California Criminal Jury Instructions (CALCRIM) (2017)

1033. Sodomy of an Unconscious Person

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1033.Sodomy of an Unconscious Person (Pen. Code, § 286(f))
The defendant is charged [in Count ] with sodomy of a person
who was unconscious of the nature of the act [in violation of Penal Code
section 286(f)].
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 other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature of the act.
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 unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not
aware of the essential characteristics of the act because the perpetrator
fraudulently represented that the sexual penetration served a
professional purpose when it served no professional purpose).
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• Elements. Pen. Code, § 286(f).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
• Unconscious of Nature of Act. People v. Howard (1981) 117 Cal.App.3d 53,
55 [172 Cal.Rptr. 539] [total unconsciousness is not required]; see Boro v.
762
0054
Superior Court (1985) 163 Cal.App.3d 1224, 1229–1231 [210 Cal.Rptr. 122]
[rape victim not unconscious of nature of act; fraud in the inducement].
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).
COMMENTARY
The statutory language describing unconsciousness includes “was not aware,
knowing, perceiving, or cognizant that the act occurred.” (See Pen. Code,
§ 286(f)(2)–(4).) The committee did not discern any difference among the statutory
terms and therefore used “aware” in the instruction. If there is an issue over a
particular term, that term should be inserted in the instruction.
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Unconscious Person. Pen. Code, §§ 664, 286(f).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SEX OFFENSES CALCRIM No. 1033
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