People v. Johnson

*136 A jury convicted defendant Tyrone Johnson of rape of an intoxicated person ( Pen. Code, § 261, subd. (a)(3) ), 1 and the trial court sentenced him to eight years in prison. On appeal, he contends (1) the court committed several instructional errors, (2) the statute defining the crime of rape of an intoxicated person is unconstitutionally vague and improperly permits conviction without a finding of intent or criminal negligence, (3) the prosecutor engaged in misconduct, (4) the court erred by admitting prejudicial evidence, (5) his trial counsel was ineffective, and (6) the court erred by imposing a restitution fine and *2 certain fees at sentencing without determining whether Johnson had the ability to pay them.

In the unpublished portion of this opinion, we reject Johnson's challenges to his conviction. In the published portion of the opinion, we reject his challenge to the imposition of fines and fees at sentencing. Accordingly, we affirm the judgment.

I. BACKGROUND

A. The Charges

An information charged Johnson with (1) kidnapping to commit another crime (§ 209, subd. (b)(1)) (count one), (2) forcible rape ( § 261, subd. (a)(2) ) (count two), and (3) rape of an…