1001. Rape or Spousal Rape in Concert

The defendant[s] [ <insert name[s] if not all defendants in trial charged with this count>] (is/are) charged [in Count ______] with committing rape by acting in concert [with <insert name[s] or description[s] of uncharged participant[s]>].

To prove that a defendant is guilty of this crime, the People must prove that:

<Alternative A—defendant committed rape>

[1.] [The defendant personally committed forcible rape and voluntarily acted with someone else who aided and abetted its commission(;/.)]

[OR]

<Alternative B—defendant aided and abetted>

[(1/2).] [The defendant voluntarily aided and abetted someone else who personally committed forcible rape.]

To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] committed rape, please refer to the separate instructions that I (will give/have given) you on that crime. To decide whether the defendant[s] [or <insert name[s] or description[s] of uncharged participant[s]>] aided and abetted rape, please refer to the separate instructions that I (will give/have given) you on aiding and abetting. You must apply those instructions when you decide whether the People have proved rape in concert.

<MAKE CERTAIN THAT ALL APPROPRIATE INSTRUCTIONS ON RAPE AND AIDING AND ABETTING ARE GIVEN.>

[To prove the crime of rape in concert, the People do not have to prove a prearranged plan or scheme to commit rape.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to give an instruction defining the elements of the crime. (See Pen. Code, § 264.1; People v. Ramirez (1987) 189 Cal.App.3d 603, 621 [236 Cal.Rptr. 404] [rape in concert is a separate crime, not an enhancement].) The court also has a sua sponte duty to instruct on rape. Give one or more of the following instructions defining rape: CALCRIM No. 1000, or CALCRIM Nos. 1005-1114.

Select alternative A or B, or both, depending on whether the defendant personally committed the crime or aided and abetted someone else.

Depending on the evidence, give the final bracketed paragraph on request regarding the lack of a prearranged plan. (See People v. Calimee (1975) 49 Cal.App.3d 337, 341-342 [122 Cal.Rptr. 658].)

Related Instructions

See generally CALCRIM No. 400, Aiding and Abetting: General Principles and CALCRIM No. 401, Aiding and Abetting: Intended Crimes.

Authority

Elements. Pen. Code, § 264.1; see People v. Mom (2000) 80 Cal.App.4th 1217, 1224 [96 Cal.Rptr.2d 172] [requires no greater force than that necessary for forcible rape], disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891, 94 P.3d 1089].

Forcible Rape Defined. Pen. Code, § 261(a)(2).

Spousal Rape Defined. Pen. Code, § 262(a)(1).

Aiding and Abetting. People v. Adams (1993) 19 Cal.App.4th 412, 445-446 [23 Cal.Rptr.2d 512]; see People v. Beeman (1984) 35 Cal.3d 547, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, § 19.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.20[1][a], [2][c] (Matthew Bender).

Commentary

There is conflicting authority whether all types of forcible rape may be the basis for charging a rape in concert. (Compare In re Jose M. (1994) 21 Cal.App.4th 1470, 1477 [27 Cal.Rptr.2d 55] [rape by duress, menace, and fear unavailable under Pen. Code, § 264.1] and People v. Mom (2000) 80 Cal.App.4th 1217, 1222-1223 [96 Cal.Rptr.2d 172] [§ 264.1 only includes rape involving "force" and "violence"], disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 1015, 1028 [16 Cal.Rptr.3d 891, 94 P.3d 1089], with People v. Wheeler (1977) 71 Cal.App.3d 902, 907 [139 Cal.Rptr. 737] [§ 264.1 includes any unlawful use of force, including threat of harm].) The instruction addresses rape accomplished by force or violence. (See Pen. Code, §§ 261(a)(2), 264.1.) If another basis for charging rape in concert is argued, for example, rape by duress, menace, fear, or threats (see Pen. Code, § 261(a)(2), (6), & (7)), see CALCRIM No. 1000, Rape or Spousal Rape by Force, Fear, or Threats for appropriate language that may be included on request.

Penal Code section 264.1 deals with a crime of substance, and is not an enhancement statute, as discussed in People v. Best (1983) 143 Cal.App.3d 232, 237 [191 Cal.Rptr. 614].

Lesser Included Offenses

Assault. Pen. Code, § 240.

Assault With Intent to Commit Rape. Pen. Code, § 220; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477; People v. Moran (1973) 33 Cal.App.3d 724, 730 [109 Cal.Rptr. 287] [where forcible rape is charged].

Attempted Rape. Pen. Code, §§ 664, 261.

Battery. Pen. Code, § 242.

Rape. Pen. Code, §§ 261, 262.

Related Issues

Need Not Personally Participate

A defendant may be convicted of rape in concert if he or she was at the general scene of the rape and aided and abetted another person in accomplishing the act, even if the defendant did not personally participate in the act or was not personally present at the exact scene of the act. (See People v. Lopez (1981) 116 Cal.App.3d 882, 887-888 [172 Cal.Rptr. 374];

People v. Barnett (1976) 54 Cal.App.3d 1046, 1049 [127 Cal.Rptr. 88] [oral copulation in concert although not in room when act took place]; People v. Champion (1995) 9 Cal.4th 879, 933 [39 Cal.Rptr.2d 547] [rape in concert by holding victim's family at gun point in another room].) However, the Supreme Court has not resolved whether a person acts in concert when his accomplice assists in the commission of the crime, but is not present at the general scene (for example, when the accomplice provides the rapist with information about the victim, or pays the rapist to commit the act). (People v. Champion (1995) 9 Cal.4th 879, 933, fn. 22 [891 P.2d 93].)

(New January 2006)