P. v. McFadden
A jury convicted defendant of first degree burglary of an inhabited dwelling, acquitted him of burglary with intent to commit rape, and could not reach a verdict on a third count of assault with intent to commit rape. On retrial, a second jury convicted him of the latter offense.
Sentenced to an aggregate state prison term of five years four months, defendant appeals, challenging only the conviction on retrial of count three--assault with intent to commit rape. Defendant raises claims of instructional and evidentiary error, improper restriction on defense counsel’s closing argument, and ineffective assistance of counsel.
Court agreed with defendant’s contention that the trial court erroneously failed to instruct on the lesser included offense of attempted rape, but reject defendant’s remaining arguments. Court gave the district attorney the option of either retrying the charge in count three, or accepting a conviction of the lesser crime, and otherwise affirmed the judgment.
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