California Criminal Jury Instructions (CALCRIM) (2017)

1015. Oral Copulation by Force, Fear, or Threats

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(ii) Oral Copulation
1015.Oral Copulation by Force, Fear, or Threats (Pen. Code,
§ 288a(c)(2) & (3), (k))
The defendant is charged [in Count ] with oral copulation by
force [in violation of Penal Code section 288a].
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 someone
else;
2. The other person did not consent to the act;
AND
3. The defendant accomplished the act by
<Alternative 3A—force or fear>
[force, violence, duress, menace, or fear of immediate and unlawful
bodily injury to someone.]
<Alternative 3B—future threats of bodily harm>
[threatening to retaliate against someone when there was a
reasonable possibility that the threat would be carried out. A threat
to retaliate is a threat to kidnap, unlawfully restrain or confine, or
inflict extreme pain, serious bodily injury, or death.]
<Alternative 3C—threat of offıcial action>
[threatening to use the authority of a public office to incarcerate,
arrest, or deport someone. A public official is a person employed by a
government agency who has the authority to incarcerate, arrest, or
deport. The other person must have reasonably believed that the
defendant was a public official even if (he/she) was not.]
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.
[In order to consent, a person must act freely and voluntarily and know
the nature of the act.]
[Evidence that the defendant and the person (dated/were married/had
been married) is not enough by itself to constitute consent.]
[Evidence that the person (requested/suggested/communicated) that the
defendant use a condom or other birth control device is not enough by
itself to constitute consent.]
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[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
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.
AUTHORITY
• Elements. Pen. Code, § 288a(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].
• Oral Copulation Defined. Pen. Code, § 288a(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884].
• Threatening to Retaliate Defined. Pen. Code, § 288a(l).
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• Fear Defined. People v. Reyes (1984) 153 Cal.App.3d 803, 810 [200 Cal.Rptr.
651]; People v. Iniguez (1994) 7 Cal.4th 847 [30 Cal.Rptr.2d 258, 872 P.2d
1183] [in context of rape].
• Force Defined. People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024 [16
Cal.Rptr.3d 891, 94 P.3d 1089]; People v. Guido (2005) 125 Cal.App.4th 566,
574–576 [22 Cal.Rptr.3d 826].
• Threatening to Retaliate. People v. White (2005) 133 Cal.App.4th 473,
484–485 [34 Cal.Rptr.3d 848]; People v. Ward (1986) 188 Cal.App.3d 459, 468
[233 Cal.Rptr. 477].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 31–34.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][c], [2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
COMMENTARY
Penal Code section 288a requires that the oral copulation be “against the will” of
the other person. (Pen. Code, § 288a(c)(2) & (3), (k).) “Against the will” has been
defined as “without consent.” (People v. Key (1984) 153 Cal.App.3d 888, 895 [203
Cal.Rptr. 144]; see also People v. Young (1987) 190 Cal.App.3d 248, 257 [235
Cal.Rptr. 361].)
The instruction includes a definition of the sufficiency of “fear” because that term
has meaning in the context of forcible oral copulation that is technical and may not
be readily apparent to jurors. (See People v. Iniguez (1994) 7 Cal.4th 847, 856–857
[30 Cal.Rptr.2d 258, 872 P.2d 1183] [fear in context of rape].)
The court is not required to instruct sua sponte on the definition of “duress” or
“menace” and Penal Code section 288a does not define either term. (People v.
Pitmon (1985) 170 Cal.App.3d 38, 52 [216 Cal.Rptr. 221] [duress]). Optional
definitions are provided for the court to use at its discretion. The definition of
“duress” is based on People v. Leal (2004) 33 Cal.4th 999, 1004–1010 [16
Cal.Rptr.3d 869, 94 P.3d 1071], and People v. Pitmon (1985) 170 Cal.App.3d 38,
50 [216 Cal.Rptr. 221]. The definition of “menace” is based on the statutory
definitions contained in Penal Code sections 261 and 262 [rape]. (See People v.
Cochran (2002) 103 Cal.App.4th 8, 13–14 [126 Cal.Rptr.2d 416] [using rape
definition in case involving forcible lewd acts].) In People v. Leal, supra, 33
Cal.4th at pp. 1004–1010, the court held that the statutory definition of “duress”
contained in Penal Code sections 261 and 262 does not apply to the use of that
term in any other statute. The court did not discuss the statutory definition of
“menace.” The court should consider the Leal opinion before giving the definition
of “menace.”
The term “force” as used in the forcible sex offense statutes does not have a
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specialized meaning and court is not required to define the term sua sponte.
(People v. Griffın (2004) 33 Cal.4th 1015, 1023–1024; People v. Guido (2005) 125
Cal.App.4th 566, 574–576 [22 Cal.Rptr.3d 826]). In People v. Griffın, supra, the
Supreme Court further stated,
Nor is there anything in the common usage definitions of the term “force,” or
in the express statutory language of section 261 itself, that suggests force in a
forcible rape prosecution actually means force “substantially different from or
substantially greater than” the physical force normally inherent in an act of
consensual sexual intercourse. [People v. Cicero (1984) 157 Cal.App.3d 465,
474 [204 Cal.Rptr. 582].] To the contrary, it has long been recognized that “in
order to establish force within the meaning of section 261, subdivision (2), the
prosecution need only show the defendant used physical force of a degree
sufficient to support a finding that the act of sexual intercourse was against the
will of the [victim].” (People v. Young (1987) 190 Cal.App.3d 248, 257–258
[235 Cal.Rptr. 361].)
(People v. Griffın, supra, 33 Cal.4th at pp. 1023–1024 [emphasis in original]; see
also People v. Guido (2005) 125 Cal.App.4th 566, 574–576 [22 Cal.Rptr.3d 826]
[Griffın reasoning applies to violation of Pen. Code, § 288a(c)(2)].)
The committee has provided a bracketed definition of “force,” consistent with
People v. Griffın, supra, that the court may give on request.
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]
[where forcible crime is charged].
• Attempted Oral Copulation. Pen. Code, §§ 663, 288a.
• Battery. Pen. Code, § 242.
RELATED ISSUES
Consent Obtained by Fraudulent Representation
Aperson may also induce someone else to consent to engage in oral copulation by
a false or fraudulent representation made with an intent to create fear, and which
does induce fear and would cause a reasonable person to act contrary to his or her
free will. (Pen. Code, § 266c.) While section 266c requires coercion and fear to
obtain consent, it does not involve physical force or violence. (See People v.
Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting
defendant’s argument that certain acts were consensual and without physical force,
and were only violations of section 266c].)
Consent Withdrawn
A forcible rape occurs when, during apparently consensual intercourse, the victim
expresses an objection and attempts to stop the act and the defendant forcibly
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continues despite the objection. (In re John Z. (2003) 29 Cal.4th 756, 760 [128
Cal.Rptr.2d 783, 60 P.3d 183].) If there is an issue whether consent to oral
copulation was withdrawn, see CALCRIM No. 1000, Rape or Spousal Rape by
Force, Fear, or Threats, for language that may be adapted for use in this
instruction.
Multiple Acts of Oral Copulation
An accused may be convicted for multiple, nonconsensual sex acts of an identical
nature that follow one another in quick, uninterrupted succession. (People v. Catelli
(1991) 227 Cal.App.3d 1434, 1446–1447 [278 Cal.Rptr. 452] [defendant properly
convicted of multiple violations of Pen. Code, § 288a where he interrupted the acts
of copulation and forced victims to change positions].)
Sexual Organ
A man’s “sexual organ” for purposes of Penal Code section 288a includes the penis
and the scrotum. (Pen. Code, § 288a; People v. Catelli (1991) 227 Cal.App.3d
1434, 1448–1449 [278 Cal.Rptr. 452].)
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