## Facts

- A.B. attended a party at her godmother’s house where Ramon Hernandez was also present.
- After most guests left, A.B., her godmother, and Hernandez continued drinking heavily, and A.B. and Hernandez decided to sleep there because they were intoxicated.
- A.B. slept in her godmother’s bedroom while Hernandez slept in the living room.
- The next morning, A.B. noticed signs that led her to believe she had been sexually assaulted, but she could not remember having sex.
- A.B. told her best friend—who was also Hernandez’s sister—that she believed Hernandez had raped her but that she could not recall the act.
- A hospital sexual-assault examination found physical indications consistent with nonconsensual intercourse, and forensic testing linked Hernandez to the sexual contact.
- Police interviewed Hernandez. In a recorded interview, after giving shifting accounts, he admitted A.B. was “out cold” or “knocked out” during the encounter, that she did not speak and barely moved, and that she did not consent. He also admitted he knew A.B. did not want to have sex with him.
- At trial, Hernandez testified the sex was consensual and claimed he was confused in the police interview due to limited English ability.
- Hernandez’s sister testified that two days after the party A.B. told her she remembered consenting to sex with Hernandez.
- The jury convicted Hernandez of rape of an unconscious person (Penal Code § 261(a)(4)). The trial court refused the defense request to instruct on simple battery as a lesser included offense.

## Issues

1. Whether substantial evidence supported the jury’s findings that A.B. was “unconscious of the nature of the act” and that Hernandez knew or reasonably should have known of her condition, as required by Penal Code § 261(a)(4).
2. Whether simple battery (Penal Code § 242) is a lesser included offense of rape of an unconscious person (Penal Code § 261(a)(4)), requiring a requested jury instruction.

## Decision

- The Court of Appeal affirmed the judgment.
- Substantial evidence supported the verdict on Penal Code § 261(a)(4), including Hernandez’s recorded admissions, A.B.’s condition and lack of memory, and medical/forensic corroboration.
- The trial court did not err by refusing to instruct on simple battery because battery is not a lesser included offense of rape of an unconscious person under the required lesser-included-offense tests.
- The court also noted that, even assuming battery could qualify as a lesser offense, the record did not contain substantial evidence that would support a battery verdict without rape (for example, a nonconsensual touching preceding consensual intercourse).

## Legal Principles

- In reviewing sufficiency of the evidence, an appellate court asks whether, viewing the record in the light most favorable to the judgment, any rational trier of fact could have found the essential elements beyond a reasonable doubt; credibility conflicts are for the jury.
- Penal Code § 261(a)(4) is satisfied by proof of sexual intercourse with a person who is “unconscious of the nature of the act” (including being asleep or otherwise unaware the act is occurring) and proof that the accused knew or reasonably should have known of that condition.
- A defendant’s recorded admissions that the victim was “out cold,” did not speak, and barely moved can provide strong evidence both that the victim was unconscious of the act and that the defendant knew it; later trial testimony claiming consent presents a credibility question for the jury.
- A trial court must instruct on a lesser included offense only when the lesser is necessarily included in the charged offense and there is substantial evidence that the defendant committed the lesser offense but not the greater.
- Simple battery (Penal Code § 242) requires a willful and unlawful use of force or violence on another; rape of an unconscious person under Penal Code § 261(a)(4) does not require proof of force or violence beyond the intercourse itself, so battery is not necessarily included.

## Conclusion

The court affirmed Hernandez’s conviction for rape of an unconscious person because the jury could reasonably rely on his recorded admissions and corroborating circumstances and medical evidence to find A.B. was unaware of the act and that Hernandez knew it. The court also held that simple battery is not a lesser included offense of rape of an unconscious person, so the trial court properly refused the requested battery instruction.


People v. Hernandez, 200 Cal. App. 4th 1000 (2011)