SERIES 1100 SEX OFFENSES
F 1120 Continuous Sexual Abuse (PC 288.5(a))
TABLE OF CONTENTS
F 1120.1 Titles And Identification Of Parties
F 1120.1 Inst 1 Continuous Sexual Abuse—Title
F 1120.1 Inst 2 Identification Of Prosecution And Defendant
F 1120.2 Continuous Sexual Abuse—Tailoring To Facts: Persons, Places, Things And Theories
F 1120.2 Inst 1 Tailoring To Facts
F 1120.3 Continuous Sexual Abuse—Language That Is Argumentative, Confusing, Etc.
F 1120.3 Inst 1 Deletion Of Argumentative Language
F 1120.3 Inst 2 Deletion Of Argumentative Language
F 1120.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
F 1120.3 Inst 4 Willfully: Argumentative
F 1120.3 Inst 5 Willfully: Balance
F 1120.4 Continuous Sexual Abuse—Burden Of Proof Issues
F 1120.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1120.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1120.5 Continuous Sexual Abuse—Elements And Definitions
F 1120.5 Inst 1 Prohibited Acts Must Be “Committed”
F 1120.5 Inst 2 Willfully Knowledge
F 1120.5 Inst 3 (a & b) Continuous Sexual Abuse: Definition Of “Recurring Access” To Child (PC 288.5)
F 1120.6 Continuous Sexual Abuse—Defense Theories
F 1120.6 Inst 1 When Proof Must Show Specific Act: Alibi Defense (PC 288.5)
F 1120.7 Continuous Sexual Abuse—Preliminary Fact Issues [Reserved]
F 1120.8 Continuous Sexual Abuse—Unanimity/Duplicity/Multiplicity
F 1120.8 Inst 1 Continuous Sexual Abuse: Unanimity—Specification Of Acts
F 1120.8 Inst 2 (a & b) Continuous Sexual Abuse Of A Child—Juror Unanimity Required As To Single Victim (PC 288.5(a))
F 1120.9 Continuous Sexual Abuse—Lesser Offense Issues [Reserved]
Return to Series 1100 Table of Contents.
F 1120.1 Titles And Identification Of Parties
F 1120.1 Inst 1 Continuous Sexual Abuse—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1120.1 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 1120.2 Continuous Sexual Abuse—Tailoring To Facts: Persons, Places, Things And Theories
F 1120.2 Inst 1 (b) Tailoring To Facts
See FORECITE F 1110.2 Inst 1.
F 1120.3 Continuous Sexual Abuse—Language That Is Argumentative, Confusing, Etc.
F 1120.3 Inst 1 Deletion Of Argumentative Language
*Modify CC 1120, paragraph 9, 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 1120.3 Inst 2 Deletion Of Argumentative Language
*Modify CC 1120, paragraph 8, as follows [deleted language is stricken]:
[Actually arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or child is not required for lewd or lascivious conduct.]
Points and Authorities
See FORECITE F 416.3 Inst 4.
F 1120.3 Inst 3 Argumentative Language Should Be Balanced To Assure Jurors Consider All Relevant Evidence
See FORECITE F 1111.3 Inst 3.
F 1120.3 Inst 4 Willfully: Argumentative
See FORECITE F 820.3 Inst 1.
F 1120.3 Inst 5 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 1120.4 Continuous Sexual Abuse—Burden Of Proof Issues
F 1120.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1120.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1120.5 Continuous Sexual Abuse—Elements And Definitions
F 1120.5 Inst 1 Prohibited Acts Must Be “Committed”
*Modify CC 1120, Element 2, as follows [added language is underlined; deleted language is stricken]:
[Change “engaged in” to “committed“]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency: “Engaged In”—The term “engaged in” fails to require specific commission of the necessary act. The term “engage” means “to participate or cause to participate, involve.” To “participate” means to “take part, join or share with others.” (The American Heritage Dictionary (2nd ed. 1983) pp. 140, 245, 500.) Thus, the term “engages in” does not always convey to the jury that the defendant must have actually committed the act. This was implicitly recognized by the CALJIC Committee when it replaced the term “engages” with “commits” in many of its instructions in 1997. (See FORECITE’s Summary of CALJIC 6th Edition (1997) Revisions.”) Accordingly, the term “engaged in” in the above referenced CJ instruction should also be changed to “committed.”
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 13.3 [Full And Accurate Instruction On Elements Of Death Qualification And Prosecution’s Burden]
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 2.23.1 n1/F 8.81.17 n17.
F 1120.5 Inst 2 Willfully Knowledge
See FORECITE F 820.5 Inst 1.
F 1120.5 Inst 3 (a & b) Continuous Sexual Abuse: Definition Of “Recurring Access” To Child (PC 288.5)
Alternative a:
*Add to CC 1120:
“Recurring access” as defined in these instructions requires a specific relationship with the child, such as being a babysitter, a father, a regularly visiting relative, a former spouse, a non-live-in-lover, who is in a position to command respect from the child. The defendant must have an ongoing relationship with the child separate and apart from the sexual relationship.
Alternative b:
“Recurring access” means an ongoing ability to approach and contact someone time after time.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Alternative a: One element of PC 288.5 is that the defendant either reside in the same home with the child or have “recurring access” to the child. In People v. Gohdes (1997) 58 CA4th 1520 the court held that a former boyfriend of the victim’s sister who visited the home without invitation or knowledge of the parents did not meet the requirement for a “resident child molester” prosecution. The above instruction is based on Gohdes’ description of the required contact.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Alternative b: People v. Rodriguez (2002) 28 C4th 543, 550 held that the term “recurring access” is not a technical legal term but instead is commonly understood by the jury as meaning an ongoing ability to approach and contact someone time after time.
NOTE: Rodriguez expressly disapproved People v. Gohdes (1997) 58 CA4th 1520, to the extent that it is inconsistent with the Rodriguez opinion.
Also note that even though “recurring access” is a commonly understood term and no sua sponte definition need be given, this does not mean that a definition cannot be given upon request. (See FORECITE CHK III(B); see also People v. Ramsey (2000) 79 CA4th 621, 630 [implying that common term could have been defined if requested]; see also CHK III(B)[definition may be required of non-technical term if jury expresses lack of understanding].)
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 10.42.6a/10.42.5b.
F 1120.6 Continuous Sexual Abuse—Defense Theories
F 1120.6 Inst 1 When Proof Must Show Specific Act: Alibi Defense (PC 288.5)
*Add to CJ 4.71.5:
In determining whether the prosecution has met its burden of proof you must limit your consideration to the time period, if any, that the prosecution evidence shows the offense was committed. If you have a reasonable doubt that the offense was committed during the period of time alleged in the information, the defendant is entitled to an acquittal.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Specific Date—Where the prosecution has selected a specific time or period of time during which the offense was committed and the defense has presented alibi evidence for that period of time, the defendant is entitled to an instruction telling the jury “to confine their consideration to the time that the prosecution evidence shows the offense was committed.” (People v. Jones (1973) 9 C3d 546, 557; see also People v. Seabourn (1992) 9 CA4th 187, 192-94; People v. Brown (1960) 186 CA2d Supp 889, 890-95; People v. Waits (1936) 18 CA2d 20, 21; People v. Morris (1906) 3 CA 1, 7-11.) The failure to require the prosecution to meet its burden of proving the commission of the offense on the specific date alleged in the information violates the defendant’s federal constitutional rights to trial by jury and due process. (6th and 14th Amendments; People v. Barney (1983) 143 CA3d 490, 497.)
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.
NOTES
Variance as to Date Between Information and Evidence at Trial. Because the precise time of a crime need not be declared in the information (PC 955), a variance between information and proof is usually not fatal to the prosecution and the jury may base its verdict upon the date shown by the evidence. (See People v. Jennings (1991) 53 C3d 334, 358; People v. Cox (1968) 259 CA2d 653, 661.) However, the variance is material if the preliminary hearing failed to provide the correct date and the defendant was misled into relying upon an alibi for the date alleged in the information. (Cox, 259 CA2d at 660.) In such a case, the defense must ask for a continuance to preserve the issue for appeal. (Ibid.)
CALJIC NOTE: See FORECITE F 4.71.5b.
F 1120.7 Continuous Sexual Abuse—Preliminary Fact Issues[Reserved]
F 1120.8 Continuous Sexual Abuse—Unanimity/Duplicity/Multiplicity
F 1120.8 Inst 1 Continuous Sexual Abuse: Unanimity—Specification Of Acts
*Modify CC 1120, paragraph 7, as follows [added language is underlined; deleted language is stricken]:
You cannot convict must find the defendant not guilty unless all of you agree that the prosecution has proven beyond a reasonable doubt that (he/she) the defendant committed three or more acts of [substantial sexual conduct/ [or] lewd or lascivious conduct] over a period of at least three months,. But you do not all need to agree on which three acts were committed.
Points and Authorities
The unanimity language of CC 1120 fails to make it clear that acts referred to are those referred to in Element 2.
F 1120.8 Inst 2 (a & b) Continuous Sexual Abuse Of A Child—Juror Unanimity Required As To Single Victim (PC 288.5(a))
Alternative a:
*Add to CC 1120, paragraph 7, as follows:
However, you must all agree that the required three acts were committed against _______________ <name of alleged victim>.
Alternative b:
If you are unable to agree upon a specific act, you may still find the defendant guilty if you unanimously agree beyond a reasonable doubt that the defendant committed all the acts described by the victim.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Alternative a: When an accused is charged in a single count with sexual abuse of more than one child, he is charged with a separate punishable offense as to each child and the jury must unanimously agree as to each child. (See In re Sheridan (1964) 230 CA2d 365, 372-74.) This rule also applies to PC 288.5—continuous sexual abuse. PC 288.5 was enacted in 1989 to reach “‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has reoccurring access to the child.” (Stats. (1989), Ch. 1402 § 1(b), emphasis added.) There is not the faintest suggestion in the grammar of this provision or PC 288.5 that the offense applies to conduct other than continuous sexual abuse of a single child. PC 288.5 in referring in the singular to a resident defendant’s relationship with “the minor child” and “recurring access to the child,” necessarily requires three acts in three months with “a [single] child under the age of 14 years ….” This is amplified by the section’s explicit provision for multiple victims: “[a] defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.” (PC 288.5(c).) This plainly says that each alleged victim must be made the subject of a single count. The unless clause, being an exception to the single count requirement, necessarily refers to multiple counts. It cannot be construed to permit the aggregation of multiple victims in a single count, much less change the elements of the offense to permit conviction upon proof of three acts against separate victims.
Accordingly, if the prosecution relies upon acts against multiple victims in a single PC 288.5 prosecution, then the jury must be required to unanimously agree upon a single victim. [See Opinion Bank # O-135 and Brief Bank # B-578for the opinion in People v. Slemp UNPUBLISHED (C011667) which held that the failure to instruct upon juror unanimity in such a case was reversible error.]
Alternative b: In People v. Jones (1990) 51 C3d 294, the Supreme Court issued its decision upon the so-called “generic testimony” issue regarding child molestation cases where the victim testifies as to multiple acts of molestation but is unable to designate specific dates or months when the acts occurred.
The Supreme Court held that in cases where the jurors might disagree as to what act the defendant committed, the standard unanimity instruction CJ 4.71.5 / CJ 17.01 should be given. However, “… when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Jones, 51 C3d at 322.)
Hence, in such circumstances CJ 4.71.5 should be modified as set forth above. [But see below regarding factors relating to whether there is “no reasonable likelihood of juror disagreement.”]
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 12.2 [Duplicity/Unanimity]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
SUBSEQUENT HISTORY
FORECITE proposed the above instruction in July 1990. In November 1990 CALJIC provided a revised version of CJ 4.71.5 in light of Jones; however, the CALJIC version fails to follow the mandate of Jones which requires that the modified unanimity instruction should, “in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all of the acts described by the victim.” (Jones, 51 C3d at 322.) The CALJIC revised instruction and its use note erroneously indicate that the specific act language should be deleted if the Jones instruction is given. Accordingly, the proposed FORECITE instruction should continue to be used rather than the revised CALJIC instruction.
NOTES
As set forth above, the Supreme Court in People v. Jones authorized use of the supplemental unanimity instruction when “the evidence indicates the jurors might disagree as to the particular act defendant committed …” In making this determination there are two inquiries which should be made.
First, as suggested by the Supreme Court in Jones, if the defendant raises separate defenses to the two offenses then there may be a potential for juror disagreement as to which act was committed based upon the varying strength or believability of the different defenses. (E.g., People v. Gordon (1985) 165 CA3d 839, 855-65; see also, People v. Diedrich (1982) 31 C3d 263, 283.)
Second, even if different defenses are not advanced, the “quality of proof” may be different as to the various acts. (See, e.g., People v. Madden (1981) 116 CA3d 212, 219, fn 6.) Hence, if either the prosecution or defense evidence is of differing quality as to one act or the other, then logically there is a “rational basis, by way of argument or evidence, by which the jury could … distinguish [between]” the different alleged acts. (People v. Deletto (1983) 147 CA3d 458, 473; see generally, FORECITE F 17.01.)
PROPOSITION 115 NOTE
The holding in Jones was originally predicated in part upon the assumption that the defendant received a full preliminary hearing and thus received adequate notice of the charges against him. Subsequently, the court modified Jones in anticipation of Proposition 115 arguments as follows: “… the unavailability of a preliminary examination does not necessarily preclude the defendant from learning the details of the charges filed against him ….” (Jones, 51 C3d at 318-19.)
This language opens the door for counsel to argue actual lack of notice on a case by case basis. Thus, even if the lack of a preliminary examination does not “necessarily” preclude ascertainment of the details, counsel may be able to document actual lack of notice sufficient to undermine the applicability of Jones in any given case.
CALJIC NOTE: See FORECITE F 10.42.6 n2/F 4.71.5a.
F 1120.9 Continuous Sexual Abuse—Lesser Offense Issues[Reserved]
