Filed 9/14/15

                    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 and remanded 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       We do not know whether the prosecutor took the same position in opening
statement, as the parties have not asked to have the opening statement transcribed. (See
Cal. Rules of Court, rule 8.320(c)(3) [opening statement is not part of normal record in
criminal appeal]; 8.324(b)(2)(B) [either side may apply to have opening statement
included in record].)



                                             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

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].)



                                             11
       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 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



                                              12
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.

       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



                                              13
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.

                                             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.

       Defendant relies on People v. Craig (1941) 17 Cal.2d 453, which held that a

defendant could not be convicted of both forcible rape and statutory rape based on a

single act of sexual intercourse. (Id. at pp. 455-459.) It explained: “Under [Penal Code

section 261],[7] but one punishable offense of rape results from a single act of intercourse,


       7      Former Penal Code section 261, as it stood when Craig was decided,
provided:

       “Rape is an act of sexual intercourse, accomplished with a female not the wife of
the perpetrator, under either of the following circumstances:

       “1. Where the female is under the age of eighteen years;

      “2. Where she is incapable, through lunacy or other unsoundness of mind, whether
temporary or permanent, of giving legal consent;

       “3. Where she resists, but her resistance is overcome by force or violence;
                                                                  [footnote continued on next page]


                                             14
although that act may be accomplished under more than one of the conditions or

circumstances specified in the . . . subdivisions [of Penal Code section 261]. These

subdivisions merely define the circumstances under which an act of intercourse may be

deemed an act of rape; they are not to be construed as creating several offenses of rape

based upon that single act. This conclusion finds support in section 263 of the Penal

Code which provides that ‘The essential guilt of rape consists in the outrage to the person

and feelings of the female.’ The victim was not doubly outraged, once because she was

forcibly attacked and once because she was under 18 years of age. There was but a single

outrage and offense. [Citations.]” (Id. at p. 455.)

        The People, on the other hand, rely on People v. Gonzalez (2014) 60 Cal.4th 533,

536. Gonzalez recently held that a defendant could be convicted of both oral copulation

of an unconscious person and oral copulation of an intoxicated person based on a single

act of oral copulation. (Id. at pp. 536-540.)




[footnote continued from previous page]
       “4. Where she is prevented from resisting by threats of great and immediate bodily
harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or
anaesthetic[] substance, administered by or with the privity of the accused;

        “5. Where she is at the time unconscious of the nature of the act, and this is known
to the accused;

       “6. Where she submits under the belief that the person committing the act is her
husband, and this belief is induced by any artifice, pretense, or concealment practiced by
the accused, with intent to induce such belief.” (Stats. 1913, ch. 122, § 1, p. 212.)



                                                15
       The court distinguished Craig as follows: “Craig did not hold that a single Penal

Code section could never comprise multiple offenses; it simply concluded, based on the

wording and structure of the statute, that former section 261 set forth only one offense

that could be committed under several different circumstances, as described in its several

subdivisions. This conclusion flowed naturally from the wording and structure of former

section 261. . . .

       “Here, the information charged defendant with violation of section 288a,

subdivision (f) in count 1 and of section 288a, subdivision (i) in count 2.[8] These

       8       Penal Code section 288a, as relevant here, provides:

       “(a) Oral copulation is the act of copulating the mouth of one person with the
sexual organ or anus of another person.

       “(b)(1) . . . [A]ny person who participates in an act of oral copulation with another
person who is under 18 years of age shall be punished by imprisonment in the state
prison, or in a county jail for a period of not more than one year. [¶] . . . [¶] . . .

        “[(c)](2)(A) Any person who commits an act of oral copulation when the act is
accomplished against the victim's will by means of force, violence, duress, menace, or
fear of immediate and unlawful bodily injury on the victim or another person shall be
punished by imprisonment in the state prison for three, six, or eight years. [¶] . . . [¶]
...

       “(f) Any person who commits an act of oral copulation, and the victim is at the
time unconscious of the nature of the act and this is known to the person committing the
act, shall be punished by imprisonment in the state prison for a period of three, six, or
eight years. . . . [¶] . . .

       “(g) . . . [A]ny person who commits an act of oral copulation, and the victim is at
the time incapable, because of a mental disorder or developmental or physical disability,
of giving legal consent, and this is known or reasonably should be known to the person
committing the act, shall be punished by imprisonment in the state prison, for three, six,
or eight years. . . . [¶] . . .
                                                                  [footnote continued on next page]


                                             16
offenses differ in their necessary elements — an act of oral copulation may be committed

with a person who is unconscious but not intoxicated, and also with a person who is

intoxicated but not unconscious — and neither offense is included within the other.

[Citation.]

        “Section 288a is textually and structurally different from former section 261.

Subdivision (a) of section 288a defines what conduct constitutes the act of oral

copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be

criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a

specific punishment. Not all of these punishments are the same. That each subdivision of

section 288a was drafted to be self-contained supports the view that each describes an

independent offense . . . .” (People v. Gonzalez, supra, 60 Cal.4th at p. 539, fn. omitted.)

        The court concluded: “Given these differences between section 288a and former

section 261, and in view of the legislative recasting, subsequent to Craig, of former




[footnote continued from previous page]
       “(i) Any person who commits an act of oral copulation, where the victim is
prevented from resisting by any intoxicating or anesthetic substance, or any controlled
substance, and this condition was known, or reasonably should have been known by the
accused, shall be punished by imprisonment in the state prison for a period of three, six,
or eight years.

       “(j) Any person who commits an act of oral copulation, where the victim submits
under the belief that the person committing the act is someone known to the victim other
than the accused, and this belief is induced by any artifice, pretense, or concealment
practiced by the accused, with intent to induce the belief, shall be punished by
imprisonment in the state prison for a period of three, six, or eight years.”



                                             17
section 261 into separate statutes prohibiting rape and unlawful intercourse with a minor

[citations], we need not address the People’s remaining criticisms of Craig . . . .” (People

v. Gonzalez, supra, 60 Cal.4th at p. 540.)

       Because Gonzalez distinguished Craig rather than overruling it, we remain bound

by Craig in cases to which it applies. “Decisions of the Supreme Court that have never

been reversed or modified are binding [citation] . . . .” (Nix v. Preformed Line Products

Co. (1985) 170 Cal.App.3d 975, 981.)

       This case involves the same statute as did Craig — Penal Code section 261.

Moreover, the structure of Penal Code section 261 remains largely the same (except with

regard to statutory rape, which is not involved here). Thus, it still defines rape as “an act

of sexual intercourse accomplished with a person not the spouse of the perpetrator, under

any of the [specified] circumstances . . . .” (Pen. Code, § 261, subd. (a).) The penalty for

rape, regardless of the applicable subdivision, is the same (Pen. Code, § 264, subd. (a)),

except that now there are some age-based enhancements for forcible rape (Pen. Code,

§ 264, subd. (c)). And finally, Penal Code section 263 still provides that “[t]he essential

guilt of rape consists in the outrage to the person and feelings of the victim of the rape.”

       In sum, the same differences that Gonzalez noted as between Penal Code section

288a and former Penal Code section 261 also exist as between Penal Code section 288a

and current Penal Code section 261. We therefore conclude that Craig remains binding

on these facts, and hence that defendant cannot be convicted under multiple subdivisions

of Penal Code section 261.



                                             18
       According to Craig, the appropriate appellate remedy is to modify the judgment so

that defendant stands convicted of a single count of rape in violation of Penal Code

section 261, subdivisions (a)(3) and (a)(4). (People v. Craig, supra, 17 Cal.2d at pp. 458-

459.) We will do so in our disposition.

                                               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

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



                                               19
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

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 convicted

and sentenced on only one count of rape. (See part III, ante.) Accordingly, to the extent



                                             20
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:

        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.




                                             21
       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 convicted and sentenced

on only one count of rape, namely rape of both an intoxicated and an unconscious person.

(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 convictions for rape of an

intoxicated person (count 6) and rape of an unconscious person (count 7) are merged into

a conviction on a single count of rape of an intoxicated and unconscious person; the

sentence on this count (and thus the total sentence) shall be that imposed by the trial court

for rape of an intoxicated person, namely eight years.




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      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.




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