CALCRIM No. 1031. Sodomy in Concert (Pen. Code, § 286(d))

Judicial Council of California Criminal Jury Instructions (2022 edition)

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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; Revised October 2021, March 2022
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.
CALCRIM No. 3185, Sex Offenses: Sentencing Factor - Using Force or Fear
Against Minor Under 14 Years/14 Years or Older.
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].
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 in Concert.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 34.
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 §§ 12:18, 12:19
(The Rutter Group).
CALCRIM No. 1031 SEX OFFENSES
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