California Criminal Jury Instructions (CALCRIM) (2017)

1032. Sodomy of an Intoxicated Person

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1032.Sodomy of an Intoxicated Person (Pen. Code, § 286(i))
The defendant is charged [in Count ] with sodomy of a person
while that person was intoxicated [in violation of Penal Code section
286(i)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the other person from resisting;
AND
3. The defendant knew or reasonably should have known that the
effect of that substance prevented the other person from
resisting.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
A person is prevented from resisting if he or she is so intoxicated that he
or she cannot give legal consent. In order to give legal consent, a person
must be able to exercise reasonable judgment. In other words, the
person must be able to understand and weigh the physical nature of the
act, its moral character, and probable consequences. Legal consent is
consent given freely and voluntarily by someone who knows the nature
of the act involved.
[<If appropriate, insert controlled substance[s]> (is/are) [a]
controlled substance[s].]
<Defense: Reasonable Belief Capable of Consent>
[The defendant is not guilty of this crime if (he/she) actually and
reasonably believed that the other person was capable of consenting to
the act, even if that belief was wrong. The People have the burden of
proving beyond a reasonable doubt that the defendant did not actually
and reasonably believe that the other person was capable of consenting.
If the People have not met this burden, you must find the defendant not
guilty.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
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A space is provided to identify controlled substances if the parties agree that there
is no issue of fact.
Defenses—Instructional Duty
The court has a sua sponte duty to instruct on the defense of reasonable belief the
person was capable of consent if there is sufficient evidence to support the defense.
(See People v. Giardino (2000) 82 Cal.App.4th 454, 472 [98 Cal.Rptr.2d 315].)
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(i); People v. Avila (2000) 80 Cal.App.4th 791,
802–803 [95 Cal.Rptr.2d 651].
• Anesthetic Effect Defined. People v. Avila (2000) 80 Cal.App.4th 791,
798–799 [95 Cal.Rptr.2d 651].
• Consent Defined. Pen. Code, § 261.6.
• Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
• Prevented From Resisting Defined. See People v. Giardino (2000) 82
Cal.App.4th 454, 465–467 [in context of rape].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and
Crimes Against Decency, §§ 26, 29.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Assault. Pen. Code, § 240.
• Attempted Sodomy of Intoxicated Person. Pen. Code, §§ 664, 286(i).
• Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SEX OFFENSES CALCRIM No. 1032
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