1048. Sexual Penetration of an Unconscious Person
The defendant is charged [in Count ______] with sexual penetration of a person who was unconscious of the nature of the act.
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;
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.]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction with this instruction if appropriate.
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, 540-541 [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].
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[d],  (Matthew Bender).
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.
Attempted Sexual Penetration of Unconscious Person. Pen. Code, §§ 664, 289(d).
Battery. Pen. Code, § 242.
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by Force, Fear, or Threats.
(New January 2006)