Reeder

Defendant appeals from the judgment entered after a jury convicted him of oral sex perversion (Pen. Code, § 288a) and forcible rape (Pen. Code, § 261, subd. 3).

On the evening of May 29, 1975, Cheryl S. was hitchhiking and accepted defendant’s offer of a ride from Grass Valley to her home in Foresthill. Shortly thereafter defendant stopped the car at the side of the road, explaining to Miss S. that he had to go to the bathroom. Defendant left the car and returned a short while later. He told Miss S. he was going to make love to her. She pulled out a pocketknife and attempted to flee. Defendant announced he had a gun and ordered her to throw down the knife. She complied, and defendant forced her into the back seat of the car where he raped her and forced her to commit oral copulation upon him. After the attack, defendant transported her to a point near her home and let her out of the car. Miss S. reported the incident to police that same night. She was examined by a physician shortly thereafter.

At trial, defendant admitted giving Miss S. a ride but denied sexually attacking her. Aside from polygraph evidence, which will be discussed below, other prosecution evidence…

I concur. The court’s opinion cogently demonstrates the significance of the missing jury instruction. Significance is not enough; the error must be prejudicial in the sense that it caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) In appraising prejudice, reviewing judges habitually turn to the test announced in People v. Watson, 46 Cal.2d 818, 836 [ 299 P.2d 243 ]—the judgment should be *244 reversed only if, after reviewing the entire record, the court finds a “reasonable probability” of a defense verdict had the error not occurred.

Here the evidence was characterized by sharp conflict. I have examined the record and find no reasonable probability of an acquittal absent the error. I find nothing but a toss-up. There was no cross-examination or rebuttal vitiating the polygraph experts’ high opinion of their own technique. Standing alone, the omitted instruction would have done little to deprecate the two experts. Applying the Watson test as the sole criterion of prejudice, I would vote to affirm the conviction despite the error.

The purity of the Watson test has been alloyed by later emendations. Appellate judges are no longer safe to follow Watson as the sole…

Defendant appeals from the judgment entered after a jury convicted him of oral sex perversion (Pen. Code, § 288a) and forcible rape (Pen. Code, § 261, subd. 3).

On the evening of May 29, 1975, Cheryl S. was hitchhiking and accepted defendant's offer of a ride from Grass Valley to her home in Foresthill. Shortly thereafter defendant stopped the car at the side of the road, explaining to Miss S. that he had to go to the bathroom. Defendant left the car and returned a short while later. He told Miss S. he was going to make love to her. She pulled out a pocketknife and attempted to flee. Defendant announced he had a gun and ordered her to throw down the knife. She complied, and defendant forced her into the back seat of the car where he raped her and forced her to commit oral copulation upon him. After the attack, defendant transported her to a point near her home and let her out of the car. Miss S. reported the incident to police that same night. She was examined by a physician shortly thereafter.

At trial, defendant admitted giving Miss S. a ride but denied sexually attacking her. Aside from polygraph evidence, which will be discussed below, other…