People v. Johnson CA1/2

STATEMENT OF THE CASE

On September 11, 2012, the Alameda County District Attorney filed an amended information charging appellant in count 1 with felony sexual battery by restraint (Pen.

1 Code, § 243.4, subd. (a)),1 and in count 2 with forcible rape, a felony. (§ 261, subd. (a)(2).) Jury trial commenced on September 11, 2012. On September 27, the jury returned verdicts finding appellant not guilty of felony sexual battery by restraint alleged in count 1, but guilty of the lesser offense of misdemeanor sexual battery and guilty of the forcible rape alleged in count 2. At sentencing on April 13, 2013, the court denied appellant’s motion for new trial. As to the rape, appellant was sentenced to prison for the three-year low term. With respect to the misdemeanor sexual battery, the court imposed the 230 days appellant had already served. Timely notice of this appeal was filed on May 22, 2013.

FACTS

The facts elicited at trial by the prosecution are as follows: On Wednesday, July 20, 2011, appellant’s sister, Victoria, who was a student at Laney College and is partially deaf, invited her two friends, Jane Doe2 and Kimberly Garrette, to a sleepover at her home in Hayward. Jane knew…