1036. Sodomy by Fraud
The defendant is charged [in Count ______] with sodomy by fraud.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant committed an act of sodomy with someone else;
2. The other person submitted to the sodomy because (she/he) believed the defendant was (her/his) spouse;
3. The defendant tricked, lied, [used an artifice or pretense,] or concealed information, intending to make the other person believe that they were married to each other.
Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. [Ejaculation is not required.]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this instruction if appropriate.
Elements. Pen. Code, § 286(j).
Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App. 450, 452 [217 P. 121] [ejaculation is not required].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 26, 28.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[b],  (Matthew Bender).
Lesser Included Offenses
Attempted Sodomy by Fraud. Pen. Code, §§ 664, 286(j).
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats.
(New January 2006)