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People v. Brown

California Court of Appeals, Fourth District, Second Division

May 1, 2017

THE PEOPLE, Plaintiff and Respondent,
DARNELL JAMES BROWN, Defendant and Appellant.

         APPEAL from the Superior Court of San Bernardino County No. FBA1300085. 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.


          RAMIREZ P. J.

         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 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.



         As of February 2007, Jane Doe[1] 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.

         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.

         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:

         “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 ...

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