Pinning down a victim and pressing an object the victim believed to be a gun into her side constituted force sufficient for a conviction for forcible rape. A jury convicted Dearborne of various sex, kidnapping, and robbery offenses, including two counts of forcible rape in concert (Pen. Code, § 261.4, subd. (a)) and forcible oral copulation in concert (Pen. Code, § 288a, subd. (d)), after Dearborne and his girlfriend kidnapped a victim and raped her, then forced the victim into acts of prostitution with a john. On appeal, Dearborne challenged the sufficiency of the evidence of the forcible rape in concert counts, arguing that the rapes were accomplished by a threat of force rather than actual force. Held: Affirmed. Rape is an act of sexual intercourse accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (Pen. Code, § 261.4, subd. (a)(2).) There are enhanced penalties for rape in concert when done by force or violence. Under the modern rape statute, the jury no longer evaluates the element of force in terms of whether the force physically prevents the victim from resisting or thwarting the attack. The degree of force utilized is immaterial. Here, in the count of forcible rape in concert which charged defendant of directly raping the victim with his girlfriend, the defendant used his entire body to pin the victim down; he also pressed an object into the victim’s side which she thought was a gun but was subsequently discovered to be a phone charger. The jury could have concluded that either use of force helped overcome the victim’s will in order to accomplish the rape. The same reasoning applied to the count involving the john. That rape involved the john pinning the victim down in a car. Also, the fear induced by defendant physically pressing a fake gun to her side was still effectively overcoming her lack of consent to the intercourse.

There was sufficient evidence that the “customer” was aware of the victim’s lack of consent to sustain the conviction for rape in concert. Dearborne also argued on appeal that he could not be liable for rape in concert with the john because there was no evidence the “customer” was aware that the victim had not consented to the intercourse. Dearborne argued that if the customer did not commit rape, then Dearborne could not be liable for committing rape in concert with him. The Court of Appeal concluded sufficient evidence supported this count. If a defendant entertains a reasonable and bona fide belief that a person voluntarily consented to engage in sexual intercourse, then he does not possess the wrongful intent that is a prerequisite to a rape conviction. (People v. Mayberry (1975) 15 Cal.3d 143, 155.) Here, however, the victim testified that she expressed multiple times before, during, and after the transaction with the customer that she did not want to be involved. It was reasonable to infer that the customer, who was pressed up against the victim in the same car, heard her objections. Any doubt about that is not a reasonable doubt.

The court was required to stay punishment for the pimping count because the facts of this case demonstrate that the human trafficking and pimping constituted a single course of conduct with one and the same intent and objective. Dearborne was convicted of human trafficking (Pen. Code, § 236.1, subd. (b)) and pimping (Pen. Code, § 266h, subd. (a)). Penal Code section 654 prohibits multiple punishment for offenses which were incident to a single objective. As charged under the facts of this case, the human trafficking and pimping were part of the same criminal “intent and objective,” and thus the court was required to stay the sentence on the pimping count. The human trafficking charge has as one of its elements an intent to pimp. There was only a single pimping activity relevant to both counts. The human trafficking charge was therefore necessarily part of the same criminal intent and objective as the pimping charge. The intent to pimp was not independent of or merely incidental to the human trafficking. The trial court was therefore directed to stay execution of the sentence on the pimping conviction.

Trial court was unaware of its discretion to run sentences for forcible rape in concert and oral copulation in concert concurrently so the case must be remanded for resentencing. When sentencing Dearborne on the two counts for forcible rape in concert and the two counts of oral copulation in concert, the trial court commented that the sentences were required to be consecutive and the court had no discretion. Under section 667.61, subdivision (i), known as the One Strike law, the court is required to impose consecutive sentences for multiple violations where the crimes involve separate victims or involve the same victim on separate occasions. In determining whether crimes against a single victim were committed on separate occasions, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed the assaultive behavior. Here, the evidence did not reveal any significant break between Dearborne forcing the victim to orally copulate him and then proceeding to rape her. Likewise, the evidence did not reveal any significant break in time between the customer doing the same. The matter therefore was remanded for resentencing to allow the court to exercise its discretion in determining whether to run the sentences concurrently or consecutively. [Editor’s Note: The opinion also addressed several other instructional and sentencing issues. The case was additionally remanded to allow the sentencing court to exercise its discretion to strike a five-year enhancement (Pen. Code, § 667) under Penal Code section 1385 because this case was not final on the effective date of Senate Bill No. 1393.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/G054763.PDF