1015. Oral Copulation by Force, Fear, or Threats
The defendant is charged [in Count ______] with oral copulation by force.
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;
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 anyone.]
<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 official 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.]
[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.]
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.
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, 1001-1002 [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).
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. Griffin (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].
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[c],  (Matthew Bender).
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, 1001-1002 [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. 1001-1002, 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 specialized meaning and court is not required to define the term sua sponte. (People v. Griffin (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. Griffin, 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. Griffin, 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] [Griffin reasoning applies to violation of Pen. Code, § 288a(c)(2)].)
The committee has provided a bracketed definition of "force," consistent with People v. Griffin, 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.
Consent Obtained by Fraudulent Representation
A person 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].)
A forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly 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].)
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].)
(New January 2006)