CALCRIM No. 1049. Sexual Penetration of a Disabled Person (Pen. Code, § 289(b))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1049.Sexual Penetration of a Disabled Person (Pen. Code,
§ 289(b))
The defendant is charged [in Count ] with sexual penetration of a
mentally or physically disabled person [in violation of Penal Code section
289(b)].
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;
AND
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.]
New January 2006; Revised April 2020
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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(b).
• Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538
[156 Cal.Rptr.3d 382].
• 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].
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sexual Penetration of Disabled Person. Pen. Code, §§ 664, 289(b).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
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[1][d], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1049
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