Introduction

Sodomy (California Penal Code section 286) in this state involves you (allegedly) having anal sex (or, alternatively, facilitating contact between your penis and the victim’s anus or vice-versa) with an adult against his/her will, or with a minor (regardless of whether he/she consents, including if you, too, were a minor at the time). Penal Code section 286(a).

In other words, if you somehow forced an adult or a minor to have contact or penetration with his penis and your anus, or if a minor consensually did so, you can still be charged with this crime.

Depending on the circumstances of your situation, a sodomy charge against you can result in a felony or misdemeanor prosecution (see below).

As a result, a conviction can range anywhere from probation to four years in prison (excluding any sentencing enhancements – again, see below) with possible lifetime sex registration, pursuant to California Penal Code section 290.

Because sodomy is considered to be a serious criminal offense in some circumstances, the Los Angeles County District Attorney’s Office utilizes its Sex Crimes Division to prosecute such cases. Similarly, other law enforcement entities in LA County specialize in targeting such crimes, such as LASD’s Special Victims Bureau.

California Statutes – Sex Crimes -- Sodomy


California Penal Code section 286(b)(1) -- Sodomy with Person Under 18

As indicated above, depending on your particular circumstances, a violation of this specific provision can be prosecuted as a misdemeanor or felony.

California Penal Code section 286(b)(2) -- Sodomy with Minor: Defendant 21 or Older

So long as the purported victim is under seventeen years old, and you are at least twenty-one, you’ll definitely be charged with a felony.

California Penal Code section 286(c)(2)(A) -- Sodomy through Force, Violence, or Fear

Regardless of your age or that of the purported victim, if you used any of these means to commit sodomy, you’ll be charged with a felony under this subsection.

California Penal Code section 286(c)(1) -- Sodomy with Person Under 14

If the purported victim is age thirteen or less, and you are were at least ten years older at the time of the alleged incident, then you’ll be charged with a felony.

California Penal Code section 286(d) -- Sodomy in Concert

This specific violation is charged when you allegedly participated, in or otherwise aided or abetted, the primary perpetrator in sodomizing the victim.

California Penal Code section 286(f) -- Sodomy of an Unconscious Person

The prosecutor must be able to prove that you knew that the purported victim was unconscious, asleep, or otherwise unaware of you sodomizing him/her – which, of course, is always charged as a felony.

California Penal Code section 286(g) -- Sodomy of a Disabled Person

Here, the prosecutor must be able to prove that you knew that the purported victim was so mentally incapacitated or physically disabled that he/she was incapable of consenting to the act. This, too, is always charged as a felony.

California Penal Code section 286(i) -- Sodomy of an Intoxicated Person

If you intentionally drugged or otherwise rendered the victim into such a physical or mental state that he/she was incapable of resisting your “advances” – and you were reasonably aware that he/she was in such a state – then you’ll be charged with a felony hereunder.

California Penal Code section 286(j) -- Sodomy by Fraud

This entails you obtaining the victim’s consent to engage in copulation through deceit (e.g., by pretending to be the victim’s spouse while he/she is asleep). This, too, is always charged as a felony.

California Penal Code section 288.7(a) -- Engaging in Sodomy with Child 10 Years of Age or Younger

If you engage in sodomy with a minor who is at least a decade younger than you, then you’ll be charged with this particular felony.

Sex Crimes Convictions – Sodomy

California Penal Code section 286(b)(1) -- Sodomy with Person Under 18

Since this is a “Wobbler” offense (California Penal Code section 17(b)), your conviction will be either a misdemeanor or a felony.

In the former case, you’ll receive a maximum of 12 months in the county jail. If it’s the latter, then because this particular provision doesn’t specify the specific prison-term range, you’ll be sentenced under California Penal Code section 1170(h)(1).

The range provided for therein is 16, 24, or 36 months (i.e., low, mid, and high terms).

California Penal Code section 286(b)(2) -- Sodomy with Minor: Defendant 21 or Older

In the event you are convicted of this felony, you’ll be sentenced along the same range as set forth in Penal Code section 1170(h)(1): 16, 24, or 36 months.

California Penal Code section 286(c)(2) -- Sodomy through Force, Violence, or Fear

If the victim is an adult, you’ll be sentenced to the low, mid, or high prison terms of 3, 6, or 8 years. Penal Code section 286(c)(2)(A).

If the threats relate to future retaliation against the victim or a third party, the range will be the same.

California Penal Code section 286(c)(2) -- Sodomy through Force, Violence, or Fear with Person Under 14

However, if the victim is 13 years old or younger, the range will be nine, eleven, or thirteen years. Penal Code section 286(c)(2)(B).

California Penal Code section 286(c)(2) -- Sodomy through Force, Violence, or Fear with Minor Over 14

However, if the victim is 14 through 17 years old, the range will be seven, nine, or eleven years. Penal Code section 286(c)(2)(C).

California Penal Code section 286(d) -- Sodomy in Concert

The range for this conviction is 5, 7, or 9 years so long as the victim is an adult. Penal Code section 286(d)(1).

But if the victim is 13 years old or less, then the range will be ten, twelve, or fourteen years in a penitentiary. Penal Code section 286(d)(2).

And if the minor victim is 14 through 17 years old, the range will be seven, nine, or eleven years. Penal Code section 286(d)(3).

California Penal Code section 286(f) -- Sodomy of an Unconscious Person

If the victim was an adult, the range will be 3, 6, or 8 years.

California Penal Code section 286(g) -- Sodomy of a Disabled Person

The same range applies if the victim was so mentally or physically disabled that he/she was incapable of legally consenting to the act.

California Penal Code section 286(i) -- Sodomy of an Intoxicated Person

And the same range applies under this particular circumstance.

California Penal Code section 286(j) -- Sodomy by Fraud

If you knew the victim and used deceit to get him/her to consent to the act, then you’ll be sentenced to 3, 6, or 8 years.

California Penal Code section 288.7(a) -- Engaging in Sodomy with Child 10 Years of Age or Younger

If you’re convicted of this crime as an adult, you’ll automatically receive twenty-five years to life in prison. Hence, this type of crime is sometimes referred to as a “Super-Strike” (see below).

Sex Crimes Convictions – Sentencing Enhancements -- Sodomy

Certain sodomy crimes – i.e., those involving force or threats – will be charged as a “Strike offense”. Specifically, such a charge is considered to be a “Violent Felony” Strike under California Penal Code § 667.5(4), or as a “Serious Felony” Strike under California Penal Code § 1192.7(4).

In addition, if you assaulted the victim in an unsuccessful attempt to sodomize him/her, then this, too, will be charged as a Serious Felony Strike pursuant to Penal Code § 1192.7(29). See also Assault with Intent to Commit Sodomy at California Penal Code § 220.

See also Attempted Forcible Sodomy at California Penal Code § 664 & § 286.

As a result, if you’ve previously been convicted of at least one Violent Felony or Serious Felony, then you’ll receive a significant enhancement to the prison sentence on your current Sodomy with Force conviction. This can range anywhere from five additional years up to 25-to-life, depending on how many previous convictions you have.

Sex Crimes – Registration Requirements -- Sodomy

As a Tier One registerable offense, even a misdemeanor conviction may require you to register as a sex offender for a minimum of ten years, pursuant to California’s Sex Offender Registration law, codified at California Penal Code section 290.

As a result, within five days of your birthday for each of those years, you’ll have to register with local law enforcement authorities or risk being charged with a new felony, pursuant to Sex Offender Registration Act: Penalties for Violation (California Penal Code section 290.018).

This means anyone can look you up within moments on our state’s Megan’s Law website.

Fortunately, in some sodomy cases, such as where the minor victim was at least fourteen, and you were not more than ten years older – even if you were convicted of a felony – the judge has the authority to not require you to register. See, e.g., California Penal Code section 286(b)(1) -- Sodomy with Person Under 18.

However, sodomizing the victim while he/she was unconscious, asleep, intoxicated, drugged, or too mentally or physically disabled to legally consent is classified as a Tier Two offense. This means you’ll have to register for at least two decades. See, e.g., California Penal Code section 286(f) -- Sodomy of an Unconscious Person.

Another Tier Two offense is sodomizing a minor when he/she was 13 years or younger, and you were more than a decade older – which, again, will always be a felony conviction. See, e.g., California Penal Code section 286(b)(2) -- Sodomy with Minor: Defendant 21 or Older.

Finally, if you used force or threats to sodomize the victim, or you acted in concert with someone to do the same, then you’ll be categorized as a Tier Three offender, which requires lifetime registration. See, e.g., California Penal Code section 286(c)(2) -- Sodomy through Force, Violence, or Fear.

Sodomizing a victim who is under age 11 will also get you mandatory lifetime registration. See California Penal Code section 288.7(a) -- Engaging in Sodomy with Child 10 Years of Age or Younger.

Defenses to Sex Crimes Charges -- Sodomy

The Judicial Council of California’s Criminal Jury Instructions (“CALCRIM”) allow for the following defenses – some are complete and some are partial (i.e., they will result in a mitigation or reduction of the criminal charge) – to the above discussed crimes:

  1. You never used force or threats against the victim; alternatively, you did so but either the purported victim never believed you could carry out the threat or he/she did believe you but no reasonable person would have believed you were so capable;

  2. The purported victim legally consented to the sodomy;

  3. You never actually achieved contact between your penis and the purported victim’s anus or vice-versa;

  4. You reasonably believed he/she consented to the sodomy;

  5. You didn’t act in concert with the primary sodomizer or you did so involuntarily (e.g., the main perpetrator threatened you with a gun to participate);

  6. The purported victim was intoxicated, high on drugs, mentally incapacitated, or physically disabled at the time of the act, but not to the point where he/she was incapable of resisting or of giving legal consent;

  7. You did not reasonably or actually know he/she was so intoxicated, high, mentally incapacitated, or physically disabled that he/she was incapable of resisting;

  8. You didn’t trick, lie, use any artifice or pretense, or conceal info in order to convince the purported victim to engage in sodomy with you;

  9. At the time of the sodomy with the underage victim, you were also a minor (mitigation).

Please keep in mind that even if you were married to the victim or you at other times engaged in consensual sodomy, you can still be convicted of illegally engaging in the act in the present case.

Further, even if you mistakenly – though sincerely – believed the minor was 14 through 17 years old (for purposes of mitigation), you can still be convicted of California Penal Code section 288.7(a) -- Engaging in Sodomy with Child 10 Years of Age or Younger. See People v. Olsten (1984) 36 Cal.3d 638.

However, “mistake of fact” (as this “perfect defense” is known) does apply to California Penal Code section 286(b)(2) -- Sodomy with Minor: Defendant 21 or Older if you reasonably believed the purported victim was an adult.

Of course, it’s the Deputy DA’s burden to prove beyond a reasonable doubt that you lacked a “good faith” belief that the purported victim was at least 18. See People v. Hernandez (1964) 61 Cal.2d 529, 535-536.

The foregoing defenses are set forth in the following:

CALCRIM number 1030 (“Sodomy by Force, Fear, or Threats -- Pen. Code § 286(c)(2), (3), (k)”);

CALCRIM number 1031 (“Sodomy in Concert -- Pen. Code § 286(d)”);

CALCRIM number 1032 (“Sodomy of an Intoxicated Person -- Pen. Code § 286(i)”);

CALCRIM number 1034 (“Sodomy of a Disabled Person -- Pen. Code § 286(g)”);

CALCRIM number 1035 (“Sodomy of a Disabled Person in a Mental Hospital -- Pen. Code § 286(h)”);

CALCRIM number 1036 (“Sodomy by Fraud -- Pen. Code § 286(j)”);

CALCRIM number 1090 (“Sodomy With Person Under 14 -- Pen. Code § 286(c)(1)”);

CALCRIM number 1091 (“Sodomy With Minor: Defendant 21 or Older -- Pen. Code § 286(b)(2)”);

CALCRIM number 1092 (“Sodomy With Person Under 18 -- Pen. Code § 286(b)(1)”);

CALCRIM number 1127 (“Engaging in Sexual Intercourse or Sodomy With Child 10 Years of Age or Younger -- Pen. Code § 288.7(a)”).

Examples of Sex Crimes -- Sodomy

Huntington Beach high school teacher gets two years in prison for sodomizing 17-year-old boy

During a two-month period in the summer of 2017 (July & Aug.), Long Beach resident and Huntington Beach teacher Andy Bueno-Potts (41) allegedly repeatedly sodomized a male minor (seventeen) at the former’s home.

It remains unclear how they knew each other since the boy did not attend that school. It also remains unclear how Long Beach PD was notified about the alleged incidents but they arrested Bueno-Potts sometime thereafter.

In early Feb. 2019, he accepted a nolo contendre plea to a single count of California Penal Code section 286(b)(1) -- Sodomy with Person Under 18.

On Feb. 22nd, he received a 24-month sentence in a California penitentiary, a decade-long stay-away order, and lifetime registration. He also undoubtedly was fired from his job and permanently stripped of his teaching credentials.

See: da.lacounty.gov.

Monrovia man gets a life sentence for kidnapping and sodomizing multiple women over 5 years

In Feb. 2012, Monrovia resident Jason Yu (36) kidnapped an adult female (age unknown) for the purpose of raping her.

In or about Feb. 2016, in two separate incidents, he physically assaulted for the purpose of sodomizing two other adult females (age unknown).

One year later, in Feb. 2017, he kidnapped another adult female (age unknown) for the purpose of raping her. According to the DA’s Office, he lured in all of these women (who were all between the ages of twenty-two and sixty) by offering them cash or narcotics as payment for sexual services. (Apparently, the four victims were all sex workers.)

Shortly after this final incident, he was arrested by LASD and charged with the following:

3 counts of California Penal Code section 286(c)(2)(A) -- Sodomy through Force, Violence, or Fear;

2 counts of Aggravated Kidnapping – Robbery, Rape, Other Sex Offenses (California Penal Code section 209(b));

2 counts of Assault with Intent to Commit Rape (California Penal Code section 220(a)(1));

2 counts of False Imprisonment (California Penal Code section 236);

1 count of Forcible Rape (California Penal Code section 261);

1 count of Oral Copulation by Force, Fear, or Threats (California Penal Code section 287); and

1 count of Making a Criminal Threat (California Penal Code section 422);

In June 2019, he was convicted of all counts by jury. As a result, on June 26th, he received life behind bars.

See: da.lacounty.gov.

The Los Angeles Criminal Defense Attorney Law Firm (LADALF)

Since she began working as a Deputy Public Defender and thereafter in her private practice, LADALF’s lead counsel Ninaz Saffari has defended hundreds of individuals accused of serious sex crimes, including sodomy. In fact, no other attorney in LA County can claim to match her successful track record in fighting these types of cases.