The defendant is charged [in Count ______] with sodomy with a person who was under the age of 18.
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 other person was under the age of 18 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.]
The court has a sua sponte duty to give this 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].)
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].)
Elements. Pen. Code, § 286(b)(1).
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].
Mistake of Fact Regarding Age. See People v. Scott (2000) 83 Cal.App.4th 784, 800-801 [100 Cal.Rptr.2d 70]; People v. Hernandez (1964) 61 Cal.2d 529, 535-536 [39 Cal.Rptr. 361, 393 P.2d 673] [in context of statutory rape]; People v. Peterson (1981) 126 Cal.App.3d 396, 397 [178 Cal.Rptr. 734] [in context of oral copulation with minor].
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], [d], 142.23 (Matthew Bender).
Lesser Included Offenses
Attempted Sodomy of Minor. Pen. Code, §§ 664, 286(b)(1).
See the Related Issues section under CALCRIM No. 1070, Unlawful Sexual Intercourse: Defendant 21 or Older. and CALCRIM No. 1071, Unlawful Sexual Intercourse: Minor More Than Three Years Younger.
(New January 2006)