Joiner

In this case we hold that where the trial court erroneously failed to instruct the jury that penetration is an essential element of the crime of sodomy, the “Cantrell-Thornton” exception to per se reversal (People v. Garcia (1984) 36 Cal.3d 539, 555-557 [ 205 Cal.Rptr. 265 , 684 P.2d 826 ]) may still apply, requiring that prejudice be assessed under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ],

Eugene Joiner appeals a judgment of conviction for rape, sodomy and forcible oral copulation, alleging both instructional and sentencing error. We affirm.

On the morning of October 21, 1982, the 71-year-old victim opened her door to someone claiming to be the newspaper boy. He pushed his way into her apartment, threatened to kill her, hit her, and forced her into repeated acts of oral, vaginal and anal sex, moving her back and forth between her bedroom and office. When he finally left after stealing some money, she called the police who arrived promptly and took her to the hospital.

San Francisco Police Officer Robert Fitzer arrived a few hours after the assault and…