1049. Sexual Penetration of a Disabled Person
The defendant is charged [in Count ______] with sexual penetration of a mentally or physically disabled person.
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 had a (mental disorder/developmental or physical disability) that prevented (him/her) from legally consenting;
4. The defendant knew or reasonably should have known that the other person had a (mental disorder/ developmental or physical disability) that prevented (him/ her) from legally consenting.
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 legally consenting if he or she is unable to understand the act, its nature, and probable consequences.
[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 was used to accomplish the penetration.]
[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(b).
Consent Defined. Pen. Code, § 261.6; see People v. Boggs (1930) 107 Cal.App. 492, 495-496 [290 P. 618].
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].
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).
Lesser Included Offenses
Assault. Pen. Code, § 240.
Attempted Sexual Penetration of Disabled Person. Pen. Code, §§ 664, 289(b).
Battery. Pen. Code, § 242.
(New January 2006)