People v. Hernandez

Opinion

YEGAN, J.

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…