Trial court did not err by failing to give optional language in CALCRIM No. 1032 related to defense to sodomy of an intoxicated person because the instruction duplicated other instructions that were properly given. Lujano was charged with sodomy of an intoxicated person. At trial, he requested that the court give the following optional language from CALCRIM No. 1032: “The defendant is not guilty of this crime if he actually and reasonably believed that the other person was capable of consenting to the act, even if that belief was wrong.” The court denied the request on the ground that there was insufficient evidence to support it. The jury convicted Lujano. He appealed, arguing the court erred by refusing to give this optional language. Held: Affirmed. The court is not required to give a pinpoint instruction if it is argumentative, merely duplicates other instructions, or is not supported by substantial evidence. CALCRIM No. 1032 requires a finding that “[t]he defendant knew or reasonably should have known that the effect of [an intoxicating and/or controlled] substance prevented the other person from resisting [an act of sodomy].” The instruction further explains that “a person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment.” Initially, the court concluded that CALCRIM No. 1032 correctly defines “prevented from resisting.” (See People v. Giardino (2000) 82 Cal.App.4th 454.) The court went on to conclude that the optional language Lujano requested “does no more than pinpoint a key component of the defendant’s case by restating other parts of the instructions that are required.” A court may decline to give the optional language because it merely duplicates other instructions. The court distinguished People v. Mayberry (1975) 15 Cal.3d 143 based on differences between the elements of rape and sodomy of an intoxicated person.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B269153.PDF