P. v. Gutierrez CA4/3
A jury convicted Jose Hernandez Gutierrez (Defendant) of one count of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3). The trial court sentenced Defendant to the upper term of eight years in prison.
Defendant challenges the conviction on a single ground: He contends the trial court erred by denying his request to instruct the jury that an actual and reasonable belief the victim was capable of consent to sexual intercourse is a defense to the charge of rape of an intoxicated person. For purposes of analysis, we assume Defendant was entitled to the instruction, a point which the Attorney General does not dispute. The trial court did not err because it instructed the jury on the elements of the offense of rape of an intoxicated person, and the instruction requested by Defendant merely restated one element of the offense as a defense. We therefore affirm.
Comments on P. v. Gutierrez CA4/3