Return to CALJIC Part 9-12 – Contents
F 10.01 n1 Rape In Concert: Assault As LIO (PC 264.1).
Assault (PC 240) and assault with intent to commit rape (PC 220) are lesser included offenses of rape in concert (PC 264.1). (See In re Jose M. (94) 21 CA4th 1470, 1476-77 [27 CR2d 55].)
F 10.01 n2 Rape In Concert: Whether More Than One Person Need Be Present.
In People v. Champion (95) 9 C4th 879, 932-33 [39 CR2d 547], the court held that the evidence was sufficient to prove rape in concert even though only one defendant actually raped the victim in a room, while the other defendant was present in the house holding the family at gunpoint.
F 10.01 n3 Rape In Concert: Force Necessary.
People v. Mom (2000) 80 CA4th 1217, 1224 [96 CR2d 172] held that the force necessary to commit a rape in concert (PC 264.1) is the same as the force necessary to commit a forcible rape (PC 261(a)(2).) Rape in concert must be a forcible rape. If the rape is non-forcible, it cannot constitute rape in concert. The force necessary is “any wrongful application of physical force, including the slightest unlawful touching if done in an insolent, rude, or angry manner.” (Mom, 80 CA4th at 1223, citing People v. Wheeler (77) 71 CA3d 902 [139 CR 737].) The force must be something more than that necessary to accomplish the rape itself.
F 10.01a
Rape: Acting In Concert – Requirement Of Specific Intent
(PC 264.1)
*Add the following to the specification of elements in CJ 10.01:
4. The defendant acted in concert with another person with the specific intent to commit or facilitate a rape.
Points and Authorities
PC 264.1 provides criminal liability for two alternative acts: (1) “personally” raping the victim; or (2) “aiding and abetting” the rapist. (PC 264.1.) However, as a predicate element for either act, the rape must be committed while the defendant was “acting in concert with another person ….” (PC 264.1.) Given this predicate element, PC 264.1 clearly states a specific intent crime.
In this regard, PC 264.1 necessarily implies that “acting in concert” must be for the purpose of committing a rape. Without doubt, this is true as to aiding and abetting since an aider and abettor must act with the specific intent of assisting the perpetrator. (People v. Beeman (84) 35 C3d 547, 560-61 [199 CR 60]; see also FORECITE F 3.00 n6.) Moreover, even when the defendant has “personally” committed the rape, his conduct of “acting in concert” must necessarily have been for the purpose of committing the rape. (See People v. Hesslink (85) 167 CA3d 781, 789-90 [213 CR 465] [when a statute, in substance, requires an intent to achieve an additional consequence, specific intent is deemed to be an element of the statute].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 10.01b
Rape: Acting In Concert — Requirement
That Perpetrators “Act Together”
(PC 264.1)
*Modify ¶’s 3 and 4 of CJ 10.01 as follows (deleted language is between <<>>:
In order to prove such crime, each of the following elements must be proved:
1. The defendant committed the crime of rape,
2. The defendant did so while voluntarily acting together with at least one other individual. In a group [or gang] sexual attack, and
3. The defendant [personally] [or] [by aiding and abetting such other person] committed the rape by force or violence and against the will of the victim.
<<The phrase “acting in concert” means two or more persons acting together in a group [or gang] sexual attack and includes not only those who personally engage in the act constituting the crime but also those who aid and abet a person in accomplishing it.>>
To establish that a defendant voluntarily acted in concert with another person, it is not necessary to prove there was any prearrangement, planning or scheme.
Points and Authorities
Although it may be difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert (People v. Lopez (81) 116 CA3d 882, 887 [172 CR 374]) “aiding and abetting need not in every case be synonymous with ‘acting in concert.’” (People v. Wheeler (77) 71 CA3d 902, 906 [139 CR 737]; see also Lopez 116 CA3d at 887.)
Accordingly, CJ 10.01 is inaccurate because its definition of “acting in concert” equates aiding and abetting with “acting together in a group.” The CALJIC instruction states that “acting in concert” “includes … those who aid and abet a person in accomplishing” a sexual attack. Thus, the instruction could be construed by reasonable jurors so that the element of “acting in concert” or “acting together in a group” is satisfied by the defendant’s status as an aider and abettor. Therefore, this language should be deleted.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
In Concert: “Acting Together” Requirement. Argument rejected that CJ 10.01 implies acting in concert is synonymous with aiding and abetting. (People v. Adams (93) 19 CA4th 412, 444-46 [23 CR2d 512].)
F 10.01c
Rape: Acting In Concert – Alternative Instruction
*Replace elements in CJ 10.01 with the following:
You may find the defendant guilty of rape in concert rape only if the prosecutor has proven beyond a reasonable doubt that:
1. The defendant voluntarily acted in concert with another person; and
2. [Personally] [By aiding and abetting the other person] committed a [rape] [___________(other crime described in PC 262 or PC 289)]; and
3. The rape was committed by force or violence and against the will of the victim.
Points and Authorities
PC 264.2.
