CALCRIM No. 1035. Sodomy of a Disabled Person in a Mental Hospital (Pen. Code, § 286(h))
Judicial Council of California Criminal Jury Instructions (2023 edition)Download PDF
1035.Sodomy of a Disabled Person in a Mental Hospital (Pen.
Code, § 286(h))
The defendant is charged [in Count ] with sodomy of a mentally
or physically disabled person in a mental hospital [in violation of Penal
Code section 286(h)].
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 had a (mental disorder/developmental or
physical disability) that prevented (him/her) from legally
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
New January 2006
The court has a sua sponte duty to give an instruction defining the elements of the
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].
LESSER INCLUDED OFFENSES
• Attempted Sodomy of Disabled Person. Pen. Code, §§ 664, 286(h).
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats, and CALCRIM No. 1004, Rape of a Disabled Woman.
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. 1035 SEX OFFENSES