P. v. Smith
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.
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