What is the difference between sodomy by force and sexual assault against a person who is intoxicated?

The two offenses have different elements. Sodomy may be committed by the use of force against a person who is not intoxicated ( 286, subd. (c)(2)(A)), and may also be committed without the use of force against a person who is intoxicated ( 286, subd. (i)). Further, sodomy by force must be against the will of the victim, that is, the victim must have refused consent, while sodomy of an intoxicated person must be against a victim who is incapable of legal consent. (See People v. Giardino, supra, 82 Cal.App.4th at p. 462.) Thus, neither offense is included in the other, a fact which indicates there are two offenses, not one. (Cf. Blockburger v. United States (1932) 284 U.S. 299, 304 ["[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not"].)