People v. Gonzalez

Opinion

THE COURT.

*

Appellant, Miguel Angel Gonzalez, was convicted by a

jury of two counts of assault with intent to commit unlawful oral copulation (Pen. Code, §§ 220, 288a, subd. (c)) and one count of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The jury found that appellant used a deadly weapon in the commission of one assault with intent to commit unlawful oral copulation (Pen. Code, § 12022, subd. (b)). He appeals from the judgment.

[1442]

Appellant contends that the trial court erred in instructing the jury with CALJIC No. 1.23.1 (1991 rev.) (5th ed. pocket pt.) regarding consent because the definition of consent in that instruction violates due process.

Facts

Viewed in the light most favorable to the judgment

(People

v.

Iniguez

(1994) 7 Cal.4th 847, 854 [30 Cal.Rptr.2d 258, 872 P.2d 1183]), the evidence established the following. In the early morning hours of October 25, 1992, appellant phoned Diane A. and invited her to go out to have breakfast with him. Diane agreed. At Diane’s request, appellant took her to his house. While they were watching television in the living room, Diane asked whether they would go out to have breakfast. Appellant unzipped his pants, told Diane he wanted her to orally copulate him, and pulled her head toward his penis. Although Diane cried and tried to get away, appellant forced Diane to orally copulate him.

Later that morning, inside appellant’s car appellant grabbed Diane’s hair, pulled her head toward his lap, held an ice pick to the back of her head, and forced her to orally copulate him. Appellant told Diane he would kill her if she did not comply with his demands.

In defense, appellant testified that on two prior occasions Diane had orally copulated him for money. On the morning of October 25, 1992, Diane initiated the oral copulation in appellant’s living room and in his car. He never threatened her or used force to compel her to orally copulate him. He never possessed an ice pick.