California Criminal Jury Instructions (CALCRIM) (2017)

1046. Sexual Penetration in Concert

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1046.Sexual Penetration in Concert (Pen. Code, §§ 264.1,
289(a)(1))
The defendant[s] [ <insert name[s] if not all defendants in
trial charged with this count>] (is/are) charged [in Count ] with
committing sexual penetration by acting in concert [with
<insert name[s] or description[s] of uncharged participant[s]>] [in
violation of Penal Code sections 264.1 and 289(a)(1)].
To prove that a defendant is guilty of this crime, the People must prove
that:
<Alternative A—defendant committed sexual penetration>
[1.] [The defendant personally committed sexual penetration and
voluntarily acted with someone else who aided and abetted its
commission(;/.)]
[OR]
<Alternative B—defendant aided and abetted>
[(1/2).] [The defendant voluntarily aided and abetted someone else
who personally committed sexual penetration.]
To decide whether the defendant[s] [or <insert name[s] or
description[s] of uncharged participant[s]>] committed sexual
penetration, please refer to the separate instructions that I (will give/
have given) you on that crime. To decide whether the defendant[s] [or
<insert name[s] or description[s] of uncharged
participant[s]>] aided and abetted sexual penetration, please refer to the
separate instructions that I (will give/have given) you on aiding and
abetting. You must apply those instructions when you decide whether
the People have proved sexual penetration in concert.
<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON
SEXUAL PENETRATION AND AIDING AND ABETTING ARE GIVEN.>
[To prove the crime of sexual penetration in concert, the People donot
have to prove a prearranged plan or scheme to commit sexual
penetration.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime. (People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404]
778
0070
[rape in concert is a separate crime, not an enhancement].) The court also has a sua
sponte duty to instruct on sexual penetration. Give one or more of the following
instructions defining sexual penetration: CALCRIM Nos. 1045 or 1047–1051.
Select alternative A or B, or both, depending on whether the defendant personally
committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding
the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337,
341–342 [122 Cal.Rtpr. 658].)
Related Instructions
See generally CALCRIM No. 400, Aiding and Abetting: General Principles, and
CALCRIM No. 401, Aiding and Abetting: Intended Crimes.
AUTHORITY
• Elements. Pen. Code, §§ 264.1, 289(a)(1); see People v. Mom (2000) 80
Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172] [rape in concert requires no
greater force than that necessary for forcible rape], disapproved on other
grounds in People v. Griffın (2004) 33 Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891,
94 P.3d 1089].
• Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 445–446
[23 Cal.Rptr.2d 512]; see People v. Beeman (1984) 35 Cal.3d 547, 560–561
[199 Cal.Rptr. 60, 674 P.2d 1318].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, § 19.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][d], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Attempted Sexual Penetration. Pen. Code, §§ 664, 289(a)(1).
• Attempted Sexual Penetration in Concert. Pen. Code, §§ 663, 264.1, 289(a)(1).
• Battery. Pen. Code, § 242.
• Sexual Penetration. Pen. Code, § 289(a)(1).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1001, Rape or Spousal Rape in
Concert.
SEX OFFENSES CALCRIM No. 1046
779
0071