People v. Turner CA5

Filed 2/24/15 P. v. Turner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F067260 Plaintiff and Respondent, (Super. Ct. No. F12907807) v.

DONALD MICHAEL TURNER, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. James M. Petrucelli, Judge. Matthew H. Wilson, under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J. and Franson, J.

A jury convicted appellant Donald Michael Turner, Jr., of inflicting corporal injury on a cohabitant (count 1/Pen. Code, § 273.5, subd. (a));1 forcible oral copulation (count 2/§ 288a, subd. (c)(2)); dissuading a witness (count 3/§ 136.1, subd. (b)(1)); and assault with intent to commit rape (count 4/§ 220), a lesser included offense of the forcible rape (§ 261, subd. (a)(2)) charged in count 4. On May 10, 2013, the court sentenced Turner to an aggregate 16-year prison term: the upper term of eight years on his forcible oral copulation conviction; a consecutive upper term of six years on his assault with intent to commit rape conviction; a concurrent four-year term on Turner’s inflicting corporal injury on a cohabitant conviction; and a consecutive middle term of two years on his dissuading a victim conviction. On appeal, Turner contends his conviction for forcible oral copulation should be reversed because the trial court committed instructional error. We affirm. FACTS Sandra R. testified at trial that she met Turner in March 2011, and that they lived together from June 2011 through September 2011. On September 27, 2011, Turner was not home when Sandra arrived home from work at approximately 5:10 p.m. Sandra was not feeling well so at approximately 5:45 p.m. she changed into a slip and a T-shirt and went to sleep in her bedroom. Later that evening, she heard Turner’s cell phone say it was 8:05 p.m. and she heard Turner talking to someone on the phone, saying he was going to go out and get drunk so she stayed in bed. The next thing Sandra remembered was being woken up when Turner came into the bedroom, pulled off her blankets, and attempted to take off her slip. Turner then told her, “[T]ake off your fucking clothes, bitch.… [T]ake off your T-shirt.” Sandra replied for him to give her a minute. After telling her to spread her legs, Turner put some saliva on his hand and then on her vagina. Sandra was scared because Turner woke her