- May 1, 2017
- by Ben Adams
The criminal defense lawyers at the Sonoma County law firm Adams Fietz have reviewed the case of People v. Brown, filed 5/1/17 by the Court of Appeal. The Court considered the law surrounding the crime of rape in concert. This crime requires that the rape be committed “by force or violence . . . .” Similarly, forcible rape requires that the rape be “accomplished . . . by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .”
“[T]he Legislature did not intend the term ‘force,’ as used in the rape statute, to be given any specialized legal definition..” (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.’
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.)
The Court noted the exception 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.
The Court concluded that, when the prosecution has made an election, under circumstances where a unanimity instruction would otherwise have been required, then the Court is also bound by that election. Thus, if the defendant raises a substantial evidence challenge, the Court’s review is limited to whether there is sufficient evidence to support a conviction based exclusively on the act elected by the prosecution.
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