Burnham

Appellant was convicted by a jury of count I, violation of Penal Code sections 664 and 289, attempted penetration with foreign object, a felony; counts II through V, violations of Penal Code section 262, spousal rape, a felony; and count VI, violation of Penal Code section 245, subdivision (a), assault by means of force likely to produce great bodily injury, a felony. Appellant was thereafter sentenced to the state prison for the term of 13 years.

I. Failure to Instruct on CALJIC No. 10.23 Sua Sponte

(a) Was it error?

As to counts I through V, appellant contends he was denied effective assistance of counsel by virtue of defense counsel’s failure to request CALJIC No. 10.23. Appellant did not request, and the court did not give, an instruction pursuant to CALJIC No. 10.23. The theory of appellant’s defense was that his wife was a voluntary participant in the various acts of sexual intercourse (counts II through V) and the act of penetration by a foreign object (count I).

In People v. Sedeno (1974) 10 Cal.3d 703 [ 112 Cal.Rptr. 1 , 518 P.2d 913 ] it was stated at page 715: “ ‘It is settled that in criminal cases, even in the absence of a request, the trial court must…