RAPE OF AN UNCONSCIOUS PERSON AND LESSER INCLUDED OFFENSES

The defendant was convicted of rape of an unconscious person. He argues that he should have been entitled to a jury instruction on the lesser-included offense of simple battery. The California Court of Appeal disagrees. They say that the elements of rape of an unconscious person do not include use of force or violence. The California Court of Appeal concludes that this means that the elements do not include a harmful or offensive touching at all. Thus,
battery is not an inherent lesser offense. I can’t really make sense of this; somehow, the unquestionable touching involved in a rape was NOT offensive? Huh?

People v. Hernandez; 2011 DJ DAR 16460; DJ, 11/11/11; C/A 2nd, Div. 1