California Criminal Jury Instructions (CALCRIM) (2017)

1047. Sexual Penetration of an Intoxicated Person

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1047.Sexual Penetration of an Intoxicated Person (Pen. Code,
§ 289(e))
The defendant is charged [in Count ] with sexual penetration of
a person while that person was intoxicated [in violation of Penal Code
section 289(e)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sexual penetration with
another person;
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or]instrument[,]/ [or]device[,]/ [or]
unknown object);
3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting the act;
AND
4. The defendant knew or reasonably should have known that the
effect of that substance prevented the other person from resisting
the act.
Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) for the purpose of
sexual abuse, arousal, or gratification.
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the
person must be able to understand and weigh the physical nature of the
act, its moral character, and probable consequences. Legal consent is
consent given freely and voluntarily by someone who knows the nature
of the act involved.
[<If appropriate, insert controlled substance> (is/are) [a]
controlled substance[s].]
[A foreign object, substance, instrument, or device includes any part of
the body except a sexual organ.] [An unknown object includes any
foreign object, substance, instrument, or device, or any part of the body,
including a penis, if it is not known what object penetrated the
opening.]
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[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
<Defense: Reasonable Belief Capable of Consent>
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to the
act, even if the defendant’s belief was wrong. The People have the
burden of proving beyond a reasonable doubt that the defendant did
not actually and reasonably believe that the woman was capable of
consenting. If the People have not met this burden, you must find the
defendant not guilty.]
New January 2006
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 controlled substances if the parties agree that there
is no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(e).
Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); People v. Wilcox (1986) 177 Cal.App.3d 715, 717 [223 Cal.Rptr.
170] [a finger is a “foreign object”].
• Sexual Penetration Defined. Pen. Code, § 289(k)(1); see People v. Quintana
(2001) 89 Cal.App.4th 1362, 1371 [108 Cal.Rptr.2d 235] [penetration of genital
opening refers to penetration of labia majora, not the vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• Anesthetic Effect Defined. See People v. Avila (2000) 80 Cal.App.4th 791,
798–799 [95 Cal.Rptr.2d 651] [in context of sodomy].
SEX OFFENSES CALCRIM No. 1047
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• Prevented From Resisting Defined. See People v. Giardino (2000) 82
Cal.App.4th 454, 465–467 [98 Cal.Rptr.2d 315] [in context of rape].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 47, 50.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][d], [5] (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) & (2), (g).
• Attempted Sexual Penetration of Intoxicated Person. Pen. Code, §§ 663,
289(e).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
CALCRIM No. 1047 SEX OFFENSES
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