Section 1046 | CALCRIM (Jury Instructions)

<Defense: Reasonable Belief Capable of Consent>
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to the act,
even if the defendant’s belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually
and reasonably believe that the woman was capable of consenting. If the
People have not met this burden, you must find the defendant not
guilty.]
New January 2006; Revised April 2020
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. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
•
Elements. Pen. Code, § 289(e).
•
Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
•
Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
•
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).
•
Anesthetic Effect Defined. See People v. Avila (2000) 80 Cal.App.4th 791,
798–799 [95 Cal.Rptr.2d 651] [in context of sodomy].
CALCRIM No. 1047
SEX OFFENSES
800

BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1046, Sexual Penetration in Concert, may be given in conjunction
with this instruction if appropriate.
AUTHORITY
•
Elements. Pen. Code, § 289(d).
•
Specific Intent Crime. People v. McCoy (2013) 215 Cal.App.4th 1510, 1538 [156
Cal.Rptr.3d 382].
•
Foreign Object, Substance, Instrument, or Device Defined. Pen. Code,
§ 289(k)(2); see 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).
•
Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr.