The law, as written, is one thing. As enforced, it is quite another. Rare, and foolish, would be the prosecutor who would attempt to bring criminal charges against Orgy Participant 1 for having unsafe sex (itself subject to definitional proof) with "victim" Orgy Participant 2.

Consent is a defense; the issue becomes informed consent.

As a practical matter, the only California criminal prosecutions I am familiar with have concerned actual misrepresentions (as in something like a person, despite knowing their HIV-positive status, stating, "I'm HIV negative, and I'd like to have unprotected anal sex with you"), and generally in the context of a relationship. After all, somebody needs to file a police report. This is quite a different factual background from an orgy or anonymous encounter.

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