1037. Sodomy While in Custody
The defendant is charged [in Count ______] with sodomy while he was confined in (state prison/a local detention facility).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant participated in an act of sodomy with another person;
2. At the time of the act, the defendant was confined in (state prison/a local detention 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.]
[<Insert name of facility> is a (state prison/local detention facility).] [A state prison is any prison or institution maintained by the Department of Corrections.] [A local detention facility includes any city, county, or regional jail or other facility used to confine adults [or both adults and minors].]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
A space is provided to identify a state prison or local detention facility if the parties agree that there is no issue of fact. Alternatively, if there is a factual dispute about whether the defendant was confined in a state prison or local detention facility, give the second or third bracketed sentences (or both, if necessary). (See Pen. Code, §§ 4504, 5003, 6031.4.)
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this instruction if appropriate.
Elements. Pen. Code, § 286(e); People v. West (1991) 226 Cal.App.3d 892, 898 [277 Cal.Rptr. 237] [only applies to inmates].
Local Detention Facility Defined. Pen. Code, § 6031.4.
Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App. 450, 452 [217 P.121] [ejaculation is not required].
State Prison Defined. Pen. Code, §§ 4504, 5003.
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 26.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[b],  (Matthew Bender).
Lesser Included Offenses
Attempted Sodomy While in Custody. Pen. Code, §§ 664, 286(e).
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear, or Threats.
(New January 2006)