Jury Instructions (Sex Offenses)
Category > Jury Instructions (Sex Offenses)
Updated 2/26/2024The trial court prejudicially erred in failing to instruct that battery is a lesser included offense of oral copulation of an unconscious person. Battery is a lesser included offense of oral copulation of an unconscious person, rape of an unconscious person and sexual penetration of an unconscious person. The trial court prejudicially erred in failing to instruct that battery was a lesser included offense of oral copulation of an unconscious person.id: 27262
Updated 2/26/2024The trial court erred by instructing that defendant, rather than the direct perpetrator, need be 18 years old in a prosecution for improper sex with a young child.Defendant instructed a mother to engage in sexual acts with her three year-old son. He was convicted of oral copulation of a child 10 years old or younger. (Penal Code section 288.7 (b).) However, the trial court erred by instructing the jury that defendant, instead of the mother who perpetrated the acts, had to be 18 years old or older at the time. The error was prejudicial where the evidence at trial did not establish the age of the mother.id: 26435
The trial court erred in failing to instruct that continual sexual abuse under section 288.5 was an alternative to the lewd acts charged under section 288, subd. (b).The trial court erred in refusing to instruct the jury that it could not convict defendant of both continual sexual abuse under Penal Code section 288.5, and individual lewd acts under section 288, subd. (b). The court vacated the section 288.5 conviction.id: 26122
Defendant could not be punished under both sections 209, subd.(d) and 667.61 for the same act of kidnapping.Defendant’s act of kidnapping the victim to commit a sex offense constituted a violation of both Penal Code section 209, subd.(d), and section 667.61. However, section 209, subd.(d) prohibits punishment under both provisions for the same act. The court was required to stay punishment for the kidnapping to commit rape or oral copulation conviction.id: 24579
The one strike law instruction regarding the qualifying offense of kidnapping failed to properly explain the increased risk of harm element, but the jurors found there was an increased risk so the error was harmless. The trial court instructed on the kidnapping qualifying circumstance for the one strike law, Penal Code section 667.61, subd.(d)(2). However, the instruction given did not adequately explain the requirement regarding the substantial increase in the risk of harm element. The error was harmless where the jurors found the movement of the victim increased the risk of harm and the issue was uncontested.id: 24580
The trial court erred by instructing that sexual penetration with a child under 10 and forcible sexual penetration are general intent crimes. The trial court erred when it instructed the jury that the crime of sexual penetration of a child 10 years old or younger (Penal Code section 288.7(b)) and forcible sexual penetration (section 289) are general intent crimes because of the requirement that the penetration must be committed for the purpose of sexual abuse, arousal or gratification. However, the error was harmless where the court otherwise instructed on the specific intent required for those crimes.id: 24532
The trial court erred by giving conflicting motive instructions in the child annoyance charges.Defendant was convicted of violating Penal Code section 647.6 - annoying or molesting children. In proving the charge, the prosecution had to show defendant was motivated by an unnatural sexual interest in children. The trial court erred by giving conflicting motive instructions - one that correctly stated the elements of section 647.6, and the other general instruction that the prosecution need not prove motive. The error was prejudicial where there was evidence supporting a contrary finding on the omitted element.id: 24477
The trial court erred by failing to instruct on nonforcible oral copulation of a minor as a lesser included offense of forcible oral copulation of a minor.Defendant was convicted of multiple counts of forcible oral copulation of a minor and forcible oral copulation of a minor in concert. However, the trial court prejudicially erred by failing to instruct on the lesser included offense of nonforcible oral copulation of a minor.id: 24357
The trial court erred by failing to instruct on sexual battery as a lesser included offense of forcible sexual penetration. Defendant was charged with sexual penetration by force. The trial court erred by failing to instruct on sexual battery as a lesser included offense given the evidence adduced at the preliminary hearing, which should be considered in applying the accusatory pleading test. The error required reversal. id: 24332
The trial court erred by failing to give a Mayberry instruction (sua sponte) on the misdemeanor sexual battery charge.A defendant may be entitled to an instruction under People v. Mayberry (1975) 15 Cal.3d 143, an honest and good-faith belief that the victim had consented to sexual contact, in a misdemeanor sexual battery case. In the present case, the trial court erred in failing to give the instruction where defendant testified that he touched the victim’s breast (over her bra) after she wrapped her legs around hm and pulled him on top of her. The error was prejudicial under either the Chapman or Watson standards give that the jury acquitted defendant of the rape and sexual battery counts.id: 24007
The trial court erroneously expanded the time period forming the basis of the lewd act charge when instructing on the need for jury unanimity.The trial court erred in its unanimity instruction by expanding the time period the jury could use when considering conduct forming the basis of the lewd act on a child charge. Given the confusion surrounding the instruction, the ambiguous nature of the prosecutor’s argument , and the jury’s acquittal of a similar charge, the error required reversal. id: 23537
The trial court prejudicially erred by failing to instruct on attempted sexual penetration as a lesser included offense of sexual penetration.The trial court erred by failing to instruct on attempted sexual penetration as a lesser included offense to the sexual penetration alleged to have occurred in 2010. The error was prejudicial given that under the circumstances it’s reasonably probable the jury would have convicted of the attempt if given that option.id: 23538
The mistake of fact defense applies to an attempt to commit a lewd act on a minor under 14 and the trial court erred by failing to instruct on the defense. The mistake of fact defense applies to the crime of attempt to commit a lewd act on a minor under 14 years of age. The trial court therefore erred by refusing to instruct on the defense because there was sufficient evidence to instruct on it as the MySpace profile listed the girl’s age as 18 before defendant was later informed she was 13. However, the error was not prejudicial because the evidence that defendant actually believed the girl was 13 was strong as he acknowledged that he was okay with her being 13 after originally believing she was 18.id: 23282
Defendant who entered an unmarried woman’s bedroom after seeing her boyfriend leave late at night and then had sex with her pretending to be her boyfriend, was not guilty of rape of an unconscious person.Penal Code section 261, subd.(a)(5) expressly provides that sexual intercourse by impersonation is rape only when the victim is married and the perpetrator impersonates the victim’s spouse. To prevent this provision from being superfluous, section 261, subd.(a)(4) is interpreted to hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of rape of an unconscious person. Because the prosecutor relied on that theory, the rape conviction was reversed even though the prosecutor also presented the valid theory that the victim was unconscious because she was asleep.id: 23030
Language in pattern instruction for continuous sexual abuse of a child contradicts itself as to whether touching needs to be sexual.Defendant was convicted of continuous sexual abuse of a child under Penal Code section 288.5. The pattern instruction describing the offense contradicts itself on the question of whether the touching of the child need be done in a lewd or sexual manner. However, any error was harmless where virtually all of the touching was sexual rather than incidental in nature.id: 22864
The trial court erred in failing to instruct on battery as a lesser included offense of lewd acts under section 288(a).Every lewd act is also a battery and therefore battery is a lesser included offense of lewd acts. The trial court therefore had a sua sponte duty to instruct the jury on the lesser included offense of battery.id: 22384
The trial court prejudicially erred by failing to give the Mayberry instruction regarding a defendant’s reasonable but mistaken belief that the rape victim consented to intercourse.Defendant was convicted of attempted rape by force. However, the trial court erred by failing to instruct that defendant was not guilty of the charged offense if he reasonably but mistakenly believed the victim consented to intercourse. The error was prejudicial where he always maintained that the victim consented and the prosecution told the jury defendant’s intent was irrelevant.id: 22235
Trial court erred in giving conflicting instructions on the mental state required for child annoyance under Penal Code section 647.6.The trial court properly instructed the jury on the mental state required for misdemeanor child annoyance charges: Such acts or conduct must be motivated by an unnatural or an abnormal sexual interest in the victim. (CALJIC 16.440). In another instruction, however, the trial court told the jury that motive is not an element of the crime charged and need not be shown. (CALJIC 2.51). Providing these conflicting instructions on the mental state element was erroneous. Moreover, defense counsel did not invite the error even though both sides requested CALJIC 2.51. The error required reversal of the conviction.id: 10083
Intending to entice a male minor to masturbate himself does not satisfy the "seducing" intent element of section 288.2, subd.(b).Defendant was convicted of attempted distribution or exhibition of harmful matter to a minor over the Internet under Penal Code sections 288.2, subd.(b) and 664. Defendant's communications were with police officers identifying themselves as fictitious young boys. The trial court prejudicially erred when instructing on the definition of "intent or purpose of seducing" as the instruction permitted a conviction on defendant's intent to persuade the boys to masturbate alone rather than requiring an intent to persuade the boys to participate in sexual activity in partnership with defendant.id: 17663
Court erred in instructing the jury by defining a lewd or lascivious act as any touching with the required intent since the law requires a sexual act.Defendant was convicted under Penal Code section 288, subd. (a), of committing a lewd act upon a child under 14 - his niece. The court erred in instructing the jury by defining a lewd or lascivious act as any touching with the required intent, since the law requires a sexual act. The instructions given did not provide adequate guidance for determining whether a touching constituted a violation of section 288, subd. (a) or a misdemeanor under section 647.6 (annoying or molesting a child). However, the error was harmless as the placement of defendant's hands on the inside of the victim's thighs introduced a sexual taint and tied the various elements together into a scenario of sexual conduct.id: 10067
Court erred in instructing that it is legally possible to rape a dead person.The trial court erred in instructing the jury that it is legally possible to rape a dead body. The error required reduction of the rape conviction to attempted rape. However, the error did not affect the attempted rape conviction, the validity of the rape felony-murder theory of first degree murder, or the rape special circumstance. A person who attempts to rape a live victim, kills the victim in the attempt, then has intercourse with the body, has committed only attempted rape, not actual rape, but is guilty of felony murder and is subject to the rape special circumstance.id: 10066
Battery is a lesser included offense of lewd acts.The trial court erred in failing to instruct sua sponte that battery was a lesser included offense of lewd acts under Penal Code section 288. However, in light of the evidence of defendant's sexual offenses against the other boys, no reasonable jury would have concluded that the incident was merely an offensive touching rather than a lewd act within the meaning of section 288.id: 19419
The trial court erred in failing to give a specific acts unanimity instruction in addition to an instruction allowing a conviction if the jurors unanimously agreed defendant committed all of the lewd acts described by the victim.Defendant was charged with ten counts of lewd acts with a minor. The prosecution used identical generic statutory language to describe each of the ten counts (and their associated allegations of substantial sexual conduct.) The jury convicted defendant of the first count, hung on the second, and acquitted him on counts three through ten. However, the trial court erred by refusing defendant's request for a specific acts unanimity instruction as the evidence sufficiently differentiated from the types, locations and episodes of molestation. The instructional error was prejudicial under the Chapman standard. If, on retrial, defendant enters a plea of once in jeopardy, he will have the initial burden of going forward. He must make a nonfrivolous showing that he is charged with an offense for which he was previously placed in jeopardy. The prosecution will then have to establish that the new charges involve different offenses from the ones he was acquitted of committing.id: 18781
At defendant's trial for rape by intoxication, the court erred by failing to explain to the jury the meaning of "prevented from resisting".The jury was instructed in accordance with CALJIC No. 10.02, that an element of rape by intoxication under Penal Code section 261(a)(3) was that the victim was prevented from resisting the act by an intoxicating substance. The jury asked the court to define "resistance." The court erroneously implied the jury should give the term its common meaning. The court's response was erroneous and the court should have instructed that the offense is committed when the victim is so intoxicated that he or she is incapable of exercising the judgment required to decide whether to consent to the sex act. The error was prejudicial where there was evidence that the victim consented, had the capacity to do so, and that she was not so intoxicated that she was deprived of the ability to exercise reasonable judgment.id: 15403
The trial court had a sua sponte duty to instruct on the elements of the one strike circumstances.Defendant was convicted of multiple counts of robbery and several sex offenses. His sentence included four separate indeterminate terms of 25 years to life imposed under the one strike law - Penal Code section 667.61. The trial court erred in failing to instruct sua sponte on the elements of the one strike circumstances. However, some of the jury's findings on the one strike circumstances necessarily followed from its findings on other issues. To this extent there was either no error as the instructions on those issues were adequate to guide the jury in making its findings on the one strike circumstances, or else the error was harmless beyond a reasonable doubt because the jury necessarily resolved the factual question posed by the omitted instructions adversely to defendant under other, properly given instructions.id: 15390
Lewd act on a minor instructions were erroneous where there was no instruction that the touching itself had to be lewd or lascivious and sexual.Defendant persuaded two fifteen-year old girls to do a "strip tease" while he video taped them. He was convicted of two counts of committing lewd acts with minors under Penal Code section 288, subdivision (c), and inducing minors to participate in a film involving sexual conduct pursuant to section 311.4, subdivision (c). The instructions on the section 288 offense were erroneous in that they defined the crime as "any touching" of the body of the child with the required specific intent. There was no instruction that the touching itself had to be lewd or lascivious and sexual. The error was prejudicial given the prosecutor's argument that "any touching" would satisfy the statute and there was evidence of non lewd touchings. Moreover, the erroneous instructions infected the instructions on section 311.4, subdivision (c) as lewd and lascivious sexual act was never defined.id: 10080
Trial court erred in failing to instruct on the lesser offense of attempted misdemeanor distribution of harmful matter.Defendant was charged with attempted distribution or exhibition of harmful matter to a minor over the Internet in violation of Penal Code sections 288.2, subd.(b) and 664. The trial court erred in failing to instruct on the lesser included offense of attempted misdemeanor distribution of harmful matter in violation of section 313.1, subd.(a). Reasonable jurors could have found defendant distributed harmful matter to the fictitious minors believing he had the intent to arouse himself or them but lacked the intent to have any physical contact with them.id: 17665
Instruction accompanying section 1108 was infirm since it permitted a conviction of the current offense solely because defendant committed the prior sex offenses.At defendant's child molest trial, the court admitted evidence of prior sexual misconduct under Evidence Code section 1108. However, the court erred in instructing with CALJIC 2.50.01. The instruction permitted the jury to find defendant guilty of the current charges solely because he had committed prior sex offenses. The conviction was reversed where it could not be assumed the jury followed the constitutionally correct conflicting instruction.id: 15406
Trial court erred in not instructing the jury as to the facts it must find for purposes of the special sentencing allegation under California's one strike law.Defendant was convicted of forcible rape and first degree burglary and sentenced on the rape conviction to 25 years to life under California's one strike law, Penal Code section 667.61. The trial court erred in not instructing the jury what facts it must find for purposes of the special sentencing allegation under section 667.61. However, the error was harmless. Even if the jurors had been asked to determine the point at which defendant formed the intent to commit forcible rape it is not reasonably probable they would have found the intent was formed after defendant entered the premises.id: 15392
Instruction improperly suggested victim's pain established the use of force.Jury instruction improperly suggested that although physical harm is not required for a rape conviction, the victim's pain established physical injury which in turn established that force was used. The error was harmless where there was substantial proper evidence of both force and fear.id: 10077
Court erred in failing to instruct on reasonable good faith belief in consent notwithstanding that defendant did not rely on that defense.Defendant instructed the victim to disrobe. She followed him into the kitchen [instead of leaving] with a steak knife and said No. Defendant took the knife away and slapped her. He did not threaten her or attempt to use the knife. He led her into the bedroom and again instructed her to disrobe. This time she complied. The evidence was substantial enough to permit a jury to find that defendant had a good faith, albeit mistaken, belief that the victim consented to the sexual acts he performed. The court therefore had a sua sponte duty to instruct on the reasonable good faith belief in consent notwithstanding that defendant did not rely on that defense.id: 16421
Failure to instruct on penetration as an essential element of forcible sodomy was not prejudicial where evidence established at least slight penetration.The trial court erred in failing to instruct the jury that penetration was an essential element of forcible sodomy. However, the error was harmless where victim testified the act triggered a defecation response, and nothing short of at least slight penetration would trigger such a reaction.id: 10074
When instructing the jury on assault with intent to commit rape, the court must also define rape.Where a defendant is charged with assault with intent to commit rape the jury must first be instructed on the elements of the crime and then on the specific offenses of assault and rape. The court's error in failing to give the rape instruction was reversible where counsel never defined the elements of rape in closing argument.id: 10084
Updated 3/4/2024CSAAS instruction did not permit the use of expert testimony to prove defendant sexually assaulted the alleged victims.Defendant argued the trial court erred by using CALCRIM No. 1193 to instruct on CSAAS expert testimony because the instruction fails to inform the jurors that CSAAS assumes the truth of the complaining witness’s claims. However, there was no error as it was not likely the jurors understood the instruction as permitting the use of Dr. Urquiza’s testimony for the improper purpose of proving that defendant sexually abused the accusers.id: 28179
Updated 3/4/2024The trial court did not err by refusing to instruct on the good faith belief in consent (Mayberry) for the defendant who was convicted of penetrating a 14 year-old with a foreign object.Defendant as convicted of the forcible penetration with a foreign object of a 14 year-old. The trial court did not err in refusing to instruct on the defense of reasonable and good faith belief in consent. (People v. Mayberry (1975) 15 Cal.3d 143.) There was no substantial evidence to support the instruction. There was no evidence of equivocal conduct on the part of the victim from which the jury would find a good faith belief. Her agreement to a massage was not an agreement to sexual touching. The fact that she did not say “no” or “stop” was not evidence of equivocal behavior. Any subjective belief defendant may have had regarding the victim’s consent was not unreasonable.id: 26856
Updated 2/26/2024Defendant forfeited the issue regarding the failure to give the Mayberry instruction at the trial for rape murder by failing to request the instruction at trial.Defendant argued the trial court erred by failing to instruct on the unreasonable belief that the victim consented to intercourse in a case involving the rape murder and rape murder special circumstance. However, defendant forfeited the issue by failing to request the instruction at trial. Any error in failing to so instruct was harmless given the compelling evidence that defendant strangled the victim to death during an act of rape.id: 26260
Updated 2/26/2024Defendant was not entitled to an instruction on a mistake of fact as to the victim’s age where he would have committed crimes even if the victim was older than 18.Defendant was convicted of child endangerment among other things. He argued trial counsel provided ineffective assistance by not requesting a mistake of fact instruction regarding his allegedly mistaken belief of the victim’s age. However, the mistake of fact defense was not available to defendant who still would have committed criminal offenses if the victim had been 18 years of age or older.id: 26498
Updated 2/23/2024The trial court did not err by failing to instruct on attempted indecent exposure.Defendant argued the trial court erred by failing to instruct on the lesser included offense of attempted indecent exposure. However, there was no factual circumstance in which the jury could have found defendant guilty of attempted indecent exposure and not guilty of indecent exposure. id: 26936
Updated 2/2/2024Rape in concert instruction was not erroneous by referring to “forcible rape” rather than “rape by force.”Rape in concert under Penal Code section 264.1(a) occurs when a defendant acting with another, commits a rape “by force or violence.” The instruction that referred to “forcible rape” rather than “rape by force” was not erroneous.id: 27872
The jury should not be instructed on the defense burden to prove accomplice status where defendant is charged with an in-concert crime. The defendant has the burden of proving that a witness is an accomplice for purposes of Penal Code section 1111. But some crimes, like sexual penetration in-concert and rape in-concert require proof that defendant acted with an accomplice, and the prosecution has the burden of proving that element. CALCRIM No. 334, which instructs jurors that defendant must prove a witness’s accomplice status, should be omitted when a defendant is changed with an in-concert crime. The failure to modify the instruction was not harmful where the jury was otherwise properly instructed on the prosecution’s burden of proving each element, and the comments on that point by both attorneys during closing argument.id: 26160
Unauthorized invasion of privacy is not a lesser included offense of using a minor for purposes of posing for sexual conduct.Defendant was convicted of using a minor for purposes of posing for sexual conduct in violation of Penal Code section 311.4, subd.(c). He argued the court erred by failing to instruct the jury sua sponte on the lesser uncharged offense of unauthorized invasion of privacy (section 647, subd.(j)(3)(A).) However, the court had no duty to instruct on authorized invasion of privacy because it is not a lesser included offense of using a minor for sexual posing under the elements or accusatory pleading test.id: 25851
The trial court properly treated the question of whether contact through the clothing constituted oral copulation as one of fact for the jury.Defendant was convicted of the aggravated sexual assault of a child (by oral copulation) in violation of Penal Code section 269, subd. (a)(4). During deliberations, the jury asked whether oral copulation could be accomplished “over the top of the clothing.” He argued the trial court erred by failing to answer that the offense requires skin-to-skin contact as a matter of law. However, some clothing is exceptionally flimsy, and the trial court properly treated the question of whether contact through clothing constituted oral copulation was one of fact for the jury.id: 25828
Instructing that consent was not a defense to the aggravated lewd acts charge did not violate defendant’s right to due process. In People v. Soto (2011) 51 Cal.4th 229, the court held that consent of the victim is not a defense to a charge of lewd acts under Penal Code section 288, subd.(b). Defendant argued that the instruction on that point violated his right to due process because he committed the lewd acts before Soto was published. Contrary to defendant’s claim, Soto’s holding was not an unforeseeable judicial enlargement of section 288, subd.(b)(1).id: 25708
Refusing to instruct on the reasonable belief that the victim was capable of consenting to sodomy was not improper where the requested instruction duplicated other parts of the instruction that were given.Defendant was convicted of sodomy of an intoxicated person in violation of Penal Code section 286, subd.(i). He argued the trial court prejudicially erred by refusing to instruct the jury that an actual and reasonable belief that the victim was capable of consenting was a defense. However, the optional language, the defense requested was a pinpoint instruction that duplicated other parts of the instruction given, namely the third element and the definition of “prevented from resisting.”id: 25353
The trial court did not err by refusing to instruct that sexual penetration by fraudulent misrepresentation of a professional purpose is not committed where the act is performed against the victim’s will. Defendant was a chiropractor convicted of sexual penetration by fraudulent misrepresentation of professional purpose in violation of Penal Code section 289, subd.(d)(4). The jury found that he digitally penetrated a client during a chiropractic massage. He argued the trial court erred by refusing to instruct that he would not be guilty of the charged offense if he penetrated the client against her will. However, the proposed instruction was incorrect because a victim’s unawareness of the nature of a sexual act is the equivalent of the lack of consent. id: 25138
Trial court had no sua sponte duty to instruct on the limited purpose of expert testimony on CSAAS.Defendant was convicted of continuous sexual abuse of a child under 14 based in part on expert testimony on Child Abuse Accommodation Syndrome. Contrary to defendant’s claim, the trial court had no sua sponte duty to give the pattern instructions (CALCRIM No. 1193) explaining the limited purpose of expert testimony on the CSAAS.id: 24474
The trial court did not err by failing to instruct on unlawful intercourse with a minor as a lesser included offense of forcible rape.Defendant was convicted of multiple counts relating to sexual misconduct involving an underage girl. He argued the trial court had a duty to instruct on statutory rape as a lesser included offense of forcible rape. However, unlawful intercourse with a minor is not a lesser included offense of forcible rape even under the accusatory pleading test. id: 24358
CALCRIM instruction for rape of an intoxicated woman was not misleading for failing to clarify the level of intoxication required for a conviction. Defendant argued the trial court gave incomplete and misleading instructions on rape of an intoxicated women because the instructions given failed to distinguish between the victim’s exercising poor judgment and the complete inability to exercise reasonable judgment. However, the court instructed with CALCRIM 1002 which properly provided a “real measure” of the degree of intoxication required for the crime of rape of an intoxicated woman. Contrary to defendant’s claim “reasonable judgment” and “poor judgment” are not mutually exclusive concepts. Neither did the instruction taint his conviction for rape of an unconscious woman.id: 21860
CALCRIM instruction on rape of an intoxicated woman properly distinguishes between a victim’s poor judgment and the inability to use reasonable judgment. Defendant argued the instructions on rape of an intoxicated woman were prejudicially incomplete and misleading because they failed to distinguish between a victim’s exercising bad judgment and the complete inability to exercise reasonable judgment. However, CALCRIM No. 1002 properly explains that the victim must be so intoxicated that she cannot give legal consent. Moreover, the instruction gives a legal definition of “reasonable judgment” as that term is used in the crime of rape of an intoxicated woman. id: 21955
The trial court did not err by instructing the jury that consent of the victim is not a defense to a forcible lewd act. Defendant argued the trial court erred when instructing on forcible lewd acts in violation of Penal Code section 288, subd.(b), it told the jurors that it is no defense that the child may have consented to the acts. Moreover, the evidence supported the prosecutor's theory of a forcible touching as defendant pulled the resisting girl's hand to his penis. And there was no evidence of consent. But consent is not a defense to a forcible lewd act.id: 21538
The jury must have believed that non-forcible lewd act under section 288, subd.(a) was the lesser included offense of a forcible lewd act. Defendant was convicted of committing a forcible lewd act against a child. He argued the instructions given were erroneous in that they led the jury to believe the lesser included offense to the charged crime was not a non-forcible lewd acts, but rather oral copulation of a child under 14 years who was 10 years younger than defendant. (Penal Code section 288(b)(1).) However, when looking at the arguments, instructions and verdict forms, the jury must have believed that non-forcible lewd acts was the appropriate lesser offense. id: 21539
Attempt was not a lesser included offense of sexual intercourse or sodomy of a child under 10. Defendant was convicted of sexual intercourse with a young child, sodomy of a young child, and oral copulation with a young child. The trial court did not err by failing to instruct on attempted intercourse, and attempted sodomy on a young child because they are not lesser included offenses under the elements or accusatory pleading tests.id: 24276
The mistake of fact defense is not a available to a charge of rape of an unconscious person.Defendant was convicted of the rape of an unconscious person. He argued the trial court erred by refusing to instruct on mistake of fact. However, the mistake of fact defense is not available to a charge of rape of an unconscious person. id: 24134
The trial court did not err by failing to instruct on statutory rape as a lesser included offense of aggravated sexual assault of a child by means of rape.Statutory rape under Penal Code section 261.5(c), is a lesser included offense of aggravated sexual assault of a child by means of rape under section 269(a)(1). However, the court did not err by failing to instruct on the lesser offense where there was no credible evidence suggesting there was consensual sex with a minor.id: 24138
The trial court did not err by failing to instruct on the reasonable good-faith belief that the victim consented where the defense was that defendant never touched the victim.Defendant argued the trial court erred by failing to instruct that he had a reasonable good-faith belief that the victim consented to the sex acts. However, there was no evidence to support the claim, and his defense was that he never touched the victim. Defendant was not entitled to the Mayberry instruction under these circumstances.id: 24140
Trial court’s modified CALCRIM 207 instruction resulted in an ex post facto violation where it instructed the jurors could convict based on acts committed before the time period charged in the information.Defendant was charged with molesting his stepdaughter sometime between December 1, 2006 and August 5, 2011. The trial court instructed that the prosecution was not required to prove the crime took place exactly during the period, but only that it happened after August 12, 2005. The instruction resulted in an ex post facto violation as jurors were told they could convict defendant based on acts committed before the charged time period. id: 24147
Any error in failing to instruct that continuous sexual abuse requires the lewd act be committed in a sexual manner was harmless given the jury’s finding that defendant masturbated with the victim. Defendant argued CALCRIM Nos. 1110 and 1120 omit a required element of the charged crimes, that the lewd or lascivious acts were committed in “a lewd or sexual manner.” However, any error was harmless given the jury’s express finding that defendant engaged in masturbation with the victim, as there was no reasonable possibility the jury believed his actions were innocuous. id: 23986
Attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person.Attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person. The trial court was therefore not obligated to instruct, sua sponte, on attempt.id: 23990
The trial court did not err by failing to properly instruct on the intoxicated victim’s capacity to consent to intercourse.Defendant argued the trial court should have instructed that he was not guilty of rape of an intoxicated person if he reasonably believed the person had the capacity to consent. However, while the victim gave an ambiguous answer after vomiting and laying in a shower, there was no evidence regarding a belief in her capacity to consent to sex thereafter. Moreover, any error in failing to give the instruction was harmless in light of the other instructions and the fact that the jury found the defendant knew or should have known the victim was unable to resist due to her intoxication.id: 23991
Erroneous instruction that sexual penetration of a child was a general intent crime was harmless. The trial court erred by instructing the jury that sexual penetration of a child under 10 was a general intent crime. However, the error was harmless where the evidence supported no plausible explanation for why the defendant would have intentionally penetrated the young victim unless he did it for purposes of sexual arousal.id: 23539
Battery is not a lesser included offense of lewd acts with a child under section 288, subd.(a).Battery (Penal Code section 242) is not a lesser and necessarily included offense of lewd and lascivious conduct with a child under 14 years of age (Penal Code section 288, subd.(a)), and the trial court had no sua sponte duty to instruct.id: 23447
Unlawful sexual penetration requires a specific intent to penetrate but that intent requirement does not extend to the application of force, violence, etc.Defendant was convicted of unlawful sexual penetration with a foreign object in violation of Penal Code section 289. The trial court did not err when instructing that the prosecution need prove defendant had the specific intent to penetrate the victim. There is no requirement of a similar intent regarding the means by which the penetration is accomplished, i.e. the application of force or fear, etc.id: 23174
Defendant who was charged with rape of an unconscious person was not entitled to an instruction on his good faith, but mistaken belief that the victim had consented to the intercourse.Defendant was convicted of the rape of an unconscious woman. He argued the trial court erred by failing to instruct on mistake of fact regarding the issue of consent. However, consent is not an issue for this crime and defendant was not entitled to the instruction. id: 23031
The trial court properly instructed that a “child” is anyone under the age of 18 for purposes of meeting a child to have sex provision.Defendant was convicted of meeting a person who he believed to be a minor for the purpose of engaging in sexual activity. (Penal Code section 288.4, subd.(b).) He argued the trial court improperly defined the word “child” when instructing on the elements of the offense. However, the court correctly instructed the jury that a child under section 288.4 is, like a minor, any person under the age of 18.id: 22783
Simple battery is not a lesser included offense of rape of an unconscious person. The trial court did not err by failing to instruct on simple battery as a lesser included offense of rape of an unconscious person because an unconscious person could be raped within the meaning of Penal Code section 261, subd.(a)(4) without having been subject to force or violence, or even to a harmful or offensive touching.id: 22480
Arranging a meeting with a minor under section 288.4 is not a lesser included offense of luring a minor under section 288.3.Defendant was convicted of contacting a minor with the intent to commit a lewd act in violation of Penal Code section 288.3. He argued the court erred in failing to instruct on arranging a meeting with a minor for lewd purposes under section 288.4. However, the former can be committed without violating the latter as one can lure a minor without arranging a meeting. Therefore, section 288.4 is not a lesser included offense and no instruction was required.id: 22354
The trial court had no duty to instruct sua sponte that there could be no forcible rape if the victim was merely passive and defendant did not know there was no consent. The trial court instructed the jury that to find attempted forcible rape it must find defendant attempted to use force, violence or duress to overcome the victim’s will, and that a good faith and reasonable belief in the lack of consent is a defense to attempted rape. The court did not have a sua sponte duty to further instruct that “positive cooperation in act or attitude” includes passive acquiescence or assent, or to elaborate that the jury could not find a forcible rape if the victim was merely passive and defendant did not know and had no reason to know she did not consent.id: 22090
The trial court did not err by failing to define “legal consent” at trial for sex offenses committed against a person incapable of giving consent. Defendant was convicted of committing several sexual acts on a person incapable of giving consent. Because the victim’s capacity to give consent was not a contested issue and no issue of actual consent was presented, the court had no obligation to further define “legal consent.” And “legal consent” does not have a technical definition requiring further instruction absent a defense request. Assuming the court erred in failing to provide additional instruction, the error was harmless as there was never a dispute over the victim’s capacity to consent.id: 22449
The trial court had no sua sponte duty to instruct on the necessity of a live victim as a defense to rape.Defendant argued the trial court erred by failing to instruct sua sponte that the commission of a rape or lewd act by force required a live victim. However, defendant did not rely on the theory that the victim was already dead, and there was no substantive evidence that would have required the court to give the instruction.id: 22008
The continuous sexual abuse of a child statute properly explains the touching of the child must be done with the intent for sexual gratification.Defendant was convicted of continuous sexual abuse of a child under Penal Code section 288.5. He argued that CALCRIM No. 1120, which defines the elements of lewd acts on a child under 14 for purposes of the continuous sexual abuse statute erroneously advises the jury that the touching need not be done in a lewd or sexual manner. However, the language in the instruction accurately reflects the law. And any error in defining the nature of the prohibited touching would necessarily be harmless, as the conduct described by the victims was unquestionably of a sexual nature.id: 21975
Battery is not a lesser included offense to the charge of violating section 288, subd.(a). Battery is not a lesser included offense to a violation of lewd conduct on a minor under Penal Code section 288, subd.(a), because a defendant can violate section 288 without committing a battery. That occurred here where the defendant tickled the child’s stomach. Therefore, the trial court did not have a sua sponte obligation to instruct the jury that battery was a lesser included offense to lewd and lascivious conduct. id: 21925
The term “residence” in the sex offender registration context did not have a technical meaning requiring additional instruction and was not vague. Defendant was convicted of failing to register as a sex offender under Penal Code section 290, subd.(g)(2). He argued the term “residence” had a technical meaning under section 290 and the jurors should have been given a more detailed definition. However, the instruction adequately explained that registration was required for each location in which defendant regularly spent time. Moreover, the definition of “residence” in section 290.011(g) is not vague and provides offenders with notice of when they must register a dwelling as a residence. id: 21489
The trial court did not err in failing to instruct that attempting to distribute harmful matter to a minor was a lesser included offense of attempting to send harmful matter with the intent to seduce the minor.Defendant argued the trial court erred by not sua sponte instructing on knowingly sending or exhibiting harmful material to a minor (Penal Code section 313.1, subd.(a)) as a lesser included offense of sending or exhibiting harmful material to a minor with the intent of arousing defendant or the minor, with the intent of seducing the minor (section 288.2, subd.(a)). However, there was no evidence that defendant committed only the lesser offense and so, the court did not err by failing to give the instruction. Moreover, any instructional error was harmless where the lesser and greater offense (intent to arouse) was not disputed.id: 21499
Mayberry instruction regarding reasonable belief in consent was not required where there was no evidence that defendant’s belief in consent was objectively reasonable.Defendant was convicted of rape and sodomy. He argued the trial court erred by failing to give the Mayberry instruction regarding his reasonable but mistaken belief in consent by the victim. However, the trial court properly refused to give the instruction where there was no substantial evidence to show defendant reasonably believed the victim consented. Defendant broke into the home the victim shared with her young daughter, carried a two foot long metal bar, forced himself on her as she tried to avoid him, and told her he had previously killed a cop and implied he would hurt her if she did not have sex with him.id: 21318
The trial court was not required to instruct the jurors in a child molest case under section 647.6 of the need to find defendant had an unnatural interest in children in general as opposed to the child in this case.Defendant was convicted of child molest in violation of Penal Code section 647.6, subd.(c)(2). Contrary to defendant’s claim, the trial court did not err by instructing the jurors of the need to find defendant had an unnatural sexual interest in “the child” in question, as opposed to children as a group.id: 21083
The trial court did not prejudicially err in failing to give the Mayberry instruction on the lesser offense of assault with intent to
penetrate with object. Defendant was charged with forcible sexual penetration with a foreign object under Penal Code section 289, subd. (a) but convicted of the lesser offense of assault with intent to commit that offense. He argued that the trial court erred by giving the Mayberry instruction regarding a reasonable belief in consent as to the former (CALCRIM No. 1045) but not the latter (CALCRIM No. 890) required a
reversal of his conviction. However, there was no prejudicial error since the evidence did not support a reasonable belief in consent, the message was conveyed in CALCRIM No. 1045, and both sides explained the concept to the jurors during argument.id: 21032
Instructions read together informed jurors they had to find lack of consent before convicting defendant of assault with intent to penetrate with a foreign object.Defendant argued the pattern instruction for assault with intent to penetrate the genital opening of another by a foreign object
(CALCRIM No. 890) was deficient for failing to specify that prosecutor had the burden of proving lack of consent. However, CALCRIM Nos. 890 and 1045, taken together adequately instructed the jurors they had to find lack of consent before they could convict defendant of penetrating the genital opening of another with a foreign object.id: 21031
The trial court erred in instructing the jury that "hardship" may be a form of "duress" for purposes of forcible sex offenses.Defendant was convicted of multiple counts of forcible oral copulation and forcible digital penetration against two victims. Both convictions require proof that the acts were accomplished by duress or another listed form of unlawful pressure. The trial court erred in instructing that "duress" may be based on the threat of hardship to the victim and her family. The Legislature previously removed "hardship" from the definition of duress. Including hardship in the definition of duress was prejudicial in light of the prosecutor's emphasis on "hardship" in her closing argument.id: 16574
Kidnapping to commit a lewd act is not a lesser included offense of section 288 coupled with a section 667.61, subd.(d)(2) allegation.Kidnapping to commit a lewd and lascivious act under Penal Code section 207, subd.(b) is not a lesser included offense of section
288 coupled with a one-strike allegation under section 667.61, subd. (d)(2) under the elements test since there is no requirement that, at the time of the kidnapping, defendant intended to violate section 288.id: 19541
The trial court did not err in failing to instruct on annoying or molesting under section 647.6 as a lesser included offense of section 288 where the evidence showed defendant's sexual intent when grabbing the girls.Defendant was convicted of committing three lewd acts on a child in violation of Penal Code section 288, subd.(a). However,
even if such a lesser offense was theoretically available under the accusatory pleading test, the evidence of a sexual intent was overwhelming as it showed he intentionally grabbed and
squeezed the buttocks of two young girls he did not know while he was walking around a grocery store.id: 19380
The trial court properly refused to instruct on a mistake of fact as to defendant's belief that the victim was not too intoxicated to resist the intercourse.Defendant was convicted of raping an intoxicated woman. He argued the trial court erred by refusing to instruct on mistake of fact since there was evidence showing that he mistakenly believed the victim was not sufficiently intoxicated to be unable to resist. However, a belief that the victim was able to resist could not be reasonable if the perpetrator "reasonably should have known" that the victim was unable to resist. The instructions given were proper, and the court properly refused to instruct with CALJIC 4.35.id: 19320
The trial court had no duty to give a Mayberry instruction absent a request where the defense was solely one of consent in fact. Defendant argued the trial court erred by failing to instruct the jury, even absent a request, that a reasonable though mistaken belief in consent was a defense to a charge of rape. People v. Mayberry (1975) 15 Cal.3d 143.) However, the failure to instruct was not erroneous where defendant did not rely on the Mayberry defense or present substantial evidence to support one. His defense was solely one of consent in fact.id: 19239
The trial court did not err in instructing that rape in concert required only a general criminal intent.Defendant argued that even though rape under Penal Code section 261 is a general intent crime, the court erred in instructing the same was true of rape in concert under sections 264.1 and 261, subd.(a)(2), However, the fact that a person must harbor a specific intent to aid the rapist to be convicted as an accomplice to a charge of violating section 264.1, does not transform the underlying offense into a specific intent crime.id: 18755
The trial court did not err in failing to define "sexual intercourse" as vaginal penetration.The standard rape instruction, CALJIC 10.00, does not define sexual intercourse. Defendant argued the court erred in not sua sponte defining the term as vaginal penetration. However, the term has a common meaning in the context of rape. Defendant could not have been convicted of nonconsensual sexual intercourse and rape based on anal penetration used to prove sodomy.id: 18451
The trial court had no sua sponte duty to define "force" for purposes of section 288, subd.(b).Defendant was convicted of several counts of lewd acts with a child by force in violation of Penal Code section 288, subd.(b)(1). He argued the court had a sua sponte duty to define "force." However, the term "force" as used in section 288, subd.(b)(1) does not carry a specialized legal definition.id: 18296
The court properly instructed the SVP jury that "masturbation" may be accomplished through clothing, without touching the skin.The trial court properly instructed the jury at defendant's SVP trial that "masturbation" may be accomplished through clothing, without touching bare skin. Moreover, given the common understanding of the term "masturbation" to include any genital touching, even through clothing, the SVPA's definition of "substantial sexual conduct" is not unconstitutionally vague as applied.id: 18186
The trial court had no sua sponte duty to instruct on the commonly understood definition of "force" as used in the rape statute.At defendant's forcible rape trial, the court had no sua sponte duty to instruct that the force required for a conviction of that offense was force that was substantially different or greater than the force inherent in an act of consensual intercourse. While that definition has been required in cases involving forcible lewd acts against children it was not required in a forcible rape case. Moreover, the evidence supported the jury's determination that the defendant used force where he pinned the victim's arms to the ground as he penetrated her vagina with his penis. That defendant did not apply additional force to continue the intercourse after the victim objected did not eliminate his culpability for the initial penetration of the victim against her will by force.id: 18027
CALJIC No. 2.20.1 did not unfairly enhance the minor's credibility or take the issue of her credibility from the jury.Defendant was convicted of molesting his three year-old stepdaughter. He argued the trial court erred in instructing with CALJIC No. 2.20.1. The instruction directs a jury on how to evaluate a child's testimony. While it told the jury that a child may perform differently than an adult, that differences do not mean the child is more or less credible than the adult. The jury was not to discount the child's testimony solely because she was a child, but was invited to consider the child's age and cognitive development in assessing her credibility. The court did not err in giving the instruction.id: 17921
The trial court's general instruction on "harmful matter" was sufficient at defendant's trial for attempted distribution of harmful matter to a minor over the Internet.Defendant was charged with attempted distribution or exhibition of harmful matter to a minor over the Internet pursuant to Penal Code sections 288.2, subd.(b) and 664. He argued the trial court's instruction defining "harmful matter" was erroneous. The court defined harmful matter with the language in Penal Code section 313, subd.(a). Defendant argued the trial court erred by failing to instruct on the special definition found in section 313, subd.(a)(1). That definition apples where the harmful matter is designed for clearly defined deviant sexual groups. However, the special instruction was not required because young gay boys who occasionally visit gay male chat rooms are not part of a "clearly defined deviant sexual group."id: 17664
Jury was properly instructed that in order to be convicted of violating Penal Code section 290, defendant had to have knowledge that he was required to register as a sex offender.Defendant was convicted of willful failure to register as a sex offender within five working days of his birthday, in violation of Penal Code section 290, subd.(g)(2). He argued the court erred in failing to correctly instruct the jury on the element of knowledge. However, read in combination with CALJIC No. 1.20 instruction on willfulness, the trial court's general intent instruction pursuant to CALJIC No. 3.30 did not mislead the jury. Together, the instructions correctly informed the jury that in order to be convicted of violating section 290, defendant had to have knowledge that he was required to register.id: 17247
Forgetting to register does not provide a defense to the charge of willful failure to register as a sex offender.At defendant's trial for failure to register as a sex offender, the trial court correctly instructed that forgetting to register was not a defense to the crime. Defendant's claim that he lacked the necessary willfulness to commit the charged offense because he forgot the annual registration updating requirements was meritless. Moreover, there was no due process denial in permitting evidence of the forgetfulness defense and then precluding consideration of it. The jury was permitted to consider defendant's claim that he forgot he needed to register in determining willfulness. The instruction simply and correctly stated that forgetfulness alone could not negate willfulness.id: 17248
Instruction on rape of an intoxicated person does not allow a conviction on the basis of civil negligence.Defendant was convicted of rape of an intoxicated person under Penal Code section 261, subd.(a)(3). He challenged the accompanying CALJIC instruction (10.02) arguing the "reasonably should have known" language impermissibly allowed the jury to convict him on the basis of civil negligence without a finding of criminal culpability. However, rape of an intoxicated person is a general intent crime and the jury was instructed that defendant was required to commit an intentional act, in other words, mere negligence would not suffice. In addition, section 261, subd.(a)(3) uses a criminal negligence standard rather than a civil negligence standard on the accused's knowledge of the victim's disabling intoxication.id: 17146
Trial court did not err in including "hardship" in definition of "duress" for purposes of forcible lewd act charges. The trial court did not err by including threatened "hardship" as a form of duress for purposes of the forcible lewd act charges. That the Legislature removed "hardship" from the definition of duress as to the crime of "forcible rape" and rewrote the spousal rape statute to include an identical definition did not reflect a legislative intent to delete hardship as a permissible basis for finding duress in other sex offenses.id: 17165
The trial court did not err in failing to instruct on lack of consent and a reasonable belief in consent in the trial for rape of an unconscious person.Defendant was convicted of the rape of an unconscious person under Penal Code section 261, subd.(a)(4). He argued the trial court erred in failing to instruct on consent and reasonable belief in consent in connection with the intent element of the offense. However, the only intent necessary to commit the offense is the intent to have intercourse with an unconscious victim knowing that person is unconscious. Lack of consent is not an element of rape of an unconscious person.id: 17009
"Recurring access" under section 288.5 does not have a technical meaning requiring sua sponte clarifying instructions.Penal Code section 288.5 punishes the continuous sexual abuse of a child under 14 by any person residing with or having "recurring access" to the child. The quoted phrase is commonly understood and does not have a technical meaning requiring sua sponte jury instructions.id: 16897
Defendant was not entitled to a sua sponte instruction that parental discipline is a defense to committing a lewd act on a child.Defendant was convicted of multiple counts of lewd acts on a child based on the repeated lewd fondling and spanking of his son. He argued he was merely disciplining his son when he spanked him and the trial had a sua sponte duty to instruct that defendant had a right to reasonably discipline his child. However, the right of a parent to discipline a child is no defense to a charge of Penal Code section 288, which requires that the touching be committed with a sexual intent. While defendant could argue that he lacked sexual intent when he touched the victim, he was not entitled to a sua sponte instruction that parental disciple is a defense to a lewd act on a child.id: 16823
BAJI No 2.62 defining "clear and convincing" burden of proof was sufficient for purposes of section 803, subd.(g).To extend to the statute of limitations in sex offense cases under Penal Code section 803, subd.(g), there must be a recent report of previous improper conduct and independent evidence which clearly and convincingly corroborates the victim's allegation. The trial court correctly provided the BAJI instruction (No. 2.62) defining clear and convincing proof. The court did not err in failing to further instruct using dicta from another opinion.id: 16488
Court was not required to instruct on force in relation to the offense of assault with intent to commit forcible oral copulation.Defendant argued the trial court erred in failing to instruct sua sponte on the meaning of force in relation to the offense of assault with intent to commit forcible oral copulation. The instruction was not necessary since defendant was not charged with forcible oral copulation but with assault with intent to commit the offense. The jury was not required to determine whether defendant applied physical force substantially different from that necessary to obtain oral copulation but only with determining whether his acts demonstrated an intent to use that degree of force necessary to complete the act against the victim's will.id: 16364
Child annoyance is not a lesser included offense of committing a lewd act upon a child.Child annoyance under Penal Code section 647.6, subdivision (a) is not a lesser included offense of committing a lewd act on a child under section 288, subdivision (a). The former offense requires commission of an objectively offensive act of annoyance or molestation, an element not present in the latter offense of committing a subjectively lewd act. Therefore, sua sponte instructions were not required on the lesser offense.id: 15404
In prosecution for failing to register as a sex offender the court properly instructed the willful element required a "purpose or willingness" to make the omission.Defendant was convicted of failing to register as a sex offender under Penal Code section 290. He argued the definition of "willfully" given by the trial court effectively converted the offense into a strict liability crime. However, the general intent instruction required an "intentional" failure to register. The "willful" instruction required a "purpose or willingness" to make the omission. When defendant allowed transportation difficulties, misinformation, and fear of parole revocation to deter him from registering as a sex offender for almost three months, defendant intentionally and willfully failed to register.id: 15405
Trial court has no sua sponte duty to define "developmental disability" for convictions under section 288a, subdivision (g) and 286, subdivision (g).Defendant was charged with unlawful sodomy with a person lacking capacity (Penal Code section 286, subdivision (g)) and unlawful oral copulation with a person lacking capacity (Penal Code section 288a, subdivision (g)). Contrary to defendant's claim, the trial court did not have a sua sponte duty to instruct the jury with the definition of "developmental disability" in Welfare and Institutions Code section 4152, subdivision (a). To the extent such definition may help the jury in a particular case, it is more properly a pinpoint instruction which requires a request.id: 15407
Since having sex with a 16 year-old is a felony although not as severe as if the victim was 14 the trial court did not err in failing to instruct on reasonable belief that the victim was 16.Under Penal Code section 261.5, an adult who has sex with a 16 year-old is guilty of a felony. The offense is aggravated if the victim is under 16. Defendant's reasonable belief that the victim was 16 years old was a defense to the non-forcible sex offenses. However, whether defendant reasonably and in good faith believed the victim as 16 rather than 14 is of no import. It was not a potential defense. Defendant was not entitled to a mistake of fact instruction.id: 14851
CALJIC 10.41 correctly defines a lewd act within the meaning of section 288, subdivision (a) as any touching .... with specific intent to arouse, appeal to or gratify the sexual desires of either party.Defendant argued the trial court incorrectly instructed the jury on the definition of lewd or lascivious act for purposes of Penal Code section 288, subdivision (a). He claimed CALJIC 10.41 incorrectly defines a lewd act by removing an essential element <197> the lewdness of the touching <197> of the crime from the jury's consideration. However, a violation of section 288 does not require the touching be overtly sexual and the instruction does not remove any element of the offense from the jury's consideration. Moreover, any error would have been harmless where the instant facts indisputably indicate a scenario of sexual conduct and the prosecutor argued the sexual nature of defendant's conduct.id: 10063
Court did not err in failing to give a clarifying instruction where it answered in the affirmative the jury's question whether physical contact was necessary for force.Defendant was charged with a violation of Penal Code section 288, subdivision (b). The trial court instructed with CALJIC 10.42 that force means physical force that is substantially different from or greater than that necessary to accomplish the lewd act. During deliberations, the jury inquired, Does force require physical contact? The court responded, Yes. Defendant argued the court's reply implied all that was necessary for a finding of force was physical contact. However, the jury was properly instructed and absent a request from defense counsel, no clarifying instructions were necessary.id: 10064
Court did not err in rejecting appellant's proposed instruction that the beatings were a misguided attempt at discipline rather than torture.The trial court gave the standard instruction defining torture murder. Appellant argued the court erred in refusing to instruct the jury that the beatings were a misguided irrational and totally unjustifiable attempt at discipline. This was an attempt by the defense to invite the jury to infer the existence of his version of the facts, rather than his theory of defense. Because of the argumentative nature of the proposed instructions, the court properly refused to give them.id: 10065
Court properly instructed that oral copulation requires slight rather than substantial contact.At defendant's child molest trial the court instructed regarding oral copulation with CALJIC 10.10 (5th ed. 1988). The instruction provides that <U>Any contact, however slight,</U> between the mouth of one person and the sexual organ of another person constitutes oral copulation. However, the 1989 revision of that instruction changed the definition, requiring <U>substantial contact.</U> The court did not err in instructing with the older version of CALJIC 10.10 because any contact, however slight is a more accurate statement of existing law.id: 10068
Court was not required to define stranger for purposes of provision denying probation to a stranger who molests children.Defendant was charged with multiple counts of child molest and as to each count it was alleged that he was a stranger to the victim within the meaning of Penal Code section 1203.066, subdivision (a)(3). The word stranger in section 1203.066 has no technical meaning peculiar to the law and therefore the trial court did not err in refusing an instruction which purported to define the word.id: 10069
Court was not required to define sexual intercourse during instructions on rape.Defendant argued that because intercourse does not have a common meaning and is a technical term, the failure of the court to define sexual intercourse resulted in a failure to instruct on all elements of the offense of rape. However, sexual intercourse is not a technical term and there is no possibility the jury did not understand the instructions to require vaginal penetration.id: 10070
Court was not required to instruct sua sponte on 288, subdivision (a) as a lesser included offense of 288, subdivision (b) where defendants denied any participation in the offenses.The trial court was under no sua sponte obligation to instruct the jury on Penal Code section 288, subdivision (a) (lewd touching of a minor without force) as a lesser included offense of section 288, subdivision (b). No defense counsel required such an instruction and none relied on a defense involving a commission of a violation of subdivision (a) as opposed to subdivision (b).id: 10071
Evidence of the victim's prior sexual conduct with the defendant, itself, is insufficient to require an instruction or reasonable belief in consent.Appellant's testimony regarding his violent sexual relationship with the victim prior to this incident (which was completely contradicted by the victim's testimony) was insufficient to support the sua sponte duty to instruct the jury in the defense of reasonable belief in consent pursuant to <i>People v. Mayberry</i>, (1975) 15 Cal.3d 143. To warrant this instruction, there must be evidence, whether direct or circumstantial of the defendant's state of mind at the time of the crime.id: 10072
Evidence of victim's prior sexual conduct with defendant does not by itself require that the jury be instructed on reasonable belief in consent.Evidence of the victim's prior sexual conduct with a defendant, by itself, is insufficient to require that the jury be instructed pursuant to CALJIC 10.23, because such conduct has no tendency to prove or disprove the defendant's state of mind at the time of the offense. In the instant case there was no additional evidence regarding the defendant's state of mind at the time the offense was committed and, therefore, the court did not err in failing to instruct on the defense of a reasonable belief as to the consent of the victim to engage in sexual intercourse.id: 10073
CALJIC 2.20.1 does not instruct the jury that it may not consider a child's age and cognitive ability in evaluating his or her credibility.Defendant argued the trial court erred in instructing the jury with CALJIC 2.20.1<197>not to discount or distrust the testimony of a child solely because he or she is a child. 2.20.1 does not instruct the jury that it may not consider a child's age and cognitive ability in evaluating his/her credibility as a witness. Moreover, the instruction does not invade the province of the jury as determiners of credibility<197>it simply requires the jurors not to find child witnesses unreliable solely because of their age.id: 10075
Instructing the jury not to discount the testimony of a child under 10 years old did not deny due process or equal protection.At defendant's child molest trial, the court instructed the jury pursuant to Penal Code section 1127(f) that the testimony of a witness younger than 10 years of age should not be discounted solely because she is a child. Defendant argued the instruction unduly inflated the testimony of a child witness. However, the instruction does not deny due process. Moreover, the instruction does not violate equal protection in failing to instruct the jury not to discount defendant's testimony merely because he is on trial, or in discriminating between defendants accused by these children as opposed to defendants accused by older children. Section 1127 is rational and not arbitrary, and does not single out criminal defendants or child victims.id: 10076
Instruction on rape defendant's reasonable but mistaken belief as to consent was not required where the defendant testified to actual consent and there was no evidence of equivocal conduct.. Substantial evidence did not warrant an instruction on reasonable and good faith but mistaken belief of consent to sexual intercourse where defendant testified that the victim actually consented and the victim testified the encounter occurred only after defendant punched and threatened her. Such an instruction is required where there is substantial evidence of <U>equivocal</U> conduct that could be reasonably and in good faith relied on to form a mistaken belief in consent, despite the alleged temporal context in which that equivocal conduct occurred. However, a reasonable mistake of fact may not be found if the jury finds that such equivocal conduct on the part of the victim was the product of force, violence, duress, menace, or fear of unlawful bodily injury on the person or another.id: 10078
It is proper to give CALJIC 10.60 in addition to CALJIC 2.27 in cases involving sex offenses.CALJIC 2.27 states that a fact may be proven by a single witness but before such a finding, the jury should carefully review all testimony upon which proof of such fact depends. CALJIC 10.60 states that no corroboration is necessary for a rape victim's testimony. Defendant argued that considered in combination the instructions create a preferential credibility standard for the complaining witness in a sex case. However, it is proper for a trial court to give CALJIC 10.60 in addition to CALJIC 2.27 in cases involving sex offenses.id: 10079
Refusing battery instruction in rape case was proper where the only evidence of battery was presented by uncorroborated testimony of accomplices.Appellant was convicted of five counts of rape by force while acting in concert with others (Penal Code Sections 261(2) and 264.1). He argued the court erroneously refused his request for a jury instruction on the lesser offense of battery. However, the only evidence of battery was provided by the uncorroborated testimony of his accomplices which is insufficient to support a conviction.id: 10081
Trial court did not err in failing to instruct sua sponte with CALJIC 17.01 regarding the forcible rape charged.Defendant was charged with a rape that occurred between June 1, 1985 and August 31, 1985. The trial court did not err in failing to instruct sua sponte with CALJIC 17.01 regarding agreement among the jury of the particular offense committed. Such instruction is not required where the victim testifies to repeated incidents of the same acts of sexual molestation in cases turning solely on whether the jury believes the victim or the defendant.id: 10082
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245