1046. Sexual Penetration 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 sexual penetration 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 sexual penetration>

[1.] [The defendant personally committed sexual penetration 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 sexual penetration.]

To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] committed sexual penetration, 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 sexual penetration, 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 sexual penetration in concert.

<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON SEXUAL PENETRATION AND AIDING AND ABETTING ARE GIVEN.>

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

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime. (People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404] [rape in concert is a separate crime, not an enhancement].) The court also has a sua sponte duty to instruct on sexual penetration. Give one or more of the following instructions defining sexual penetration: CALCRIM Nos. 1045 or 1047-1051.

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.Rtpr. 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, §§ 264.1, 289(a)(1); see People v. Mom (2000) 80 Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172] [rape in concert requires no greater force than that necessary for forcible rape], disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891, 94 P.3d 1089].

Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 445-446 [23 Cal.Rptr.2d 512]; see People v. Beeman (1984) 35 Cal.3d 547, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 19.

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

Lesser Included Offenses

Assault. Pen. Code, § 240.

Attempted Sexual Penetration. Pen. Code, §§ 664, 289(a)(1).

Attempted Sexual Penetration in Concert. Pen. Code, §§ 663, 264.1, 289(a)(1).

Battery. Pen. Code, § 242.

Sexual Penetration. Pen. Code, § 289(a)(1).

Related Issues

See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by Force, Fear, or Threats, and CALCRIM No. 1001, Rape or Spousal Rape in Concert.

(New January 2006)