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Name: People v. Vasquez
Case #: B181422
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 01/10/2006
Subsequent History: Review granted 4/26/06: S141677

A defendant’s conviction for assault with intent to commit rape is not a lesser included offense of attempted forcible rape, and multiple sentences for assault and burglary are proper where there is more than one victim present at the time of the burglary. The appellate court held that the defendant was properly convicted of both assault with intent to commit rape and attempted forcible rape, rejecting the argument that the former is a lesser included offense of the latter, because the crime of assault to commit rape carries a greater statutory punishment than that for attempted rape. Moreover, although the trial court properly stayed punishment for attempted rape under section 654, a similar stay was not required for assault with intent to rape, because the separate term for first-degree burglary did not constitute multiple punishment, because there were two additional victims of the burglary in addition to the sexual assault victim. Defendant did not dispute that burglary was a violent crime, and therefore the multiple victim exception applied.