1100. Sexual Penetration With Person Under 14
The defendant is charged [in Count ______] with sexual penetration with a person who was under the age of 14 and at least 10 years younger than the defendant.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant participated in 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. At the time of the act, the other person was under the age of 14 years and was at least 10 years younger than the defendant.
Sexual penetration means (penetration, however slight, of the genital or anal openings of another person/ [or] causing another person to penetrate, however slightly, the defendant's or someone else's genital or anal opening/ [or] causing the other person to penetrate, no matter how 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 penetrated the opening.]
[Penetration for sexual abuse means penetration for the purpose of causing pain, injury, or discomfort.]
[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.]
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 bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 371, 855 P.2d 391].)
Elements. Pen. Code, § 289(j).
Foreign Object, Substance, Instrument, or Device Defined. Pen. Code, § 289(k)(2); 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).
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].
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, 48.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[d], [b] (Matthew Bender).
Lesser Included Offenses
Attempted Sexual Penetration With Minor Under 14. Pen. Code, §§ 664, 289(j).
Sexual Penetration With Minor Under 18. See People v. Culbertson (1985) 171 Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160 Cal.App.3d 1087, 1097-1098 [207 Cal.Rptr. 199] [both in context of oral copulation with minor under 14].
Mistake of Fact Defense Not Available
In People v. Olsen (1984) 36 Cal.3d 638, 649 [205 Cal.Rptr. 492, 685 P.2d 52], the court held that the defendant's mistaken belief that the victim was over 14 was no defense to a charge of lewd and lascivious acts with a child under 14.
(New January 2006)