California Court of Appeal

In this case, defendant was convicted of rape of an unconscious person (Penal Code section 261(a)(4), count one) undrape of an intoxicated person (section 261(a)(3), count two). Defendant admitted habitual criminal prior serious felony and strike conviction allegations, and was sentenced to 11 years. In sentencing defendant, the trial court imposed sentence on count two, but stayed execution of that sentence. The judgment is modified to consolidate both counts and to vacate the conviction and sentence on count 2, where: 1) the trial court erred by staying the sentence on count 2; but 2) defendant's convictions for rape of an intoxicated person and rape of an unconscious person must be consolidated into a single count reflecting rape under both subdivisions (a)(3) and (a)(4) of section 261 given that both counts are based on a single act of intercourse with the victim, and given that defendant was found guilty beyond a reasonable doubt of both forms of rape.

Appellate Information

• Decided 02/23/2015
• Published 02/23/2015

Judges

• Murray

Court

• California Court of Appeal

Counsel