CALCRIM No. 1046. Sexual Penetration in Concert (Pen. Code, §§ 264.1, 289(a)(1))
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
1046.Sexual Penetration in Concert (Pen. Code, §§ 264.1,
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
<Alternative A - defendant committed sexual penetration>
[1.] [The defendant personally committed sexual penetration and
voluntarily acted with someone else who aided and abetted its
<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
New January 2006; Revised October 2021, March 2022
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].)
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.
• 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
• 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).
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1001, Rape in Concert.
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[d], [c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:18, 12:19
(The Rutter Group).
CALCRIM No. 1046 SEX OFFENSES