Section 1016 | CALCRIM (Jury Instructions)

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1016, Oral Copulation in Concert, may be given in conjunction
with this instruction, if appropriate.
AUTHORITY
•
Elements. Pen. Code, § 287(a), (i).
•
Consent Defined. Pen. Code, § 261.6.
•
Controlled Substances. Health & Safety Code, §§ 11054–11058; see People v.
Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
•
Anesthetic Effect. See People v. Avila (2000) 80 Cal.App.4th 791, 798–799 [95
Cal.Rptr.2d 651] [in context of sodomy].
•
Oral Copulation Defined. People v. Grim (1992) 9 Cal.App.4th 1240, 1242–1243
[11 Cal.Rptr.2d 884].
•
“Prevented From Resisting” Defined. See People v. Giardino (2000) 82
Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315] [rape of intoxicated woman].
LESSER INCLUDED OFFENSES
•
Attempted Oral Copulation. Pen. Code, §§ 663, 287.
RELATED ISSUES
See the Related Issues section to CALCRIM No. 1015, Oral Copulation by Force,
Fear, or Threats.
A defendant may be convicted of both oral copulation of an intoxicated person and
oral copulation of an unconscious person. (People v. Gonzalez (2014) 60 Cal.4th
533 [179 Cal.Rptr.3d 1, 335 P.3d 1083]; Pen. Code, § 287(f), (i).)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency §§ 35–37, 39, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][c], [5] (Matthew Bender).
CALCRIM No. 1017
SEX OFFENSES
760

1018. Oral Copulation of an Unconscious Person (Pen. Code,
§ 287(a), (f))
The defendant is charged [in Count
] with oral copulation of a
person who was unconscious of the nature of the act [in violation of
Penal Code section 287(f)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of oral copulation with another
person;
2. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
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.
A person is unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information