California Criminal Jury Instructions (CALCRIM) (2017)

1017. Oral Copulation of an Intoxicated Person

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1017.Oral Copulation of an Intoxicated Person (Pen. Code,
§ 288a(a), (i))
The defendant is charged [in Count ] with oral copulation of a
person while that person was intoxicated [in violation of Penal Code
section 288a(i)].
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 another
person;
2. An (intoxicating/anesthetic/controlled) substance prevented the
other person from resisting;
AND
3. The defendant knew or reasonably should have known that the
effect of an (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting.
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.
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the
person must be able to understand and weigh the physical nature of the
act, its moral character, and probable consequences. Legal consent is
consent given freely and voluntarily by someone who knows the nature
of the act involved.
[<If appropriate, insert controlled substance> (is/are) [a]
controlled substance[s].]
<Defense: Reasonable Belief Capable of Consent>
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to oral
copulation, even if the defendant’s belief was wrong. The People have
the burden of proving beyond a reasonable doubt that the defendant
did not actually and reasonably believe that the woman was capable of
consenting. If the People have not met this burden, you must find the
defendant not guilty.]
New January 2006; Revised August 2015
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BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify controlled substances if the parties agree that there
is no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
• Elements Pen. Code, § 288a(a), (i).
Consent Defined Pen. Code, § 261.6.
• Controlled Substances Health & Safety Code, §§ 11054–11058; see People v.
Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Anesthetic Effect See People v. Avila (2000) 80 Cal.App.4th 791, 798–799 [95
Cal.Rptr.2d 651] [in context of sodomy].
• Oral Copulation Defined People v. Grim (1992) 9 Cal.App.4th 1240,
1242–1243 [11 Cal.Rptr.2d 884].
• “Prevented From Resisting” Defined See People v. Giardino (2000) 82
Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315] [rape of intoxicated woman].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][c], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation Pen. Code, §§ 663, 288a.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
A defendant may be convicted of both oral copulation of an intoxicated person and
oral copulation of an unconscious person. (People v. Gonzalez (2014) 60 Cal.4th
SEX OFFENSES CALCRIM No. 1017
741
0033
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 288a(f), (i).)
CALCRIM No. 1017 SEX OFFENSES
742
0034