CALCRIM No. 1016. Oral Copulation in Concert (Pen. Code, § 287(d))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1016.Oral Copulation in Concert (Pen. Code, § 287(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 287(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; Revised October 2021, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (See Pen. Code, § 287(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.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor - Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
AUTHORITY
• Elements. Pen. Code, § 287(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].
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, 287.
• Attempted Oral Copulation in Concert. Pen. Code, §§ 663, 287(d).
• Battery. Pen. Code, § 242.
• Oral Copulation. Pen. Code, § 287.
RELATED ISSUES
See the Related Issues sections under CALCRIM No. 1015, Oral Copulation by
Force, Fear, or Threats, and CALCRIM No. 1001, Rape in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35, 40, 178.
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 §§ 12:18, 12:19
(The Rutter Group).
CALCRIM No. 1016 SEX OFFENSES
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