Hall

Bobby Ray Hall was convicted of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). He moved for a new trial on the ground that three jurors had voted for that conviction believing that they were making a finding of guilt only on a lesser included offense of misdemeanor assault. The issue on appeal is whether the trial court erred in denying that motion. We hold it did not, and consequently affirm.

Factual Background

According to evidence adduced by the prosecution, Hall met a Ms. S. at a neighborhood laundromat and accompanied her to her apartment. There he made sexual advances which she resisted, and a struggle ensued. Hall dragged Ms. S. into the bedroom, pinned her down and threatened to hurt her if she continued to scream. Ms. S. managed to free herself, and ran out of her apartment screaming.

So far as relevant here, Hall was charged with assault with intent to commit rape (Pen. Code, § 220) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)). The trial court instructed the jury as to the elements of both these offenses, and as to the lesser included offense of simple…