1020. Oral Copulation of a Disabled Person in a Mental Hospital
The defendant is charged [in Count ______] with oral copulation of a mentally or physically disabled person in a mental hospital.
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;
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.]
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 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).)
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction with this instruction, if appropriate.
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].
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[c],  (Matthew Bender).
Lesser Included Offenses
Attempted Oral Copulation. Pen. Code, §§ 663, 288a.
(New January 2006)