SERIES 1000 SEX OFFENSES
F 1070 Unlawful Sexual Intercourse: Defendant 21 Or Older (PC 261.5(a) & (d))
TABLE OF CONTENTS
F 1070.1 Titles And Identification Of Parties
F 1070.1 Inst 1 Unlawful Sexual Intercourse: Defendant 21 Or Older—Title
F 1070.1 Inst 2 Identification Of Prosecution And Defendant
F 1070.2 Unlawful Sexual Intercourse: Defendant 21 Or Older—Tailoring To Facts: Persons, Places, Things And Theories
F 1070.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
F 1070.2 Inst 2 Element 2: Tailoring To Facts
F 1070.2 Inst 3 Element 3: Tailoring To Facts
F 1070.2 Inst 4 Tailoring To Facts (Elements 2, 3 & 4)
F 1070.3 Unlawful Sexual Intercourse: Defendant 21 Or Older—Language That Is Argumentative, Confusing, Etc.
F 1070.3 Inst 1 Deletion Of Argumentative Language
F 1070.4 Unlawful Sexual Intercourse: Defendant 21 Or Older—Burden Of Proof Issues
F 1070.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1070.4 Inst 2 Actual And Reasonable Belief That Victim Was 18 Or Over—Modification Of Burden Shifting Language
F 1070.4 Inst 3 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1070.5 Unlawful Sexual Intercourse: Defendant 21 Or Older—Elements And Definitions [Reserved]
F 1070.6 Unlawful Sexual Intercourse: Defendant 21 Or Older—Defense Theories [Reserved]
F 1070.7 Unlawful Sexual Intercourse: Defendant 21 Or Older—Preliminary Fact Issues [Reserved]
F 1070.8 Unlawful Sexual Intercourse: Defendant 21 Or Older—Unanimity/Duplicity/Multiplicity [Reserved]
F 1070.9 Unlawful Sexual Intercourse: Defendant 21 Or Older—Lesser Offense Issues [Reserved]
F 1070 Notes
F 1070 Note 1 Unlawful Sexual Intercourse: Defendant 21 Or Older—CALCRIM Cross-References And Research Notes
F 1070 Note 2 Statutory Rape: Mistaken Belief As To Age (PC 261.5)
F 1070 Note 3 Sex Crimes: Entrapment
Return to Series 1000 Table of Contents.
F 1070.1 Titles And Identification Of Parties
F 1070.1 Inst 1 Unlawful Sexual Intercourse: Defendant 21 Or Older—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1070.1 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 1070.2 Unlawful Sexual Intercourse: Defendant 21 Or Older—Tailoring To Facts: Persons, Places, Things And Theories
F 1070.2 Inst 1 Element 1: Tailoring To Facts; Include Definition Of Sexual Intercourse In Description Of Element
See FORECITE F 1000.2 Inst 1.
F 1070.2 Inst 2 Element 2: Tailoring To Facts
See FORECITE F 1000.2 Inst 2.
F 1070.2 Inst 3 Element 3: Tailoring To Facts
See FORECITE F 1000.2 Inst 3.
F 1070.2 Inst 4 Tailoring To Facts (Elements 2, 3 & 4)
*Modify CC 1070, Elements 2, 3 & 4, as follows [added language is underlined; deleted language is stricken]:
[Change “other person” to “_______________ <name of alleged victim>“]
Points and Authorities
See FORECITE F 400.2 Inst 1.
F 1070.3 Unlawful Sexual Intercourse: Defendant 21 Or Older—Language That Is Argumentative, Confusing, Etc.
F 1070.3 Inst 1 Deletion Of Argumentative Language
See FORECITE F 1002.3 Inst 1.
F 1070.4 Unlawful Sexual Intercourse: Defendant 21 Or Older—Burden Of Proof Issues
F 1070.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1070.4 Inst 2 Actual And Reasonable Belief That Victim Was 18 Or Over—Modification Of Burden Shifting Language
*Modify CC 1070, paragraph 6 <Defense: Good Faith Belief 18 or Over>, as follows [added language is underlined; deleted language is stricken]:
[The defendant is not guilty of this crime if (he/she) reasonably and actually believed that the other person was age 18 or older. T the People must prove beyond a reasonable doubt that the defendant did not reasonably and actually believe that the other person ______________ <name of alleged victim> was at least 18 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Defendant Need Not Prove Belief That Victim Was Of Age—The first sentence of CC 1070, paragraph 6, erroneously implies that the defendant is not guilty only “if (he/she) believed that the other person was age 18 or older.” At best this language conflicts with the presumption of innocence and, therefore, should be modified. (See Francis v. Franklin (1985) 471 US 307 [85 LEd2d 344; 105 SCt 1965]; see also FORECITE F 1000.4 Inst 4 [Reasonable Belief In Consent: Modification Of Burden Shifting Language; Objective Reasonable Person Standard ].)
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 4.2 [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.
See April 2008 CALCRIM Revisions FORECITE Critique And Comments: CC 1070.
F 1070.4 Inst 3Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1070.5 Unlawful Sexual Intercourse: Defendant 21 Or Older—Elements And Definitions [Reserved]
F 1070.6 Unlawful Sexual Intercourse: Defendant 21 Or Older—Defense Theories [Reserved]
F 1070.7 Unlawful Sexual Intercourse: Defendant 21 Or Older—Preliminary Fact Issues [Reserved]
F 1070.8 Unlawful Sexual Intercourse: Defendant 21 Or Older—Unanimity/Duplicity/Multiplicity[Reserved]
F 1070.9 Unlawful Sexual Intercourse: Defendant 21 Or Older—Lesser Offense Issues [Reserved]
F 1070 NOTES
F 1070 Note 1 Unlawful Sexual Intercourse: Defendant 21 Or Older—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1000 Notes
CALCRIM 1070 [Unlawful Sexual Intercourse: Defendant 21 or Older]
CALCRIM 1071 [Unlawful Sexual Intercourse: Minor More Than Three Years Younger]
CALCRIM 1072 [Misdemeanor Unlawful Sexual Intercourse: Minor Within Three Years of Defendant’s Age]
CALCRIM 1080 [Oral Copulation With Person Under 14]
CALCRIM 1081 [Oral Copulation With Minor: Defendant 21 or Older]
CALCRIM 1082 [Oral Copulation With Person Under 18]
CALCRIM 1100 [Sexual Penetration With Person Under 14]
CALCRIM 1101 [Sexual Penetration With Minor: Defendant 21 or Older]
CALCRIM 1102 [Sexual Penetration With Person Under 18]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1070 Note 2 Statutory Rape: Mistaken Belief As To Age (PC 261.5)
See Annotation, Mistake or lack of information as to victim’s age as defense to statutory rape, 8 ALR3d 1100 and Later Case Service.
CALJIC NOTE: See FORECITE F 10.67 n1.
F 1070 Note 3 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
