Battery (PC § 242) is a lesser included offense of the crime of rape of an intoxicated person (PC § 261(a)(3)), and the trial court erred in not so instructing the jury. The trial court committed reversible error by failing to instruct the jury sua sponte on a lesser included offense of battery, as there was substantial evidence to support that defendant did not and reasonably should not have known that Doe was incapable of consenting to sexual intercourse.

[Editor’s Note: There is a current split as to whether battery is an LIO of rape of an unconscious person (PC 261(a)(4)). (Compare People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006 [battery is not a LIO of rape of an unconscious person] with People v. Miranda (2021) 62 Cal.App.5th 162, 167 [battery is an LIO of rape of an unconscious person].) The Court of Appeal here found Miranda to be better reasoned.]

The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/H050860.PDF