McEvoy

Daniel Ruben McEvoy appeals from convictions of incest and assáult arising from a sexual encounter with his sister. He challenges the constitutionality of California’s incest statute as violating his due process rights by criminalizing consensual sexual conduct between adults. We affirm.

STATEMENT OF THE CASE

Appellant was charged by information filed on August 20, 2010, with incest (Pen. Code, § 285—count one), oral copulation of an unconscious person (§ 288a, subd. (f)—count two), sexual penetration of an unconscious person (§ 289, subd. (d)—count three), attempted rape by use of drugs (§§ 261, subd. (a)(4), 664—count four), and assault with attempt to commit rape (§ 220, subd. (a)—count five). It was alleged that appellant had suffered a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term for a different felony offense (§ 667.5, subd. (b)), and that he was ineligible for probation due to these and other felony convictions (§ 1203, subd. (e)(4)).

Jury trial began on April 27, 2011. On May 6, the prosecutor filed an amended information seeking to charge forcible rape (§261, subd. (a)(2)) instead of the section 289,…