McGowan

Defendant Michael Jeston McGowan contends his convictions for sexual penetration by a foreign object by use of force (Pen. Code, § 289, subd. (a)(1)) and misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)) must be reversed because of two interlocking jury instructional errors. First, defendant argues the trial court erred by instructing the jury with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 362 because it was an improper “pinpoint” instruction. Second, defendant contends the trial court erroneously neglected to instruct the jury, sua sponte, that the absence of flight is a circumstance tending to show innocence. We shall conclude the trial court did not err with regard to either instruction, and, therefore, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of March 19, 2006, defendant was partying in his house with C.G., B.M., and two other “gentlemen.” The group was drinking Southern Comfort, mixed cocktails of brandy and Coke, and beer. The group was also smoking marijuana. As they drank, the group danced to music. C.G. did something similar to a lap dance, but with her clothes on, in…