1090. Sodomy With Person Under 14
The defendant is charged [in Count ______] with sodomy with a person who was under the age of 14 years and at least 10 years younger than the defendant.
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 other person was under the age of 14 years and was at least 10 years younger than the defendant.
Sodomy is any penetration, no matter how slight, of the anus of one person by the penis of another person. [Ejaculation is not required.]
[It is not a defense that the other person may have consented to the act.]
[Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.]
The court has a sua sponte duty to give an instruction defining the elements of the crime.
Give the bracketed paragraph that begins with "It is not a defense that" on request, if there is evidence that the minor consented to the act. (See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502].)
Give the bracketed paragraph about calculating age if requested. (Fam. Code, § 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rptr.2d 373, 855 P.2d 391].)
Elements. Pen. Code, § 286(c)(1).
Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1928) 62 Cal.App. 450, 452 [217 P. 121] [ejaculation is not required].
Minor's Consent Not a Defense. See People v. Kemp (1934) 139 Cal.App. 48, 51 [34 P.2d 502] [in context of statutory rape].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 25-27.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[b], [b] (Matthew Bender).
Lesser Included Offenses
Attempted Sodomy With Minor Under 14. Pen. Code, §§ 664, 286(c)(1).
Sodomy With Minor Under 18. See People v. Culbertson (1985) 171 Cal.App.3d 508, 516 [217 Cal.Rptr. 347]; People v. Jerome (1984) 160 Cal.App.3d 1087, 1097-1098 [207 Cal.Rptr. 199] [both in context of Pen. Code, § 288a(c)].
Mistake of Fact Defense Not Available
In People v. Olsen (1984) 36 Cal.3d 638 [205 Cal.Rptr. 492, 685 P.2d 52], the court held that the defendant's mistaken belief that the victim was over 14 was no defense to a charge of lewd and lascivious acts with a child under 14.
(New January 2006)