California Criminal Jury Instructions (CALCRIM) (2017)

1018. Oral Copulation of an Unconscious Person

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1018.Oral Copulation of an Unconscious Person (Pen. Code,
§ 288a(a), (f))
The defendant is charged [in Count ] with oral copulation of a
person who was unconscious of the nature of the act [in violation of
Penal Code section 288a(f)].
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. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
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 unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not
aware of the essential characteristics of the act because the perpetrator
fraudulently represented that the oral copulation served a professional
purpose when it served no professional purpose).
New January 2006; Revised August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
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), (f).
Oral Copulation Defined People v. Grim (1992) 9 Cal.App.4th 1240,
743
0035
1242–1243 [11 Cal.Rptr.2d 884].
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).
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 288a(f)(2)–(4).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
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
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 288a(f), (i).)
CALCRIM No. 1018 SEX OFFENSES
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