series 1000 Table of Contents.
F 1022.1 Titles And Identification Of Parties
F 1022.1 Inst 1 Oral Copulation While In Custody—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1022.1 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 1022.2 Oral Copulation While In Custody—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 1022.3 Oral Copulation While In Custody—Language That Is Argumentative, Confusing, Etc.[Reserved]
F 1022.4 Oral Copulation While In Custody—Burden Of Proof Issues
F 1022.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1022.4 Inst 2Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1022.5 Oral Copulation While In Custody—Elements And Definitions
F 1022.5 Inst 1 (a & b) Unlawful Sodomy: Prisoner—Defendant And Victim Must Be Inmates (PC 286(e))
Alternative a:
*Modify Element 2 of CC 1037 as follows [added language is underlined; deleted language is stricken]:
2. At the time of the act, the defendant and _______________ <name of other person> was were confined in a (state prison/local detention facility).
Alternative b:
*Add as Element 3:
At the time of the act, ______________ <name of other person> was confined in a (state prison/local detention facility).
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Inmate Element—In People v. West (1991) 226 CA3d 892, 896-98, the Court of Appeal interpreted the language of PC 286(e) to require that the defendant be a prisoner in order for liability to be imposed under the statute. (In West the defendant was a civilian employee of the Yuba County Jail charged with forcible sodomy of an inmate of the jail.) In so holding, the court relied upon its perception that the legislative purpose underlying the statute was the maintenance of prison discipline and order. Therefore, the statute must be interpreted to relate only to contacts between prisoners. (West 226 CA3d at 896-98.) The CALCRIM instruction should be modified as set forth above to require that the jury find that both the victim and defendant were prisoners.
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 10.24a.
F 1022.6 Oral Copulation While In Custody—Defense Theories
F 1022.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
See FORECITE F 1000.6 Inst 3.
F 1022.7 Oral Copulation While In Custody—Preliminary Fact Issues [Reserved]
F 1022.8 Oral Copulation While In Custody—Unanimity/Duplicity/Multiplicity [Reserved]
F 1022.9 Oral Copulation While In Custody—Lesser Offense Issues [Reserved]
F 1022 NOTES
F 1022 Note 1 Oral Copulation While In Custody—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1015 [Oral Copulation by Force, Fear, or Threats]
CALCRIM 1016 [Oral Copulation in Concert]
CALCRIM 1017 [Oral Copulation of an Intoxicated Person]
CALCRIM 1018 [Oral Copulation of an Unconscious Person]
CALCRIM 1019 [Oral Copulation of a Disabled Person]
CALCRIM 1020 [Oral Copulation of a Disabled Person in a Mental Hospital]
CALCRIM 1021 [Oral Copulation by Fraud]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1022 Note 2 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
