California Criminal Jury Instructions (CALCRIM) (2017)
1016. Oral Copulation in ConcertDownload PDF
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
<Alternative A—defendant committed oral copulation>
[1.] [The defendant personally committed oral copulation and
voluntarily acted with someone else who aided and abetted its
<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
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.
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].)
See generally CALCRIM No. 400, Aiding and Abetting: General Principles, and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
• 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.
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[c], [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.
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
SEX OFFENSES CALCRIM No. 1016