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Name: People v. Smith
Case #: C061805
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 12/22/2010
Subsequent History: opinion on rehearing

One act of sexual intercourse with a victim can support only one rape conviction. Appellant and another man escorted a drunk woman to a hotel room after she became so drunk that she vomited at a bar and could not stand without assistance. The men left the woman in the room, but surveillance cameras showed appellant returning later and not leaving until the next morning. The woman alleged she was rape, while appellant claimed she initiated sexual relations. A jury convicted appellant of rape of an intoxicated woman, rape of an unconscious woman, and sexual battery. Appellant argued that there should be only one rape conviction because the evidence showed only one act of sexual intercourse with the victim. The court agreed that one rape conviction required reversal. Although a single act of rape may be charged in separate counts when accomplished in several of the circumstances described in the subdivisions of Penal Code section 261, there is still only one punishable act of rape. (People v. Craig (1941) 17 Cal.2d 453, 458.)
CALCRIM No. 1002 on rape of an intoxicated woman provides a correct statement of the law. Appellant also argued the instruction defining rape of an intoxicated woman did not adequately distinguish between a complainant exercising poor judgment and the complete inability to exercise reasonable judgment. The Court of Appeal found CALCRIM No. 1002 is adequate. It provides a real measure of the degree of the intoxication required because it says the victim must be “so intoxicated that she cannot give legal consent.” Moreover, the instruction also provides the legal definition of “reasonable judgment,” namely that a person can “understand and weigh the physical nature of the act, its moral character, and probable consequences.”
CALCRIM No. 1003 (rape of an unconscious woman) was not confusing under the facts. Appellant argued CALCRIM No. 1003 was confusing given the parallels with CALCRIM No. 1002, and the facts of the case because the unconsciousness was due to intoxication. The court noted the instruction tells the jury that a woman is unconscious of the nature of the act if she is unconscious, asleep, or not aware the act is occurring. Here, the victim testified she blacked out after ordering a second drink at the bar. Her next recollection was when she woke up and saw appellant lying next to her naked. She then got dressed and left. It was not until she got home that she suspected they had had intercourse. These facts clearly fit the scenarios in the instruction.
There was sufficient evidence to uphold the sexual battery conviction. The jury convicted appellant of sexual battery based on surveillance video which showed him with his hand on the victim’s breast when he escorted her to the hotel room. Appellant argued the sexual battery conviction should be reversed because the statute (Pen. Code, § 243.4) does not specifically include acts of nonconsensual sexual touching where the absence of consent is caused by incapacity. Section 243.4 describes several scenarios making the touching nonconsensual, such as medical incapacitation, unlawful restraint, fraudulent representation for a professional purpose. It also has a “catch-all” provision for when the touching is committed against the person’s will. The court held that since a person who is either too intoxicated or unconscious cannot give consent, the touching of a person in that condition is necessarily against his or her will. The court found it irrelevant that the rape statute specifically proscribes that particular scenario and the sexual battery statute does not.