CALCRIM No. 1048. Sexual Penetration of an Unconscious Person (Pen. Code, § 289(d))
Judicial Council of California Criminal Jury Instructions (2020 edition)Download PDF
1048.Sexual Penetration of an Unconscious Person (Pen. Code,
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
1. The defendant committed an act of sexual penetration with
2. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
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.]
New January 2006; Revised April 2020
The court has a sua sponte duty to give an instruction defining the elements of the
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
• Elements. Pen. Code, § 289(d).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538
[156 Cal.Rptr.3d 382].
• 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].
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,
• Battery. Pen. Code, § 242.
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
CALCRIM No. 1048 SEX OFFENSES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56, 59-61, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[d],  (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1048