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.]
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).)
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.
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).
Lesser Included Offenses
Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(h).
(New January 2006)