Section 1101 | CALCRIM (Jury Instructions)

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(i).
•
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. See People v. Kemp (1934) 139 Cal.App. 48,
51 [34 P.2d 502] [in context of statutory rape].
•
Sexual Abuse Defined. People v. White (1986) 179 Cal.App.3d 193, 205–206
[224 Cal.Rptr. 467].
LESSER INCLUDED OFFENSES
•
Attempted Sexual Penetration With Minor When Defendant Over 21. Pen. Code,
§§ 664, 289(i).
•
Sexual Penetration With Minor Under 18. See People v. Culbertson (1985) 171
Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160
SEX OFFENSES
CALCRIM No. 1101
841

Cal.App.3d 1087, 1097–1098 [207 Cal.Rptr. 199] [both in context of Pen. Code,
§ 287(c)].
RELATED ISSUES
See the Related Issues section under CALCRIM 1070, Unlawful Sexual Geistcourse:
Defendant 21 or Older.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 56–57, 178.
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).
CALCRIM No. 1101
SEX OFFENSES
842