Fleming

*785 INTRODUCTION

When an invited guest, knowing his friend is asleep in the living room, gets into a bed where his friend's wife is asleep and digitally penetrates her vagina without her knowing consent but without her initial objection or resistance, has he committed sexual penetration by artifice, pretense, or concealment in violation of Penal Code section 289, subdivision (f) ? After a jury trial, the jury concluded the answer is "yes" and convicted defendant Russell Dusty Fleming of one count of sexual penetration by fraud ( Pen. Code, § 289, subd. (f) ; unless otherwise specified, all statutory references are to the Pen. Code.) On December 15, 2015, the trial court sentenced defendant to the mitigated term of three years in prison.

Defendant contends on appeal he did not violate section 289, subdivision (f) because there was no substantial evidence his conduct included actions qualifying as pretense, artifice, or concealment. Defendant argues CALCRIM No. 1051, the pattern jury instruction setting forth the elements of the offense, failed to set forth the element *77 that the jury must find a causal link between defendant's actions and the victim's belief. Defendant…