CALCRIM No. 1091. Sodomy With Minor: Defendant 21 or Older (Pen. Code, § 286(b)(2))

Judicial Council of California Criminal Jury Instructions (2023 edition)

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1091.Sodomy With Minor: Defendant 21 or Older (Pen. Code,
§ 286(b)(2))
The defendant is charged [in Count ] with engaging in an act of
sodomy with a person who was under the age of 16 years at a time after
the defendant had reached (his/her) 21st birthday [in violation of Penal
Code section 286(b)(2)].
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. The defendant was at least 21 years old at the time of the act;
AND
3. The other person was under the age of 16 years at the time of the
act.
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.]
<Defense: Good Faith Belief 18 or Over>
[The defendant is not guilty of this crime if (he/she) reasonably and
actually believed that the other person was age 18 or older. The People
must prove beyond a reasonable doubt that the defendant did not
reasonably and actually believe that the other person was at least 18
years old. If the People have not met this burden, you must find the
defendant not guilty of this crime.]
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,
830
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§ 6500; In re Harris (1993) 5 Cal.4th 813, 849-850 [21 Cal.Rtpr.2d 361, 393 P.2d
673].)
Defenses - Instructional Duty
If there is sufficient evidence that the defendant reasonably and actually believed
that the minor was age 18 or older, the court has a sua sponte duty to instruct on
the defense. (See People v. Hernandez (1964) 61 Cal.2d 529, 535-536 [39 Cal.Rptr.
361, 393 P.2d 673]; People v. Winters (1966) 242 Cal.App.2d 711, 716 [51 Cal.Rptr.
735].)
AUTHORITY
• Elements. Pen. Code, § 286(b)(2).
• Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 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].
LESSER INCLUDED OFFENSES
• Attempted Sodomy With Minor When Defendant Over 21. Pen. Code, §§ 664,
286(b)(2).
• 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.Rtpr. 199] [both in context of Pen. Code, § 287(c)].
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual
Intercourse: Defendant 21 or Older.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 27-29, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.20[1][b], [3][b], 142.23[2] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
SEX OFFENSES CALCRIM No. 1091
831

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