SERIES 1000 SEX OFFENSES
F 1045 Sexual Penetration By Force, Fear, Or Threats (PC 289(a)(1) & (2), (g))
TABLE OF CONTENTS
F 1045.1 Titles And Identification Of Parties
F 1045.1 Inst 1 Sexual Penetration By Force, Fear, Or Threats—Title
F 1045.1 Inst 2 Identification Of Prosecution And Defendant
F 1045.2 Sexual Penetration By Force, Fear, Or Threats—Tailoring To Facts: Persons, Places, Things And Theories
F 1045.2 Inst 1 Tailor Element 1 To Facts And Prosecution Theory Of Penetration
F 1045.3 Sexual Penetration By Force, Fear, Or Threats—Language That Is Argumentative, Confusing, Etc.
F 1045.3 Inst 1 Purpose Of Self-Penetration As Enumerated Element
F 1045.4 Sexual Penetration By Force, Fear, Or Threats—Burden Of Proof Issues
F 1045.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 1045.4 Inst 2 Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
F 1045.4 Inst 3 Modification Required Where ID At Issue
F 1045.5 Sexual Penetration By Force, Fear, Or Threats—Elements And Definitions
F 1045.5 Inst 1 Victim Alive As Element
F 1045.5 Inst 2 Definition Of Kidnap And False Imprisonment
F 1045.5 Inst 3 Alternative 4A: Include Definitions In Elements
F 1045.5 Inst 4 Proof Necessary To Establish Element Of Fear (PC 26)
F 1045.5 Inst 5 Forcible Sex Offenses: Definition Of Duress
F 1045.6 Sexual Penetration By Force, Fear, Or Threats—Defense Theories
F 1045.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
F 1045.6 Inst 2 Forcible Sex Offenses: Prior “Dating” Relationship Should Not Be Ignored (PC 261.6)
F 1045.6 Inst 3 Forcible Sex Offenses: Consent Defined—No Need To Instruct On Prior “Dating” Relationship
F 1045.7 Sexual Penetration By Force, Fear, Or Threats—Preliminary Fact Issues [Reserved]
F 1045.8 Sexual Penetration By Force, Fear, Or Threats—Unanimity/Duplicity/Multiplicity [Reserved]
F 1045.9 Sexual Penetration By Force, Fear, Or Threats—Lesser Offense Issues [Reserved]
F 1045 Notes
F 1045 Note 1 Sexual Penetration By Force, Fear, Or Threats—CALCRIM Cross-References And Research Notes
F 1045 Note 2 Sex Crimes: Entrapment
F 1045 Note 3 Penetration With Foreign Object: Double Jeopardy If Preparatory To Intercourse
F 1045 Note 4 Penetration By Foreign Object: Definition Of Penetration
Return to Series 1000 Table of Contents.
F 1045.1 Titles And Identification Of Parties
F 1045.1 Inst 1 Sexual Penetration By Force, Fear, Or Threats—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 1045.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 1045.2 Sexual Penetration By Force, Fear, Or Threats—Tailoring To Facts: Persons, Places, Things And Theories
F 1045.2 Inst 1 Tailor Element 1 To Facts And Prosecution Theory Of Penetration
*Modify CC 1045, Element 1, as follows [added language is underlined; deleted language is stricken]:
1. The defendant committed an act of sexual penetration with another person [penetrated the [genital] [or] [anal] opening of _______________ <name of alleged victim>];
OR
[caused _______________ <name of alleged victim> to penetrate [the defendant’s] [______________’s <name of alleged victim>] [genital] [or] [anal] [opening];
OR
[caused _______________ <name of alleged victim> to penetrate (his/her) own [genital] [or] [anal] [opening]];
Points and Authorities
The CALCRIM language leave Element 1 vague as to the specific act upon which the prosecution is relying. (See FORECITE F 400.2 Inst 1.)
F 1045.3 Sexual Penetration By Force, Fear, Or Threats—Language That Is Argumentative, Confusing, Etc.
F 1045.3 Inst 1 Purpose Of Self-Penetration As Enumerated Element
*Add to CC 1045 as enumerated element when self-penetration is alleged:
_______________ <name of alleged victim> was caused to penetrated (himself/herself) for the purpose of causing pain, injury, or discomfort or for sexual arousal or gratification.
Points and Authorities
The CALCRIM language does not clearly and expressly include what the prosecution must prove in the enumerated elements. (See FORECITE F 400.2 Inst 1.)
Note: The definition of “sexual abuse” is incorporated into the above element. (See FORECITE F 417.5 Inst 2.)
F 1045.4 Sexual Penetration By Force, Fear, Or Threats—Burden Of Proof Issues
F 1045.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 1045.4 Inst 2Victim’s Lack Of Clothing Insufficient To Establish Specific Sexual Intent
See FORECITE F 1000.4 Inst 5.
F 1045.4 Inst 3 Modification Required Where ID At Issue
*Modify CC 1045, paragraph 10, sentence 2 as follows [added language is underlined; deleted language is stricken]:
When deciding whether the act was accomplished by duress, consider all the circumstances, including the age of the other person and (his/her) relationship to the defendant perpetrator.]
Points and Authorities
See FORECITE F 1000.4 Inst 6.
F 1045.5 Sexual Penetration By Force, Fear, Or Threats—Elements And Definitions
F 1045.5 Inst 1 Victim Alive As Element
See FORECITE F 1000.5 Inst 5.
F 1045.5 Inst 2Definition Of Kidnap And False Imprisonment
See FORECITE F 1000.5 Inst 6.
F 1045.5 Inst 3 Alternative 4A: Include Definitions In Elements
See FORECITE F 1000.5 Inst 7.
F 1045.5 Inst 4 Proof Necessary To Establish Element Of Fear(PC 26)
See FORECITE F 1000.5 Inst 8.
F 1045.5 Inst 5 Forcible Sex Offenses: Definition Of Duress
See FORECITE F 1111.5 Inst 2.
F 1045.6 Sexual Penetration By Force, Fear, Or Threats—Defense Theories
F 1045.6 Inst 1 Sex Offense: Good Faith Belief That Victim Was Dead
See FORECITE F 1000.6 Inst 3.
F 1045.6 Inst 2 Forcible Sex Offenses: Prior “Dating” Relationship Should Not Be Ignored (PC 261.6)
See FORECITE F 1000.6 Inst 7.
F 1045.6 Inst 3 Forcible Sex Offenses: Consent Defined—No Need To Instruct On Prior “Dating” Relationship
See FORECITE F 1000.6 Inst 4.
F 1045.7 Sexual Penetration By Force, Fear, Or Threats—Preliminary Fact Issues [Reserved]
F 1045.8 Sexual Penetration By Force, Fear, Or Threats—Unanimity/Duplicity/Multiplicity [Reserved]
F 1045.9 Sexual Penetration By Force, Fear, Or Threats—Lesser Offense Issues [Reserved]
F 1045 NOTES
F 1045 Note 1 Sexual Penetration By Force, Fear, Or Threats—CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
See FORECITE F 1000 Notes
CALCRIM 1000 [Rape or Spousal Rape by Force, Fear, or Threats]
CALCRIM 1046 [Sexual Penetration in Concert]
CALCRIM 1047 [Sexual Penetration of an Intoxicated Person]
CALCRIM 1048 [Sexual Penetration of an Unconscious Person]
CALCRIM 1049 [Sexual Penetration of a Disabled Person]
CALCRIM 1050 [Sexual Penetration of a Disabled Person in a Mental Hospital]
CALCRIM 1051 [Sexual Penetration by Fraud]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1045 Note 2 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
F 1045 Note 3 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.
CALJIC NOTE: See FORECITE F 10.30 n1.
F 1045 Note 4 Penetration By Foreign Object: Definition Of Penetration
(See People v. Quintana (2001) 89 CA4th 1362 [for purposes of PC 289, only penetration of genital opening (labia majora) is required for penetration with a foreign object (PC 289(k)(1)].)
CALJIC NOTE: See FORECITE F 10.30 n2.