1046. Sexual Penetration in Concert
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]>].
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(;/.)]
<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 do not have to prove a prearranged plan or scheme to commit sexual penetration.]
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] [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].)
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. Griffin (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].
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[d], [c] (Matthew Bender).
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).
(New January 2006)