People v. Fleming

PEÑA, J.

*785INTRODUCTION

When an invited guest, knowing his friend is asleep in the living room, gets into a bed where his friend's wife is asleep and digitally penetrates her vagina without her knowing consent but without her initial objection or resistance, has he committed sexual penetration by artifice, pretense, or concealment in violation of Penal Code section 289, subdivision (f) ? After a jury trial, the jury concluded the answer is "yes" and convicted defendant Russell Dusty Fleming of one count of sexual penetration by fraud ( Pen. Code, § 289, subd. (f) ; unless otherwise specified, all…