People v. Gallardo

Summary

The California Court of Appeal considered whether assault with intent to commit rape under Penal Code section 220, subdivision (a)(1), is a lesser included offense of rape of an unconscious person under section 261, subdivision (a)(4). The court held that section 220 requires an intent to use force, an element not required for rape of an unconscious person, and affirmed the judgment.

Holdings

1. Assault with intent to commit rape is not a lesser included offense of rape of an unconscious person because assault with intent to commit rape requires an intent to use force, while rape of an unconscious person does not.

Questions Presented

1. Whether assault with intent to commit rape under Penal Code section 220, subdivision (a)(1), is a lesser included offense of rape of an unconscious person under Penal Code section 261, subdivision (a)(4), such that Gallardo could not be convicted of both offenses.

Disposition

affirmed