California Criminal Jury Instructions (CALCRIM) (2017)

1048. Sexual Penetration of an Unconscious Person

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1048.Sexual Penetration of an Unconscious Person (Pen. Code,
§ 289(d))
The defendant is charged [in Count ] with sexual penetration of
a person who was unconscious of the nature of the act [in violation of
Penal Code section 289(d)].
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 other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
4. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of 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 unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not
aware of the essential characteristics of the act because the perpetrator
fraudulently represented that the sexual penetration served a
professional purpose when it served no professional purpose).
[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.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
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New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(d).
Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see 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).
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
• Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53,
55 [172 Cal.Rptr. 539] [total unconsciousness is not required; in context of
sodomy and oral copulation]; see Boro v. Superior Court (1985) 163
Cal.App.3d 1224, 1229–1231 [210 Cal.Rptr. 122] [rape victim not unconscious
of nature of act; fraud in the inducement].
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).
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 289(d)(2).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
CALCRIM No. 1048 SEX OFFENSES
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• Attempted Sexual Penetration of Unconscious Person. Pen. Code, §§ 664,
289(d).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
SEX OFFENSES CALCRIM No. 1048
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