Rhoades

In the published portion of this opinion we consider and reject the claim that a defendant charged with forcible oral copulation is always entitled to a sua sponte instruction concerning his reasonable belief that the victim consented whenever a defense of consent is presented. Instead, we hold that there must be some evidence supporting a claim of mistake of fact before such duty arises.

Defendant was convicted of forcible oral copulation (Pen. Code, § 288a, subd. (c)), residential robbery (§ 211; former § 213.5; see now § 212.5), and kidnapping (§ 207), and was found to have used a knife in committing each crime (§ 12022, subd. (b)). Defendant was sentenced to a total term of 10 years in state prison.

He appeals, arguing reversal is warranted because the court failed to instruct the jury, on its own motion, that it should acquit him if he had a reasonable and good faith belief that the victim consented to the act of oral copulation. (Former CALJIC No. 10.40.1.)

In the unpublished portion, we consider defendant’s remaining contentions. He contends the trial court erred when it instructed the jury that his pretrial falsehoods or misleading statements could be…