People v. Rivera

Opinion

WIENER, J.

Paul Edward Rivera appeals from the judgment entered on jury verdicts finding him guilty of assault with intent to commit rape (Pen. Code, § 220) 1 and the unauthorized entry into an apartment (§ 602.5). The principal issue is whether a court has the sua sponte duty to give an instruction similar to CALJIC No. 10.23 2 where the defendant is charged with assault with intent to commit rape under circumstances where the defendant reasonably believed his conduct in touching the victim was consensual sexual foreplay. We conclude under circumstances where there is substantial…