1018. Oral Copulation of an Unconscious Person

The defendant is charged [in Count ______] with oral copulation of a person who was unconscious of the nature of the act.

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

1. The defendant committed an act of oral copulation with another person;

2. The other person was unable to resist because (he/she) was unconscious of the nature of the act;

AND

3. The defendant knew that the other person was unable to resist because (he/she) was unconscious of the nature of the act.

Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. Penetration is not required.

A person is unconscious of the nature of the act if he or she is (unconscious or asleep/ [or] not aware that the act is occurring/ [or] not aware of the essential characteristics of the act because the perpetrator tricked, lied to, or concealed information from the person/ [or] not aware of the essential characteristics of the act because the perpetrator fraudulently represented that the oral copulation served a professional purpose when it served no professional purpose).

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

Related Instructions

CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction with this instruction, if appropriate.

Authority

Elements. Pen. Code, § 288a(a), (f).

Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242-1243 [11 Cal.Rptr.2d 884].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 31-33, 35.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][c], [5] (Matthew Bender).

Commentary

The statutory language describing unconsciousness includes "was not aware, knowing, perceiving, or cognizant that the act occurred." (See Pen. Code, § 288a(f)(2)-(4).) The committee did not discern any difference among the statutory terms and therefore used "aware" in the instruction. If there is an issue over a particular term, that term should be inserted in the instruction.

Lesser Included Offenses

Attempted Oral Copulation. Pen. Code, §§ 663, 288a.

Related Issues

See the Related Issues Section to CALCRIM No. 1015, Oral Copulation by Force, Fear, or Threats.

(New January 2006)