Hallock

Following trial by jury defendant was convicted of first degree burglary (count I; Pen. Code, § 459), assault with intent to commit rape (count II; § 220), attempted rape (count III; §§ 664, 261, subd. (2)), and intimidating a witness (count IV; § 136.1, subd. (c)(1)). The jury found defendant not guilty of attempted rape (count III; §§ 664, 261, subd. (2)) and petty theft (count V; § 484).

A probation revocation hearing was held simultaneously with the jury trial on the above charges.

Defendant was sentenced to a total of nine years and eight months, as follows: count I (burglary), the upper term of six years; count II (assault with intent to commit rape), the upper term of six years stayed pursuant to section 654; and count IV (intimidation of a witness), a consecutive upper term of four years, with one year stayed. In addition, defendant was sentenced to a three-year consecutive term on the probation violation, with all but eight months stayed.

We reverse defendant’s conviction for intimidating a witness (count IV; § 136.1, subd. (c)(1)) and affirm the judgment in all other respects.

Statement of Facts

On January 7, 1987, Louise G., age 77, was watching the news…