Benally

Defendant Michael Benally appeals from a judgment of conviction entered upon a jury verdict finding him guilty of battery with serious bodily injury. (Pen. Code, §§ 242-243, subd. (d).) The jury found him not guilty of two counts of forcible rape. (§261, subd. (2).) The trial court sentenced defendant to state prison for the upper term of four years.

Defendant makes the following contentions on appeal: (1) the police taping of a conversation between defendant’s attorney and the attorney’s investigator violated his right to counsel under the federal and state constitutions; (2) the trial court erroneously failed to suppress defendant’s statements obtained in violation of Miranda; and (3) the trial court erred in instructing the jury it could convict defendant of the lesser offense of misdemeanor battery only if it first unanimously determined that he had not committed the greater offense of battery with serious bodily harm. For the reasons discussed below, the judgment of conviction is affirmed.

Statement of Facts

On March 9, 1986, when Cathy K. arrived at the Pastime Bar in Sunnyvale, she saw defendant who was playing pool with one of her friends. Defendant eventually…