On 20 July 2000, the state court of appeal for the Fourth District announced its opinion in People v. Giardino, 82 Cal.App.4th 454 (2000), holding that Penal Code section “261(a)(3) proscribes sexual intercourse with a person who is not capable of giving consent because of intoxication.” Id. at 462. Thus, it was perfectly clear as of July 2000 that actual capitulation and agreement is not a defense in a rape case if the victim is intoxicated or unconscious or otherwise incapable of exercising free will, because they lack the capacity to legally . No competent attorney could have thought otherwise. Accordingly, attorneys who as of that date suggested otherwise fell below the standard set forth in Strickland.
This was not the case in the proceeding complained of herein. It was ineffective to not tell the client about the clarification in law and that he had no defense.
 All counsel needed to do was read this paragraph, toward the beginning of Giardino, to know that any defendant situated like the facts of these cases did not have a defense of “consent”. It was literally that easy, and the Giordino decision that clear:
“By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. (See People v. Mayberry (1975) 15 Cal.3d 143, 154 [125 Cal.Rptr. 745, 542 P.2d 1337]; 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Decency and Morals, § 774, p. 873.) For example, if the victim is so unsound of mind that he or she is incapable of giving a legal “go ahead,” the fact that he or she may have given actual consent does not prevent a conviction of rape. (People v. Griffin (1897) 117 Cal. 583, 585-587 [49 P. 711], overruled on others grounds by People v. Hernandez (1964) 61 Cal.2d 529, 536 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092].) Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent.”
82 Cal.App4th 454, 460.
 No reasonable practitioner of criminal law could read Giardino, supra, and conclude the defense of actual acquiescence could be used in the instant case Two years later, on 13 September 2002, while the present trial was still pending, the court in People v. Dancy, 102 Cal.App.4th 21 (2002), reiterated that a victim cannot legally agree to sex when she is severely intoxicated. A man’s reasonable belief that a woman has consented or would have consented to unconscious sex is irrelevant because a woman must always be able to “withdraw her consent to a sex act even after the initiation of sexual intercourse.” Id. at 36-37. Dancy is entirely consistent with and has the same holding as in Giardino and a reasonably competent attorney would have known so. To fail to know the basic law of the case falls below the Strickland standard. On the issue of rape and consent, see also People v. Roundtree (January 21, 2000) 77 Cal.App.4th 846.
Here are portions of Giordano that explain the issue in detail:
Reasoning that lack of consent is an element of rape, or conversely that consent is a defense, the defendant contends that the trial court should have defined consent in accordance with section 261.6 and instructed the jury that lack of consent is an element of the offenses of rape by intoxication and oral copulation by intoxication. [ ] He is mistaken. Giardino, 82 Cal.App.4th 454, 459.
In the context of rape and other sexual assaults, “consent” is defined as the “positive cooperation in act or attitude pursuant to an exercise of free will.” (§ 261.6.) To give consent, a “person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.” (Ibid.; accord, CALJIC No. 1.23.1.) In short, that definition describes consent that is actually and freely given without any misapprehension of material fact. We shall refer to this as “actual consent.” (82 Cal.App.4th 459, 460.)
By itself, the existence of actual consent is not sufficient to establish a defense to a charge of rape. That the supposed victim actually consented to sexual intercourse disproves rape only if he or she had “sufficient capacity” to give that consent. [citations] For example, if the victim is so unsound of mind that he or she is incapable of giving legal consent, the fact that he or she may have given actual consent does not prevent a conviction of rape. [citations] Hence, the consent defense fails if the victim either did not actually consent or lacked the capacity to give legally cognizable consent. (Id. At 460.)
We conclude that, just as subdivision (a)(1) of section 261 proscribes sexual intercourse with a person who is not capable of giving legal consent because of a mental disorder or physical disability, section 261(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. In both cases, the issue is not whether the victim actually consented to sexual intercourse, but whether he or she was capable of exercising the degree of judgment a person must have in order to give legally cognizable consent. (Id at. 462.)