Leal

Appellant Saqueo L. Leal entered a residence through an open window in the middle of the night and digitally penetrated a woman as she slept in bed next to her husband. Believing that appellant was her husband, the woman did not resist and submitted to sexual intercourse. Appellant was subsequently convicted of rape and sexual penetration by artifice, pretense or concealment (Pen. Code, §§ 261, subd. (a)(5), 289, subd. (f)), and assault with intent to commit rape (§ 220, subd. (a)). He was sentenced to six years in state prison.

Appellant contends the evidence is insufficient to support his convictions. He also contends the court erred in failing to instruct the jury on the lesser included offense of simple assault, and that he was improperly convicted of assault with intent to commit rape because the crime is a lesser included offense of the charges of rape and sexual penetration of which he was charged and convicted in counts 1 and 2. We affirm.

STATEMENT OF FACTS

On the night of June 29, 2002, T.C. and her husband A. celebrated her birthday at their duplex in Los Angeles. Over the course of the evening, they both drank large amounts of alcohol and became highly…