People v. Diaz-Camacho CA2/5

I. INTRODUCTION

A jury convicted defendant and appellant Miguel Diaz- Camacho of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(2)1) and attempted forcible rape (§§ 664/261, subd. (a)(2)). As to each offense, the jury found true the allegation that defendant’s victim was between 14 and 17 years of age. The trial court sentenced defendant to seven years in state prison for the assault with intent to commit rape conviction and four years six months for the attempted forcible rape conviction which the court stayed pursuant to section 654, imposed assessments and fines, and ordered defendant to take an AIDS test. On appeal, defendant contends we must reverse his attempted forcible rape conviction because it was a lesser included offense of his assault with intent to commit rape conviction, the trial court erred in imposing assessments and fines without a hearing on his ability to pay them, and the court erred in ordering him to take an AIDS test because he was not convicted of an offense that subjected him to testing. We affirm the imposition of defendant’s assessments and fines, but reverse his conviction for attempted forcible rape and vacate the order for an…