Trial Court: Contra Costa County Superior Court Trial Judge: Hon. Leslie G. Landau Super. Ct. No. 5-100933-1)
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
Daniel McEvoy appeals from convictions of incest and assault arising from a sexual encounter with his sister. He challenges the constitutionality of California's incest statute as violating his due process rights by criminalizing consensual sexual conduct between adults. We affirm.
Appellant was charged by information filed on August 20, 2010, with incest (Pen. Code, § 285--count one)*fn1 , oral copulation of an unconscious person (§ 288a, subd. (f)--count two), sexual penetration of an unconscious person (§ 289, subd. (d)--count three), attempted rape by use of drugs (§§ 261, subd. (a)(4)/664--count four), and assault with attempt to commit rape (§ 220, subd. (a)--count five). It was alleged that appellant had suffered a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12) and had served a prior prison term for a different felony offense (§ 667.5, subd. (b)), and that he was ineligible for probation due to these and other felony convictions (§ 1203, subd. (e)(4)).
Jury trial began on April 27, 2011. On May 6, the prosecutor filed an amended information seeking to charge forcible rape (§ 261, subd. (a)(2)) instead of the section 289, subdivision (d) violation in count three and altering the language of count four to charge attempted rape of an unconscious person. The court denied the motion to amend count three, finding that although the evidence was sufficient to submit the amended charge to the jury, appellant would be prejudiced by the amendment. The motion to amend count four was granted. Count three was subsequently dismissed under section 1118, with the agreement of the parties.
On May 11, the jury found appellant guilty of incest and of simple assault (§ 240), a lesser offense under count five. The jury found appellant not guilty of oral copulation of an unconscious person or the lesser offense of attempted oral copulation, not guilty of attempted rape of an unconscious person, and not guilty of assault with intent to rape.
On June 6, the court found the alleged strike and prior convictions true. On June 8, appellant was sentenced to a total prison term of two years eight months: the mitigated term of one year four months, doubled to two years eight months, on count one. A six-month sentence on count two was stayed pursuant to section 654.
Appellant filed a timely notice of appeal on June 9, 2011.
Appellant is Jane Doe's brother, older by slightly less than two years. They have two other brothers and a sister. Growing up, Doe was closest to appellant, whom she felt was her protector against an abusive father and uncle.
In August 2008, Jane Doe was living in a three-bedroom house in Oakley with Michael C. (Michael) and their three children, all under 10 years of age. Michael and Doe had been together since 1999; their relationship ended in October of 2010. Doe's then 17-year-old son (Son) was also living with them.
On August 5, 2008, appellant was staying with Doe and her family. Michael was trying to help appellant get a job with Michael's then-employer, and Doe and appellant were reminiscing and catching up after not having seen each other for a couple of years. That evening, Michael did not notice anything unusual about Doe and appellant's interaction. Neither he nor Doe saw any of the adults drinking beer, Michael did not see any of them smoking marijuana, and Doe did not smoke any methamphetamine. At some point, appellant braided Doe's hair, ...