Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].
• Attempted Rape. Pen. Code, §§ 663, 261.
• Attempted Spousal Rape. Pen. Code, §§ 663, 262.
• Battery. Pen. Code, § 242; People v. Guiterrez (1991) 232 Cal.App.3d 1624,
1636 [284 Cal.Rptr. 230], disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3 [103 Cal.Rptr.2d 23, 15 P.3d 243]; but see
People v. Marshall (1997) 15 Cal.4th 1, 38–39 [61 Cal.Rptr.2d 84, 931 P.2d
262] [battery not a lesser included of attempted rape].
Consent Obtained by Fraudulent Representation
Aperson may also induce someone else to consent to engage in sexual intercourse
by a false or fraudulent representation made with an intent to create fear, and
which does induce fear and would cause a reasonable person to act contrary to his
or her free will. (Pen. Code, § 266c.) While section 266c requires coercion and fear
to obtain consent, it does not involve physical force or violence. (See People v.
Cardenas (1994) 21 Cal.App.4th 927, 937–938 [26 Cal.Rptr.2d 567] [rejecting
defendant’s argument that certain acts were consensual and without physical force,
and were only violations of section 266c].)
Minor Victim and Unanimity
“Generic testimony” by a victim who was 15 and 16 years old does not deprive a
defendant of a due process right to defend against the charges. If the victim
“speciﬁes the type of conduct involved, its frequency, and that the conduct occurred
during the limitation period, nothing more is required to establish the substantiality
of the victim’s testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446
[127 Cal.Rptr.2d 472] [affirming conviction for multiple counts of rape under Pen.
Code, § 261(a)(2); citing People v. Jones (1990) 51 Cal.3d 294, 316 [270 Cal.Rptr.
611, 792 P.2d 643]].)
When there is no reasonable likelihood the jury will disagree on particular acts of
molestation, and the only question is whether or not the defendant in fact
committed all of them, the jury should be given a modiﬁed unanimity instruction
which, in addition to allowing a conviction if the jurors unanimously agree on
speciﬁc acts, also allows a conviction if the jury unanimously agrees the defendant
committed all the acts described by the victim. (People v. Matute, supra, 103
Cal.App.4th at p. 1448; People v. Jones, supra, 51 Cal.3d at pp. 321–322; see
CALCRIM No. 3501, Unanimity: When Generic Testimony of Offense Presented.)
Mistake-of-Fact Defense and Developmental Disability
A defendant cannot base a reasonable-belief-of-consent defense on the fact that he
is developmentally disabled and, as a result, did not act as a reasonable person
would have acted. (People v. Castillo (1987) 193 Cal.App.3d 119, 124–125 [238
CALCRIM No. 1000 SEX OFFENSES