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Name: People v. Zepeda
Case #: A146679
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 07/16/2018

Skin-to-skin contact is not required for oral copulation, and trial court properly treated question of whether contact through clothing constituted oral copulation as one of fact for the jury. Zepeda was convicted of several charges related to the sexual abuse of his step-daughter, which took place over the course of several months when she was 10 and 11 years old. The victim reported various acts of sexual abuse, including skin-to-skin oral copulation. In a police interview, Zepeda said he had touched the victim’s vagina with his mouth once or twice, and that one of those times had been “in top of the clothes.” During deliberations the jury asked if the definition of oral copulation included “over the top of clothing?” The trial court referred the jury to the general oral copulation instruction and instructed that whether oral copulation occurred over the clothing was a question for the jury to decide. On appeal, Zepeda argued oral copulation requires skin-to-skin contact and that one of his convictions for aggravated sexual assault of child (oral copulation) (Pen. Code, § 269, subd. (a)(4)) should be reversed. Held: Affirmed. Oral copulation is any contact, no matter how slight, between the mouth of one person and the sexual organ or anus of another person. No published California case has considered whether skin-to-skin contact is necessary for oral copulation. However, one Court of Appeal rejected the argument that the crime of sodomy requires skin-to-skin contact. (People v. Ribera (2005) 133 Cal.App.4th 81.) After analyzing Ribera and case law interpreting the Sexually Violent Predators Act, the Court of Appeal here concluded that the issue of whether contact through clothing constituted oral copulation is one of fact for the jury. Whether clothing prevented “contact” must be considered on a case-by-case basis because “clothing may consist of something as flimsy as nylon pantyhose or underwear, or as substantial as bomb disposal clothing.”