CALCRIM No. 1128. Engaging in Oral Copulation or Sexual Penetration With Child 10 Years of Age or Younger (Pen. Code, § 288.7(b))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1128.Engaging in Oral Copulation or Sexual Penetration With
Child 10 Years of Age or Younger (Pen. Code, § 288.7(b))
The defendant is charged [in Count ] with engaging in (oral
copulation/ [or] sexual penetration) with a child 10 years of age or
younger [in violation of Penal Code section 288.7(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant engaged in an act of (oral copulation/ [or] sexual
penetration) with <insert name of complaining
witness>;
2. When the defendant did so, <insert name of
complaining witness> was 10 years of age or younger;
3. At the time of the act, the defendant was at least 18 years old.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[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.]
[Sexual penetration means (penetration, however slight, of the genital or
anal opening of the other person/ [or] causing the other person to
penetrate, however slightly, the defendant’s or someone else’s genital or
anal opening/ [or] causing the other person to penetrate, however
slightly, his or her own genital or anal opening) by any foreign object,
substance, instrument, device, or any unknown object for the purpose of
sexual abuse, arousal, or gratification.]
[Penetration for sexual abuse means penetration for the purpose of
causing pain, injury, or discomfort.]
[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.]
[A foreign object, substance, instrument, or device includes any part of the
body except a sexual organ.]
New August 2009; Revised April 2010, February 2013, February 2015, September
2017, September 2019
898
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
When sexual penetration is charged under Penal Code 288.7(b), instruct that the
defendant must have specific intent. People v. Saavedra (2018) 24 Cal.App.5th 605,
613-615 [234 Cal.Rptr.3d 544].
AUTHORITY
• Elements. Pen. Code, § 288.7(b).
• 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 vagina].
• Unknown Object Defined. Pen. Code, § 289(k)(3).
• 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] [finger is “foreign object”].
• Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240,
1242-1243 [11 Cal.Rptr.2d 884].
• Calculating Age. Fam. Code, § 6500; People v. Cornett (2012) 53 Cal.4th
1261, 1264, 1275 [139 Cal.Rptr.3d 837, 274 P.3d 456] [“10 years of age or
younger” means “under 11 years of age”]; In re Harris (1993) 5 Cal.4th 813,
849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].
• Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205-206
[224 Cal.Rptr. 467].
• This Instruction Upheld. People v. Saavedra (2018) 24 Cal.App.5th 605, 615
[234 Cal.Rptr.3d 544].
LESSER INCLUDED OFFENSE
• Attempted Sexual Penetration. People v. Ngo (2014) 225 Cal.App.4th 126,
158-161 [170 Cal.Rptr.3d 90].
• Attempt to commit oral copulation with a child 10 years of age or younger is
not a lesser included offense. People v. Mendoza (2015) 240 Cal.App.4th 72,
83 [191 Cal.Rptr.3d 905].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 58.
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1128
899
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[7] (Matthew Bender).
1129-1139. Reserved for Future Use
CALCRIM No. 1128 SEX OFFENSES
900

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