Super. Ct. No. 08CR14894 APPEAL from a judgment of the Superior Court of Amador County, Thomas A. Smith, Judge.
The opinion of the court was delivered by: Robie , Acting P.J.
CERTIFIED FOR PUBLICATION
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 Penal Code section 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.
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 polymysotitis, a disease which causes her immune system to attack her muscles, and included one milligram of Ativan, 10 milligrams of hydrocodone, 325 milligrams of acetaminophen, and 60 milligrams of Cymbalta.
Between 3:00 and 4:00 p.m., the victim went into a bar, the Fargo, and ordered a drink that contained one-half ounce shots of vodka, rum, gin, and tequila. She ordered two more of the same, but drank only about one-half to one-third of the last drink.
While the victim was seated at the bar, customers Bon Grosse and defendant sat on each side of her and the three conversed. While on her third drink, the victim went into the bathroom, stayed for several minutes, and when she returned she had wet her pants, she was "totally, like, out of it" and incoherent. She put her head on the bar, the bartender removed her drink, and she turned her head and vomited on the floor. The bartender called and obtained a room for the victim at the National Hotel, which was across the street.
Grosse and defendant took the victim to the hotel, physically supporting her because she was unable to walk by herself. While the victim sat on a barstool in the hotel's bar, Rebecca Hunderfund, the hotel's desk clerk and bartender, checked the victim into room 38. Hunderfund described the victim as "[v]ery, very out of it[,] [v]ery, very intoxicated," she was unable to walk by herself, and she had to be held to keep from falling off of the barstool.
Hunderfund gave Grosse the only key to room 38 and Grosse and defendant took the victim to the room. Grosse and defendant put the victim on the bed. Grosse placed the key on the sink and the two left, with Grosse closing the room's door.
The hotel's security videotape, which was played for the jury, showed that as Grosse and defendant were walking the victim down the hall, her brassiere was dangling in front of her blouse and defendant had his hand under her blouse and on her breast.
Grosse and defendant returned to the Fargo, but about 20 to 30 minutes later Grosse went to check on the victim because he could not recall whether the door to her room was locked. The door was locked and Grosse did not enter the room. Grosse told Hunderfund that the victim was "out for the night," had a quick drink, and then returned to the Fargo.
About 45 minutes to an hour after Grosse had left the National Hotel, defendant returned to the hotel, telling Hunderfund that he ...