Hernandez

Ramon Ruiz Hernandez appeals his conviction, by jury, of rape of an unconscious person. (Pen. Code, § 261, subd. (a)(4).) 1 He was sentenced by the trial court to a term of three years in state prison. Appellant contends there was insufficient evidence that the victim was unconscious or that he was aware of this fact. He further contends the trial court erred when it failed to instruct the jury on simple battery (§ 242) as a lesser included offense. We affirm.

Facts

A.B. spent the night of July 4, 2009, at the Glendale apartment of her godmother, Alejandra Garcia. It was Alejandra’s birthday and she was having a party with some family members and friends, including her cousin, appellant. By around midnight, most of the guests were gone, but A.B., Alejandra and appellant were still playing video games and drinking beer. During the evening, A.B. told Alejandra that she did not want to be left alone with appellant. Alejandra told A.B. and appellant that they should both stay the night because they had been drinking. A.B. changed into pajama bottoms and a T-shirt and went into the bedroom to sleep. Appellant stayed in the living room, on the couch. Alejandra got into bed…