Schultz

Defendant Mark James Schultz appeals after a jury found him guilty of two counts of forcible oral copulation in concert (Pen. Code, § 288a, subd. (d)) 2 based on events occurring in the San Diego County jail facility in Vista. As to one of the two counts, the Attorney General concedes that a technical error in the taking of the verdict requires reversal and *537 precludes retrial on that count. As to the remaining count, we conclude that a conceded error by the trial judge in refusing to admit defense-proffered evidence cannot reasonably be said to have affected the result and that Schultz’s claims of instructional error are unpersuasive. Accordingly, we affirm as to one count and reverse as to the other.

Factual and Procedural Background

In July 1985, Schultz was incarcerated in “Mod 4” of the Vista jail facility along with the alleged victim, John Hughes. On the afternoon of July 14, a fellow inmate named Edward Mills approached Hughes while he sat on the toilet and instructed Hughes to orally copulate him “or else.” When Hughes refused, Mills responded by slapping him and repeating his demand. When Hughes said nothing, Mills slapped him again and said, “Hurry up.”…