California Criminal Jury Instructions (CALCRIM) (2017)

1020. Oral Copulation of a Disabled Person in a Mental Hospital

Download PDF
1020.Oral Copulation of a Disabled Person in a Mental Hospital
(Pen. Code, § 288a(a), (h))
The defendant is charged [in Count ] with oral copulation of a
mentally or physically disabled person in a mental hospital [in violation
of Penal Code section 288a(h)].
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 someone
else;
2. The other person had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting;
AND
4. At the time of the act, both people were confined in a state
hospital or other mental health facility.
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 incapable of giving legal consent if he or she is unable to
understand the act, its nature, and possible consequences.
[<Insert name of facility> is a (state hospital/mental health
facility).] [A state hospital or other mental health facility includes a state
hospital for the care and treatment of the mentally disordered or any
other public or private facility approved by a county mental health
director for the care and treatment of the mentally disordered.]
New January 2006
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 a facility as a state hospital or other mental health
facility if the parties agree that there is no issue of fact. Alternatively, if there is a
747
0039
factual dispute about whether an institution is a state hospital or other mental health
facility, give the final bracketed sentence. (See Pen. Code, § 288a(h).)
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), (h).
State Hospital or Mental Health Facility Defined. Pen. Code, § 288a(h); see
Welf. & Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals
for mentally disordered], § 7500 [state hospitals for developmentally disabled].
• Legal Consent. People v. Boggs (1930) 107 Cal.App. 492, 495–496 [290 P.
618].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240,
1242–1243 [11 Cal.Rptr.2d 884].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 31–33, 35.
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, and CALCRIM No. 1004, Rape of a Disabled Woman.
CALCRIM No. 1020 SEX OFFENSES
748
0040