Instruction on Necessary Intent to Commit the Act without Consent of the Victim
October 9th, 2015
People v. Dillon (2009) 174 Cal. App. 4th 1367, upheld a conviction using CC 890 in conjunction with CC 1045 dealing with the target offense of sexual penetration by force or fear. However, in 2010, when the same defendant in the Dillon case filed a petition for writ of habeas corpus in a federal court, […]
Tags: CC 1045, CC 890, Defense Theory: Consent, Sample Instructions, Sex Crimes
Touching Must be Done in Lewd and Lascivious Manner
October 5th, 2015
People v. Cellar (2012) 208 Cal. App. 4th 1067, 1071, noted that CC 1120 improperly provides that the “touching need not be done in a lewd or sexual manner.” This language could be interpreted by a jury to negate the requirement in CC 1120 that the touching be done in a lewd or lascivious manner. […]
Tags: CC1111, Lewd and Lascivious, Sex Crimes
Pandering: Clarification of Elements
October 2nd, 2015
In February, 2012, the CC Committee revised CC 1151 explaining that it does not matter whether the “prostitute” was a prostitute already or whether he or she was an undercover police officer. In People v. Zambia (2011) 51 Cal. 4th 965, Supreme Court Justice, and former committee chair, Carol A. Corrigan answered the long […]
Tags: CC 1151, Pandering
Rape of Intoxicated Victim: Degree of Intoxication
September 28th, 2015
People v. Smith (2011) 191 Cal. App. 4th 199, 204-05, held that CC 1002 correctly incorporates the law of rape of an intoxicated woman as set forth in People v. Giardino (2000) 82 Cal. App. 4th 454, 472. “The instruction sufficiently describes the degree of intoxication required for the crime of rape of an intoxicated […]
Tags: CC 1002, Rape, Sex Crimes
Sex Crimes: Consent And Withdrawal Of Consent: CC’s 2013 Revision
September 25th, 2015
The committee revised the final bracketed paragraph on “Reasonable Belief in Consent” by changing the first sentence to read thus: The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse]. The […]
Tags: CC 1000, Rape, Sex Crimes
Robbery: Defense Theory That Force Was Incidental
September 21st, 2015
The question whether a crime was robbery or grand theft-person frequently arises. The Related Issues section cites a case noting that the force required for robbery must be more than the incidental touching necessary to take the property. (People v. Garcia (1996) 45 Cal. App. 4th 1242.) Where the issue of whether the force used […]
Tags: CC 1600, Defense Theory Instructions, Robbery
When Is A Possession Of Property Owned By Another A Victim Of Robbery
September 18th, 2015
People v. Scott (2009) 45 Cal. 4th 743, 751-757, discussed the language in CC 1600 dealing with constructive possession of property by store employees. Scott disapproved the Court of Appeal’s opinion in People v. Frazer (2003) 106 Cal. App. 4th 1105, to the extent that Frazer found that courts should adopt a narrow view regarding […]
Tags: CC 1600, Judge Duty to Instruct, On Request, Robbery, Sua Sponte
Reasonableness Of Victim’s Fear: Request For Instruction As Defense Theory
September 14th, 2015
People v. Morehead (2011) 191 Cal. App. 4th 765, held that CC 1600 was not invalid for failing to instruct the jury that a robbery victim’s fear must be reasonable. Morehead simply held that the court does not have a sua sponte duty to instruct the jury that a robbery victim’s fear must be reasonable. […]
Tags: CC 1600, Judge Duty to Instruct, On Request, Robbery, Sua Sponte
No Requirement That The Movement Must “Substantially Increase Risk Of Harm” To The Victim
September 11th, 2015
The Authority section of CC 1203 also states “Movement Must Substantially Increase Risk of Harm to Victim,” citing People v. Dominguez (2009) 39 Cal. 4th 1141. However, the Legislature in 1997 rewrote the aggravated kidnapping statute to delete the requirement that the movement must substantially increase the risk of injury to the victim over and […]
Tags: CC 1203, Kidnapping for Ransom, Kidnapping for Robbery
Imperfect Self Defense Not Applicable To Shooting At Inhabited House Or Occupied Vehicle
September 7th, 2015
Self Defense and defense of others is applicable to a charge under PC § 246 alleging that the defendant shot at an inhabited house or occupied vehicle. (See CC 965, Bench Notes [judge has a sua sponte duty to instruct].) However, unreasonable self defense is not applicable. (People v. Rodarte (2014) 223 Cal. App. 4th […]
Tags: CC 965, Imperfect Self Defense, Self Defense, Shooting at Inhabited House or Occupied Vehicle
