1102. Sexual Penetration With Person Under 18
The defendant is charged [in Count ______] with sexual penetration with a person who was under the age of 18.
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. 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 years old. If the People have not met this burden, you must find the defendant not guilty of this crime.]
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].)
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].)
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].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 46.
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], 142.23 (Matthew Bender).
Lesser Included Offenses
Attempted Sexual Penetration With Minor. Pen. Code, §§ 664, 289(h).
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.
(New January 2006)