California, United States of America
The following excerpt is from People v. Martinez, 188 Cal.App.3d 19, 232 Cal.Rptr. 736 (Cal. App. 1986):
This statutory requirement has been translated in CALJIC No. 10.52 (1976 Revision) as follows: "Any sexual penetration, however slight, is sufficient to complete the crime of sodomy. Evidence of emission is not necessary." That instruction was neither requested nor given in this case. Nevertheless, defendant argues that the trial court had a sua sponte duty to instruct on all elements of the crime of sodomy and its failure to do so constitutes reversible error. It has long since been settled that the trial court has a duty to instruct on its motion on all essential elements of an offense. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 112 Cal.Rptr. 1, 518 P.2d 913.) If penetration remains an element of the crime of sodomy, it follows that the failure to give this instruction in this case constituted error. (See People v. McElrath, supra, 175 Cal.App.3d at p. 185, 220 Cal.Rptr. 698.)
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