People v. Hidalgo CA2/5

INTRODUCTION

Defendants and appellants Eric Hidalgo (Hidalgo) and Francisco Gomez (Gomez) (collectively defendants) were convicted of two counts of forcible oral copulation while acting in concert (Pen. Code, § 288a, subd. (d)(1)1), one count of forcible rape while acting in concert (§ 264.1, subd. (a)(1)), and one count of forcible sodomy while acting in concert (§ 286, subd. (d)(1)). On appeal, defendants contend that the trial court erred in failing to instruct the jury with CALJIC No. 10.65, and Hidalgo further contends that he was denied effective assistance of counsel when his trial counsel conceded that a jury instruction under CALJIC No. 10.65 should not be given. We affirm the judgments.

BACKGROUND

A. Factual Background

1. Prosecution Evidence In May 2012, Sandra M. (Sandra) worked at Mi Morenita, a restaurant and bar located in the City of Carson (the bar). She worked there as a waitress and a “fichera,” a person who was paid to drink beer with the patrons of the bar. As a “fichera,” she would dance with patrons if they invited her to dance. According to Sandra, Gomez was a regular customer of the bar, and Hidalgo was an infrequent customer. Sandra had known…