CALCRIM No. 1032. Sodomy of an Intoxicated Person (Pen. Code, § 286(i))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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; Revised March 2018
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
796
A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
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. People v. Lujano (2017) 15 Cal.App.5th
187, 192-193 [223 Cal.Rptr.3d 105] [CALCRIM 1032 has correct definition];
People v. Giardino (2000) 82 Cal.App.4th 454, 465-466 [98 Cal.Rptr.2d 315][in
context of rape].
• Reasonable Belief in Capacity to Consent. People v. Lujano (2017) 15
Cal.App.5th 187, 191-192 [223 Cal.Rptr.3d 105]; People v. Giardino (2000) 82
Cal.App.4th 454, 471-472 [98 Cal.Rptr.2d 315].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
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.
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31-33, 178.
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).
SEX OFFENSES CALCRIM No. 1032
797

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