California Criminal Jury Instructions (CALCRIM) (2017)

1051. Sexual Penetration by Fraud

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1051.Sexual Penetration by Fraud (Pen. Code, § 289(f))
The defendant is charged [in Count ] with sexual penetration by
fraud [in violation of Penal Code section 289(f)].
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. At the time of the act, the defendant and the other person were
not married to each other;
3. The penetration was accomplished by using (a/an) (foreign
object[,]/ [or] substance[,]/ [or] instrument[,]/ [or] device[,]/ [or]
unknown object);
4. The other person submitted to the act because (he/she) believed
the person (committing the act/causing the act to be committed)
was someone (he/she) knew, other than the defendant;
AND
5. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person
believe that (he/she) was someone (he/she) knew, while intending
to hide (his/her) own identity.
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 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 February 2015
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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.
Penal Code section 289(f) was amended effective September 9, 2013, in response
to People v. Morales (2013) 212 Cal.App.4th 583 [150 Cal.Rptr.3d 920].
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 289(f).
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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 58.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][d], [6] (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 by Fraud. Pen. Code, §§ 664, 289(f).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1045, Sexual Penetration by
Force, Fear, or Threats.
1052–1059. Reserved for Future Use
CALCRIM No. 1051 SEX OFFENSES
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