California Criminal Jury Instructions (CALCRIM) (2017)

1016. Oral Copulation in Concert

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1016.Oral Copulation in Concert (Pen. Code, § 288a(d))
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]>] [in
violation of Penal Code section 288a(d)].
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.]
New January 2006
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.
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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).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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.
SEX OFFENSES CALCRIM No. 1016
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