CALCRIM No. 1034. Sodomy of a Disabled Person (Pen. Code, § 286(g))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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1034.Sodomy of a Disabled Person (Pen. Code, § 286(g))
The defendant is charged [in Count ] with sodomy of a mentally
or physically disabled person [in violation of Penal Code section 286(g)].
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 had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
consenting;
AND
3. The defendant knew or reasonably should have known that the
other person had a (mental disorder/developmental or physical
disability) that prevented (him/her) from legally consenting.
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 legally consenting if he or she is unable to
understand the act, its nature, and possible consequences.
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(g).
• Prevented from Legally Consenting, Defined. People v. Boggs (1930) 107
Cal.App. 492, 495-496 [290 P. 618].
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(g).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
800
or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
SECONDARY SOURCES
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[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1034
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