California Criminal Jury Instructions (CALCRIM) (2017)

1031. Sodomy in Concert

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1031.Sodomy in Concert (Pen. Code, § 286(d))
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]>] [in violation of
Penal Code section 286(d)].
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(;/
.)]
[OR]
<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.]
New January 2006
BENCH NOTES
Instructional Duty
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.
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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].)
Related Instructions
See CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM
No. 401, Aiding and Abetting: Intended Crimes.
AUTHORITY
• 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].
Secondary Sources
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[1][b], [2][c] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats, and CALCRIM No. 1001, Rape or Spousal Rape in Concert.
SEX OFFENSES CALCRIM No. 1031
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0051