SERIES 1000 SEX OFFENSES
F 1001.5 Rape Or Spousal Rape In Concert—Elements And Definitions
TABLE OF CONTENTS
F 1001.5 Inst 1 Element Instructions: Rape
F 1001.5 Inst 2 (a & b) Incorporation Of Predicate Offense Elements; Separate Enumeration Of Compound Elements
F 1001.5 Inst 3 Separate Enumeration Of Compound Elements
F 1001.5 Inst 4 Alternative B: Separate Enumeration Of Compound Elements
F 1001.5 Inst 5 Rape In Concert—Requirement Of Specific Intent (PC 264.1)
F 1001.5 Inst 6 Rape In Concert—Definition Of “In Concert” (PC 264.1)
Return to Series 1000 Table of Contents.
F 1001.5 Inst 1 Element Instructions: Rape
See FORECITE F 1000.5.
F 1001.5 Inst 2 (a & b) Incorporation Of Predicate Offense Elements; Separate Enumeration Of Compound Elements
*Modify <Alternative A—defendant committed rape> as follows [added language is underlined; deleted language is stricken]:
[1.] [The defendant personally committed forcible rape _______________ <insert forcible sex offense>. and voluntarily acted with someone else who aided and abetted its commission(;/.) To prove this element, the prosecution must prove all of the following beyond a reasonable doubt:]
[Insert tailored elements of predicate offense.]
AND
2. The defendant voluntarily acted with _______________ <person alleged to have acted in concert with defendant> in committing the forcible rape;
AND
3. _______________ <person alleged to have acted in concert with defendant> aided and abetted the defendant in the commission of the _______________ <insert forcible sex offense>. To prove this the prosecution must prove all of the following beyond a reasonable doubt:
[Insert tailored elements and requirements of aiding and abetting.]
Modify <Alternative B—defendant aided and abetted> as follows [added language is underlined; deleted language is stricken]:
[(1/2).] [The defendant voluntarily aided and abetted someone else who _______________ <name of person alleged to have personally committed the forcible sex offense> personally committed forcible rape _______________ <insert forcible sex offense>. To prove this element the prosecution must prove all of the following beyond a reasonable doubt:
[Insert tailored elements of the predicate offense.]
2. The defendant voluntarily acted with ___________ <name of person alleged to have personally committed the forcible sex offense> in the commission of the alleged forcible rape;
AND
3. The defendant aided and abetted _______________ <name of person alleged to have personally committed the forcible sex offense> in the commission of _______________ <insert forcible sex offense>. To prove this element the prosecution must prove all of the following beyond a reasonable doubt:
[Insert tailored aiding and abetting elements.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Predicate Elements—The language of CALCRIM 1001 “you must apply these instructions when you decide whether the People have proved rape in concert”—is unnecessarily vague and fails to assure that the jurors will understand precisely what must be proved to establish the in concert offense. (See FORECITE F 402.5 Inst 6.)
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
No Reference To “The People”—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 3.7 [Failure To Tailor Elements To The Facts And Charge]
In death penalty cases additional, federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 1001.5 Inst 3 Separate Enumeration Of Compound Elements
*Modify CC 1001, Alternative A, as follows [added language is underlined; deleted language is stricken]:
<Alternative A—defendant committed rape>
[1.] [The defendant personally committed forcible rape and voluntarily acted with someone else who aided and abetted its commission(;/.)];
AND
2. The defendant voluntarily did so with _______________ <name of alleged accomplice>;
AND
3. _______________ <name of alleged accomplice> aided and abetted the defendant in the commission of the alleged forcible rape.
Points and Authorities
See FORECITE F 3500.2 Inst 1; see also F 1001.5 Inst 2[Re: Incorporation of Predicate Elements].
F 1001.5 Inst 4 Alternative B: Separate Enumeration Of Compound Elements
*Replace CC 1001, with the following:
<Alternative B—defendant aided and abetted>
[(1/2).] _______________ <name of alleged perpetrator> personally committed forcible rape;
AND
2/3. _______________ <name of alleged perpetrator> did so with the defendant;
AND
3/4. The defendant voluntarily aided and abetted _______________ <name of alleged perpetrator> in the commission of the forcible rape.
Points and Authorities
See FORECITE F 3500.2 Inst 1; see also F 1001.5 Inst 2 [Re: Incorporation of Predicate Elements].
F 1001.5 Inst 5 Rape In Concert—Requirement Of Specific Intent (PC 264.1)
*Add the following to the specification of elements in CC 1001:
The defendant acted in concert with [another person] [_______ <name of alleged other person>] with the specific intent to commit or facilitate the _______ <charged sex offense>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Acting In Concert Must Be For The Specific Purpose Of Committing The Sex Offense—PC 264.1 provides criminal liability for two alternative acts: (1) “personally” raping the victim; or (2) “aiding and abetting” the rapist. (PC 264.1.) However, as a predicate element for either act, the rape must be committed while the defendant was “acting in concert with another person ….” (PC 264.1.) Given this predicate element, PC 264.1 clearly states a specific intent crime.
In this regard, PC 264.1 necessarily implies that “acting in concert” must be for the purpose of committing a rape. Without doubt, this is true as to aiding and abetting since an aider and abettor must act with the specific intent of assisting the perpetrator. (People v. Beeman (1984) 35 C3d 547, 560-61; see also FORECITE F 400 Note 6.) Moreover, even when the defendant has “personally” committed the rape, his conduct of “acting in concert” must necessarily have been for the purpose of committing the rape. (See People v. Hesslink (1985) 167 CA3d 781, 789-90 [when a statute, in substance, requires an intent to achieve an additional consequence, specific intent is deemed to be an element of the statute].)
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 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 10.01a.
F 1001.5 Inst 6 Rape In Concert—Definition Of “In Concert”(PC 264.1)
*Add as Element to CC 1001 as follows:
The defendant [personally] [or] [by aiding and abetting such other person] committed the ___________ <charged sex offense> by force or violence and against the will of the victim.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
“In Concert” And “Aiding And Abetting” Are Note Synonymous—Although it may be difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert (People v. Lopez (1981) 116 CA3d 882, 887) “aiding and abetting need not in every case be synonymous with ‘acting in concert.'” (People v. Wheeler (1977) 71 CA3d 902, 906; see also Lopez 116 CA3d at 887; People v. Adams (1993) 19 CA4th 412, 444-46 [argument rejected that CJ 10.01 implies acting in concert is synonymous with aiding and abetting].)
Accordingly, CC 1001 is inaccurate by equating aiding and abetting with “acting together in a group.” CC 1001 could be construed by reasonable jurors so that the element of “acting in concert” or “acting together in a group” is satisfied by the defendant’s status as an aider and abettor. Therefore, “acting together as a group” should be added as an element.
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 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 10.01b.
