Excellent decision today. D was convicted of a bunch of sex crimes and sentenced to 29 years in prison. At issue here was: was there was insufficient evidence of rape by force or fear? Do the sentences for rape of an unconscious person and rape by intoxication merge? Short answer: Yes. and Yes. When all was said and done, D’s sentence was reduced to 8 years, with double jeopardy barring retrial on the rape by force or fear count.
There was a rape in the bedroom by more than one person which was accomplished by force/fear and a rape in the vacant building which was not accomplished by force or fear because the cw was passed out before penetration. Even though there was sufficient proof that D raped cw in the bedroom with force, the prosecutor’s closing argument was that D was guilty of the rape solely in the vacant building. If he were guilty only of that rape, he could not have been guilty of rape by force or fear. On appeal, the government argued that the jury could have found D guilty by agreeing on the evidence that he raped cw in the house, even though that was not the prosecutor’s argument. The appellate court rejected this argument stating that for it to prevail the jury would have needed an unanimity instruction. Otherwise, the prosecutor’s elected theory of the case in closing is the theory on which the jury convicted and the only theory upon which D can be liable. Interestingly, the court said that double jeopardy would also bar retrial on the rape in the bedroom, even though the court held that there was sufficient evidence for rape by force on that theory.
The court also held that D’s sentence for rape of an intoxicated person and rape of an unconscious person for a single act of sexual intercourse merged. This seem obvious. But, apparently, there is a terrible case (Gonzalez, 60 Cal.4th 533) that says D could be punished separately for oral copulation of an intoxicated person and oral copulation of an unconscious person even though the convictions were for the same act. (Gonzalez distinguished a case called Craig, 17 Cal.2d 453, that came to the opposite conclusion when interpreting separate punishments for statutory rape and rape by force or fear from one sex act.)
The difference between D’s case here and Gonzalez, according to the court, is that the oral cop subdivisions have different punishments where the rape subdivisions do not. Seems like an odd distinction because the issue is whether the crimes have the same elements, not whether they have the same punishments. If there was another distinction discussed, I couldn’t understand it. I really don’t understand the distinction in light of the fact that Gonzalez said that oral cop of an intoxicated person and an unconscious person are different crimes because if you copped an unconscious person doesn’t necessarily mean you that you copped an intoxicated person . Isn’t that the same thing here? You can have sex with an intoxicated person (subd. 3) or an unconscious person (subd. 4) without having sex with someone who is both intoxicated and unconscious? In both cases, the Ds did, in fact, have sex with both intoxicated and unconscious people. What am I missing? Anyway, good for D that is a huge decrease in sentence.
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