1050. Sexual Penetration of a Disabled Person in a Mental Hospital
The defendant is charged [in Count ______] with sexual penetration of a mentally or physically disabled person in a mental hospital.
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;
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/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.]
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).)
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction with this instruction if appropriate.
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].
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(c).
Battery. Pen. Code, § 242.
(New January 2006)