Rivera

Paul Edward Rivera appeals from the judgment entered on jury verdicts finding him guilty of assault with intent to commit rape (Pen. Code, § 220) and the unauthorized entry into an apartment (§ 602.5). The principal issue is whether a court has the sua sponte duty to give an instruction similar to CALJIC No. 10.23 where the defendant is charged with assault with intent to commit rape under circumstances where the defendant reasonably believed his conduct in touching the victim was consensual sexual foreplay. We conclude under circumstances where there is substantial evidence on this issue, and the defendant defends on the theory that he reasonably believed the victim consented to his conduct, the court on its own motion must instruct accordingly. The jury must be told that if from all the evidence it has a reasonable doubt whether the defendant reasonably and in good faith believed the victim voluntarily consented to the touching it must give the defendant the benefit of that doubt and acquit him of the charge. We therefore reverse Rivera’s conviction of assault with intent to commit rape. We affirm the judgment of conviction of Rivera’s unauthorized entry into an…