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Lewd conduct includes any lewd, lascivious, indecent, or immoral act as provided in Chapter 7 (commencing with Section 272), when such act is committed either with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either of the persons involved, or of the same person. [¶] If such an act constitutes a felony, conviction thereof shall not become final until sentence is pronounced or the judgment is suspended. If such an act constitutes a misdemeanor, it shall not be deemed a conviction, but it may be deemed to have been a conviction if, after a trial or without such a trial, the judgment as to such act is final." With regard to the section's meaning, CALJIC No. 1.22 states: "In order to prove the commission of the crime defined in this instruction, each of the following elements must be proved: One, a person engaged in a sexual act with another person; two, without the consent of the other person; and three, when the act was accomplished against the will of the other person by means of force, violence, duress, menace or fear of bodily injury to that person. [¶] Lack of consent may be expressed or implied from words or conduct. [¶] In order to prove such a lack of consent, evidence is offered of specific resistance on the part of the alleged victim." [21] The trial court gave a modified version of CALJIC No. 1.23 (7th ed. 2003) as follows: "In order to prove the commission of the crime defined in this instruction, each of the following elements must be proved: One, a person engaged in an act of oral copulation; two, that the other person did not consent to that act; and three, that the act was accomplished against the will of such other person by means of force, violence, duress, menace or fear of bodily injury to that person. [¶] Lack of consent may be expressed or implied from words or conduct. [¶] In order to prove such a lack of consent, evidence is offered of specific resistance on the part of the alleged victim. [¶] In determining whether or not the act of oral copulation was accomplished by force, violence, duress, menace or fear of bodily injury to another, in addition to what has been said, consider the following questions: [¶] One, Did the other person in fact consent? [¶] Two, is that other person's will overcome by fear of violence if he or she does not yield to the pressure? [¶] And if any of the questions are answered in the affirmative, the element of force, menace or duress is present. [¶] However, if a person yields to pressure because of fear of violence, such yielding is not consent if the fear is reasonably grounded." [22] With regard to the section's meaning, CALJIC No. 1.23 states: "In order to prove the commission of the crime defined in this instruction, each of the following elements must be proved: One, a person engaged in an act of oral copulation; two, that the other person did not consent to that act; and three, that the act was accomplished against the will of such other person by means of force, violence, duress, menace or fear of bodily injury to that person. [¶] Lack of consent may be expressed or implied from words or conduct. [¶] In order to prove such a lack of consent, evidence is offered of specific resistance on the part of the alleged victim. [¶] In determining whether or not the act of oral copulation was accomplished by force, violence, duress, menace or fear of bodily injury to another, in addition to what has been said, consider the following questions: [¶] One, Did the other person in fact consent? [¶] Two, is that other person's will overcome by fear of violence if he or she does not yield to the pressure? [¶] And if any of the questions are answered in the affirmative, the element of force, menace or duress is present. [¶] However, if a person yields to pressure because of fear of violence, such yielding is not consent if the fear is reasonably grounded. [¶] In making this determination, evaluate all of the circumstances surrounding the act, including the age of the alleged victim. [¶] The People have the burden of proving by a preponderance of the evidence every essential element of the crimes charged, and this burden includes the burden of proving beyond a reasonable doubt that the act was accomplished by means of force, violence, duress, menace or fear of bodily injury. However, the prosecution need not prove that the fear actually existed. [¶] If you have a reasonable doubt as to whether the alleged oral copulation was accomplished by force, violence, duress, menace or fear of bodily injury to the alleged victim, the People have not proved the commission of the crime beyond a reasonable doubt. [¶] If you find that the alleged victim consented to the act of oral copulation, or if you have a reasonable doubt whether such alleged victim consented to the act of oral copulation, you should find that the act was not accomplished by means of force, violence, duress, menace or fear of bodily injury to another." [23] The court also gave a modified version of CALJIC No. 1.24 (7th ed. 2003) as follows: "A person who consents to an act of oral copulation is not considered as yielding to force or duress. [¶] The fact that the alleged victim is in a state of intoxication is not evidence that he or she did not consent. Intoxication, if any, may be considered by you, along with all the other evidence, on the issue of whether the act was accomplished by means of force, violence, duress, menace or fear of bodily injury to the alleged victim." B. Applicable Law and Standard of Review [24] "`"In assessing a claim of instructional error, the reviewing court must look to the entire set of instructions to determine if error has been committed." [Citation.]' [Citation.] `The absence of an essential element in one instruction may be cured by another or other instructions. [Citation.]' [Citation.]" (People v. Holloway (2004) 33 Cal.4th 96, 153, 14 Cal.Rptr.3d 212, 91 P.3d 164.) "Even if an instruction was erroneous, we will not set aside a judgment unless the error was prejudicial in that it `"affected the substantial rights of the parties."' [Citation.] In criminal cases, the erroneous instruction `must be considered in the context of the instructions as a whole and the trial record ....' [Citation.]" (People v. Flood (1998) 18 Cal.4th 470, 504, 76 Cal.Rptr.2d 180, 957 P.2d 869.) C. Analysis Defendant contends that, to the extent the trial court refused to give his requested instructions on duress and the effect of intoxication on consent, it improperly diluted the prosecution's burden of proof. Citing People v. Ochoa (1993) 6 Cal.4th 1199, 26 Cal.Rptr.2d 23, 864 P.2d 103, and People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588, defendant argues that, by failing to define "force" and "duress," the instructions were incomplete and misleading. He points out that, because the jury was not instructed as to the elements of duress, he was not able to argue that the victim may have acquiesced in the act due to fear of violence by someone other than defendant. Defendant contends the court's decision to give CALJIC No. 1.22 instead of CALJIC No. 1.23 also resulted in his acquittal being premised on facts and a theory other than those presented at trial. Although not mentioned by the People, it is arguable whether defendant preserved this issue for appellate review. He did not request an instruction defining force or duress, or object to the court's instructions as given, on the grounds of ambiguity or sufficiency. (See People v. Castillo (1997) 16 Cal.4th 1009, 1016-1017, 68 Cal.Rptr.2d 648, 945 P.2d 1197 [defendant failed to preserve claim of instructional error based on failure to define "dangerousness" in view of absence of objection].) He did not object to the court's instructions on the basis that they were incomplete or misleading in any way. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1193-1194, 36 Cal.Rptr.2d 235, 885 P.2d 1 [claim of instructional error based on failure to define "specific intent" raised for the first time on appeal is reviewable only to determine whether trial court had a duty to instruct on its own motion]; People v. Riel (2000) 22 Cal.4th 1153, 1216-1217, 96 Cal.Rptr.2d 1, 998 P.2d 969 [claim that instructional error resulted in absence of a unanimous jury verdict raised for the first time on appeal]; People v. Hughes (2002) 27 Cal.4th 287, 342-343, 116 Cal.Rptr.2d 401, 39 P.