1016. Oral Copulation in Concert

The defendant[s] [ <insert name[s] if not all defendants in trial charged with this count>] (is/are) charged [in Count ______] with committing oral copulation by acting in concert [with <insert name[s] or description[s] of uncharged participant[s]>].

To prove that a defendant is guilty of this crime, the People must prove that:

<Alternative A—defendant committed oral copulation>

[1.] [The defendant personally committed oral copulation and voluntarily acted with someone else who aided and abetted its commission(;/.)]

[OR]

<Alternative B—defendant aided and abetted>

[(1/2).] [The defendant voluntarily aided and abetted someone else who personally committed oral copulation.]

To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] committed oral copulation, please refer to the separate instructions that I (will give/have given) you on that crime. To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] aided and abetted oral copulation, please refer to the separate instructions that I (will give/have given) you on aiding and abetting. You must apply those instructions when you decide whether the People have proved oral copulation in concert.

<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON ORAL COPULATION AND AIDING AND ABETTING ARE GIVEN.>

[To prove the crime of oral copulation in concert, the People do not have to prove a prearranged plan or scheme to commit oral copulation.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime. (See Pen. Code, § 288a(d).) The court also has a sua sponte duty to instruct on oral copulation. Give one or more of the following instructions defining oral copulation: CALCRIM No. 1015 or CALCRIM Nos. 1017-1022.

Select alternative A or B, or both, depending on whether the defendant personally committed the crime or aided and abetted someone else.

Depending on the evidence, give the final bracketed paragraph on request regarding the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337, 341-342 [122 Cal.Rptr. 658].)

Related Instructions

See generally CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM No. 401, Aiding and Abetting: Intended Crimes.

Authority

Elements. Pen. Code, § 288a(d).

Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 429, 444-446 [23 Cal.Rptr.2d 512]; People v. Caldwell (1984) 153 Cal.App.3d 947, 951-952 [200 Cal.Rptr. 508]; People v. Calimee (1975) 49 Cal.App.3d 337, 341-342 [122 Cal.Rptr. 658] [in context of sodomy in concert].

Consent Defined. People v. Boggs (1930) 107 Cal.App. 492, 495-496 [290 P. 618].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 31, 36.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][c], [2][c] (Matthew Bender).

Lesser Included Offenses

Assault. Pen. Code, § 240.

Assault With Intent to Commit Oral Copulation. Pen. Code, § 220; see In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [when forcible crime is charged].

Attempted Oral Copulation. Pen. Code, §§ 664, 288a.

Attempted Oral Copulation in Concert. Pen. Code, §§ 663, 288a(d).

Battery. Pen. Code, § 242.

Oral Copulation. Pen. Code, § 288a.

Related Issues

See the Related Issues sections under CALCRIM No. 1015, Oral Copulation by Force, Fear, or Threats, and CALCRIM No. 1001, Rape or Spousal Rape in Concert.

(New January 2006)