Criminal Law

1035. Sodomy of a Disabled Person in a Mental Hospital

The defendant is charged [in Count ______] with sodomy of a mentally or physically disabled person in a mental hospital.

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;

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;


4. At the time of the act, both people were confined in a state hospital or other mental health facility.

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 probable consequences.

[ <If appropriate, insert name of facility> is a (state hospital/mental health facility).] [A state hospital or other mental health facility includes a state hospital for the care and treatment of the mentally disordered or any other public or private facility approved by a county mental health director for the care and treatment of the mentally disordered.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime.

A space is provided to identify a facility as a state hospital or other mental health facility if the parties agree that there is no issue of fact. Alternatively, if there is a factual dispute about whether an institution is a state hospital or other mental health facility, give the final bracketed sentence. (See Pen. Code, § 286(h).)

Related Instructions

CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this instruction, if appropriate.


Elements. Pen. Code, § 286(h).

Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App. 450, 452 [217 P. 121] [ejaculation is not required].

State Hospital or Mental Health Facility Defined. Pen. Code, § 286(h); see Welf. & Inst. Code, § 7100 [county psychiatric facilities], § 7200 [state hospitals for mentally disordered], § 7500 [state hospitals for developmentally disabled.

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).

Lesser Included Offenses

Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(h).

Related Issues

See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.

(New January 2006)