(Super. Ct. No. MC RD CRF090006037)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Dennis Alva Adams not guilty of assault with intent to commit rape of an intoxicated person (count 1) or assault with intent to commit rape of an unconscious person (count 3), but guilty of the lesser included offense of misdemeanor assault (Pen. Code, § 240)*fn1 as to both counts. The jury also found defendant guilty of misdemeanor sexual battery (count 7) and not guilty of the remaining charges (counts 2, 4, and 6).*fn2 Defendant was placed on 36 months informal probation, ordered to serve 30 days in county jail, stayed pending appeal, and ordered to register as a sex offender pursuant to section 290.
Defendant appeals. In his opening brief, he contends, among other things, that his convictions for simple assault (counts 1 and 3) must be reversed because simple assault is a lesser included offense to misdemeanor sexual battery. With this court's permission, defendant filed a supplemental opening brief, contending his convictions--all misdemeanors--are barred by the applicable one-year statute of limitations set forth in section 802, subdivision (a), and must be dismissed. The People agree both that "the assault convictions are necessarily included lesser offenses to the sexual battery count," and that the complaint on its face indicates the sexual battery offense is time-barred. The People request that we "remand the matter back to the trial court for a hearing to determine whether [the sexual battery offense is] time-barred with orders to vacate the judgment if time-barred by the statute of limitations, but otherwise to affirm the conviction for misdemeanor sexual battery . . . ."*fn3
We shall reverse defendant's convictions for simple assault (counts 1 and 3) because those convictions are necessarily included offenses of misdemeanor sexual battery. We also shall reverse defendant's conviction for sexual battery because the complaint, on its face, indicates it is time-barred and shall remand the matter to the trial court for a determination as to whether the sexual battery offense is, in fact, time-barred. If it is determined that it is barred by the applicable statute of limitations, the trial court shall dismiss the action. If it is determined that it is not time-barred, the trial court shall reinstate the judgment, and defendant shall be free to renew the additional contentions related to the sexual battery conviction raised in his initial opening brief in an appeal from that judgment.*fn4
Defendant's Convictions for Simple Assault (Counts 1 and 3) Must Be Reversed
Defendant contends, and the People concede, that defendant's convictions for simple assault (counts 1 and 3) must be reversed because simple assault is a lesser included offense of sexual battery (count 7). We agree and shall reverse defendant's convictions on counts 1 and 3. (People v. Alford (1991) 235 Cal.App.3d 799, 805, fn. 6; People v. Carapeli (1988) 201 Cal.App.3d 589, 595.)
Defendant's Conviction for Sexual Battery Must Be Reversed and the Matter Remanded to the Trial ...