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Name: People v. Fleming
Case #: F072914
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 07/31/2018
Summary

The evidence supported defendant’s conviction for sexual penetration by pretense, artifice, or concealment where defendant got into his friend’s bed and digitally penetrated his friend’s sleeping wife, who thought defendant was her husband. Fleming attended a birthday celebration where large amounts of alcohol were consumed, and the party eventually ended at a friend’s house. During the night, Fleming entered the bedroom of his friend, who he knew was asleep in the living room, and laid down next to his friend’s wife on their bed. The wife submitted to his digital penetration, believing him to be her husband. A jury convicted Fleming of sexual penetration by pretense. (Pen. Code, § 289, subd. (f).) He argued on appeal the evidence did not support his conviction because it did not prove that he used any pretense, artifice, or concealment when he touched the complainant. Held: Affirmed. Penal Code section 289, subdivision (f) requires: (1) the defendant committed an act of sexual penetration with another person; (2) with a foreign object; (3) the other person submitted to the act believing the person committing the act was someone she knew other than the perpetrator; and (4) the defendant tricked, lied, used a pretense, or concealed information, intending to make the other person believe he was someone she knew, while intending to hide his own identify. Fleming’s acts reflect a deliberately considered plan involving active concealment of his identify from the complainant in order to engage in the sexual act. After observing his friend asleep on the couch, Fleming entered his friend’s bedroom and concealed his identity by not waking the friend’s wife or making his presence known. He began to digitally penetrate the sleeping wife while remaining behind her and outside of her sight. There was substantial evidence to support the conviction.