Cooley

Defendant appeals from the judgment entered below upon his conviction by jury of one count of forcible rape (Pen. Code, § 261, subd. (a)(2)) and one count of sexual battery (Pen. Code, § 243.4, subd. (a)). On appeal, defendant has raised the following contentions: (1) There is insufficient evidence of “wrongful touching” to support the conviction of felony sexual battery in violation of section 243.4, subdivision (a); (2) the triil court committed reversible error in instructing the jury with CALJIC No. 2.21.2; (3) the trial court committed reversible error by failing to provide the jury with a written copy of the jury instructions pursuant to section 1093; and (4) the trial court abused its discretion in denying defendant’s motion for a new trial based on the ground that purportedly prejudicial testimony was given during the trial by a prosecution witness. We shall conclude that the evidence is such that defendant’s conviction of felony sexual battery must be modified to a conviction of misdemeanor sexual battery (§ 243.4, subd. (d)), but that no other errors requiring redress were committed in the proceedings below. Consequently, we shall modify the judgment as…