The defendant’s admissions, the circumstances, and the victim’s testimony supply substantial evidence of the offense of rape as defined in Penal Code section 261, subdivision (a)(4), where a person is at the time unconscious of the nature of the act and this is known to the accused. Hernandez and A.B. spent the night at her godmother’s apartment because they had been drinking and went to sleep in separate rooms. A.B. awoke to find indications that she had engaged in sexual activity. She confronted Hernandez who denied doing anything. When questioned by the police, he initially denied having sex with A.B.; he then described consensual sex with her while she was awake; and, later he said she was “knocked out” or “out cold.” He acknowledged that he did not have her permission and he knew that she did not want to have sex with him. He testified at trial that he was confused by the police questions and that A.B. engaged in consensual sex while she was awake and responsive. There was substantial evidence of A.B.’s unconsciousness and Hernandez’ knowledge of it. There was substantial evidence to support the elements of section 261, subdivision (a)(4).
There was no duty to instruct on simple battery as a lesser included offense of rape of an unconscious person. Simple battery is not a lesser included offense of rape of an unconscious person. Battery includes willful and unlawful use of force or violence upon the person of another. The charged crime here includes no requirement that the defendant use force or violence to accomplish the act of sexual intercourse. Further, even if it were a lesser offense, the denial of the instruction would not be error because there was no substantial evidence to support it. There was no evidence, even from the defendant’s testimony, that he kissed A.B. in an angry, rude or violent way prior to consensual sex.