1017 . Oral Copulation of an Intoxicated Person (Pen. Code,
The defendant is charged [in Count ] with oral copulation of a
person while that person was intoxicated [in violation of Penal Code
section 287(i)].
T o 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
2. An (intoxicating/anesthetic/controlled) substance prevented the
other person from resisting;
3. The defendant knew or reasonably should have known that the
ef fect of an (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting.
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 requir ed.
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise r easonable judgment. In other words, the person
must be able to understand and weigh the physical nature of the act, its
moral character , and probable consequences. Legal consent is consent
given freely and voluntarily by someone who knows the natur e of the act
controlled substance[s].]
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the person was capable of consenting to oral
copulation, even if the defendant’ s belief was wr ong. The People have the
burden of proving beyond a r easonable 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 August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
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 suf ficient 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.
• Elements. Pen. Code, § 287(a), (i).
• Consent Defined. Pen. Code, § 261.6.
• Controlled Substances. Health & Safety Code, §§ 1 1054-1 1058; see People v .
A vila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr .2d 651].
• Anesthetic Ef fect. See People v . A vila (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
[1 1 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.
RELA TED ISSUES
See the Related Issues section to CALCRIM No. 1015, Oral Copulation by For ce,
Fear , or Thr eats .
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).)
SECONDAR Y SOURCES
2 W itkin & Epstein, California Criminal Law (4th ed. 2012) Sex Of fenses and
Crimes Against Decency §§ 35-37, 39, 178.
6 Millman, Sevilla & T arlow , California Criminal Defense Practice, Ch. 142, Crimes
Against the Person , § 142.20[1][c], [5] (Matthew Bender).
CALCRIM No. 1017 SEX OFFENSES
Couzens & Bigelow , Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1017
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
Lawyers - Get Listed Now! Get a free directory profile listing
