Giardino

In reviewing this defendant’s convictions for, inter alia, rape by intoxication and oral copulation by intoxication, we hold that those crimes are committed when the victim is so intoxicated that he or she is incapable of exercising the judgment required to decide whether to consent to those sexual acts, and that the jury should be instructed accordingly.

Procedural Background

In an 11-count information, the defendant was charged with committing rape by intoxication (Pen. Code, § 261, subd. (a)(3)) in counts 1, 2, and 3; with committing oral copulation by intoxication (§ 288a, subd. (i)) in counts 4 and 5; with committing oral copulation with a minor (§ 288a, subd. (b)(1)) in counts 6 and 7; with committing unlawful sexual intercourse (§ 261.5) in counts 8, 9 and 10; and with molesting a child (§ 647.6) in count 11. The jury found him guilty as charged in counts 2 through 7 and 9 through 11, but not guilty as to counts 1 and 8. In addition to a prison term of 13 years and 2 restitution fines, the defendant was ordered to pay restitution to the victim in the sum of $7,359. (§ 1202.4, subd. (f).)

Contentions

The defendant contends that the convictions on counts 2…