People v. Fleming

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 committed sexual penetration by artifice, pretense, or concealment in violation of Penal Code section 289, subdivision (f). In the published portion of the opinion, the Court of Appeal held that there was substantial evidence before the jury from which it could reasonably find defendant penetrated the victim by means of artifice, pretense, and concealment and there was no violation of defendant's due process rights. The court held that there was no error in the pattern jury instruction for an allegation of section 289, subdivision (f). The court affirmed defendant's conviction under section 289. View "People v. Fleming" on Justia Law