SERIES 900 ASSAULTIVE AND BATTERY CRIMES
F 935 Sexual Battery: Felony (PC 242, PC 243.4(a) & (d))
TABLE OF CONTENTS
F 935.1 Titles And Identification Of Parties
F 935.1 Inst 1 Sexual Battery: Felony—Title
F 935.1 Inst 2 Identification Of Prosecution And Defendant
F 935.2 Sexual Battery: Felony—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 935.3 Sexual Battery: Felony—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 935.4 Sexual Battery: Felony—Burden Of Proof Issues
F 935.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 935.4 Inst 2 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
F 935.5 Sexual Battery: Felony—Elements And Definitions
F 935.5 Inst 1 Specification Of “Bare Skin” Requirement As An Element Of The Offense
F 935.5 Inst 2 Consent Applies To The Unlawful Restraint Element
F 935.5 Inst 3 Aiding And Abetting: Issues And Instructions
F 935.5 Inst 4 (a-c) Sexual Battery: “Specific Purpose” Is A Form Of Intent Which May Be Negated By Intoxication Or Mental Impairment
F 935.6 Sexual Battery: Felony—Defense Theories
F 935.6 Inst 1 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
F 935.7 Sexual Battery: Felony—Preliminary Fact Issues [Reserved]
F 935.8 Sexual Battery: Felony—Unanimity/Duplicity/Multiplicity [Reserved]
F 935.9 Sexual Battery: Felony—Lesser Offense Issues [Reserved]
Return to Series 900 Table of Contents.
F 935.1 Titles And Identification Of Parties
F 935.1 Inst 1 Sexual Battery: Felony—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 935.1 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 935.2 Sexual Battery: Felony—Tailoring To Facts: Persons, Places, Things And Theories [Reserved]
F 935.3 Sexual Battery: Felony—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 935.4 Sexual Battery: Felony—Burden Of Proof Issues
F 935.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 935.4 Inst 2 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
*Replace CC 935, paragraph 6, with the following:
Alternative a [Element]:
Any touching of ________‘s <insert name of complaining witness> was done against (his/her) will if (he/she) did not consent to it. To prove that ________ ‘s <insert name of complaining witness> did not consent the prosecution must prove beyond a reasonable doubt that ________‘s <insert name of complaining witness> did not act freely and voluntarily or did not know the nature of the touching.
Alternative b [Pinpoint]:
The prosecution must prove beyond a reasonable doubt that ________ ‘s <insert name of complaining witness> did not consent to the [alleged] touching. The defendant contends that ________ ‘s <insert name of complaining witness> did consent but the defense does not need to prove that contention. Rather, the prosecution must prove that ________ ‘s <insert name of complaining witness> did not freely and voluntarily consent to the touching or did not know the nature of the touching. If you have a reasonable doubt [whether the prosecution has prove that ________ ‘s <insert name of complaining witness> did not consent] [whether or not ________ ‘s <insert name of complaining witness> consented to the touching] you must find the defendant not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Improper To Imply That The Evidence Must Establish Consent—Lack of consent is a requirement which the prosecution must prove beyond a reasonable doubt. (See generally FORECITE F 315.1.2 Inst 2; F 404.2 Inst 1; F 100.1 Inst 1.) Therefore, CC 936, paragraph 6, unconstitutionally implies that the evidence must prove or establish consent.
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.
F 935.5 Sexual Battery: Felony—Elements And Definitions
F 935.5 Inst 1 Specification Of “Bare Skin” Requirement As An Element Of The Offense
*Modify CC 935, paragraph 4, as follows [added language is underlined; deleted language is stricken]:
[Move CC 935, paragraph 4 [re: contact with bare skin] to list of Elements as Element 5 as follows:]
5. Contact must have been was made with ________ ‘s <insert name of complaining witness> bare skin. This means that:
1 A. The defendant must have touched the bare skin of ________ ‘s <insert name of complaining witness> intimate part;
OR
2 B. ________ ‘s <insert name of complaining witness> bare skin must have touched the defendant’s [or ________ ‘s <insert name or description of third person>] intimate part either directly or through (his/her) clothing.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency—Because the bare skin contact requirement is an element of the offense (see PC 242; PC 243), it should be included in the list of elements which the prosecution must prove. (See In re Winship (1970) 397 US 358 [25 LEd2d 368; 90 SCt 1068].)
(See also FORECITE F 103.2 Inst 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 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.
F 935.5 Inst 2 Consent Applies To The Unlawful Restraint Element
*Modify CC 935, paragraph 6, as follows [added language is underlined]:
[A touching or restraint is done against a person’s will if …
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Restraint Must Be Non-Consensual—CALCRIM 935, paragraph 6, only discusses consent in the context of the touching. However, the unlawful restraint must also be against the victim’s will so consent should apply to that issue as well. (See generally PG X(D)(5) [Applying Instructional Principle To One Aspect Of The Charge And Not To Another].)
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.
F 935.5 Inst 3 Aiding And Abetting: Issues And Instructions
If the charge include an allegation of accomplice involvement, see FORECITE F 400 for issues and instructions related to accomplice liability.
F 935.5 Inst 4 (a-c) Sexual Battery: “Specific Purpose” Is A Form Of Intent Which May Be Negated By Intoxication Or Mental Impairment
*Add to CC 935 when appropriate:
Alternative a:
[Modify language in CC 935 and/or CC 936 to apply to “specific purpose” as well as intent]
Alternative b:
The requirement that the touching be done for the specific purpose of sexual arousal, sexual gratification, or sexual abuse is the type of intent to which [Instruction _______ (voluntary intoxication)] [and] [Instruction _______ (mental impairment)] apply.
Alternative c:
In deciding whether the prosecution has prove beyond a reasonable doubt that the touching was done while __________ <insert name of complaining witness> was restrained, consider any evidence of the defendant’s [intoxication] [mental impairment].
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Sexual Battery As A Specific Intent Crime—Sexual battery is a specific intent crime. (People v. Chavez (2000) 84 CA4th 25, 29.) However, CC 935, Element 4, describes this mental element as a “specific purpose.” Because the CALCRIM instructions on intoxication and mental impairment speak in terms of “specific intent,” CC 935 should make it clear that the “specific purpose” element in CC 935 can be negated by intoxication and/or mental impairment.
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.
F 935.6 Sexual Battery: Felony—Defense Theories
F 935.6 Inst 1 (a & b) Sexual Battery: Consent—Modification Of Burden Shifting Language
See FORECITE F 935.4 Inst 2 (a & b).
F 935.7 Sexual Battery: Felony—Preliminary Fact Issues[Reserved]
F 935.8 Sexual Battery: Felony—Unanimity/Duplicity/Multiplicity [Reserved]
F 935.9 Sexual Battery: Felony—Lesser Offense Issues[Reserved]