SERIES 1100 SEX OFFENSES
F 1111 Lewd Or Lascivious Act: By Force Or Fear (PC 288(b)(1)) (Case Law Discussing This Instruction)
TABLE OF CONTENTS
F 1111.1 Titles And Identification Of Parties
F 1111.1 Inst 1 Lewd Or Lascivious Act: By Force Or Fear—Title
F 1111.1 Inst 2 Identification Of Prosecution And Defendant
F 1111.2 Lewd Or Lascivious Act: By Force Or Fear— Tailoring To Facts: Persons, Places, Things And Theories
F 1111.2 Inst 1 Tailoring To Facts: Naming Of Alleged Victim
F 1111.3 Lewd Or Lascivious Act: By Force Or Fear—Language That Is Argumentative, Confusing, Etc.
F 1111.3 Inst 1 Deletion Of Argumentative Language
F 1111.3 Inst 2 Deletion Of Argumentative Language
F 1111.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1111.3 Inst 4 Willfully: Argumentative
F 1111.3 Inst 5 Willfully: Balance
F 1111.4 Lewd Or Lascivious Act: By Force Or Fear—Burden Of Proof Issues
F 1111.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1111.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1111.4 Inst 3 Modification Required Where ID At Issue
F 1111.5 Lewd Or Lascivious Act: By Force Or Fear—Elements And Definitions
F 1111.5 Inst 1 Willfully As Separate Enumerated Element
F 1111.5 Inst 2 Willfully: Knowledge
F 1111.5 Inst 3 Lewd Act With Child: Definition Of Duress
F 1111.6 Lewd Or Lascivious Act: By Force Or Fear—Defense Theories [Reserved]
F 1111.7 Lewd Or Lascivious Act: By Force Or Fear—Preliminary Fact Issues [Reserved]
F 1111.8 Lewd Or Lascivious Act: By Force Or Fear—Unanimity/Duplicity/Multiplicity [Reserved]
F 1111.9 Lewd Or Lascivious Act: By Force Or Fear—Lesser Offense Issues [Reserved]
F 1111 Notes
F 1111 Note 1 Lewd Or Lascivious Act: By Force Or Fear—CALCRIM Cross-References And Research Notes
F 1111 Note 2 Lewd Act With Child: Sufficiency Of Showing Of Physical Force (PC 288(a))
F 1111 Note 3 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1111.1 Titles And Identification Of Parties
F 1111.1 Inst 1 Lewd Or Lascivious Act: By Force Or Fear—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1111.1 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 1111.2 Lewd Or Lascivious Act: By Force Or Fear— Tailoring To Facts: Persons, Places, Things And Theories
F 1111.2 Inst 1 Tailoring To Facts: Naming Of Alleged Victim
See FORECITE F 1110.2 Inst 1.
F 1111.3 Lewd Or Lascivious Act: By Force Or Fear—Language That Is Argumentative, Confusing, Etc.
F 1111.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1111, paragraph 10, as follows [deleted language is stricken]:
[It is not a defense that the child may have consented to the act.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1111.3 Inst 2 Deletion Of Argumentative Language
*Modify CC 1111, paragraph 4, as follows [deleted language is stricken]:
[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child is not required.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 1111.3 Inst 3.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 1111.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
*Add after CC 1113, paragraph 4:
Alternative a [fact not disputed]:
However, the fact that the lusts, passions, or sexual desires of [_______________ <name of alleged victim>] [or the defendant] were not actually aroused or gratified is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged ______________] [_____________<insert specific element to which the evidence relates>].
Alternative b [fact disputed]:
However, whether or not the lusts, passions, or sexual desires of [_______________ <name of alleged victim>] [or the defendant] were not actually aroused or gratified is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [________________<insert specific element to which the evidence relates>].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 1111.3 Inst 4 Willfully: Argumentative
See FORECITE F 820.3 Inst 1.
F 1111.3 Inst 5 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 1111.4 Lewd Or Lascivious Act: By Force Or Fear—Burden Of Proof Issues
F 1111.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1111.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1111.4 Inst 3 Modification Required Where ID At Issue
*Modify CC 1111, paragraph 6, sentence 2 as follows [added language is underlined; deleted language is stricken]:
When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and (his/her) relationship to the defendant perpetrator.]
Points and Authorities
See FORECITE F 1000.4 Inst 6.
F 1111.5 Lewd Or Lascivious Act: By Force Or Fear—Elements And Definitions
F 1111.5 Inst 1 Willfully As Separate Enumerated Element
*Modify CC 1111, Element 1A and 1B as follows:
[Delete “willfully]
*Modify Element 3 as follows [added language is underlined; deleted language is stricken]:
3. The defendant committed the act [touched _______________ <name of alleged victim>] [caused _______________ <name of alleged victim> to touch (himself/herself):
A. Willfully;
AND
B. With the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of (himself/herself) or the child;
Points and Authorities
See FORECITE F 840.5 Inst 3.
F 1111.5 Inst 2 Willfully: Knowledge
See FORECITE F 820.5 Inst 1.
F 1111.5 Inst 3 Lewd Act With Child: Definition Of Duress
*Modify CC 1111, paragraph 6, defining duress as follows [deleted language is stricken]:
[Duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do [or submit to] something that he or she would not otherwise do [or submit to]. When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the child and (his/her) relationship to the defendant.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Definition Of Duress—People v. Leal (2004) 33 C4th 999, 1001-02 held that the 1993 amendments of the rape and spousal rape statutes, to delete the term “hardship” from the definition of “duress” in rape, and incorporate that definition into spousal rape did not alter the previously existing judicial definition of the term “duress” as used in PC 288(b)(1), which did, and continues to, include a threat of hardship.
However, the practical result of this decision will allow “practically all sexual touchings of a child [to] fall under [PC 288(b)]. A definition of duress that includes the threat to inflict hardship, however, will have such an effect. ‘Hardship’ is a vague and amorphous concept. It has been defined as ‘suffering’ or ‘privation’ (Webster’s 3d New Internat. Dict. (2002) p. 1033), a ‘lack of comfort’ (Random House Webster’s Unabridged Dict. (2d ed. 2001) p. 872), and ‘difficulty or suffering caused by a lack of something, especially money’ (Encarta World English Dict. (1999) p. 816). A threat to withhold a child’s promised allowance might well fall within these definitions, as would innumerable other threats.” (People v. Leal, 33 C4th at 1012-13 dissent of Kennard, J.) [But see People v. Chavez UNPUB (8/29/2011, H035341) 2011 Cal. App. Unpub. LEXIS 6515.]
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 10.42 n5/F 10.42c.
F 1111.6 Lewd Or Lascivious Act: By Force Or Fear—Defense Theories[Reserved]
F 1111.7 Lewd Or Lascivious Act: By Force Or Fear—Preliminary Fact Issues[Reserved]
F 1111.8 Lewd Or Lascivious Act: By Force Or Fear—Unanimity/Duplicity/Multiplicity [Reserved]
F 1111.9 Lewd Or Lascivious Act: By Force Or Fear—Lesser Offense Issues[Reserved]
F 1111 NOTES
F 1111 Note 1 Lewd Or Lascivious Act: By Force Or Fear—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1000 Notes
CALCRIM 1110 [Lewd or Lascivious Act: Child Under 14 Years]
CALCRIM 1112 [Lewd or Lascivious Act: Child 14 or 15 Years]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1111 Note 2 Lewd Act With Child: Sufficiency Of Showing Of Physical Force (PC 288(a))
See People v. Babcock (1993) 14 CA4th 383, 386-88, for a discussion of recent cases which conflict regarding what constitutes sufficient evidence of physical force. (See also CJ 10.42 and CJ 10.42.5.)
CALJIC NOTE: See FORECITE F 10.41 n4.
F 1111 Note 3 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
