California Criminal Jury Instructions (CALCRIM) (2017)

1037. Sodomy While in Custody

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1037.Sodomy While in Custody (Pen. Code, § 286(e))
The defendant is charged [in Count ] with sodomy while he was
confined in (state prison/a local detention facility) [in violation of Penal
Code section 286(e)].
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;
AND
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 and Rehabilitation.] [A local detention
facility includes any city, county, or regional jail or other facility used to
confine adults [or both adults and minors].]
New January 2006; Revised August 2016
BENCH NOTES
Instructional Duty
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.)
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
• 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.
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• 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.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.20[1][b], [4] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
LESSER INCLUDED OFFENSES
• Attempted Sodomy While in Custody. Pen. Code, §§ 664, 286(e).
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
1038–1044. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1037
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