Criminal Law

1022. Oral Copulation While in Custody

The defendant is charged [in Count ______] with oral copulation committed while (he/she) was confined in (state prison/a local detention facility).

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant participated in an act of oral copulation with someone else;


2. At the time of the act, the defendant was confined in a (state prison/local detention 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.

[ <insert name of facility> is a (state prison/local detention facility).] [A state prison is any prison or institution maintained by the Department of Corrections.] [A local detention facility includes any city, county, or regional jail or other facility used to confine adults [or both adults and minors].]

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 state prison or local detention facility if the parties agree that there is no issue of fact. Alternatively, if there is a factual dispute about whether the defendant was confined in a state prison or local detention facility, give the second or third bracketed sentences (or both, if necessary). (See Pen. Code, §§ 4504, 5003, 6031.4.)

Related Instructions

CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction with this instruction, if appropriate.


Elements. Pen. Code, § 288a(a), (e).

Local Detention Facility Defined. Pen. Code, § 6031.4.

State Prison Defined. Pen. Code, §§ 4504, 5003.

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, §§ 31-32.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][c], [4] (Matthew Bender).

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.

(New January 2006)