People v. Avila (2000)

THE PEOPLE, Plaintiff and Respondent, vs. LUIS LEDESMA AVILA, Defendant and Appellant.

[Modification fn. * of Opinion (80 Cal.App.4th 791).]

PREMO, Acting P.J.- The opinion filed on May 10, 2000, is modified as follows:

Page 6 [80 Cal. App. 4th 797, advance report], the first full paragraph and the first sentence of the second full paragraph are deleted and replaced with the following:

The first appearance of the concept "prevented from resisting by an intoxicating or anesthetic substance, or any narcotic" occurred in the Penal Code in 1872 in connection with the crimes of rape where a person is prevented from resisting by any intoxicating or anesthetic substance, or narcotic (former § 261, subd. (3), now, with "narcotic" changed to "any controlled substance" (§ 261, subd. (a)(3)) and administering stupefying drugs to assist in commission of felony (§ 222). Section 222 forbade the "administering to another any chloroform, ether, laudanum, or any other narcotic [now, "any controlled substance" (Stats. 1984, ch. 1635, § 78)], anesthetic, or intoxicating agent, with intent thereby to enable or assist himself or herself or any other person to commit a felony, . . ."

Over a century later, in 1979, the "prevented from resisting" language was added to section 262, subdivision (a)(2), rape of a spouse.

No change in judgment.

Bamattre-Manoukian, J., and Wunderlich, J., concurred.

FN *. This modification requires movement of text affecting pages 797-803 of the bound volume report.