CALCRIM No. 1035

Code, § 286(h))

The defendant is charged [in Count] with sodomy of a mentally

or physically disabled person in a mental hospital [in violation of Penal

Code section 286(h)].

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 had a (mental disorder/developmental or

physical disability) that prevented (him/her) from legally

consenting;

3. The defendant knew or reasonably should have known that the

other person had a (mental disorder/developmental or physical

disability) that prevented (him/her) from legally consenting;

AND

4. At the time of the act, both people were confined in a state

hospital or other mental health facility.

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 prevented from legally consenting if he or she is unable to

understand the act, its nature, and probable consequences.

[<If appropriate, insert name of facility> is a (state hospital/

mental health facility).] [A state hospital or other mental health facility

includes a state hospital for the care and treatment of the mentally

disordered or any other public or private facility approved by a county

mental health director for the care and treatment of the mentally

disordered.]

New January 2006