Wiidanen

*528 Opinion

After a New Year’s Eve house party involving a lot of drinking, defendant Ladd Douglas Wiidanen went into a bedroom where an acquaintance, John Doe, was sleeping and orally copulated him. Defendant was interviewed by police a few hours after the crime and gave false statements about what had happened. Following a trial where the defense was consent, a jury found defendant guilty of orally copulating an unconscious person.

In the published portion of this case, we hold that the trial court erred in instructing the jury with both the consciousness of guilt instruction (CALCRIM No. 362) and an unmodified version of the voluntary intoxication instruction (CALCRIM No. 3426). Unmodified, the voluntary intoxication instruction allowed the jury to consider defendant’s voluntary intoxication only in deciding whether defendant knew the victim was unconscious during the oral copulation. This limitation erroneously prohibited the jury from considering evidence of defendant’s voluntary intoxication in determining whether defendant made false or misleading statements relating to the oral copulation knowing the statements were false or intending to mislead. As we explain, however,…