Morgan

On September 5, 1985, the Fresno County District Attorney filed an information in superior court charging defendant with rape. (Pen. Code, §261, subd. (I).) 1 Thereafter, the district attorney filed a first amended information alleging an assault with intent to commit rape as count II. (§220.)

After trial, the jury returned a verdict of not guilty on count I (§ 261, subd. (1)) and a guilty verdict on count II (§ 220). The trial court denied defendant probation, sentenced him to state prison for the upper term of six years and imposed a $500 restitution fine. (Gov. Code, § 13967.)

Defendant filed a timely notice of appeal.

Facts

In 1985, Glynna Morgan (no relation to defendant) and Janet Torrano worked at the Touch of Artistry beauty shop at Marks and Herndon Avenues in Fresno. Around 3 p.m. on April 18, 1985, they looked out the rear door of the shop and saw two people in a parked van. The defendant was on top of the other person, moving the upper part of his body from side to side. When the beauty shop employees went outside, the couple had moved and defendant was sitting in the driver’s seat with his pants off. Ms. Torrano approached the driver’s window to speak to…