Filed 5/1/17 (opn. on transfer from Supreme Court)
                        CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FOURTH APPELLATE DISTRICT

                                             DIVISION TWO


THE PEOPLE,

        Plaintiff and Respondent,                        E059735

v.                                                       (Super.Ct.No. FBA1300085)

DARNELL JAMES BROWN,                                     OPINION

        Defendant and Appellant.




        APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez,

Judge. Affirmed as modified with directions.

        Catherine White, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Scott C. Taylor and Charles

C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.




        *     Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts III, IV and V.



                                                     1
       Four male gang members lured a 15-year-old female victim to the bedroom of a

house, got her falling-down drunk, then had sex with her against her will. She awoke to

find herself on a mattress in a nearby vacant apartment. DNA recovered from her vagina

was identified as that of defendant Darnell James Brown.

       The gang members had a female accomplice. She testified that defendant was not

one of the four gang members who participated in the initial rapes. However, she also

testified that one “Big Dee” took the victim away from the house. A gang expert testified

that defendant was a member of the same gang, with the moniker “Big Dee.” Thus, the

prosecution argued to the trial court and to the jury that defendant must have taken the

victim over to the vacant apartment and raped her there.

       After a jury trial, defendant was found guilty of rape in concert of a minor 14 or

older (Pen. Code, § 264.1, subd. (b)(2)), forcible rape (id., § 261, subd. (a)(2)), rape of an

intoxicated person (id., § 261, subd. (a)(3)), and rape of an unconscious person (id.,

§ 261, subd. (a)(4)). He was sentenced to a total of 29 years in prison, along with the

usual fines.

       Defendant raises a host of appellate contentions, including that there was

insufficient evidence of force to support the convictions for rape in concert and forcible

rape. Enfolded within this contention is a subsidiary question: Are we limited to

reviewing the sufficiency of the evidence to support the particular factual scenario that

the prosecution argued below? While there was sufficient evidence to support the

prosecution‟s theory that defendant raped the victim in the vacant apartment, there was



                                              2
insufficient evidence of force in that scenario. On the other hand, despite the

accomplice‟s denial, there was also sufficient evidence that defendant was one of the men

who raped the victim in the bedroom; in that scenario, there was sufficient evidence that

defendant‟s rape was forcible.

       The Supreme Court has made it clear that ordinarily, we can uphold a conviction

on any factual theory that is supported by the evidence. We will conclude that this case,

however, comes under an exception to that rule: When the prosecution has elected to

proceed on one factual theory, and when that election has obviated the need for a

unanimity instruction, we are bound by the prosecution‟s election. Here, because the

prosecution‟s elected factual theory was not supported by substantial evidence, we must

reverse the rape in concert and forcible rape convictions and modify the judgment

accordingly.

                                              I

                                 FACTUAL BACKGROUND

       As of February 2007, Jane Doe1 was 15 years old. She lived in Barstow with her

mother, her 12-year-old sister, and her own 1-year-old daughter.

       One of Doe‟s friends was T.S., who was also 15. At trial, T.S. testified pursuant

to a grant of use immunity.




       1     The trial court ordered that the victim be referred to by this fictitious name.
(Pen. Code, § 293.5.)



                                             3
       On the night of February 2-3, 2007, around 10:30 p.m., T.S. showed up at Doe‟s

house and asked Doe to go to the store with her. Doe‟s mother was out; Doe did not want

to leave her baby alone with her little sister for too long, so she said, “[A]s long as it‟s

only going to be for a few minutes.” T.S. replied, “You‟d better come with us or I‟m

going to kick your ass.”

       They went out to the car that T.S. had come in. The driver was an African-

American man. At trial, T.S. identified him as Lyndale Roberts. She testified that

Roberts was a member of a gang called Dangerous Crew or DC Boys (DC).

       The driver drove the girls to a grocery store, where T.S. shoplifted one or two

bottles of gin. He then drove them to T.S.‟s house, also in Barstow. When they got

there, Doe said, “I don‟t have time. I have to get home.” T.S. became “almost

threatening.” She said, “You have to come in. You have to meet somebody.” She took

Doe by the hand and led her into her bedroom. The driver followed them.

       Three African-American men were in the bedroom, “waiting.”2 At trial, T.S.

identified them as her boyfriend George Cooper, Courtney Walker, and Jermaine Riley,

all members of DC. She explained that Roberts and the other three men had asked her if

she had any female friends who would like to “hang out” with them.




       2      T.S. testified that there were three men already in the bedroom (i.e., not
counting the driver). Likewise, Doe told police that there were three. At trial, however,
Doe insisted that there were four.



                                               4
       T.S. mixed the gin into a bottle of juice. She asked Doe to have a drink with her.

When Doe said again that she did not have time, T.S. threatened to harm her unless she

drank. Doe drank from the bottle.

       Doe began to feel “really dizzy.” After a couple of minutes, she “couldn‟t really

move.” The men took her clothes off. They made her get onto her hands and knees on a

bed. Each of the men then put his penis in her vagina and put his penis in her mouth.

“[S]he told them that she didn‟t want to do this. And she would try to pull away, but then

they would pull her back.” According to Doe, T.S. threatened to “beat her ass” if she did

not cooperate.3

       Meanwhile, Doe was going in and out of consciousness. She “kept falling over

with [her] face in the bed.” The men had to hold her up by the hips and shoulders. When

they stopped sexually assaulting her, she fell to the floor, crawled to the bathroom, and

threw up.

       Doe gave four different versions of what happened next.

       At trial, Doe testified that the next thing she remembered was waking up all alone

on a mattress in a vacant apartment.

       Doe also testified, however, that she did remember the driver carrying her,

dropping her onto the mattress, and lying down next to her. She added:


       3       According to T.S., Doe was drunk but otherwise appeared to be a willing
participant.

       Also according to T.S., her boyfriend Cooper did not participate in the sex acts.



                                             5
       “Q Did he try and have sex with you in that other apartment?

       “A Yes, sir.

       “Q Did he have sex with you?

       “A I don‟t know. After him pulling on me, I passed out again.”

       Doe had told one police officer that after the rapes, while she was still at T.S.‟s

house, the driver “attempted to have sex with her,” but she pushed him away.

       She had told a different police officer that, when she woke up at the vacant

apartment, the driver was already on the mattress with her. He tried to penetrate her, but

she pushed him away. She then passed out again.

       T.S. testified to yet another version. According to her, after the rapes, three more

men came to her house. She knew them as “Big Dee,” Jonathan, and “Little Ray.” Big

Dee and Jonathan were brothers. By the time of trial, T.S. claimed, she did not remember

what Big Dee looked like. 4 “They spoke outside with [Cooper] and [Walker].” Then

they woke up Doe (who was still “in and out”) and took her to the vacant apartment.

       At any rate, Doe awoke in the vacant apartment, she ran to a nearby house,

knocked on the door, and asked for help. A woman inside called 911.

       Doe could not identify defendant. T.S. likewise testified that she did not recognize

defendant.


       4      Defendant states, “[T.S.] knew Big Dee from high school; she described
him as an 18 or 19[-]year-old teenager, who was Jonathan‟s little brother.” The cited
portion of the record does not support any of this. T.S. specifically did not remember
whether Big Dee was older or younger than Jonathan.



                                              6
      Defendant‟s DNA was found in Doe‟s vagina and rectum. 5

      The police interviewed T.S. several times. She told a series of changing stories,

generally to the effect that she did not see any sexual acts. After defendant‟s DNA had

been identified, however, she gave an account that was consistent with her testimony at

trial. She explained that she had lied because she was afraid of her boyfriend Cooper.

      According to a gang expert, defendant was an affiliate of DC, with the moniker

“Big Dee.”

      Defendant testified on his own behalf. He denied having the moniker “Big Dee.”

He did not have a brother named Jonathan. He testified that DC was a rap group, not a

gang. He denied being a member of DC or a member of any gang.

      Defendant admitted knowing Roberts; Roberts‟s sister was the mother of

defendant‟s children. He also admitted knowing George Cooper, Courtney Walker, and

Jermaine Riley.




      5       Defendant asserts that the DNA evidence “revealed that neither Doe nor
[T.S.] w[as] telling the entire truth.” Not so. It is true that condoms found in the
bedroom had DNA from females other than Doe. Defendant suggests that this is
inconsistent with Doe and T.S.‟s testimony that they were the only females present.
However, none of the DNA from the condoms could be identified as Doe‟s, and there
was no evidence as to when the condoms were used.
       The only foreign DNA found in Doe‟s vagina came from defendant. Most of the
foreign DNA found in her rectum came from defendant; however, there was a second
trace donor, probably male.



                                            7
       Defendant testified that on the night of February 2-3, 2007, he went to T.S.‟s

house looking for Roberts. He found four men and four women dancing and drinking.

While there, he had consensual sex with Doe at her request.

       Doe told him she was 19. She also said she was high on alcohol and Ecstasy and

she was afraid that her mother would be angry with her because she was “too fucked up

to watch her child.”

                                             II

                 THE SUFFICIENCY OF THE EVIDENCE OF FORCE

          FOR PURPOSES OF RAPE IN CONCERT AND FORCIBLE RAPE

       Defendant contends that there was insufficient evidence of force to support his

convictions for rape in concert and for forcible rape.

       “„“When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.”

[Citation.] In so doing, a reviewing court “presumes in support of the judgment the

existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]‟

[Citation.]” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.)



                                             8
       Rape in concert requires that the rape be committed “by force or violence . . . .”

(Pen. Code, § 264.1, subd. (a).) Similarly, forcible rape requires that the rape be

“accomplished . . . by means of force, violence, duress, menace, or fear of immediate and

unlawful bodily injury . . . .” (Pen. Code, § 261, subd. (a)(2).)

       “[T]he Legislature did not intend the term „force,‟ as used in the rape statute, to be

given any specialized legal definition. [Citation.]” (People v. Griffin (2004) 33 Cal.4th

1015, 1023.) “„[I]n order to establish force within the meaning of section 261, [former]

subdivision (2), the prosecution need only show the defendant used physical force of a

degree sufficient to support a finding that the act of sexual intercourse was against the

will of the [victim].‟ [Citation.]” (Id. at pp. 1023-1024.)

       Here, there was substantial evidence that defendant was one of the men who raped

Doe in the bedroom. The DNA evidence proved that he did have sexual intercourse with

her. The jury could infer that this must have occurred in the bedroom; Doe testified that,

in the vacant apartment, a man tried to have sex with her, but she pushed him away.

Moreover, Doe testified that the man who tried to have sex with her in the vacant

apartment was the driver; thus, even assuming he did have sex with her in the vacant

apartment, he was also one of the men who had sex with her in the bedroom.

       Admittedly, T.S. did not identify defendant as one of the four men in the bedroom.

The jury, however, could have concluded that she was lying to protect him (much as she

had lied and was inferably still lying to protect her boyfriend). Alternatively, it could




                                              9
have concluded that Doe was telling the truth when she testified that there were five men

in the bedroom, and that defendant must have been the fifth man.

       In addition, there was sufficient evidence of force in connection with the rapes in

the bedroom. The men “forced [Doe] to get onto [her] hands and knees,” then held her in

that position. When she tried to pull away, they would pull her back.

       By contrast, there was insufficient evidence of force or fear in connection with a

rape (if any) in the vacant apartment. According to Doe, a man there attempted to

penetrate her; she pushed him away, then she passed out. If he accomplished a sex act at

all, it was after she passed out. Because she was unconscious, there was no need to use

force or fear to overcome her will. Doe could not testify that that man used force, and

there was no other evidence of force, such as injuries or the testimony of another

eyewitness. In general, the force inherent in the act of penetration is not sufficient by

itself to prove forcible rape. (In re Jose P. (2005) 131 Cal.App.4th 110, 117-118.)

       As defendant points out, in closing argument, the prosecutor took the position that

defendant was “Big Dee,” who arrived after the rapes in the bedroom were complete, and

that he took the victim to the vacant apartment and raped her there.6 The People now

claim, however, that that argument was not binding on the jury.




       6      For example, the prosecutor argued that the in-concert allegation applied
because: “These men . . . raped her repeatedly. And then the defendant came over and
took her to another location and continued to rape her. Why was he able to do that?
Because they had gotten a girl. ‟Cause they had already terrified her and gotten her
drunk. Even though he may not have been there at that time when [they] had sex with
                                                                  [footnote continued on next page]


                                             10
        Ordinarily, for purposes of substantial evidence review, “the prosecutor‟s

argument is not evidence and the theories suggested are not the exclusive theories that

may be considered by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.)

        We believe there has to be an exception, however, when the constitutional right to

a unanimous jury is implicated. To protect this right, “if one criminal act is charged, but

the evidence tends to show the commission of more than one such act, „either the

prosecution must elect the specific act relied upon to prove the charge to the jury, or the




[footnote continued from previous page]
her, when he forced himself on her at the second location, he was only able to accomplish
that act because of the acts of the other people that had taken place prior.”
      She also argued that defendant was guilty of rape of an intoxicated person
because: “The effect of an intoxicating substance prevented the woman from resisting.
She passed out in the bathroom and woke up at that second location. . . . And [T.S.] told
you she cleaned her up in the bathroom. She put on her pajamas. She put her to bed.
And then Big Dee came over, took her to the next location, and raped her again.”
“Defendant took her to the apartment across the street. Those were [T.S.]‟s words, „Big
Dee took her.‟”
        Likewise, defendant was guilty of rape of an unconscious person because: “She
had passed out in [T.S.]‟s apartment and was taken across the street. She was
unconscious of the nature of the act. [¶] She passed out again when the defendant was
trying to have sex with her and woke up again alone in the apartment.” “He took her to
the apartment across the street and raped her. And she passed out.”
         Next, she argued that defendant was guilty of burglary because: “For a burglary,
the defendant entered the building, which we know, based on the victim‟s testimony and
[T.S.]‟s testimony, he took her to the second location. That was an abandoned apartment
. . . . So it was a building.”
      Finally, the burglary was residential because: “The defendant entered an inhabited
house or room within an inhabited house. Now, I just said it was not inhabited by the
people who lived there before. But at the time this crime was committed, it was inhabited
by Jane Doe. He took her there . . . . She‟s a person who is in that house . . . .”



                                             11
court must instruct the jury that it must unanimously agree that the defendant committed

the same specific criminal act.‟ [Citations.]” (People v. Napoles (2002) 104 Cal.App.4th

108, 114.)

       The prosecution can make an election by “tying each specific count to specific

criminal acts elicited from the victims‟ testimony” — typically in opening statement

and/or closing argument. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1382; e.g.,

People v. Jantz (2006) 137 Cal.App.4th 1283, 1292; People v. Mayer (2003) 108

Cal.App.4th 403, 418-419; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455; cf.

People v. Melhado (1998) 60 Cal.App.4th 1529, 1535-1536 [prosecutor‟s closing

argument did not constitute an election; while it did place more emphasis on one event

than others, it did not adequately inform jurors that prosecution had elected to seek

conviction based solely on that event].) Such an election removes the need for a

unanimity instruction. (People v. Mahoney (2013) 220 Cal.App.4th 781, 796 [Fourth

Dist., Div. Two].)

       Under these principles, there is an implicit presumption that the jury will rely on

the prosecution‟s election and, indeed, is bound by it. This does not violate the rule that

the attorneys‟ remarks are not evidence. (See CALCRIM No. 222.) The evidence still

comes solely from the witnesses. Nor does it violate the rule that the jury must follow the

law as given in the jury instructions and must disregard the attorneys‟ remarks to the

extent that they conflict with the jury instructions. (See CALCRIM No. 200.) There is




                                             12
no such conflict. The prosecutor is merely doing his or her job — urging the jurors to

apply the law to the facts in a specific way so as to come to a specific verdict.

       We therefore conclude that, when the prosecution has made an election, under

circumstances where a unanimity instruction would otherwise have been required, then

we, too, are bound by that election. Thus, if the defendant raises a substantial evidence

challenge, our review is limited to whether there is sufficient evidence to support a

conviction based exclusively on the act elected by the prosecution. (But see People v.

Leonard (2014) 228 Cal.App.4th 465, 487 [dictum].) Otherwise, we may only be finding

sufficient evidence to support a nonunanimous verdict.

       In this case, some jurors could have found that defendant committed rape in the

bedroom, while others could have found that he committed rape in the vacant apartment.

The trial court was not asked to give and did not give a unanimity instruction. In closing

argument, the prosecutor elected to rely solely on a rape in the vacant apartment; thus, the

failure to give a unanimity instruction was not error (and defendant, quite appropriately,

does not contend that it was). As a result of that election, however, in reviewing the

sufficiency of the evidence of force, we are limited to considering a rape in the vacant

apartment.

       We therefore conclude that there was insufficient evidence of force for purposes of

rape in concert and insufficient evidence of force or fear for purposes of forcible rape.

Thus, we must reverse defendant‟s convictions on these two counts.




                                             13
       We also note that a retrial on these counts is barred. (See generally Burks v.

United States (1978) 437 U.S. 1, 16-18.) This is true even though there was sufficient

evidence of force under an alternative factual scenario. “Burks was based on the view

that an appellate court‟s reversal for insufficiency of the evidence is in effect a

determination that the government‟s case against the defendant was so lacking that the

trial court should have entered a judgment of acquittal, rather than submitting the case to

the jury. [Citation.] Because the Double Jeopardy Clause affords the defendant who

obtains a judgment of acquittal at the trial level absolute immunity from further

prosecution for the same offense, it ought to do the same for the defendant who obtains

an appellate determination that the trial court should have entered a judgment of acquittal.

[Citation.]” (Lockhart v. Nelson (1988) 488 U.S. 33, 39.)

       Here, in light of the prosecution‟s election, defendant was entitled to a judgment

of acquittal. In fact, defense counsel did bring a motion for acquittal (Pen. Code,

§ 1118.1), based (at least in part) on the insufficiency of the evidence of force to support

the rape in concert and forcible rape counts. In arguing that motion, the prosecution

articulated the same election that it made later in closing. For the reasons already stated,

that motion should have been granted. Accordingly, a retrial — whether based on a

forcible rape in the bedroom or a forcible rape in the vacant apartment — is barred.




                                              14
                                             III

                         MULTIPLE CONVICTIONS OF RAPE

                BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE

       Defendant contends that he could not be convicted of multiple counts of rape

based on a single act of sexual intercourse. In part II, ante, we reversed defendant‟s

convictions of rape in concert and forcible rape on other grounds. Nevertheless, we must

consider this contention with respect to his convictions for both rape of an intoxicated

person and rape of an unconscious person.

       In a previous opinion in this appeal, we agreed with defendant‟s contention, on the

authority of People v. Craig (1941) 17 Cal.2d 453, which had held that a defendant could

not be convicted of two types of rape based on a single act of sexual intercourse. (Id. at

pp. 455-459.)

       The People filed a petition for review. The California Supreme Court granted the

petition and deferred further action in the matter pending its consideration and disposition

of People v. White, S228049.

       When the Supreme Court eventually decided White, it overruled Craig (People v.

White (2017) 2 Cal.5th 349, 359) and held that a defendant can be convicted of two types

of rape — specifically, rape of an intoxicated person and rape of an unconscious person,

just as in this case — based on a single act of intercourse. (Id. at pp. 352-360.)

Thereafter, the Supreme Court transferred this matter to this court with directions to

vacate our prior opinion and to reconsider the cause in light of White.



                                             15
         White requires us to reject defendant‟s contention. Thus, both convictions may

stand. However, because they are based on the identical act of sexual intercourse,

multiple punishment for both convictions is barred under Penal Code section 654. (See

also People v. Hicks (1993) 6 Cal.4th 784, 791-797 [Pen. Code, § 667.6, subd. (c)

operates as an exception to Pen. Code, § 654 when both crimes are based on separate acts

committed in indivisible transaction, but not when both crimes are based on same act]; cf.

People v. Siko (1988) 45 Cal.3d 820, 823-826 [Pen. Code, § 667.6, subd. (c) does not

operate as an exception to Pen. Code, § 654 when both crimes are based on the same

act].)

                                              IV

              THE TRIAL COURT‟S FINDINGS OF FACT AT SENTENCING

         Defendant contends that the trial court erred by sentencing him on the theory that

he participated in the rapes in the bedroom. To the extent that defense counsel forfeited

this contention by failing to raise it below, defendant claims ineffective assistance of

counsel.

         A.     Additional Factual and Procedural Background.

         The probation report stated that defendant was one of the “suspects” who both

raped and orally copulated Doe in the bedroom. It added that the same “suspects”

supposedly both raped and orally copulated Doe at the vacant apartment.

         At sentencing, the trial court stated, “According to the victim‟s testimony and

corroborating evidence, the defendant and three other individuals took turns forcibly



                                              16
raping the victim . . . .” It added, “[A] witness to the incident testified at trial that the

defendant and others switched positions at least three times and that this sexual assault

lasted from 30 to 45 minutes.”

       It found that “defendant had ample opportunities during this incident . . . to stop,

reflect, and cease in his participation as he was sharing in this disgusting, forcible

behavior with three other individuals. . . . [¶] Defendant showed [the victim] no mercy

or concern or compassion.”

       It stated that it was “show[ing] the defendant justice for these horrible crimes” by

imposing fully consecutive terms pursuant to Penal Code section 667.6.

       It found three aggravating circumstances — cruelty, viciousness, or callousness; a

particularly vulnerable victim; and planning, sophistication, or professionalism (Cal.

Rules of Court, rule 4.421(1), (3), (8)) — and no mitigating circumstances.

       On the rape in concert charge (count 4), the forcible rape charge (count 1), and the

rape of an intoxicated person charge (count 6), it imposed the upper terms. On the rape

of an unconscious person charge (count 7), it imposed one-third the midterm, to be served

consecutively.

       Defense counsel did not raise defendant‟s present contention below.

       B.      Discussion.

       Defendant argues that there was insufficient evidence that he raped Doe in the

bedroom. He also points out (again; see part II, ante) that the prosecution took the

position that he was not one of the four men who raped Doe in the bedroom; rather, he



                                               17
raped her in the vacant apartment. He concludes that the trial court erred by sentencing

him based on its mistaken belief that he participated in the rapes in the bedroom.

        We have already held that defendant‟s convictions of rape in concert and forcible

rape must be reversed. (See part II, ante.) We have further held that he can be punished

for only one count of rape. (See part III, ante.) Accordingly, to the extent that the trial

court erred in imposing full consecutive sentences, the error is moot. Likewise, to the

extent that it erred by imposing the upper term for either rape in concert or forcible rape,

the error is moot.

        The only issue that even conceivably remains is whether the trial court erred by

imposing the upper term for rape of an intoxicated person. On this record, however, we

see no reasonable likelihood that, even if it had relied exclusively on a rape in the vacant

apartment, it would have imposed the midterm or the lower term. It most likely would

still have found at least two aggravating circumstances — namely, cruelty, viciousness,

or callousness and a particularly vulnerable victim. Even assuming defendant simply

stumbled onto the scene after the initial rapes were completed, he still took advantage of

the victim‟s intoxicated and violated state. Moreover, it would still have found no

mitigating circumstances. We are convinced that it would still have imposed the upper

term.

                                              V

                         ADDITIONAL MOOT CONTENTIONS

        In addition to the contentions discussed above, defendant also contends that:



                                             18
       1. There was insufficient evidence to satisfy the “in concert” element of rape in

concert.

       2. The jury instructions on the “in concert” element of rape in concert were

erroneous.

       3. Defendant could not be convicted of both rape in concert and forcible rape

because the latter is a necessarily included offense of the former.

       4. The trial court erred by imposing full consecutive sentences pursuant to Penal

Code section 667.6.

       5. The sentence for rape in concert violated the ex post facto clause.

       6. The abstract of judgment does not correctly reflect the sentences for rape in

concert and forcible rape.

       We are reversing defendant‟s conviction of rape in concert and forcible rape on

other grounds. Moreover, we are holding that a retrial on these counts is barred. (See

part II, ante.) In addition, we are holding that defendant can be punished for only one

count of rape. (See part III, ante.) In light of this outcome, all of these other contentions

are moot.

                                             VI

                                      DISPOSITION

       The judgment is modified as follows: (1) The convictions for rape in concert

(count 4) and forcible rape (count 1) are stricken. (2) The sentence for rape of an

unconscious person (count 7) is modified to the full upper-term sentence of eight years



                                             19
and stayed pursuant to Penal Code section 654. (See People v. Cantrell (2009) 175

Cal.App.4th 1161, 1164.) Thus, the new total sentence is eight years.

      The clerk of the superior court is directed to prepare an amended sentencing

minute order and an amended and corrected abstract of judgment and to forward a

certified copy of the amended and corrected abstract to the Department of Corrections

and Rehabilitation. (Pen. Code, §§ 1213, subd. (a), 1216.)

      CERTIFIED FOR PARTIAL PUBLICATION


                                                             RAMIREZ
                                                                                     P. J.

We concur:


MILLER
                         J.


CODRINGTON
                         J.




                                           20
