SERIES 1000 SEX OFFENSES
F 1002.5 Rape Of Intoxicated Woman Or Spouse—Elements And Definitions
TABLE OF CONTENTS
F 1002.5 Inst 1 Victim Alive As Element
F 1002.5 Inst 2 (a & b) Rape: “Should Have Known” Requires Consideration Of Reasonable Person In Defendant’s Situation
F 1002.5 Inst 3 Include Definition Of Legal Consent In “Prevented From Resisting” Element
F 1002.5 Inst 4 Sex Offense Based On Constructive Knowledge
Return to Series 1000 Table of Contents.
F 1002.5 Inst 1 Victim Alive As Element
See FORECITE F 1000.5 Inst 5.
F 1002.5 Inst 2 (a & b) Rape: “Should Have Known” Requires Consideration Of Reasonable Person In Defendant’s Situation
*Modify CC 1002, Element 4 as follows [added language is underlined; deleted language is stricken]:
Alternative a:
4. The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance that prevented the woman _______________ <name of alleged victim> from resisting.
OR
A reasonable person in the defendant’s situation, considering all the circumstances as they appeared to and were known to the defendant, would have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman _______________ <name of alleged victim> from resisting.
Alternative # 2:
*Add to Element 4 as follows:
In evaluating whether the prosecution has proven beyond a reasonable doubt that the defendant should have known that ______________ <insert fact at issue>, consider what a reasonable person in the defendant’s situation, considering all the circumstances as they appeared to and were known to the defendant, would have known.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Reasonable Person Standard For “Should Have Known” Determination—See FORECITE F 820.5 Inst 3.
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 1002.5 Inst 3 Include Definition Of Legal Consent In “Prevented From Resisting” Element
*Replace CC 1002, Element 4 with the following:
The defendant knew that _______________ <name of alleged victim> was so intoxicated that (he/she) could not freely and voluntarily consent to or know the nature of the penetration. The prosecution must prove that _______________ <name of alleged victim> was not able to exercise reasonable judgment which means that (he/she) was not able to weigh the physical nature of the penetration, its moral character or its probable consequences.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Incorporation Of Definitions In Elements—The statutory “prevented from resisting” language actually means unable to legally consent (see People v. Giardino (2002) 82 CA4th 454, 465-66) and unable to legally consent actually means unable to exercise reasonable judgment and to freely and voluntarily consent knowing the nature of the act. (PC 261.6.) Hence, it is cumbersome and potentially confusing to use the “prevented from resisting” language in explaining the elements of the charge. It is simpler and more precise to include what the prosecution must really prove in the element itself.
[See FORECITE F 417.5 Inst 2.]
Improper Burden Shifting—Moreover, the CALCRIM format also contains improper burden shifting language by defining legal consent separately. (See generally FORECITE F 1000.4 Inst 2.)
F 1002.5 Inst 4 Sex Offense Based On Constructive Knowledge
*Modify CC 1002 Element 4 as follows [deleted language is stricken]:
4. The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Constructive Knowledge—The CALCRIM instruction is incorrect because it uses the phrase “reasonably should have known” for a crime which is clearly malum in se and for which an ordinary negligence standard is not permitted. (See People v. Simon (1995) 9 C4th 493, 521 [offenses which are not malum prohibitum “are subject to the requirements of PC 20”]; but see People v. Linwood (2003) 105 CA4th 59, 67-72.) Ordinary negligence is not a constitutionally permissible mental state for a malum in se felony criminal offense. (Simon, 9 C4th at 521-22; see also People v. Smith (1997) 57 CA4th 1470, 1479 [use of natural and probable consequences standard for assault liability was erroneous since it improperly stated a “negligence” standard]; People v. Martin (1989) 211 CA3d 699, 711-12 [“should have foreseen” instructional language improperly permitted jury to convict on a negligence standard]; U.S. v. Batt (D. Kan. 1993) 811 FSupp 625, 626-28; State v. Carrasco (NM 1997) 946 P2d 1075, 1079-80 [natural and probable consequences doctrine disapproved as, inter alia, “inconsistent with the culpability level for accomplice liability established by the Model Penal Code” (§ 2.06)].)
Moreover, because the prohibition against negligence-based criminal liability is firmly rooted in the common law (see generally LaFave, Scott, Substantive Criminal Law §6.8(b) (West, 1986) p. 158), a state’s violation of that prohibition is a fundamental due process abridgement. (See Montana v. Eglehoff (1996) 518 US 37 [135 LEd2d 361; 116 SCt 2013] [plurality opinion] [limitation on intoxication defense does not offend due process because intoxication was not a defense at common law]; see also Schad v. Arizona (1991) 501 US 624 [115 LEd2d 555; 111 SCt 2491].)
(See FORECITE PG VII(C)(48).)
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 2.3 [Prosecution’s Burden Of Proof: Irrational Permissive Inference]
FORECITE CG 3.12 [Requirement Of Criminal Mens Rea]
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 10.02b.