CALCRIM No. 1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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 do not
have to prove a prearranged plan or scheme to commit sexual
penetration.]
New January 2006; Revised October 2021, March 2022
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] [rape
793
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.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor - Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
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].
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 in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 21.
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 §§ 12:18, 12:19
(The Rutter Group).
CALCRIM No. 1046 SEX OFFENSES
794
© Judicial Council of California.
