P. v. Adams
A jury found defendant Dennis Alva Adams not guilty of assault with intent to commit rape of an intoxicated person (count 1) or assault with intent to commit rape of an unconscious person (count 3), but guilty of the lesser included offense of misdemeanor assault (Pen. Code, § 240)[1] as to both counts. The jury also found defendant guilty of misdemeanor sexual battery (count 7) and not guilty of the remaining charges (counts 2, 4, and 6).[2] Defendant was placed on 36 months informal probation, ordered to serve 30 days in county jail, stayed pending appeal, and ordered to register as a sex offender pursuant to section 290.
Defendant appeals. In his opening brief, he contends, among other things, that his convictions for simple assault (counts 1 and 3) must be reversed because simple assault is a lesser included offense to misdemeanor sexual battery. With this court’s permission, defendant filed a supplemental opening brief, contending his convictions--all misdemeanors--are barred by the applicable one-year statute of limitations set forth in section 802, subdivision (a), and must be dismissed. The People agree both that “the assault convictions are necessarily included lesser offenses to the sexual battery count,†and that the complaint on its face indicates the sexual battery offense is time-barred. The People request that we “remand the matter back to the trial court for a hearing to determine whether [the sexual battery offense is] time-barred with orders to vacate the judgment if time-barred by the statute of limitations, but otherwise to affirm the conviction for misdemeanor sexual battery . . . .â€[3]
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