Section 1031 | CALCRIM (Jury Instructions)

A space is provided to identify controlled substances if the parties agree that there is
no issue of fact.
Related Instructions
CALCRIM No. 1031, Sodomy in Concert, may be given in conjunction with this
instruction if appropriate.
AUTHORITY
•
Elements. Pen. Code, § 286(i); People v. Avila (2000) 80 Cal.App.4th 791,
802–803 [95 Cal.Rptr.2d 651].
•
Anesthetic Effect Defined. People v. Avila (2000) 80 Cal.App.4th 791, 798–799
[95 Cal.Rptr.2d 651].
•
Consent Defined. Pen. Code, § 261.6.
•
Controlled Substances Defined. Health & Safety Code, §§ 11054–11058; see
People v. Avila (2000) 80 Cal.App.4th 791, 798, fn. 7 [95 Cal.Rptr.2d 651].
•
Prevented From Resisting Defined. People v. Lujano (2017) 15 Cal.App.5th 187,
192–193 [223 Cal.Rptr.3d 105] [CALCRIM 1032 has correct definition]; People
v. Giardino (2000) 82 Cal.App.4th 454, 465–466 [98 Cal.Rptr.2d 315][in context
of rape].
•
Reasonable Belief in Capacity to Consent. People v. Lujano (2017) 15
Cal.App.5th 187, 191–192 [223 Cal.Rptr.3d 105]; People v. Giardino (2000) 82
Cal.App.4th 454, 471–472 [98 Cal.Rptr.2d 315].
•
Sodomy Defined. Pen. Code, § 286(a); see People v. Singh (1923) 62 Cal.App.
450, 452 [217 P. 121] [ejaculation is not required].
LESSER INCLUDED OFFENSES
•
Assault. Pen. Code, § 240.
•
Attempted Sodomy of Intoxicated Person. Pen. Code, §§ 664, 286(i).
•
Battery. Pen. Code, § 242.
RELATED ISSUES
See the Related Issues section under CALCRIM No. 1030, Sodomy by Force, Fear,
or Threats.
SECONDARY SOURCES
6 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 28, 31–33, 178.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.20[1][b], [5] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
CALCRIM No. 1032
SEX OFFENSES
780

1033. Sodomy of an Unconscious Person (Pen. Code, § 286(f))
The defendant is charged [in Count
] with sodomy of a person
who was unconscious of the nature of the act [in violation of Penal Code
section 286(f)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed an act of sodomy with another person;
2. The other person was unable to resist because (he/she) was
unconscious of the nature of the act;
AND
3. The defendant knew that the other person was unable to resist
because (he/she) was unconscious of the nature 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.]
A person is unconscious of the nature of the act if he or she is
(unconscious or asleep/ [or] not aware that the act is occurring/ [or] not
aware of the essential characteristics of the act because the perpetrator
tricked, lied to, or concealed information from the person/ [or] not aware
of the essential characteristics of the act because the perpetrator
fraudulently represented that the sexual penetrati