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F 10.42.5a
Definition of Lewd or Lascivious Act
(PC 288)
*Modify ¶ 3 of CJ 10.42.5 as follows:
[See FORECITE F 10.41a.]
F 10.42.5b
Continuing Sexual Abuse: Definition Of “Recurring Access”
(PC 288.5(a))
* Add to CJ 10.42.5:
“Recurring access” means an ongoing ability to approach and contact someone time after time.
Points and Authorities
See People v. Rodriguez (2002) 28 C4th 543, 550 [122 CR2d 348] held that the term “recurring access” is not a technical legal term but instead is commonly understood by the jury as meaning an ongoing ability to approach and contact someone time after time.
NOTE: Rodriguez expressly disapproved People v. Gohdes (97) 58 CA4th 1520 [68 CR2d 719], to the extent that it is inconsistent with the Rodriguez opinion.
Also note that even though “recurring access” is a commonly understood term and no sua sponte definition need be given, this does not mean that a definition cannot be given upon request. (See FORECITE CHK III(B); see also People v. Ramsey (2000) 79 CA4th 621, 630 [94 CR2d 301] [implying that common term could have been defined if requested]; see also CHK III(B) [definition may be required of non-technical term if jury expresses lack of understanding].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
