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Name: People v. Lyu
Case #: B232192
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 02/28/2012

Sex offenses involving an unconscious person require more than the person being unaware of the attack until it occurs. The court reversed convictions for violations of Penal Code section 289, subdivision (d) (sexual penetration by a foreign object of an unconscious person), and section 288, subdivision (f) (oral copulation of an unconscious person). While the victim was lying face down during a massage, Lyu placed his fingers in her vagina. She pushed his hand away and rolled over on her back. While she was considering what to do to get away, he put his mouth on her vagina. However, these statutes each require that the victim is unconscious of the nature of the act. The statute further explains that “unconscious of the nature of the act” means incapable of resisting because the victim meets one of several conditions, including that the person was “not aware, knowing, perceiving or cognizant that the act occurred.” While the victim here did not expect the attacks, she instantly knew that a sexual offense had occurred. The plain language of the statute is clear and there is no need for statutory construction. There was insufficient evidence in this case of unconsciousness.