Does the unconsciousness and accident defense only apply to the lewd act charge?

Based on the instructions given and the evidence, we do not find it is reasonably likely the jurors understood the unconsciousness and accident defense instructions to only apply to the lewd act charge as defendant suggests. (See People v. Nem, supra, 114 Cal.App.4th at p. 165.) While the defense instruction was only specifically stated in connection with the lewd act charge, it was not so limited in the totality of the instructions. The battery instruction contained a specific statement that it was a lesser included offense to the lewd act charge, and therefore, by implication, subject to the same defenses to the lewd act charge. In addition, the elements of battery were put forth clearly and correctly by the court. Finally, the prosecutor pointedly argued in rebuttal that the unconsciousness and accident defense applied equally to the lesser included battery offense. The totality of circumstances in this case, including the instructions, the evidence and the argument of counsel demonstrate that the court did not err in its instructions on the defenses of accident and unconsciousness.

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