California Court of Appeal

In appeal from conviction of rape of an unconscious person, judgment is reversed and remanded, where: 1) under the precise language of the statute, a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person under section 261 (a)(4); 2) the prosecutor improperly argued this theory of guilt, 3) the instruction as read to the jury in this case allowed the jury to convict defendant under the theory that he impersonated victim's boyfriend; and 4) the record here fails to disclose whether the jury relied on the improper theory, or on the correct theory argued by the prosecutor, that the victim was unconscious because she was asleep; but 5) the trial court did not err in refusing to give instructions that would have allowed the jury to consider his good faith, but mistaken, belief that the victim had consented to sexual intercourse with him.

Appellate Information

• Decided 01/02/2013
• Published 01/02/2013

Judges

• WILLHITE

Court

• California Court of Appeal

Counsel