Cal Pen Code § 288a (2004)
§ 288a. Oral copulation
(a) Oral copulation is the act of copulating the mouth of one
person with the sexual organ or anus of another person.
(b)(1) Except as provided in Section 288, any person who
participates in an act of oral copulation with another person who is under 18
years of age shall be punished by imprisonment in the state prison, or in a
county jail for a period of not more than one year.
(2) Except as provided in Section 288, any person over the
age of 21 years who participates in an act of oral copulation with another
person who is under 16 years of age is guilty of a felony.
(c)(1) Any person who participates in an act of oral
copulation with another person who is under 14 years of age and more than 10
years younger than he or she shall be punished by imprisonment in the state
prison for three, six, or eight years.
(2) Any person who commits an act of oral copulation when the
act is accomplished against the victim's will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the victim
or another person shall be punished by imprisonment in the state prison for
three, six, or eight years.
(3) Any person who commits an act of oral copulation where the
act is accomplished against the victim's will by threatening to retaliate in
the future against the victim or any other person, and there is a reasonable
possibility that the perpetrator will execute the threat, shall be punished by
imprisonment in the state prison for three, six, or eight years.
(d) Any person who, while voluntarily acting in concert with
another person, either personally or by aiding and abetting that other person,
commits an act of oral copulation (1) when the act is accomplished against the
victim's will by means of force or fear of immediate and unlawful bodily injury
on the victim or another person, or (2) where the act is accomplished against
the victim's will by threatening to retaliate in the future against the victim
or any other person, and there is a reasonable possibility that the perpetrator
will execute the threat, or (3) where the victim is at the time incapable,
because of a mental disorder or developmental or physical disability, of giving
legal consent, and this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state prison for
five, seven, or nine years. Notwithstanding the appointment of a conservator
with respect to the victim pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime described under
paragraph (3), that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving legal consent.
(e) Any person who participates in an act of oral copulation
while confined in any state prison, as defined in Section 4504 or in any local
detention facility as defined in Section 6031.4, shall be punished by
imprisonment in the state prison, or in a county jail for a period of not more
than one year.
(f) Any person who commits an act of oral copulation, and the
victim is at the time unconscious of the nature of the act and this is known to
the person committing the act, shall be punished by imprisonment in the state
prison for a period of three, six, or eight years. As used in this subdivision,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the
act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraudulent
representation that the oral copulation served a professional purpose when it
served no professional purpose.
(g) Except as provided in subdivision (h), any person who
commits an act of oral copulation, and the victim is at the time incapable,
because of a mental disorder or developmental or physical disability, of giving
legal consent, and this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state prison, for
three, six, or eight years. Notwithstanding the existence of a conservatorship
pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1
(commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code), the prosecuting attorney shall prove, as
an element of the crime, that a mental disorder or developmental or physical
disability rendered the alleged victim incapable of giving consent.
(h) Any person who commits an act of oral copulation, and the
victim is at the time incapable, because of a mental disorder or developmental
or physical disability, of giving legal consent, and this is known or
reasonably should be known to the person committing the act, and both the
defendant and the victim are at the time confined in a state hospital for the
care and treatment of the mentally disordered or in any other public or private
facility for the care and treatment of the mentally disordered approved by a
county mental health director, shall be punished by imprisonment in the state
prison, or in a county jail for a period of not more than one year. Notwithstanding
the existence of a conservatorship pursuant to the provisions of the
Lanterman-Petris-Short Act (Part 1 (commencing with Section
5000) of Division 5 of the Welfare and Institutions Code), the
prosecuting attorney shall prove, as an element of the crime, that a mental
disorder or developmental or physical disability rendered the alleged victim
incapable of giving legal consent.
(i) Any person who commits an act of oral copulation, where
the victim is prevented from resisting by any intoxicating or anesthetic
substance, or any controlled substance, and this condition was known, or
reasonably should have been known by the accused, shall be punished by
imprisonment in the state prison for a period of three, six, or eight years.
(j) Any person who commits an act of oral copulation, where
the victim submits under the belief that the person committing the act is the
victim's spouse, and this belief is induced by any artifice, pretense, or
concealment practiced by the accused, with intent to induce the belief, shall
be punished by imprisonment in the state prison for a period of three, six, or
eight years.
(k) Any person who commits an act of oral copulation, where
the act is accomplished against the victim's will by threatening to use the
authority of a public official to incarcerate, arrest, or deport the victim or
another, and the victim has a reasonable belief that the perpetrator is a
public official, shall be punished by imprisonment in the state prison for a
period of three, six, or eight years.
As used in this subdivision, "public official"
means a person employed by a governmental agency who has the authority, as part
of that position, to incarcerate, arrest, or deport another. The perpetrator
does not actually have to be a public official.
(l) As used in subdivisions (c) and (d), "threatening to
retaliate" means a threat to kidnap or falsely imprison, or to inflict
extreme pain, serious bodily injury, or death.
(m) In addition to any punishment imposed under this section,
the judge may assess a fine not to exceed seventy dollars ($ 70) against any
person who violates this section, with the proceeds of this fine to be used in
accordance with Section 1463.23. The court shall, however, take into
consideration the defendant's ability to pay, and no defendant shall be denied
probation because of his or her inability to pay the fine permitted under this
subdivision.