California Court of Appeals, Fourth District, Second Division
from the Superior Court of San Bernardino County No.
FBA1300085. Rodney A. Cortez, Judge. Affirmed as modified
Catherine White, under appointment by the Court of Appeal,
for Defendant and Appellant.
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.
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
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.
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.
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.
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
February 2007, Jane Doe was 15 years old. She lived in
Barstow with her mother, her 12-year-old sister, and her own
Doe's friends was T.S., who was also 15. At trial, T.S.
testified pursuant to a grant of use immunity.
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.”
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).
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.
African-American men were in the bedroom,
“waiting.” 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.
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.
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.
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.
gave four different versions of what happened next.
trial, Doe testified that the next thing she remembered was
waking up all alone on a mattress in a vacant apartment.
also testified, however, that she did remember the driver
carrying her, dropping her onto the mattress, and lying down
next to her. She added:
Did he try and have sex with you in that other apartment?
Did he have sex with you?
I don't know. After him pulling on me, I passed out
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.
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.
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. “They spoke outside with
[Cooper] and [Walker].” Then they woke up Doe (who was
still “in and out”) and took her to the vacant
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.
could not identify defendant. T.S. likewise testified that