Section 3501 | CALCRIM (Jury Instructions)

molestation, and the only question is whether or not the defendant in fact committed
all of them, the jury should be given a modified unanimity instruction which, in
addition to allowing a conviction if the jurors unanimously agree on specific acts,
also allows a conviction if the jury unanimously agrees the defendant committed all
the acts described by the victim. (People v. Matute, supra, 103 Cal.App.4th at p.
1448; People v. Jones, supra, 51 Cal.3d at pp. 321–322; see CALCRIM No. 3501,
Unanimity: When Generic Testimony of Offense Presented.)
Mistake-of-Fact Defense and Developmental Disability
A defendant cannot base a reasonable-belief-of-consent defense on the fact that he is
developmentally disabled and, as a result, did not act as a reasonable person would
have acted. (People v. Castillo (1987) 193 Cal.App.3d 119, 124–125 [238 Cal.Rptr.
207].)
Multiple Rapes
A penetration, however slight, completes the crime of rape; therefore a separate
conviction is proper for each penetration that occurs. (People v. Harrison (1989) 48
Cal.3d 321, 329–334 [256 Cal.Rptr. 401, 768 P.2d 1078].)
Resistance Is Not Required
Resistance by the victim is not required for rape; any instruction to that effect is
erroneous. (People v. Barnes, supra, 42 Cal.3d at pp. 292, 302.)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 1–15, 20, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][a], [2], 142.23[1][e] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
CALCRIM No. 1000
SEX OFFENSES
738

offense. The second is when . . . the statute contemplates a continuous course of
conduct of a series of acts over a period of time.” (People v. Napoles (2002) 104
Cal.App.4th 108, 115–116 [127 Cal.Rptr.2d 777], quoting People v. Avina (1993) 14
Cal.App.4th 1303, 1309 [18 Cal.Rptr.2d 511]; internal quotation marks and citations
omitted].) The court should carefully examine the statute under which the defendant
is charged, the pleadings, and the evidence presented to determine whether the
offense constitutes a continuous course of conduct. (Ibid.) [noting that child abuse
may be a continuous course of conduct or a single, isolated incident]; see also
People v. Madden, supra, 116 Cal.App.3d at p. 218 [distinguishing “continuous
crime spree” and finding repeated sexual offenses did not constitute continuous
course of conduct]; People v. Wolfe (2003) 114 Cal.App.4th 177, 185 [7 Cal.Rptr.3d
483] [unanimity instruction required where acts fragmented in time or space];
People v. Rae (2002) 102 Cal.App.4th 116, 123 [125 Cal.Rptr.2d 312] [elder abuse
offense did constitute continuous course of conduct]; People v. Cortez (1992) 6
Cal.App.4th 1202, 1209 [8 Cal.Rptr.2d 580] [kidnapping is a continuous course of
conduct].)
In addition, “where the acts were substantially identical in nature, so