California Criminal Jury Instructions (CALCRIM) (2017)

1050. Sexual Penetration of a Disabled Person in a Mental Hospital

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1050.Sexual Penetration of a Disabled Person in a Mental
Hospital (Pen. Code, § 289(c))
The defendant is charged [in Count ] with sexual penetration of
a mentally or physically disabled person in a mental hospital [in
violation of Penal Code section 289(c)].
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;
AND
5. At the time of the act, both people were confined in a state
hospital or other mental health facility.
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.]
[<If appropriate, insert name of facility> is a (state hospital/
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mental health facility).] [A state hospital or other mental health facility
includes a state hospital for the care and treatment of the mentally
disordered or any other public or private facility approved by a county
mental health director for the care and treatment of the mentally
disordered.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify a facility as a state hospital or other mental health
facility if the parties agree that there is no issue of fact. Alternatively, if there is a
factual dispute about whether an institution is a state hospital or other mental health
facility, give the final bracketed sentence. (See Pen. Code, § 289(c).)
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(c).
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].
• State Hospital or Mental Health Facility Defined. Pen. Code, § 289(c); see
Welf. & Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals
for mentally disordered], § 7500 [state hospitals for developmentally disabled].
• 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].
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,
SEX OFFENSES CALCRIM No. 1050
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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).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
Attempted Sexual Penetration of Disabled Person. Pen. Code, §§ 664, 289(c).
• 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.
CALCRIM No. 1050 SEX OFFENSES
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