People v. Nguyen CA4/2, E083046

Dung Tuan Nguyen was convicted of raping an unconscious person (Penal Code § 261(a)(4)) after an incident in June 2018 involving Jane Doe, who had consumed alcohol provided by Nguyen and subsequently blacked out during the sexual encounter.
The jury found Nguyen guilty of rape of an unconscious person; a count of forcible rape was dismissed after the jury could not reach a verdict.
Doe reported blacking out during the encounter and awoke to find her pants off and her vagina sore; she had no memory of consenting to sex, and her blood alcohol content was high shortly after the incident.
Nguyen denied any sexual contact in interviews with police but changed his account during trial, claiming the sex was consensual and Doe was not intoxicated or unconscious.
Nguyen appealed, arguing the evidence was insufficient for conviction and that the trial court should have instructed the jury on sexual battery as a lesser included offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for rape of unconscious person	Substantial evidence supported conviction	Evidence insufficient; conflicting accounts; Doe not unconscious	Evidence was sufficient for conviction
Jury instruction on lesser included offenses	Sexual battery not a lesser included offense	Trial court should instruct on sexual battery	No instructional error; not required

People v. Jennings, 50 Cal.4th 616 (Cal. 2010) (standard for sufficiency of the evidence review)
People v. Ogunmola, 193 Cal.App.3d 274 (Cal. Ct. App. 1987) (victim need not be physically unconscious for rape of unconscious person)
People v. Vasco, 131 Cal.App.4th 137 (Cal. Ct. App. 2005) (heavy burden when challenging sufficiency of evidence)
People v. Pham, 180 Cal.App.4th 919 (Cal. Ct. App. 2009) (application of statute to victims who are not physically unconscious)
People v. Dancy, 102 Cal.App.4th 21 (Cal. Ct. App. 2002) (rape of an unconscious person is a general intent crime)