Braslaw

— Defendant Steven M. Braslaw, following a jury trial, was found guilty of raping an intoxicated person (Pen. Code, § 261, subd. (a)(3)). On appeal, he contends the trial court should have given further jury instructions on a defendant’s belief in the victim’s capacity to consent and should have instructed on attempted rape. He also claims his counsel was ineffective in failing to object to alleged prosecutorial misconduct. In the published portion of this decision, we conclude there was no instructional error. In the unpublished portion, we reject the claim of ineffective assistance. We therefore affirm the judgment.

I. Background

Defendant and Jane Doe were classmates at a vocational school in St. Helena. Doe lived in a school dormitory. Defendant lived off campus in a house notorious for wild parties.

In January 2012, Doe and her former roommate, M.H., attended a party at defendant’s house. Doe became “really drunk.” One moment she was hanging out with friends; the next thing she recalled was being unclothed in a shower.

M.H. testified Doe, while playing a drinking game, “hit a wall,” sat down, and stopped talking. M.H.’s boyfriend took Doe upstairs so she could…