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People v. Durango4/2/2003
nse, but not the greater, was committed. [Citations.]" (People v. Breverman, supra, 19 Cal.4th at p. 162.) However, we also note there is no need to instruct on the lesser offense if there is no evidence the offense committed was less than that charged. (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
Here, the court should have instructed on the lesser included offense of battery, but not of assault. While Briana's capacity to consent was one issue to be resolved by the jury, the jury also needed to determine whether defendant knew or reasonably should have known she lacked this capacity because of her intoxication. Even though Briana may have been incapacitated, it does not necessarily follow that defendant knew or should have known of her incapacity. Intercourse was admitted. Thus, if the evidence persuaded the jury that Briana lacked the capacity to consent to intercourse, defendant would at least be guilty of a battery. If, in addition, the evidence persuaded the jury the defendant knew or reasonably should have known of Briana's incapacity, the defendant would be guilty of rape by intoxication. If, however, the jury found that despite Briana's incapacity defendant did not know and reasonably should not have known of Briana's incapacity, defendant would be guilty of battery, but not of rape by intoxication.
The court's decision not to instruct on assault was correct, however, because if Briana lacked capacity to consent, defendant would be guilty of at least a battery, and potentially a rape. If she gave valid consent, no crime was committed, not even an assault.
Whether to instruct on battery, therefore, turns on the evidence of defendant's knowledge, either actual or constructive. We find there was sufficient evidence of defendant's lack of knowledge of Briana's incapacity at the time of intercourse to require an instruction on battery. Defendant testified that when the group arrived at Young's home, the women spent time eating, talking and watching a TV show, he could not tell they had been drinking, and Briana did not appear intoxicated. Defendant testified about his perception just before intercourse. "Q At that point, could you tell if she was intoxicated? A No, she wasn't. She was drinking, but she wasn't intoxicated. No, she wasn't." When the police officer arrived at approximately 6:30 a.m., he detected an odor of alcohol on Briana, but was able to converse coherently with her, he did not observe physical signs of intoxication, and he did not notice any mental impairment.
This evidence was substantial enough to require the court to instruct on the lesser included offense of battery. While the jury may have found Briana lacked the capacity to consent, this was evidence from which the jury could have found defendant did not know and reasonably should not have known she was "incapable of exercising the judgment required to decide whether to consent to intercourse." (People v. Giardino, supra, 82 Cal.App.4th at p. 464.)
Nevertheless, the court's failure to instruct on the lesser included offense of battery does not affect the judgment because the error was harmless. The court's failure to instruct on a lesser included offense requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818; People v. Breverman, supra, 19 Cal.4th at p. 165.) On review of the entire record, we conclude a more favorable result was not reasonably probable if the instruction had been given.
While there was sufficient evidence to require the instruction, there was also overwhelming evidence the defendant knew Briana was so intoxicat
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