CALCRIM No. 1017

§ 287(a), (i))

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)].

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. An (intoxicating/anesthetic/controlled) substance prevented the

other person from resisting;

AND

3. The defendant knew or reasonably should have known that the

effect 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 required.

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 reasonable 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 nature of the act

involved.

[<If appropriate, insert controlled substance> (is/are) [a]

controlled substance[s].]

<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 oral

copulation, 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 August 2015