People v. Dillon (2009) 174 Cal. App. 4th 1367, upheld a conviction using CC 890 in conjunction with CC 1045 dealing with the target offense of sexual penetration by force or fear. However, in 2010, when the same defendant in the Dillon case filed a petition for writ of habeas corpus in a federal court, the United States District Court held that a portion of CC 890 was invalid when the target offense is assault with intent to commit sexual penetration because neither CC 890 nor CC 1045 inform a jury that the defendant must have the specific intent to commit the act without the consent of the victim. (Hall v. Cullen (N.D. 2010) 2010 WL 2991663, 2010 U.S. Dist. LEXIS 89946.)
Of course, Hall v. Cullen is a federal district court case that is not controlling on California state court decisions as to which jury instructions to use. (See People v. Zapien (1993) 4 Cal. 4th 929, 989 [“Decisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.”].) However, courts should use extreme caution in instructing the jury with CC 890 when the target crime requires specific intent. Although not required under People v. Dillon, it will probably be a good idea to go ahead and inform the jury regarding specific intent, e.g. “The offense of assault with the intent to commit sexual penetration requires that the defendant intend to commit the sexual penetration without the victim’s consent.”
The Dillon court recognized that CC 890 does not expressly provide that the assault must be non-consensual. Although the court found that other instructions sufficiently address this problem, this CC itself should be modified to expressly provide:
The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the other person consented. If the People have not met this burden, you must find the defendant not guilty.