People v. Giardino
California Court of Appeal
98 Cal. Rptr. 2d 315 (2000)
A 16-year-old friend of Mark Giardino's (defendant) stepdaughter drank bourbon at his home, became visibly impaired with slurred speech and falling, but appeared aware of her actions; Giardino and another man took her to a motel, where both men, once naked, directed her to engage in various sexual acts, which she claimed to only partially perceive while responding to instructions, though she also resisted an attempt to apply a stimulating drug and later dressed and walked downstairs unassisted, staying overnight without objection. Giardino was convicted of rape and oral copulation by intoxication, among other charges, and appealed, arguing the trial court erred by not including lack of consent as an element and by failing to adequately instruct on the "prevented from resisting" element after the jury specifically asked for clarification on the meaning of "resisting."
Whether, in a prosecution for rape or oral copulation predicated on the victim's intoxication rather than lack of actual consent, the trial court adequately instructed the jury that the "prevented from resisting" element turns on the victim's capacity to give legally valid consent rather than her physical ability to resist.