P. v. Thomas
Three women identified defendant Marlon Eugene Thomas as their assailant. The defense focused on the inconsistencies between their descriptions, the flaws in the photographic and live lineups and fingerprint evidence, the lack of DNA evidence, and, in the case of one of the victims, the fact that her sexual allegations enlarged over time. The jury hung on the counts involving two of the women but as to the third found defendant guilty of misdemeanor battery and misdemeanor assault (Pen. Code, 242, 240 count one), misdemeanor battery and misdemeanor assault (count two), and assault with intent to commit rape ( 220 count three).
Defendant was sentenced to state prison for the low term of two years. The Attorney General concedes that the convictions for misdemeanor assault must be reversed because they are lesser included offenses of battery.
On appeal, defendant does not challenge the sufficiency of the identity evidence. Given the victims composite drawing, multiple identifications, and the fingerprint evidence, defendant challenges only the sufficiency of the evidence that he intended to rape the victim during the assault. However, the limited scope of appellate review compels us to uphold the jury verdict. Court reverse the convictions for assault and in all other respects affirm the judgment.
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