MacK

Introduction

Penal Code section 261, subdivision (a)(3) (undesignated section references will be to this code) defines as rape any act of sexual intercourse where “a person is prevented from resisting by any intoxicating or anaesthetic substance, or any controlled substance, administered by or with the privity of the accused.” (Italics supplied.) As shall be seen, we determine the qualifying phrase “administered by ... the accused” requires only that a defendant have instigated or encouraged the ingestion of the resistance-suppressing substance and not—as argued by the defendant—that the resistance-suppressing substance be ingested by means of force or trick.

After three weeks of testimony and three weeks of deliberations in the defendant’s 1990 trial, a jury found him guilty of the 1987 first degree murder (§§ 187-189) and rape (§ 261) of Karen W. The jury determined he did not intend to kill the victim by the administration of poison (§ 190.2, subd. (a)(19)) but could not resolve whether the murder was intentionally committed in the course of a rape (id., subd. (a)(17)(iii)). The trial court, which had earlier struck an allegation that the defendant had lain in wait…