People v. Giardino
98 Cal. Rptr. 2d 315, 82 Cal. App. 4th 454, 2000 Cal. Daily Op. Serv. 6104 (2000)
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Rule of Law:
The crimes of rape by intoxication and oral copulation by intoxication are committed when a victim is so intoxicated that they are incapable of exercising the judgment required to decide whether to consent to sexual acts, regardless of their physical ability to resist, and an honest and reasonable mistake of fact regarding the victim's capacity to consent is a defense.
Facts:
- On December 27, 1996, the 16-year-old victim was spending the night at the house of Norliza G., her friend and the defendant's stepdaughter.
- The defendant poured the victim a single drink of bourbon over ice; Norliza G. later estimated the victim consumed up to five ounces of bourbon in total.
- After consuming the alcohol, the victim felt "woozy, very light headed," slipped and fell multiple times, slurred her speech, and could not walk straight, although she was not close to passing out.
- While watching pornography on a computer with the defendant and his friend Thomas Lyles, the victim, stating her "judgment was not there," pulled down her pants and masturbated for three minutes.
- In the master bedroom, the defendant touched the victim's breast; she pushed his hands down and told him, "No, Mark."
- Despite her objection, the defendant pulled the victim onto a waterbed, removed her clothing, orally copulated her, handcuffed her, and engaged in sexual intercourse, during which she tried to sit up but fell back due to alcohol.
- The defendant and Thomas Lyles took the victim to a Motel 6, holding her by each arm to assist her up the stairs because she was stumbling, and she tripped and fell.
- At the motel, the defendant and Lyles engaged in sexual acts with the victim, during which she felt "just doing what they were saying to do," and the defendant applied amyl nitrite to her face, which she attempted to resist.
Procedural Posture:
- The defendant was charged in an 11-count information with various crimes, including rape by intoxication (counts 1, 2, 3) and oral copulation by intoxication (counts 4, 5).
- A jury found the defendant guilty as charged on counts 2 through 7 and 9 through 11, and not guilty on counts 1 and 8.
- The trial court sentenced the defendant to a prison term of 13 years and ordered restitution.
- The defendant appealed his convictions on counts 2 through 5, contending the trial court erred by refusing certain jury instructions and that there was insufficient evidence.
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Issue:
Does the crime of rape by intoxication (Pen. Code, § 261, subd. (a)(3)) require proof that the victim was physically unable to resist, or does it instead require proof that the victim was so intoxicated as to be incapable of exercising judgment to consent, and did the trial court err by not properly instructing the jury on this meaning and the availability of a mistake of fact defense?
Opinions:
Majority - McKINSTER, J.
Yes, the crimes of rape by intoxication and oral copulation by intoxication are committed when the victim is so intoxicated that he or she is incapable of exercising the judgment required to decide whether to consent, and the trial court erred by failing to properly instruct the jury on this meaning and the availability of a mistake of fact defense. The court distinguished between "actual consent" (positive cooperation of free will) and "legal consent" (capacity to give consent). Crimes under Penal Code § 261(a)(3) focus on the victim's capacity to consent due to intoxication, not merely their physical ability to resist. The phrase "prevented from resisting" in the statute should not be literally interpreted as physical inability to fight back or speak, but rather as being prevented from resisting due to a lack of sound judgment caused by intoxication. Previous case law (e.g., People v. Griffin, People v. Ing) supports this interpretation, where victims were not necessarily physically incapacitated but had impaired judgment. The trial court's instruction to the jury to use "common sense and experience" for "resistance" was insufficient and misleading because it suggested a focus on physical resistance rather than the victim's capacity for judgment. This instructional error was prejudicial because the evidence regarding the victim's capacity to exercise judgment was conflicting, requiring proper guidance for the jury. Furthermore, the court clarified that an honest and reasonable, but mistaken, belief by the defendant that the victim was not too intoxicated to give legal consent is a valid defense, similar to the Mayberry defense for actual consent and Hernandez defense for statutory rape (age). This defense applies because the statute explicitly states the victim's condition must have been "known, or reasonably should have been known by the accused."
Analysis:
This case significantly clarifies the interpretation of California's rape by intoxication statute, shifting the legal focus from a victim's physical ability to resist to their cognitive capacity to consent. It emphasizes that intoxication can vitiate consent not by physical incapacitation, but by impairing judgment. The ruling provides crucial guidance for jury instructions in such cases, ensuring that defendants are tried under the correct legal standard regarding victim capacity and allowing for a "mistake of fact" defense concerning the victim's level of intoxication. This decision helps protect victims whose judgment is impaired by substances while also providing clarity on the specific mental state required for conviction.
