SERIES 3500 POST-TRIAL: CONCLUDING
F 3515.2 Multiple Counts: Specific Crimes
TABLE OF CONTENTS
F 3515.2 Inst 1 Separate Determination Of Enhancement Allegation As To Each Count
F 3515.2 Inst 2 Multiple Sex Acts Violating The Same Statute: Each Act Must Be Preceded By Separate, Intervening Act Of Force
Return to Series 3500 Table of Contents.
F 3515.2 Inst 1 Separate Determination Of Enhancement Allegation As To Each Count
*Add to CC 3515:
The allegation that the defendant __________<describe enhancement> is charged in connection with Counts __________ , __________ , and __________. You must decide, if you can, whether the prosecution has proved the truth of this allegation beyond a reasonable doubt. You must do so separately with regard to each count on which you return a conviction. The allegation may be found true or not true with respect to [any or all] [either or both] counts on which you return a conviction. Thus, even if you find that the defendant __________ <describe enhancement> at some point during an incident or series of incidents, you must still determine the truth of that allegation on a count by count basis. You may only find that allegation true with regard to a particular count if you find beyond a reasonable doubt that the defendant __________ <describe enhancement> in the commission of the specific offense charged in that count.
Points and Authorities
People v. Funtanilla (1991) 1 CA4th 326, 333.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 12.3 [Multiplicity]
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 17.02c.
F 3515.2 Inst 2 Multiple Sex Acts Violating The Same Statute: Each Act Must Be Preceded By Separate, Intervening Act Of Force
*Add to CC 3515:
In the crime of _____________ <insert offense—e.g., rape> a necessary element is____________ <insert appropriate element—e.g., penetration of the alleged victim’s vagina with the defendant’s penis>. To sustain multiple convictions of ____________ based on multiple _____________ <e.g., penetrations> committed in short succession against a single alleged victim, the jury must unanimously agree beyond a reasonable doubt that:
1. As to each separate count all elements of the offense as stated in these instructions have been proven beyond a reasonable doubt; and
2. Each separate count is based on a separate act of nonconsensual ____________ <e.g., penetration>; and
3. Each separate act of nonconsenual _________________ was preceded and accomplished by a separate, intervening act of force which was committed against the victim after the preceding act of _____________<e.g., penetration>.
If from all the evidence you have a reasonable doubt as to whether any of the elements of ___________ were proven as to any separate count, including the requirement that each separate count be preceded and accomplished by a separate, intervening act of force, you must give the defendant the benefit of the doubt and find him not guilty of the separate count.
Points and Authorities
It has been held that multiple sex offense convictions for different statutory violations may be returned based on multiple acts occurring during a short, continuous course of conduct against a single victim. (See People v. Harrison (1989) 48 C3d 321, 330-31 and cases cited therein. Multiple convictions and sentences are justified in such a situation based upon the rationale that each statutory violation represents a separate “criminal objective.” (See Harrison, 48 C3d at 335; see also People v. Perez (1979) 23 C3d 545, 551-52.)
However, a different issue is presented when the multiple acts violate a single statute and, thus, do not evince separate criminal objectives. Harrison resolved this issue by holding that separate convictions are permissible based on multiple penetrations provided “that each penetration was accomplished with the statutorily prescribed intent; that the required degree of force or fear preceded, and was used to accomplish, each penetration …” [original emphasis] (Harrison 48 C3d at 329.) For example, in Harrison each successive penetration was preceded by an intervening act of force which enabled the penetration to be accomplished. This intervening act of force was identified by the Court as an essential element which allowed each count to stand on its own as a separate statutory violation: “We hold that each of the digital penetrations committed in the course of defendant’s assault upon [the victim], and highlighted by intervening acts of force, constituted a separate violation of [PC 289(a)].” (Harrison, 48 C3d at 334.)
Accordingly, the jury should be instructed to make it clear that all necessary elements must be proven as to each separate count including that each separate count be preceded by an intervening act of force.
The defendant has the right to “‘direct attention to evidence from … which a reasonable doubt could be engendered.’ [Citation].” (People v. Hall (1980) 28 C3d 143, 159; People v. Sears (1970) 2 C3d 180, 190.) Hence, the defendant may obtain a pinpoint instruction which relates “his [evidentiary theory] to an element of the offense.” (People v. Saille (1991) 54 C3d 1103, 1120; see also, People v. Wharton (1991) 53 C3d 522, 570; People v. Wright (1988) 45 C3d 1126, 1136-37 [pinpoint instruction proper if it is predicated upon defendant’s theory].)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 12.3 [Multiplicity]
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 17.02d.
