1033. Sodomy of an Unconscious Person
The defendant is charged [in Count ______] with sodomy of a person who was unconscious of the nature of the act.
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).
The court has a sua sponte duty to give an instruction defining the elements of the crime.
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this instruction if appropriate.
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 s v. 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].
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[b],  (Matthew Bender).
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).
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats.
(New January 2006)