P. v. Montgomery
A jury convicted defendant Aaron Boone Montgomery of oral copulation by force, sexual intercourse by force, and genital penetration with a foreign object by force, and found true allegations that he used a knife and that there were two or more victims. The trial court sentenced him to a determinate sentence of six years in prison, consecutive to an indeterminate sentence of 140 years to life.
Defendant now contends (1) the trial court failed in its sua sponte duty to instruct on battery as a lesser included offense; (2) the trial court failed in its sua sponte duty to instruct on intoxication; and (3) the trial court erred in instructing the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony).
We conclude the trial court did not have a sua sponte duty in this case to instruct on battery or intoxication. And although the use of CALCRIM No. 361 was not warranted, the error was harmless.
We will affirm the judgment.
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