Section 3185 | CALCRIM (Jury Instructions)

[An act is accomplished by force if a person uses enough physical force to
overcome the other person’s will.]
[Duress means a direct or implied threat of force, violence, danger,
hardship, or retribution that causes a reasonable person to do [or submit
to] something that he or she would not otherwise do [or submit to].
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.]
[Retribution is a form of payback or revenge.]
[Menace means a threat, statement, or act showing an intent to injure
someone.]
[An act is accomplished by fear if the other person is actually and
reasonably afraid [or (he/she) is actually but unreasonably afraid and the
defendant knows of (his/her) fear and takes advantage of it].]
[The defendant is not guilty of forcible oral copulation if he or she
actually and reasonably believed that the other person consented to the
act. The People have the burden of proving beyond a reasonable doubt
that the defendant did not actually and reasonably believe that the
person consented. If the People have not met this burden, you must find
the defendant not guilty.]
New January 2006; Revised August 2006, October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Select the appropriate alternative in element 3 to instruct how the act was allegedly
accomplished.
Related Instructions
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
•
Elements. Pen. Code, § 287(c)(2) & (3), (k).
•
Consent Defined. Pen. Code, §§ 261.6, 261.7.
•
Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
•
Menace Defined. Pen. Code, § 261(c) [in context of rape].
SEX OFFENSES
CALCRIM No. 1015
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defendant to reasonably and in good faith believe consent existed where it did not.”
(See People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d
961]; People v. Mayberry (1975) 15 Cal.3d 143, 153–158 [125 Cal.Rptr. 745, 542
P.2d 1337].)
Related Instructions
CALCRIM No. 3185, Sex Offenses: Sentencing Factor—Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
•
Elements. Pen. Code, § 286(c)(2), (3), (k).
•
Consent Defined. Pen. Code, §§ 261.6, 261.7.
•
Duress Defined. People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071]; People v. Pitmon (1985) 170 Cal.App.3d 38, 50
[216 Cal.Rptr. 221].
•
Menace Defined. Pen. Code, § 261(c) [in context of rape].
•
Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
•
Threatening to Retaliate Defined. Pen. Code, § 286(l).
•
Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. In