Return to CALJIC Part 9-12 – Contents
F 10.23 n1 Unlawful Sodomy: Consent and Unconsciousness.
For additional issues regarding consent and unconsciousness, see FORECITE F 10.02 et seq.
F 10.23 n2 Rape Of Spouse: Unconsciousness And Fraud – “Fraud In Fact” As Issue For The Jury.
In the July 1994 pocket part, CALJIC modified this instruction to comport with the 1994 statutory revision regarding unconsciousness and fraud. The accompanying use note suggested that whether there was “fraud in fact” is “a legal issue for the court.” This observation is erroneous.
The statute expressly predicates liability upon “the perpetrator’s fraud in fact.” Because this is a requisite element of the charge, it cannot be a legal question for the court. (See FORECITE PG VII(C).) Failure to require a jury determination of every element of the offense violates the defendant’s rights to trial by jury and due process. (Sixth and Fourteenth Amendments; see People v. Cummings (93) 4 C4th 1233, 1312-14 [18 CR2d 796].)
F 10.23a
Unlawful Sodomy: Actual Penetration Required
*Modify CJ 10.23 as follows:
(See FORECITE F 10.20e.)