California Criminal Jury Instructions (CALCRIM) (2017)

1102. Sexual Penetration With Person Under 18

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1102.Sexual Penetration With Person Under 18 (Pen. Code,
§ 289(h))
The defendant is charged [in Count ] with sexual penetration
with a person who was under the age of 18 [in violation of Penal Code
section 289(h)].
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. The other person was under the age of 18 years at the time of
the act.
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.]
<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
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years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
New January 2006
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].)
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, § 289(h).
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. People v. Kemp (1934) 139 Cal.App. 48, 51
[34 P.2d 502] [in context of statutory rape].
• Mistake of Fact Regarding Age. See 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] [in
context of oral copulation with minor].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 46.
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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], 142.23[2] (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. Pen. Code, §§ 664, 289(h).
RELATED ISSUES
Forcible Self-Penetration
In a prosecution under Penal Code section 289(a), one court has held that forcible
self-penetration comes within the ambit of the statute. (People v. Keeney (1994) 24
Cal.App.4th 886, 889 [29 Cal.Rptr.2d 451].) Keeney was construing Penal Code
section 289(k)(1). Section 289(h), governing penetration with a minor, requires that
the perpetrator “participate in [the] act.” Until this issue is clarified by the appellate
courts, the definition of self-penetration in this instruction excludes forcible self-
penetration.
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older, and CALCRIM No. 1071, Unlawful Sexual
Intercourse: Minor More Than Three Years Younger.
1103–1109. Reserved for Future Use
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