Section 1015 | CALCRIM (Jury Instructions)

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Oral Copulation Defined. Pen. Code, § 287(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884].
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Threatening to Retaliate Defined. Pen. Code, § 287(l).
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Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
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Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089]; People v. Guido (2005) 125 Cal.App.4th 566,
574–576 [22 Cal.Rptr.3d 826].
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Threatening to Retaliate. People v. White (2005) 133 Cal.App.4th 473, 484–485
[34 Cal.Rptr.3d 848]; People v. Ward (1986) 188 Cal.App.3d 459, 468 [233
Cal.Rptr. 477].
COMMENTARY
Penal Code section 287 requires that the oral copulation be “against the will” of the
other person. (Pen. Code, § 287(c)(2) & (3), (k).) “Against the will” has been
defined as “without consent.” (People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144]; see also People v. Young (1987) 190 Cal.App.3d 248, 257 [235
Cal.Rptr. 361].)
The instruction includes a definition of the sufficiency of “fear” because that term
has meaning in the context of forcible oral copulation that is technical and may not
be readily apparent to jurors. (See People v. Iniguez (1994) 7 Cal.4th 847, 856–857
[30 Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 287 does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress].) Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory definition
contained in Penal Code section 261 (rape). (See People v. Cochran (2002) 103
Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape definition in case involving
forcible lewd acts].) In People v. Leal, supra, 33 Cal.4th at pp. 1004–1010, the court
held that the statutory definition of “duress” contained in Penal Code sections 261
and former 262 does not apply to the use of that term in any other statute. The court
did not discuss the statutory definition of “menace.” The court should consider the
Leal opinion before giving the definition of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
specialized meaning and court is not required to define the term sua sponte. (People
v. Griffın (2004) 33 Cal.4th 1015, 1023–1024; People v. Guido (2005) 125
Cal.App.4th 566, 574–576 [22 Cal.Rptr.3d 826]). In People v. Griffın, supra, the
Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or in
CALCRIM No. 1015
SEX OFFENSES
754

the express statutory language of section 261 itself, that sugg