CALCRIM No. 1037. Sodomy While in Custody
Judicial Council of California Criminal Jury Instructions (2017 edition)Download PDF
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
1. The defendant participated in an act of sodomy with another
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
The court has a sua sponte duty to give an instruction deﬁning the elements of the
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 (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[b],  (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).
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
1038–1044. Reserved for Future Use
SEX OFFENSES CALCRIM No. 1037
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