People v. Banks CA1/1

INTRODUCTION

After entering a motel room through a window in the early morning hours of December 4, 2010, defendant severely beat and then sexually assaulted the young woman asleep there. A jury convicted him of assault with intent to commit oral copulation during a burglary, and burglary, among other offenses. On appeal, defendant argues he cannot be convicted of both assault with intent to commit oral copulation during a burglary, and burglary, because the latter offense is a necessarily included lesser offense of the former. The People concede the point and we concur. We reject defendant’s claim of prejudicial prosecutorial misconduct. Accordingly, we will dismiss defendant’s conviction for burglary and otherwise affirm the judgment.

STATEMENT OF THE CASE

A jury convicted defendant of assault with intent to commit oral copulation during a burglary, burglary, aggravated assault, attempted oral copulation, and indecent exposure. (Pen. Code, §§ 220, subd. (b), 460, subd. (a), 245, subd. (a)(1), 288a, subd. (c)(2)/664, 314.)1 The jury also returned great bodily injury findings. (§§ 12022.7, 12022.8, 1203.075.) A separate count of dissuading a witness (§ 136.1) was dismissed by…