1031. Sodomy in Concert
The defendant[s] [ <insert name[s] if not all defendants in trial charged with this count>] (is/are) charged [in Count ______] with committing sodomy by acting in concert [with <insert name[s] or description[s] of uncharged participant[s]>].
To prove that a defendant is guilty of this crime, the People must prove that:
<Alternative A—defendant committed sodomy>
[1.] [The defendant personally committed sodomy and voluntarily acted with someone else who aided and abetted its commission(;/.)]
<Alternative B—defendant aided and abetted>
[(1/2).] [The defendant voluntarily aided and abetted someone else who personally committed sodomy.]
To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] committed sodomy, please refer to the separate instructions that I (will give/have given) you on that crime. To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] aided and abetted sodomy, please refer to the separate instructions that I (will give/have given) you on aiding and abetting. You must apply those instructions when you decide whether the People have proved sodomy in concert.
<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON SODOMY AND AIDING AND ABETTING ARE GIVEN.>
[To prove the crime of sodomy in concert, the People do not have to prove a prearranged plan or scheme to commit sodomy.]
The court has a sua sponte duty to give an instruction defining the elements of the crime. (People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404] [rape in concert is a separate crime, not an enhancement].) The court also has a sua sponte duty to instruct on sodomy. Give one or more of the following instructions defining sodomy: CALCRIM No. 1030 or CALCRIM Nos. 1032-1037.
Select alternative A or B, or both, depending on whether the defendant personally committed the crime or aided and abetted someone else.
Depending on the evidence, give the final bracketed paragraph on request regarding the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337, 341-342 [122 Cal.Rptr. 658].)
Elements. Pen. Code, § 286(d).
Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 429, 444-446 [23 Cal.Rptr.2d 512]; People v. Caldwell (1984) 153 Cal.App.3d 947, 951-952 [200 Cal.Rptr. 508]; People v. Calimee (1975) 49 Cal.App.3d 337, 341-342 [122 Cal.Rptr. 658].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 30.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[b], [c] (Matthew Bender).
Lesser Included Offenses
Assault. Pen. Code, § 240.
Assault With Intent to Commit Sodomy. Pen. Code, § 220; see In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [in context of rape]; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible crime is charged].
Attempted Sodomy. Pen. Code, §§ 664, 286.
Attempted Sodomy in Concert. Pen. Code, §§ 663, 286(d).
Battery. Pen. Code, § 242.
Sodomy. Pen. Code, §§ 663, 286.
(New January 2006)