California Criminal Jury Instructions (CALCRIM) (2017)

1036. Sodomy by Fraud

Download PDF
1036.Sodomy by Fraud (Pen. Code, § 286(j))
The defendant is charged [in Count ] with sodomy by fraud [in
violation of Penal Code section 286(j)].
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 (he/she)
believed the defendant was someone (he/she) knew, other than
the defendant;
AND
3. The defendant tricked, lied, [used an artifice or pretense,] or
concealed information, intending to make the other person
believe that he was someone (he/she) knew, while intending to
hide his own identity.
Sodomy is any penetration, no matter how slight, of the anus of one
person by the penis of another person. [Ejaculation is not required.]
New January 2006; Revised February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
Penal Code section 286(j) was amended effective September 9, 2013, in response to
People v. Morales (2013) 212 Cal.App.4th 583 [150 Cal.Rptr.3d 920].
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• 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].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, § 30.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
768
0060
Crimes Against the Person, § 142.20[1][b], [6] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Sodomy by Fraud. Pen. Code, §§ 664, 286(j).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SEX OFFENSES CALCRIM No. 1036
769
0061