Gottman

We granted a rehearing following our initial opinion on this appeal, in order to give further consideration to the Attorney General’s insistence that the opinion constituted “a triumph of illogic over justice.” The issue raised in the petition concerns the role of a jury in the administration of criminal justice.

Defendant Gottman was charged with (1) “rape by threat of great bodily harm,” a violation of Penal Code section 261, subdivision 3, and (2) a violation of Penal Code section 288a which proscribed the act of copulating the sexual organ of one person with the mouth of another. As to the Penal Code section 288a charge it was further alleged that Gottman “did compel the participation of said other person in said act of oral copulation by force, violence, duress, menace and threat of great bodily harm.”

Gottman had admitted two prior convictions of felony, i.e., assault with intent to commit rape, and burglary, second degree.

At the time of the commission (July 29, 1975) of the offenses charged against Gottman, a consensual violation by adults of Penal Code section 288a was punishable “by imprisonment in the state prison for not exceeding 15 years, or by…