Category Archives: Blog

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Instruction on Necessary Intent to Commit the Act without Consent of the Victim

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, the United States District Court held that a portion of CC 890 was invalid when the target offense is assault with intent to commit sexual penetration because neither CC 890 nor CC 1045 inform a jury that the defendant must have the specific intent to commit the act without the consent of the victim. (Hall v. Cullen (N.D. 2010) 2010 WL 2991663, 2010 U.S. Dist. LEXIS 89946.)

 

Of course, Hall v. Cullen is a federal district court case that is not controlling on California state court decisions as to which jury instructions to use. (See People v. Zapien (1993) 4 Cal. 4th 929, 989 [“Decisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.”].) However, courts should use extreme caution in instructing the jury with CC 890 when the target crime requires specific intent. Although not required under People v. Dillon, it will probably be a good idea to go ahead and inform the jury regarding specific intent, e.g. “The offense of assault with the intent to commit sexual penetration requires that the defendant intend to commit the sexual penetration without the victim’s consent.”

 

The Dillon court recognized that CC 890 does not expressly provide that the assault must be non-consensual. Although the court found that other instructions sufficiently address this problem, this CC itself should be modified to expressly provide:

 

The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.

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Touching Must be Done in Lewd and Lascivious Manner

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. (Ibid.) The Court of Appeal urged “that the Judicial Council’s Advisory Committee on Criminal Jury Instructions reconsider the language of this sentence and propose new language that simply states that the touching need not be made to an intimate part of the victim’s body, so long as it is done with the required intent.”

 

However, as of August, 2014 this defect has not been corrected.

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Pandering: Clarification of Elements

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 open questions of (1) whether specific intent is required for the crime of pandering and (2) whether one can encourage another person to become a prostitute when one believes that the target in question is already a prostitute. The answer to both questions is now yes. The committee revised CC No. 1151, Pandering, accordingly. It updated the instruction further to reflect the ruling in People v. Dixon (2011) 191 Cal. App. 4th 1154, that pandering requires services procured for someone other than the defendant. The committee added citations to both cases to the bench notes. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 28, 2012, p. 3.)

 

In the August, 2012, revision, the committee stated that “In response to a comment from the collective appellate defense projects, the committee revised the definition of ‘pandering’ and ‘prostitution’ in [CC 1151], Pandering, to clarify how the act of pandering must be with ‘someone other than the defendant,’ under People v. Dixon (2011) 191 Cal. App. 4th 1154, 1159-60. The previous revision had embedded this language in the definition of “prostitute” and the commentator noted that it would be more clear if embedded in the definition of ‘pandering.’ The committee agreed.”

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Rape of Intoxicated Victim: Degree of Intoxication

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 woman by stating that the woman must be “so intoxicated that she cannot give legal consent.” The other language of the instruction that provides that the woman must be “able to understand and weigh the physical nature of the act, its moral character, and probable consequences” sets a sufficient standard for intoxication. A woman who exercises poor judgment is still exercising judgment in deciding whether to have sexual intercourse “so long as the woman is able to understand and weigh the physical nature of the act, its moral character, and probable consequences.”

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Sex Crimes: Consent And Withdrawal Of Consent: CC’s 2013 Revision

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 bracketed language is optional, to be given only when necessary. (Advisory Committee on Criminal Jury Instructions, Report to the Judicial Council for meeting of February 26, 2013, pp. 3-4.)

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Robbery: Defense Theory That Force Was Incidental

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 qualified as a robbery or only qualified as grand theft-person, defense counsel should draft an instruction explicitly explaining this difference. If there is any substantial evidence presenting this issue, the court should give an instruction on that difference. (People v. Panah (2005) 35 Cal. 4th 395, 484.)

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When Is A Possession Of Property Owned By Another A Victim Of Robbery

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 what types of victims can be in constructive possession of property when the victims are employees and property is taken from their employer in robbery cases. (Ibid.) Scott observed that CC, unlike the CJ equivalent, provides a pinpoint instruction to these situation which is consistent with Frazer. (Ibid.)

 

The portion of CC 1600 referenced by Scott provides:

 

If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the store or business is taken by force or fear.

 

Despite this portion of CC 1600 being based on Frazer, and Scott’s disapproval of Frazer, the CC instruction still appears to correctly state the law in contexts other than ones dealing with employees, and Scott did not indicate otherwise. In light of Scott, however, courts should not rely on Frazer to further modify or narrow the definition of possession and control for purposes of robbery.

 

People v. Bradford (2010) 187 Cal. App. 4th 1345, 1352-53, upheld CC 1600 in the context of advising the jury when persons had sufficient relation with the owners of property to constitute robbery victims:

 

The version of [CC1600] that was given to the jury in this case did not explicitly advise the jury that a “special relationship” between the guards and [the business that owned the property] was necessary, but it did require a determination that the guards were “representatives” of the store with express or implicit authority over the property. We agree with the Attorney General that more was required to prove the guards were ‘representatives’ of [the business that owned the property] than would have been needed to prove that they had a “special relationship” with that business. The instruction given was, if anything, more stringent than the requirements recognized in People v. Scott, 45 Cal 4th 743, and any defect inured to appellant’s benefit.

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Reasonableness Of Victim’s Fear: Request For Instruction As Defense Theory

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. Morehead itself cites the authority requiring that such a victim’s fear must be reasonable. (Id. at 772.) However, when appropriate, the defense should consider requesting such an instruction.

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No Requirement That The Movement Must “Substantially Increase Risk Of Harm” To The Victim

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 above the risk inherent in the commission of the underlying crime. (People v. Robertson (2012) 208 Cal. App. 4th 965, 980-82.)

The current version of the aggravated kidnapping statute, PC § 209(b)(2), requires that the prosecution prove beyond a reasonable doubt that a defendant’s movement of the victim “increased the risk of harm to the victim over and above that which is inherent in the sexual offense itself. [But], section 209, subdivision (b)(2) does not require proof that the movement substantially increased the risk of harm to the victim.” (Ibid.)

Thus, Dominguez is not controlling authority on this issue because the kidnapping in Dominguez occurred before the operative date of the 1997 amendment, and hence Dominguez did not apply the amended version of the law. (Ibid.)

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Imperfect Self Defense Not Applicable To Shooting At Inhabited House Or Occupied Vehicle

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 1158, 1171.)