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P. v. White
A jury found Billy Charles White guilty of rape of an intoxicated person (Pen. Code,[1] § 261, subd. (a)(3); count 1) and of rape of an unconscious person (id., subd. (a)(4)(A); count 2). The trial court sentenced White to three years in state prison and ordered him to register as a sex offender.
White contends the evidence is insufficient to prove under section 261 that when he engaged in sexual intercourse with the victim, he knew the victim was unable to resist because of intoxication (count 1) or because the victim was unconscious of the nature of the act of intercourse (count 2). White also contends the trial court prejudicially erred by refusing both to instruct the jury on mistake of fact and to grant his new trial motion based on juror misconduct. Finally, White contends the trial court abused its discretion when it denied him probation.
In addition to these contentions, on our own motion we requested supplemental briefing from the parties whether White's convictions on counts 1 and 2 should be consolidated under People v. Craig (1941) 17 Cal.2d 453 (Craig) and its progeny into a single conviction given there was a single act of sexual intercourse.
As we explain, we reject White's contentions on appeal. After considering the supplemental briefing of the parties, we conclude that White was not properly convicted both on counts 1 and 2 and further, that the judgment must be modified to reflect only one conviction for violation of section 261.

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