California Criminal Jury Instructions (CALCRIM) (2017)

1082. Oral Copulation With Person Under 18

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1082.Oral Copulation With Person Under 18 (Pen. Code,
§ 288a(b)(1))
The defendant is charged [in Count ] with oral copulation with a
person who was under the age of 18 [in violation of Penal Code section
288a(b)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant participated in an act of oral copulation with
another person;
AND
2. The other person was under the age of 18 when the act was
committed.
Oral copulation is any contact, no matter how slight, between the mouth
of one person and the sexual organ or anus of another person.
Penetration is not required.
[It is not a defense that the other person may have consented to the
act.]
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
<Defense: Good Faith Belief 18 or Over>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006; Revised March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Give the bracketed paragraph that begins with “It is not a defense that” on request,
if there is evidence that the minor consented to the act. (See People v. Kemp (1934)
139 Cal.App. 48, 51 [34 P.2d 502].)
Give the final bracketed paragraph about calculating age if requested. (Fam. Code,
812
0104
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
Defenses—Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535–536 [39
Cal.Rptr. 361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716
[51 Cal.Rptr. 735].)
AUTHORITY
• Elements. Pen. Code, § 288a(b)(1).
Oral Copulation Defined. Pen. Code, § 288a(a); People v. Grim (1992) 9
Cal.App.4th 1240, 1242–1243 [11 Cal.Rptr.2d 884] [in context of lewd acts
with children].
• Minor’s Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
• Mistake of Fact Regarding Age. People v. Hernandez (1964) 61 Cal.2d 529,
535–536 [39 Cal.Rptr. 361, 393 P.2d 673] [in context of statutory rape]; People
v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 54.
2Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 35–37, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, §§ 142.20[1][c], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:17, 12:18
(The Rutter Group).
LESSER INCLUDED OFFENSES
• A violation of Penal Code section 288.3 is not a lesser included offense of
attempted oral copulation, because attempt can be committed without contacting
or communicating with the victim under the statutory elements test. (People v.
Medelez (2016) 206 Cal.Rptr.3d 402, 2 Cal.App.5th 659, 663].)
RELATED ISSUES
Minor Perpetrator
A minor under age 14 may be adjudged responsible for violating Penal Code
section 288a(b)(1) upon clear proof of the minor’s knowledge of wrongfulness.
(Pen. Code, § 26; In re Paul C. (1990) 221 Cal.App.3d 43, 49 [270 Cal.Rptr. 369].)
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
1083–1089. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1082
813
0105