CALCRIM No. 1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
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
To prove that the defendant is guilty of this crime, the People must
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;
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
The court has a sua sponte duty to give an instruction defining the elements of the
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 Boro 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].
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,
2 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[b],  (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1033 SEX OFFENSES