California Criminal Jury Instructions (CALCRIM) (2017)

1100. Sexual Penetration With Person Under 14

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(iv) Sexual Penetration
1100.Sexual Penetration With Person Under 14 (Pen. Code,
§289(j))
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 [in violation of Penal Code section 289(j)].
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);
AND
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.]
New January 2006
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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.
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 373, 855 P.2d
391].)
AUTHORITY
• 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].
Secondary Sources
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[1][d], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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].
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RELATED ISSUES
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.
CALCRIM No. 1100 SEX OFFENSES
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