CALCRIM (Jury Instructions) Section 1128. BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the cr
CALCRIM (Jury Instructions) § 1128
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 section 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].
A conviction for Penal Code section 288.7(b) under an aiding and abetting theory
requires that the direct perpetrator be at least 18 years old. People v. Vital (2019) 40
Cal.App.5th 925, 930 [254 Cal.Rptr.3d 22]. If the defendant is charged under an
aiding and abetting theory, substitute the word “perpetrator” instead of “defendant”
in elements 1, 2, and 3.
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.
SEX OFFENSES
CALCRIM No. 1128
881
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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
882
This section of the CALCRIM (Jury Instructions) establishes legal requirements and provisions that apply to specific circumstances in California law.
This section applies when the specific conditions outlined in the statute are met. The exact applicability depends on the facts of each situation.
Penalties vary based on the specific violation and circumstances. They may include fines, imprisonment, or other legal consequences as specified in the California code.
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In simple terms: CALCRIM (Jury Instructions) Section 1128. BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the cr. This means people must follow this rule, and breaking it can lead to criminal penalties.