Boro

By timely petition filed with this court, petitioner Daniel Boro seeks a writ of prohibition to restrain further prosecution of count H of the information on file against him in San Mateo County Superior Court No. C-13489 charging him with a violation of Penal Code section 261, subdivision (4), rape: “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused.”

Petitioner contends that his motion to dismiss should have been granted with regard to count II because the evidence at the preliminary hearing proved that the prosecutrix, Ms. R., was aware of the “nature of the act” within the meaning of section 261, subdivision (4). The Attorney General contends the opposite, arguing that the victim’s agreement to intercourse was predicated on a belief—fraudulently induced by petitioner—that the sex act was necessary to save her life, and that she was hence unconscious of the nature of the act within the meaning of the statute.

In relevant part the factual background may be summarized as follows.…