CALCRIM No. 1017. Oral Copulation of an Intoxicated Person (Pen. Code, § 287(a), (i))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
1017.Oral Copulation of an Intoxicated Person (Pen. Code,
§ 287(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 287(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
776
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, § 287(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].
LESSER INCLUDED OFFENSES
• Attempted Oral Copulation. Pen. Code, §§ 663, 287.
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
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 287(f), (i).)
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).
SEX OFFENSES CALCRIM No. 1017
777
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1017 SEX OFFENSES
778

© Judicial Council of California.