Carapeli

James Carapeli appeals from the judgment entered on jury verdicts convicting him of assault with intent to commit rape (Pen. Code, § 220), and sexual battery by restraint (§ 243.4, subd. (a)). As set out more fully in our opinion we reject Carapeli’s claims of instructional error. We partially agree, however, with his assertion that the court failed to properly exercise its discretion in ruling on his new trial motion. We therefore affirm the judgment of conviction of sexual battery by restraint and reverse the judgment of conviction of assault with intent to commit rape to permit the court to conduct a rehearing of Carapeli’s new trial motion as to the latter count.

Factual and Procedural Background

Around midnight on April 4, 1986, Carapeli asked Kelly H. for a ride to his car which he said was parked about a half mile away. H. agreed to do so. When H. stopped her car to drop him off, Carapeli said he had too much to drink and requested H. drive him to his home. H. again agreed. She followed Carapeli’s verbal directions, finally arriving in a residential area where she stopped the car, told Carapeli she did not know where she was and told him he could walk the rest of…