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F 10.24 n1 Unlawful Sodomy: Omission Of Element.
Prior to the July 1997 Pocket Part, Elements 1 and 2 in CJ 10.24 failed to require that the defendant be a prisoner when the sodomy occurred. The new version of CJ 10.24 corrected this defect. However, conviction under the old instruction may be subject to challenge. Failure to adequately instruct upon an element of the charge implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See FORECITE PG VII(C).)
F 10.24a
Unlawful Sodomy: Prisoner — Defendant And
Victim Must Be Inmates
(PC 286(e))
*Modify 4th ¶ of CJ 10.24 to provide as follows [added language is capitalized; deleted language is between <<>>]:
<<A person>> THE DEFENDANT, while confined in any [state prison] [or] [any local detention facility], engaged in an act of sodomy with another <<person>> INMATE OF THE [PRISON] [DETENTION FACILITY].
Points and Authorities
In People v. West (91) 226 CA3d 892, 896-98 [277 CR 237], the Court of Appeal interpreted the language of PC 286(e) to require that the defendant be a prisoner in order for liability to be imposed under the statute. (In West the defendant was a civilian employee of the Yuba County Jail charged with forcible sodomy of an inmate of the jail.) In so holding, the court relied upon its perception that the legislative purpose underlying the statute was the maintenance of prison discipline and order. Therefore, the statute must be interpreted to relate only to contacts between prisoners. (West 226 CA3d at 896-98.) CJ 10.24 should be modified as set forth above to require that the jury find that both the victim and defendant were prisoners.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 10.24b
Unlawful Sodomy: Actual Penetration Required
*Modify CJ 10.24 as follows:
(See FORECITE F 10.20e.)
