Lujano

*189 INTRODUCTION

A jury convicted Andres Lujano of sodomy of an intoxicated person ( Pen. Code, § 286, subd. (i) ), 1 and the trial court sentenced him to six years in state prison. He appeals, claiming the trial court prejudicially erred by refusing to instruct the jury that an actual and reasonable belief that the victim was capable of consenting is a defense.

We conclude that the court did not err, because the requested instruction merely duplicated other instructions that were properly given. For similar reasons, any error was harmless because the factual question posed by the requested instruction was necessarily resolved against Lujano under the other instructions. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lujano was charged with sodomy of an unconscious victim ( § 286, subd. (f) ; count 1) and sodomy of an intoxicated person ( § 286, subd. (i) ; count 2).

The victim, Marco M., testified Lujano had lived next door to Marco's family for three years, and Marco trusted him. Their families were close, and Lujano had come to the hospital when Marco's baby was born. Marco had talked with Lujano about Marco's girlfriend and baby and considered Lujano to be his…