Return to CALJIC Part 9-12 – Contents
F 10.30 n1 Penetration With Foreign Object: Double Jeopardy If Preparatory To Intercourse.
In Rhoden v. Rowland (9th Cir. 1993) 10 F3d 1457, the court held that federal double jeopardy principles are not implicated when the defendant is convicted and sentenced separately for an act of rape and an act of digital penetration. (10 F3d at 1461.) However, in so doing, the court relied on the fact that the digital penetration and rape were not simultaneous and the act of penetration did not appear to have been necessary or preparatory to the act of intercourse. (10 F3d at 1462.) Hence, an argument remains that separate convictions and sentences violate double jeopardy when the digital penetration and rape are simultaneous and the digital penetration was necessary or preparatory to the act of intercourse.
F 10.30 n2 Penetration By Foreign Object: Definition Of Penetration.
(See People v. Quintana (2001) 89 CA4th 1362 [108 CR2d 235] [for purposes of PC 289, only penetration of genital opening (labia majora) is required for penetration with a foreign object (PC 289(k)(1)].)
F 10.30a
Penetration By Foreign Object: Requirement That Victim Be Alive
(PC 289(a))
*To be added following item 4 of CJ 10.30 (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 10.30b
Penetration By Foreign Object: Definition Of Force
(PC 289(a))
*To be added at end of CJ 10.30 (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 10.30c
Penetration By Foreign Object:
Proof Necessary To Establish Element Of Fear
(PC 289(a))
*To be added at end of CJ 10.30:
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 10.30d
Violent Sex Offenses: Definition Of Duress And Menace
(PC 289(a))
*To be added to CALJIC 10.30:
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
See FORECITE F 10.10d.
