People v. Hernandez
200 Cal. App.4th 1000, 2011 D.A.R. 16, 133 Cal. Rptr. 3d 229 (2011)
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Rule of Law:
Simple battery is not a lesser included offense of rape of an unconscious person under California law because rape of an unconscious person does not require the use of force or violence, whereas battery does.
Facts:
- A.B. attended a birthday party at the apartment of her godmother, Alejandra Garcia, where Garcia's cousin, Ramon Ruiz Hernandez, was also a guest.
- A.B. consumed alcohol and expressed to Garcia that she did not want to be left alone with Hernandez.
- Because they had been drinking, Garcia instructed both A.B. and Hernandez to spend the night; A.B. went to sleep in the bedroom with Garcia, while Hernandez stayed on the living room couch.
- Around 4:00 a.m., A.B. woke up and discovered her underwear was missing, her pajama bottoms were on inside out, and her vagina was wet.
- When confronted, Hernandez first denied doing anything, then hit himself in the head and swore he was innocent.
- A subsequent sexual assault examination revealed lacerations on A.B.'s vagina consistent with blunt penetrating trauma.
- DNA testing confirmed the presence of Hernandez's saliva on A.B.'s neck and his sperm on her external and internal genitalia.
- During a police interview, Hernandez eventually admitted that A.B. was 'knocked out' or 'out cold' the entire time and had not given him permission to have sex with her.
Procedural Posture:
- Ramon Ruiz Hernandez was charged in a California trial court with rape of an unconscious person.
- During the trial, Hernandez's counsel requested a jury instruction on simple battery as a lesser included offense, which the trial court denied.
- A jury found Hernandez guilty of rape of an unconscious person.
- The trial court sentenced Hernandez to three years in state prison.
- Hernandez, as the appellant, appealed his conviction to the California Court of Appeal, Second District, challenging the sufficiency of the evidence and the trial court's refusal to instruct on the lesser offense.
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Issue:
Is simple battery a lesser included offense of rape of an unconscious person under California Penal Code § 261, subdivision (a)(4)?
Opinions:
Majority - Yegan, J.
No, simple battery is not a lesser included offense of rape of an unconscious person. To determine if an offense is a lesser included one, the court applies the 'elements test,' which asks if the greater offense can be committed without also committing the lesser offense. The crime of rape of an unconscious person requires proof that the defendant had sexual intercourse with a victim who was unconscious of the nature of the act, and that the defendant knew of the victim's condition. Critically, this offense does not require any element of force or violence. In contrast, simple battery is defined as 'any willful and unlawful use of force or violence upon the person of another.' Because one can commit rape of an unconscious person without the use of force or violence required for battery, battery is not a lesser included offense.
Analysis:
This decision clarifies the legal distinction between consent-based sexual offenses and force-based offenses in California. By holding that rape of an unconscious person does not require force, the court reinforces that the core of this crime is the victim's incapacity to consent, not the perpetrator's violent actions. This precedent prevents defendants in such cases from seeking a jury instruction on a lesser charge of battery, thereby forcing the jury to decide squarely on the issue of whether the defendant knew the victim was unconscious. The ruling strengthens protections for vulnerable victims by ensuring that the legal focus remains on their state of mind and inability to consent.
