People v. Smith

A jury found defendant Larry Steven Smith guilty of rape of an intoxicated woman (count I), rape of an unconscious woman (count II), and misdemeanor sexual battery. The trial court sentenced defendant to prison for eight years (the upper term on count I, with the terms on the other two counts run concurrently and stayed under Pen. Code, § 654).

On appeal, defendant contends (1) the trial court gave misleading and incomplete instructions on rape of an intoxicated woman that require reversal of both rape convictions; and (2) because there is no crime of sexual battery of an intoxicated or unconscious woman, his conviction for sexual battery must be reversed. We reject these arguments; however, we conclude that only one of defendant’s rape convictions can stand because both convictions are based on the same act of sexual intercourse. Accordingly, we will modify the judgment to strike the second rape conviction.

FACTS

During the afternoon of November 11, 2008, the victim, a 40-year-old woman, went shopping in the town of Jackson. Prior to noon she had taken medication for polymyositis, a disease which causes her immune system to attack her muscles, and included one…