## Facts

- A 16-year-old girl, a friend of the defendant’s stepdaughter, stayed overnight at the defendant’s home and drank bourbon provided to her.
- Witness accounts described her as intoxicated (giggly, slurred speech, falling down), with some evidence she still appeared aware of what she was doing.
- The defendant and another adult male took her to a motel and helped her to a room; she began to shower and later entered the bedroom where both men were naked.
- The victim testified the defendant directed the sexual activity and that she was only partially conscious, responding to instructions.
- The men disputed her account and claimed she initiated or encouraged sexual conduct.
- The defendant attempted to apply a substance described as a sexually stimulating drug to the victim’s face; she resisted by holding her breath and pushing it away.
- Afterward, the victim dressed, left the motel, returned to the defendant’s home, and remained there into the next day.
- A jury convicted the defendant of multiple offenses, including rape by intoxication and oral copulation by intoxication (among other non-intoxication sex offenses); he received a prison sentence and was ordered to pay victim restitution.

## Issues

1. Whether lack of actual consent is a separate element of rape by intoxication and oral copulation by intoxication.
2. What “prevented from resisting” means in intoxication-based sexual offenses: physical inability to resist or inability to exercise judgment to decide whether to consent.
3. Whether the jury should have been instructed on mistake of fact as to the victim’s capacity to consent, in light of the statutory requirement that the defendant knew or reasonably should have known of the victim’s incapacitating intoxication.
4. Whether the evidence was sufficient to prove the victim was “prevented from resisting” under the proper legal standard.
5. Whether excluding impeachment evidence and imposing victim restitution constituted reversible error.

## Decision

- The court held that lack of actual consent is not a separate element of rape by intoxication or oral copulation by intoxication.
- The court interpreted “prevented from resisting” to mean intoxication that renders the victim incapable of exercising the judgment required to decide whether to consent, not merely physical inability to resist.
- The court ruled the standard instructions given on the intoxication counts were incomplete and could mislead jurors without a clarifying definition of incapacity and an explanation tied to the defendant’s required knowledge.
- The court reversed the convictions for rape by intoxication and oral copulation by intoxication (counts 2–5) and remanded for further proceedings on those counts.
- The court affirmed the remaining convictions and upheld the trial court’s rulings on impeachment and the victim restitution order.

## Legal Principles

- For rape by intoxication and oral copulation by intoxication, the prosecution need not prove a separate element of lack of actual consent; the statutory focus is the victim’s incapacity and the defendant’s knowledge (actual or constructive) of that incapacity.
- “Prevented from resisting” in intoxication-based sexual offenses refers to cognitive/volitional incapacity: intoxication so severe the victim cannot understand the nature of the act and make a reasoned decision whether to consent.
- Apparent cooperation or submission does not necessarily establish legal capacity to consent; jurors must be instructed to assess whether intoxication eliminated the ability to exercise judgment.
- The defendant’s culpability depends on whether he knew or reasonably should have known of the victim’s incapacitating intoxication; an honest and reasonable (even if mistaken) belief that the victim retained capacity can negate that required mental state.
- Where instructions omit the needed clarification of incapacity and its connection to the defendant’s knowledge, intoxication-based convictions may require reversal even if the evidence could support guilt under the correct standard.

## Conclusion

The court reversed only the intoxication-based sex convictions because the jury was not adequately instructed that “prevented from resisting” means inability to exercise judgment to decide whether to consent, and that the defendant must have known or reasonably should have known of that incapacitating intoxication; all other convictions and the restitution order were affirmed.


People v. Giardino, 98 Cal. Rptr. 2d 315 (Cal. Ct. App. 2000)