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The People v. Alexander Bigby

September 19, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ALEXANDER BIGBY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01801)

The opinion of the court was delivered by: Hoch , J.

P. v. Bigby

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A jury found defendant Alexander Bigby guilty of rape (Pen. Code, § 261, subd. (a)(2))*fn1 and he was sentenced to the upper term of eight years in state prison. Defendant's sole contention on appeal is that the trial court prejudicially erred in its response to a jury question. We find no error and affirm the judgment.

BACKGROUND*fn2

Defendant was charged with forcible rape (§ 261, subd. (a)(2)) and forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)). Defendant pled not guilty to both charges and the matter proceeded to a jury trial. Defendant argued at trial that he and the victim had a sexual relationship and the victim consented to have sex with him; the prosecution argued otherwise. The jury was then given the CALCRIM No. 1000 instruction on rape:

"The defendant is charged in Count One with rape by force in violation of . . . section 261(a)(2).

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant had sexual intercourse with a woman;

"2. He and the woman were not married to each other at the time of the intercourse;

"3. The woman did not consent to the ...


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