F 10.10

F 10.10 n1 Oral Copulation: Definition Of Duress And Menace (PC 288a(c)).

There is authority for the proposition that the court need not instruct sua sponte on the statutory definition of “duress.” (People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221].) However, CJ 10.42 utilizes the Pitmon definition of duress in its instruction upon PC 288b (lewd act with a child). Moreover, as of January 1, 1991, the legislature amended the rape statute (PC 261) to include the Pitmon definition of duress. (See PC 261(b).) Therefore, there is no reason why this definition should not be given upon request in any forcible sex offense case. (See People v. Poggi (88) 45 C3d 306, 327 [246 CR 886] [language of statute defining the crime is generally an appropriate basis for jury instruction].)

The amendment to PC 261 also provides the following definition of menace: “any threat, declaration or act which shows an intention to inflict an injury upon another.” (PC 261(c).)

F 10.10 n2 Oral Copulation: Any Contact Is Sufficient (PC 288a(c)).

A 1989 pocket part revision to CJ 10.10 et. al. required “substantial contact” for a finding of oral copulation. However, even though this definition appeared to be based upon Witkin’s discussion of the subject (2 Witkin and Epstein, California Criminal Law (2 Ed. 1988) § 784, pp. 885-86), People v. Grim (92) 9 CA4th 1240, 1242-43 [11 CR2d 884] disagreed and held that “any contact, however slight,” is sufficient. Hence, according to Grim, the 1988 version of the instruction (as well as CJ 10.11, CJ 10.12, CJ 10.13, CJ 10.14, CJ 10.15 and CJ 10.16) is correct and the 1989 pocket part version is wrong.

F 10.10 n3 Sex Offenses: Capacity To Consent — Definition Of “Developmental Disability.”

(See FORECITE F 10.00 n7.)

F 10.10a

Forcible Oral Copulation: Requirement That Victim Be Alive

(PC 288a(c))

*To be added following item 2b of CJ 10.10 (1989 Revision):

[5. The victim was alive at the moment of penetration.]

Points and Authorities

[See FORECITE F 10.00a.]

NOTES

Good Faith Belief That Victim Was Dead. (See FORECITE F 10.00e.)

F 10.10b

Forcible Oral Copulation: Definition Of Force

(PC 288a(c))

ALERT: People v. Griffin (2004) 33 C4th 1015 disapproved use of the Pitmon/Cicero [People v. Pitmon (85) 170 CA3d 38; People v. Cicero (84) 157 CA3d 465] definition of force in rape prosecutions. The judge is not under a sua sponte obligation to so define the term. (See also People v. Gulido (2005) 125 CA4th 566 [rationale of Griffin applies to oral copulation; no definition of force required].)

However, “[t]here are several nonlegal definitions of ‘force’ that have been cited in the cases. . . .” (Id. at pp. 1023.) Since jurors are not permitted to refer to dictionaries, instruction on a single unified definition should be considered, if requested. (Cf. FORECITE CHK III(B).)

*To be added at end of CJ 10.10 (1989 Revision):

The term “force” means physical force that is substantially different from or substantially greater than that necessary to accomplish the sexual intercourse itself.

Points and Authorities

[See FORECITE F 10.00b.]

F 10.10c

Forcible Oral Copulation: Proof Necessary

To Establish Element Of Fear

(PC 288a(c))

*To be added at end of CJ 10.10:

The element of fear is not established simply by a substantive feeling of fear by __________ [insert name of alleged victim]. The following must be established beyond a reasonable doubt:

1. __________ genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce [him] [her] to submit to sexual intercourse against [his] [her] will, and

2. __________’s fear was reasonable under the circumstances or, if not reasonable, the perpetrator knew of __________’s subjective fear and took advantage of it.

Points and Authorities

[See FORECITE F 10.00c.]

F 10.10d

Violent Sex Offenses: Definition Of Duress And Menace

*Add to CJ 10.10:

The term “duress” means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim and [his] [her] relationship to the perpetrator are factors to consider.

Points and Authorities

There is authority for the proposition that the court need not instruct sua sponte on the statutory definition of “duress.” (People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221]; but see People v. Valentine (2001) 93 CA4th 1241, 1250 [113 CR2d 748] [People v. Pitmon (85) 170 CA3d 38, 50 [216 CR 221], improperly concluded that the term duress has “no technical meaning” and can be “commonly understood”]; compare People v. Elam (2001) 91 CA4th 298 [110 CR2d 185] [suggesting that the common dictionary definition of duress should prevail over the express legislative language].) However, CJ 10.42 utilizes the Pitmon definition of duress in its instruction upon PC 288b (lewd act with a child). Moreover, as of January 1, 1991, the legislature amended the rape statute (PC 261) to include the Pitmon definition of duress. (See PC 261(b).) Therefore, there is no reason why this definition should not be given upon request in any forcible sex offense case. (See People v. Poggi (88) 45 C3d 306, 327 [246 CR 886] [language of statute defining the crime is generally an appropriate basis for jury instruction].) In point of fact, the CALJIC version of CJ 10.00 does include the definition.

The amendment to PC 261 also provides the following definition of menace: “any threat, declaration or act which shows an intention to inflict an injury upon another.” (PC 261(c).)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]