A defendant who engages in sexual intercourse by impersonating someone other than a married victim’s spouse, does not commit rape of an unconscious person within the meaning of Penal Code section 261, subdivision (a)(4). After seeing the victim’s boyfriend exit her bedroom late at night, Morales entered the room and, without disclosing his identity, engaged in intercourse with the victim. Realizing Morales was not her boyfriend, the victim screamed and resisted. After an initial attempt to continue, he fled. Morales was convicted of rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)). Held: Reversed. The prosecution argued the victim was either asleep or was “unconscious of the nature of the act” because Morales impersonated the victim’s boyfriend. The latter argument was based on CALCRIM No. 1003 and allowed the jury to convict Morales based on an incorrect legal theory. A rape of an unconscious person occurs when the victim was not aware of the essential characteristics of the act due to the perpetrator’s fraud in fact. Some courts have characterized sex crimes involving impersonation as fraud in the fact (where the defendant obtains consent to perform one act, but instead engages in another), but others have referred to such crimes as fraud in the inducement (misrepresentations that induce the victim to consent), which precludes criminal liability. While a jury could easily conclude that a rape of an unconscious person occurred in this case based on the statutory definition set forth in subdivision (a)(4)(C), the court was constrained by the tenants of statutory interpretation from reaching such a conclusion. A separate provision of section 261, subdivision (a)(5), expressly makes sexual intercourse by impersonating a victim’s spouse a rape. The court was compelled to interpret subdivision (a)(4) in a manner that did not render subdivision (a)(5) superfluous, holding that a person who has sexual intercourse with a victim by impersonating someone other than the victim’s spouse does not commit rape under section 261, subdivision (a)(4). Reversal was required, as the record failed to disclose whether the jury relied upon a proper theory to convict.

The court did not err in failing to instruct on mistake of fact. At trial Morales testified that the victim appeared to respond favorably to his advances and therefore the court should have instructed the jury on mistake of fact regarding consent. As Morales was charged with rape of an unconscious woman, his belief in her consent was irrelevant – it was his knowledge that the woman was unconscious and his intent to nonetheless engage in sexual intercourse with her that brings the offense within section 261, subdivision (a)(4).