P. v. Smith




Filed 4/14/11 P. v. Smith CA5






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY LEE SMITH, Defendant and Appellant.

F058828 (Super. Ct. No. VCF201306) OPINION

http://www.mcmillanlaw.us
APPEAL from a judgment of the Superior Court of Tulare County. Kathryn T. Montejano, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
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In August 2009, appellant Timothy Lee Smith was tried by a jury and convicted of two counts of attempted rape of an unconscious person (Pen. Code,^[1] §§ 664, 261, subd. (a)(4); counts 1 & 4)^[2] and two counts of assault with intent to commit rape of an unconscious person (§ 220; counts 2 & 5). The court sentenced appellant to prison for a total of eight years by imposing consecutive four-year terms for counts 2 and 5, and staying the terms imposed for counts 1 and 4 pursuant to section 654. On appeal, appellant contends: (1) counts 4 and 5 were time barred; (2) he was prejudiced by the joinder of the time-barred counts with the other charges; (3) the court erred in denying his request to discharge a juror who unintentionally failed to disclose that he was acquainted with a prosecution witness; (4) the court erred in ordering appellant not to contact the victims; and (5) his convictions for the offense of attempted rape of an unconscious person must be reversed because it is a lesser included offense of assault with intent to commit rape of an unconscious person. We reverse appellant’s convictions in counts 1 and 4 for attempted rape of an unconscious person and strike the no-contact order. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
Counts 1 and 2
Counts 1 and 2 were based on an incident that occurred on the night of July 20, 2007. The victim Amanda Q. was 22 years old at the time. She got off work around 10:00 or 10:30 p.m., and socialized with a friend for a few hours at various locations. Around 1:30 a.m., Amanda drove to the Visalia Brewing Company to pick up Todd Lenaburg from work. Lenaburg and appellant were waiting together in the parking lot when Amanda arrived.
After Amanda picked up Lenaburg and appellant, they went to purchase alcoholic drinks to take back to Lenaburg’s house. When they got back to the house, Amanda sat with Lenaburg at the dining room table, while appellant played his guitar near the pool table. After a short time, Amanda asked Lenaburg for some clothes to change into. Lenaburg took her to his bedroom and gave her basketball shorts and a t-shirt. He then returned to the living room and sat down with appellant while Amanda changed in the bedroom.
Amanda returned to the living room after she changed. After socializing for a couple of hours, Amanda told Lenaburg she was tired and wanted to go to bed. She then went to bed in his room. At some point, Lenaburg joined Amanda in bed and they both went to sleep. Lenaburg testified that when he went to bed, he closed the door to his bedroom and appellant was not in the room when he and Amanda went to sleep.
Amanda testified that she woke up and felt like she could not move. The shorts she had been wearing were on her right leg and appellant was on top of her, having sex with her. When she looked up, appellant put his finger over his mouth and told her “to shh.” Amanda called out to Lenaburg, who woke up and started yelling at appellant. Appellant jumped up, started to put on his shorts, and then left the bedroom. Lenaburg testified that he ran out of the house to look for appellant but was unable to find him.
Counts 4 and 5
Counts 4 and 5 were based on an incident that occurred one night in the winter of 1999 or 2000. The victim Jill R. was around 19 or 20 years old at the time. Jill knew appellant because she was a close friend of his sister, Leanna Smith. On the night in question, Jill was sleeping on the floor in a room at the Smith family’s house, when she awoke to find appellant lying on top of her, trying to insert his penis into her vagina. Her first thought was that her boyfriend, with whom she had fought earlier, had returned to the house. But after a few seconds, when she realized it was appellant, she yelled and pushed him off of her. Appellant left the room. He briefly returned, but Jill started hitting and yelling at him. Appellant then left the house.
Uncharged prior incident
On the night of May 26, 2003, Christie Carey went out with some male friends, including appellant. Later, they came back to the house, where Carey lived with her mother, and “just hung out and talked.” Before she went to sleep, appellant approached Carey to “hook up,” but she was not interested and declined his advances.
Later that night, Carey’s mother, Peggy S., woke up to a man feeling her breasts. At first, she thought it was her cat, but then she was startled awake and saw the silhouette of a man. When she asked him what he was doing, he just laughed, turned, and tiptoed out the door.
The next morning, Peggy complained to Carey that she did not appreciate what Carey’s friend had done and did not think it was funny. After learning her daughter knew nothing about it and that it was not a joke, Peggy filed a police report.
After speaking with her mother, Carey drove to the sporting goods store where appellant worked and confronted him. Appellant admitted touching Peggy’s breasts and said, “Well, sweetie, I was really wishing it was you.”
The defense
Appellant denied that he tried to have sex with the victims when they were asleep. As to the incident involving Amanda, appellant admitted he had sex with her but claimed it was consensual. It started after he woke her up around 8:15 a.m., to get a ride home. According to appellant, after she awoke, Amanda made eye contact with him and started to remove one of the legs of her basketball shorts. She then pulled her knees up, which appellant interpreted as “a green light” to get into the bed. They then started to have sex.
As to the incident involving Jill, appellant testified that he did not know whether she was still in the house when he went into the room to get his clean laundry. Appellant, who was naked, tripped over Jill. Jill looked up and said, “Hey.” Appellant got down on the floor with her and they embraced and started to kiss. They then “advanced to a missionary position.” Once it became apparent that Jill was confused about his identity, appellant immediately got up and left the room. Jill hit appellant in the hallway and shouted at him.
As to the uncharged incident, appellant admitted feeling Peggy’s breasts while she was asleep, but claimed he thought she was Carey. Appellant testified: “I thought that she would wake up. And maybe we could pursue something.”
DISCUSSION
I. Claim that Prosecution of Counts 4 and 5 was Time-Barred
Appellant contends, and respondent concedes, that the prosecution of counts 4 and 5, the offenses involving Jill R., was time-barred. This is so, appellant argues, because the three-year statute of limitations for the offenses (§ 801) expired before the January 1, 2005 effective date of section 801.1, subdivision (b), which contains the 10-year statute of limitations under which the charges were prosecuted.^[3] However, because, as we held in In re White (2008) 163 Cal.App.4th 1576, 1583 (White), “[t]he 10-year statute of limitations applicable to the crimes of which [appellant] was convicted was continuously in effect since January 1, 2001[,]” we reject appellant’s contention and respondent’s concession that the prosecution of the offenses was time-barred.
Counts 4 and 5 were alleged to have been committed between January 29, 1999 and December 31, 2000. In 1999, the statute of limitations for the offenses was three years. (§ 801.) However, on January 1, 2001, before the three-year limitations period had expired, an amendment to former section 803, subdivision (h)(1) extended the limitations period to 10 years. (Stats. 2000, ch. 235, § 1.)^[4] Former section 803, subdivision (h)(1) is now codified in section 801.1, subdivision (b). (Added by Stats. 2004, ch. 368, § 1.)
Generally, for purposes of timeliness, a felony prosecution is commenced when an information or indictment is filed, when a defendant is arraigned on a felony complaint, or when an arrest warrant or bench warrant is issued. (§ 804.) Under the general rule, the filing of the information on March 5, 2009, commenced the prosecution. Under former section 803, subdivision (h)(1) and section 801.1, subdivision (b), the prosecution of the charges was commenced within the statutory limitations period. (White, supra, 163 Cal.App.4th at pp. 1580-1581.)
Under none of the relevant statutory provisions was the prosecution for appellant’s offenses against Jill R. ever time-barred. Thus, the “constitutional ex post facto clause protection against prosecution with a statute of limitations enacted after a previous statute of limitations period expired is inapplicable. (See Stogner v. California (2003) 539 U.S. 607, 609, 632-633 (Stogner); U.S. Const., art. I, § 10, cl. 1.) Here, the Legislature did not revive an expired statute of limitations period but simply extended one before expiration. That is constitutionally permissible. (Stogner, supra, [539 U.S.] at pp. 618-619; People v. Terry (2005) 127 Cal.App.4th 750, 775-776; People v. Robertson (2003) 113 Cal.App.4th 389, 393-394.)” (White, supra, 163 Cal.App.4th at p. 1583.)
In so concluding, we necessarily reject appellant’s argument that, unlike section 801.1, subdivision (b), former section 803, subdivision (h)(1) did not extend to 10 years the limitations period for offenses subject to the three-year statute of limitations of section 801, but only extended the limitations period for offenses subject to the six-year statute of limitations of section 800.
Appellant relies on the maxim expressio unius est exclusio alterius (the expression of some things in a statute necessarily signifies the exclusion of other things not expressed) to support his assertion that, because former section 803, subdivision (h)(1) specifically referred to section 800 (i.e., “Notwithstanding the limitation of time described in Section 800”, and not to section 801, or any other limitations period, the Legislature must have intended the 10-years statute of limitation enacted in section 803, subdivision (h)(1) to apply only to offenses previously subject to the six-year limitations period of section 800.
Appellant’s contention is belied by the Legislative history. (See In re J. W. (2002) 29 Cal.4th 200, 209 [“courts do not apply the expressio unius est exclusio alterius principle ‘if its operation would contradict a discernible and contrary legislative intent.’ [Citations.]”].) The Legislative Counsel’s Digest accompanying the final chaptered bill enacting former section 803, subdivision (h)(1) states:
“Existing law provides statutes of limitations for the prosecution of crimes. Prosecution for an offense punishable by death or by imprisonment in the state prison for life or life without the possibility of parole may be commenced at anytime. Prosecution for an offense punishable by imprisonment in the state prison for more than 8 years is required to be commenced within 6 years [(§ 800)]. Prosecution for other offenses that are punishable by imprisonment in the state prison are required to be commenced within 3 years[(§ 801)].
“This bill would permit the prosecution of certain sex offenses within one year of the date on which the identity of the suspect is conclusively established by deoxyribonucleic acid (DNA) testing, or within 10 years of the offense, whichever is longer, as specified, notwithstanding any other specified limitation of time. The provisions of this bill would become operative only if SB 1342 is enacted.” (Legis. Counsel’s Dig., Assem. Bill No. 1742, Stats. 2000, ch. 235, § 1, italics added.)
While the Legislative Counsel’s summaries are not binding (State ex rel. Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1233, fn. 9), they are entitled to great weight. (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1,17.) “It is reasonable to presume that the Legislature amended those sections with the intent and meaning expressed in the Legislative Counsel’s digest.” (People v. Superior Court (Douglass) (1979) 24 Cal.3d 428, 434.) Here, it is reasonable to presume that the Legislature intended the 10-year statute of limitations to apply, as specified, to any offense described in former section 290, subdivision (a)(2)(A), which the instant offenses undisputedly are, regardless of whether they were previously subject to the six-year statute of limitations of section 800, or the three-year statute of limitations of section 801. It is also reasonable to presume that, despite the specific reference to section 800, the Legislature did not deliberately exclude reference to section 801 or any other limitations period. (See Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1484, fn. 3 [the maxim expressio unius est exclusio alterius does not apply when no reasonable inference exists that items not mentioned were excluded by deliberate choice].)
In sum, because the 10-year statute of limitations applicable to appellant’s offenses has been in effect since January 2001, we reject his claim that counts 4 and 5 were time-barred.
II. Joinder of Counts
In light of our conclusion that counts 4 and 5 were not time-barred, we reject appellant’s related contention that he “was prejudiced by the joinder of the time-barred counts with the other charges.” Appellant does not claim joinder of the counts was improper on any other ground.
III. Refusal to Discharge a Juror
Appellant contends the judgment must be reversed because the trial court violated his constitutional right to due process when it refused to discharge a juror who disclosed on the first day of testimony that he was casually acquainted with prosecution witness Todd Lenaburg. We reject appellant’s constitutional claim and conclude the trial court’s ruling was not an abuse of discretion.
A. Background
During the afternoon session of the first day of testimony, Juror No. 10 alerted the bailiff that he recognized a person in the corridor who could be a potential witness in the case.^[5] In response to questioning by the court and the attorneys, Juror No. 10 explained that he encountered Lenaburg outside the courtroom and recognized him, by face but not by name, as a casual social acquaintance. Juror No. 10 explained that he knew Lenaburg because his sister dated one of Lenaburg’s coworkers at the Visalia Brewing Company (VBC). The juror did not recognize Lenaburg’s name on the witness list during voir dire because he was “horrible at names.”^[6] Juror No. 10 stated that he would say “hi” to Lenaburg when he went to VBC, and he had also seen Lenaburg at two or three social events, including a birthday party for his niece at the home where his sister lived with Lenaburg’s coworker.
However, Juror No. 10 did not know Lenaburg “on a personal level” and “couldn’t even recall his first name.”^[7] Lenaburg was not in the juror’s “group of friends” and they had never “hung out … on a one on one basis” or “held a meaningful conversation.” While expressing understanding that appellant might feel “uneasy” about having him on the jury, Juror No. 10 assured defense counsel that appellant had no reason to feel uneasy and stated, “I am still a juror. I am here to listen to the facts.” Juror No. 10 repeatedly confirmed that nothing about his acquaintanceship with Lenaburg would make it difficult for him to be fair or impartial in this case or “sway [his] decision in any way.” Before Juror No. 10 returned to the jury room, the court and the attorneys each expressed their appreciation to him for his honesty and for bringing the matter to their attention.
After Juror No. 10 returned to the jury room, defense counsel asked the court to excuse the juror, explaining: “[I]f I felt that he just knew this fellow by face from going into the establishment once or twice or three times, I really wouldn’t have that much concern. [¶] But when he said that this witness has attended family functions, knows some of his family members, that’s a little too close.” Initially, the trial court appeared inclined to grant defense counsel’s request to dismiss Juror No. 10 based on counsel’s representation that, had the juror disclosed the information the previous day during voir dire, counsel definitely would have exercised one of his peremptory challenges to excuse the juror. But, after briefly taking the matter under submission, the court declined to discharge the jury, explaining:
“The issue that the Court needs to look at, and I think perhaps [the prosecutor] said this[,] is the issue of misconduct. And there is a case [People v. San Nicolas (2004) 34 Cal.4th 614 (San Nicolas)] at [page] 646, which deals with whether or not there is bias. And the Court has reviewed carefully the answers that Juror Number 10 … gave. [¶] And the Court does not find that his answers indicate in any way that there is any bias. And so with that, I am not discharging him.”
B. Analysis
It is fundamental that a criminal defendant has a constitutional right to be tried by a fair and impartial jury, and the process of voir dire plays an essential role in securing this right. (In re Hitchings (1993) 6 Cal.4th 97, 110 (Hitchings).)
“‘Voir dire examination serves to protect [a criminal defendant’s right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.’ [Citation.] [¶] A juror who conceals relevant facts or gives false answers during the voir dire examination thus undermines the jury selection process and commits misconduct. [Citations.]” (Hitchings, supra, 6 Cal.4th at pp. 110-111, fn. omitted.)
“When misconduct involves the concealment of material information that may call into question the impartiality of the juror, we consider the actual bias test .… ‘Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. “[T]he proper test to be applied to unintentional ‘concealment’ is whether the juror is sufficiently biased to constitute good cause for the court to find under … sections 1089 and [former] 1123 that he is unable to perform his duty.”^[[8]] [Citation.] [¶] Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]’ [Citation.]” (San Nicolas, supra, 34 Cal.4th at p. 644.)
“Before an appellate court will find error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a ‘demonstrable reality.’ The court will not presume bias, and will uphold the trial court’s exercise of discretion … under section 1089 if supported by substantial evidence.” (People v. Holt (1997) 15 Cal.4th 619, 659.)
Applying these principles here, we conclude the trial court did not abuse its discretion in failing to excuse Juror No. 10. Substantial evidence supports the trial court’s implied finding that Juror No. 10’s nondisclosure was inadvertent and unintentional rather than deliberate. Substantial evidence also supports the the court’s conclusion that there was no indication of bias on the juror’s part. Appellant does not claim the evidence showed otherwise.
Instead, appellant argues that, because defense counsel indicated he would have exercised a peremptory challenge to excuse Juror No. 10 had the juror disclosed his acquaintanceship with Lenaburg, the trial court’s refusal to excuse Juror No. 10 violated appellant’s statutory right to exercise peremptory challenges. Appellant contends the error violated his Fourteenth Amendment right to due process and the judgment should be reversed regardless of whether the juror’s nondisclosure was intentional or unintentional or whether there was any showing of bias on the juror’s part.
Appellant cites no authority directly supporting his position. He asserts generally that “[t]he arbitrary violation of a state-created right may infringe on a defendant’s federal due process rights,” citing Hicks v. Oklahoma (1980) 447 U.S. 343, 346.^[9] But he has not shown the trial court arbitrarily violated a state-law right. Rather, it appears the trial court properly followed well-established California Supreme Court precedent relevant to a request to discharge a juror for failing to disclose material information during voir dire. Appellant’s assertion that the trial court erred in relying on San Nicolas, supra, 34 Cal.4th 614 is simply without merit. Although the nondisclosure of information by two jurors in that case was not discovered until months after the guilty verdicts were rendered (id. at p. 643), the legal principles the Supreme Court set forth are equally applicable to nondisclosures discovered, as here, during trial. Indeed, in San Nicolas, the Supreme Court court expressly applied the test that it had previously adopted in People v. McPeters (1992) 2 Cal.4th 1148 (McPeters) (San Nicolas, at p. 644), which was a case where the juror’s nondisclosure of information was discovered early in the trial, “[a]fter the jury was sworn but before opening statements were delivered.” (McPeters, at p. 1174.)
The defendant in McPeters, supra, argued that the trial court violated his statutory and constitutional rights by failing to remove a juror who had not disclosed during voir dire that he was the real estate agent representing the seller in a real estate transaction in which the victim’s husband was the buyer. (2 Cal.4th at p. 1174.) The Supreme Court rejected this argument and elucidated the proper standard of review as follows:
“…[D]efendant contends the court’s ruling violated both section 1089 and his Sixth Amendment right to an impartial jury. We disagree. Implicit in the court’s finding and remarks was a determination that [the juror’s] initial failure to disclose his relationship with [the victim’s husband] was inadvertent and unintentional. Defendant does not challenge this determination and, indeed, argues that the trial court was required to remove [the juror] from the jury even if his failure to disclose his business transaction with [the victim’s husband] was unintentional. Defendant is incorrect. Although intentional concealment of material information by a potential juror may constitute implied bias justifying his or her disqualification or removal [citations], mere inadvertent or unintentional failures to disclose are not accorded the same effect. ‘[T]he proper test to be applied to unintentional “concealment” is whether the juror is sufficiently biased to constitute good cause for the court to find under Penal Code sections 1089 and [former] 1123 that he is unable to perform his duty.’ [Citation.]
“Whether a failure to disclose is intentional or unintentional and whether a juror is biased in this regard are matters within the discretion of the trial court. Except where bias is clearly apparent from the record, the trial judge is in the best position to assess the state of mind of a juror or potential juror on voir dire examination. [Citations.]” (McPeters, supra, 2 Cal.4th at p. 1175.)
The Supreme Court upheld the trial court’s conclusions that the lack of disclosure was inadvertent and that there was not any express or implied bias. (Ibid.)
Similarly, here, we find no basis in the record to second-guess the trial court’s implicit determination that Juror No. 10’s failure to disclose his slight acquaintanceship with Lenaburg was unintentional or the court’s conclusion that the juror did not appear to be biased. Thus, we cannot say the trial court abused its discretion in declining to excuse Juror No. 10.
IV. No-Contact Order
At the sentencing hearing, the trial court ordered appellant “to have no further contact with the victim in person, in writing, by telephone, by Internet, or by third party. That refers to both victims.” Appellant contends that, because the court sentenced him to prison, its order that he not contact the victims was unauthorized. Respondent concedes and we agree.
The trial court may issue criminal protective orders pursuant to section 136.2, domestic violence protective orders pursuant to section 1203.097, and protective orders as a condition of probation. However, the latter two situations are inapplicable here and section 136.2 does not authorize the issuance of protective order against a defendant who has been sentenced to prison. (People v. Ponce (2009) 173 Cal.App.4th 378, 382-383.) Nor does the court’s inherent authority to issue appropriate protective orders to protect trial participants authorize it to issue a protective order against a defendant who has been sentenced to prison. (Id. at p. 384.) Accordingly, we agree with the parties that the court’s no-contact order was unauthorized because the court sentenced appellant to prison.
V. Lesser Included Offense of Assault with Intent to Commit Rape
In his supplemental opening brief, appellant contends his convictions in counts 1 and 4 of the offense of attempted rape of an unconscious person must be reversed because it is a lesser included offense of assault with intent to commit rape of an unconscious person of which he was convicted in counts 2 and 5. We agree.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct.” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) “However, an exception to this general rule allowing multiple convictions prohibits multiple convictions based on necessarily included offenses. [Citations.]” (People v. Medina (2007) 41 Cal.4th 685, 701 (Medina); accord People v. Ramirez (2009) 45 Cal.4th 980, 984 (Ramirez).) The logic behind this exception is that “‘[i]f a defendant cannot commit the greater offense without committing the lesser, conviction of the greater is also conviction of the lesser. To permit conviction of both the greater and the lesser offense “‘“would be to convict twice of the lesser.”’” [Citation.] There is no reason to permit two convictions for the lesser offense.’ [Citation.]” (Medina, supra, 41 Cal.4th at p. 702.)
To determine whether this exception applies when the greater offense and lesser offense are both charged, courts consider whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense. (Reed, supra, 38 Cal.4th at pp. 1227-1228.) If so, the lesser offense is necessarily included in the greater offense and multiple convictions are not permitted. (Ibid.; see also Ramirez, supra, 45 Cal.4th at p. 985; People v. Sloan (2007) 42 Cal.4th 110, 113, 116-117.)
The California Supreme Court and Courts of Appeal have previously recognized that attempted rape is a lesser included offense of assault with intent to commit rape. (People v. Holt, supra, 15 Cal.4th at p. 674; People v. Ghent (1987) 43 Cal.3d 739, 757 (Ghent); People v. Rupp (1953) 41 Cal.2d 371, 382 (Rupp); People v. Martinez (1985) 171 Cal.App.3d 727, 734.) This recognition flows from the longstanding rule that an assault with intent to commit a crime necessarily includes an attempt to the commit the crime. (Rupp, supra, 41 Cal.2d at p. 382.)
While acknowledging these authorities, respondent nonetheless contends that, under the statutory elements test, the offense of attempted rape of an unconscious person is not a lesser included offense of assault with intent to commit rape of an unconscious person because the former includes the additional element that the victim “was unable to to resist because she was unconscious of the nature of the act.” (CALCRIM No. 1003 [“Rape of Unconscious Woman”].)
We disagree because, as appellant points out, while the completed offense of rape of an unconscious person requires proof that the victim was actually unconscious, an attempt to commit the offense does not require the jury to find the victim was actually unconscious. Rather, so long as the defendant had the requisite intent to rape an unconscious person and committed a direct but ineffectual act towards the commission of said offense, he would be guilty of the crime of attempted rape of an unconscious person (§§ 21a, 664, 261, subd. (1)(4)), even if it turned out the victim was not actually unconscious. (See People v. Reed (1996) 53 Cal.App.4th 389, 396-397 [factual impossibility not a defense to attempted crime; guilt or innocence determined by facts as defendant perceived them]; see also People v. Bonner (2000) 80 Cal.App.4th 759, 764-767.)
Respondent also asserts that the intent to use force required for an assault to commit rape is not an element of attempted rape. However, as appellant points out in his reply brief, his “contention is that the attempted rape is a lesser included offense of the assault, not the opposite.” “‘[An] assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.] “An ‘assault’ with intent to commit a crime necessarily embraces an ‘attempt’ to commit said crime ....” [Citation.]’” (Ghent, supra, 43 Cal.3d at p. 757.) Likewise, here, the offense of attempted rape of an unconscious person was a lesser included offense of assault with intent to commit rape of an unconscious person, and, therefore, appellant’s convictions in counts 1 and 4 must be reversed.
DISPOSITION
We reverse the judgment of conviction and sentence on counts 1 and 4 (attempted rape of an unconscious person), and modify the judgment to strike the no-contact order. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.


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HILL, P.J.
WE CONCUR:


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CORNELL, J.


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DETJEN, J.

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