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Name: People v. Brown
Case #: E059735
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/01/2017

When the prosecution has elected to proceed on one factual theory, and when that election has obviated the need for a unanimity instruction, an appellate court is bound by the prosecution’s election when reviewing the sufficiency of the evidence. Jane Doe, a 15-year-old girl, was raped by multiple men in a bedroom in a house and a vacant apartment. Brown’s DNA was recovered from the victim. At trial, there was conflicting evidence regarding who raped Doe in each location. During closing argument, the prosecutor contended that Brown arrived after the rapes in the bedroom occurred, and that he raped the victim in the vacant apartment. The jury was not given a unanimity instruction. Brown was convicted of numerous rape offenses. On appeal, Brown contended that there was insufficient evidence to support his convictions for rape in concert of a minor and forcible rape. Held: Rape in concert and forcible rape convictions reversed. When an appellate court considers a challenge to the sufficiency of the evidence, it normally reviews the entire record in the light most favorable to the judgment. Here, the Court of Appeal concluded that there is an exception to this rule in cases where the prosecution removes the need for a unanimity instruction by electing a specific act to prove a criminal charge. In this situation, the court’s review “is limited to whether there is sufficient evidence to support a conviction based solely on the act elected by the prosecution.” Although there was sufficient evidence that Brown was one of the men in the bedroom who used force to rape Doe, there was insufficient evidence of force or fear in connection with a rape in the vacant apartment. In light of the prosecution’s election that Brown committed rape in the apartment and not the bedroom, there was insufficient evidence to support the rape in concert and forcible rape convictions. Retrial on these counts is barred.