California Criminal Jury Instructions (CALCRIM) (2017)

1021. Oral Copulation by Fraud

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1021.Oral Copulation by Fraud (Pen. Code, § 288a(a), (j))
The defendant is charged [in Count ] with oral copulation by
fraud [in violation of Penal Code section 288a(j)].
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 submitted to the oral copulation because (he/
she) believed the defendant was someone (he/she) knew, other
than the defendant;
AND
3. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person
believe (he/she) was someone (he/she) knew, while intending to
hide (his/her) own identity.
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.
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 288a(a) was amended effective September 9, 2013, in response
to People v. Morales (2013) 212 Cal.App.4th 583 [150 Cal.Rptr.3d 920].
AUTHORITY
• Elements. Pen. Code, § 288a(a), (j).
• 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 (4th ed. 2012) Sex Offenses and
Crime Against Decency, § 38.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][c], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
749
0041
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.
CALCRIM No. 1021 SEX OFFENSES
750
0042