California Criminal Jury Instructions (CALCRIM) (2017)

1090. Sodomy With Person Under 14

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(iii) Sodomy
1090.Sodomy With Person Under 14 (Pen. Code, § 286(c)(1))
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 [in violation of Penal Code section 286(c)(1)].
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 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.]
New January 2006
BENCH NOTES
Instructional Duty
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].)
AUTHORITY
• 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,
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51 [34 P.2d 502] [in context of statutory rape].
Secondary Sources
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[1][b], [3][b] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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)].
RELATED ISSUES
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.
SEX OFFENSES CALCRIM No. 1090
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