THE PEOPLE, Plaintiff and Respondent,

DOROTHY HERNANDEZ, Defendant and Appellant
Court of Appeal, First District
18 Cal.App.3d 651 (1971)


 Defendant Dorothy Hernandez, a woman, appeals from a judgment based on  jury verdicts finding her guilty of two counts of rape (count 2 and 3 of the information) by threats of great and immediate bodily harm in violation of Penal Code section 261, subdivision 4. She was found not guilty of a similar charge stated in count 1 of the information.

 The information as in six counts. Counts 1, 2 and 3 charged defendant  (hereinafter Dorothy) and her husband Anthony with violations of Penal Code section 261, subdivision 4, against one Rosa Ruiz, respectively, on August 11, 13 and 17, 1969. Counts 4, 5 and 6, respectively, charged Dorothy alone with aiding and abetting Anthony in the commission of the same offenses charged in counts 1, 2 and 3.

 Under the substantial evidence rule (see People v. Hall, 62 Cal.2d 104, 109-110 [41 Cal.Rptr. 284, 396 P.2d 700]; People v. Daugherty, 40 Cal.2d 876, 885 [256 P.2d 911]) the record fully supports the jury's finding that Rosa was raped by means of threats of great and immediate bodily [p. 655]  harm on August 13 and 17, 1969. A conflict existed as to the circumstances under which the offenses were committed. The evidence could reasonably have been interpreted as establishing that on each occasion Dorothy, as a principal, armed with a rifle and by threats of bodily harm, forced her innocent and unwilling husband Anthony and Rosa into committing the acts of sexual intercourse, or Anthony, as a principal, willingly committed the criminal acts which were made possible by the described conduct of Dorothy, an aider and abettor in the offense.

 The People proceeded, and the court instructed the jury, on alternative theories. They were told:

 "A person who, by threats, menaces, command or coercion, compels another to commit any crime is a principal and guilty of the crime so committed." (Italics added.)

 They were also instructed that:

 "A person aids and abets the commission of a crime if he knowingly and with criminal intent aids, promotes, encourages or instigates by act or advice, or by act and advice, the commission of such crime." (Italics added.)

 Finally, as relevant here, the jury were given "Instruction No. 27" as follows:

 "If you find Anthony Hernandez guilty of counts 1 through 3 inclusive, that is the crime of being a principal in a rape, you then must find Dorothy Hernandez not guilty of counts 1 through 3 inclusive, as a principal in rape. You must, in this instance, then consider whether Dorothy Hernandez is guilty or not guilty of counts 4 through 6 inclusive, aiding and abetting in the commission of a rape.

 "If you find Anthony Hernandez not guilty of counts 1 through 3 inclusive, of the crime of being guilty as a principal in a rape, you may then only consider Dorothy Hernandez guilty or not guilty of counts 1 through 3 inclusive, as a principal in rape, and must find her not guilty of counts 4 through 6 inclusive, that is aiding and abetting in a rape."

 The last above-mentioned instruction, and the People's unnecessary and duplicative counts (counts 4, 5 and 6), have brought about the confusion leading to Dorothy's principal claim of error. Under counts 1, 2 and 3, she could have been found guilty as a "principal" or as a so-called "aider and abettor." [n. 1] [p. 656]

 The jury, as indicated, found Dorothy guilty of counts 2 and 3 of the information, and not guilty as to count 1. They returned no verdict as to Anthony, [n. 2] and no verdicts on the "aider and abettor" counts, counts, 4, 5 and 6.
   (1a) Dorothy contends that it was error to allow "the jury to deliberate the case as it was submitted to them" on instruction No. 27, and that their verdicts represented a "desperate compromise" on "contradictory instructions." She also argues that the instruction was confusing and "not followed," that the resulting verdicts were "confused," some jurors finding that Anthony was a rapist, some that Dorothy was a rapist with Anthony her "innocent conduit," and some that she was an "aider and abettor."

 It may be assumed that instruction No. 27 was confusing. But we note that the jury were properly instructed as to the elements of the charged offenses. Without error they were also instructed on the principles of "aiding and abetting" and on what Dorothy calls the "innocent conduit" theory, as applied to Anthony. Dorothy concedes that all twelve of the jury found her to be guilty of two counts of rape either as a "principal" on the innocent conduit theory, or as an "aider and abettor" to Anthony's crimes.

 It is established law that if a guilty verdict can be justified on either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other. (People v. Chavez, 37 Cal.2d 656, 670-672 [234 P.2d 632]; see also People v. Nor Woods, 37 Cal.2d 584, 586 [233 P.2d 897]; People v. Kagan, 264 Cal.App.2d 648, 661 [70 Cal.Rptr. 732]; People v. Hodges, 153 Cal.App.2d 788, 794 [315 P.2d 38]; People v. Schmidt, 147 [p. 657]  Cal.App.2d 222, 230-231 [305 P.2d 215]; People v. Theodore, 121 Cal.App.2d 17, 31 [262 P.2d 630]; People v. Andary, 120 Cal.App.2d 675, 682 [261 P.2d 791].)

 (1b) Applying this rule to the case at bench the guilty verdict against Dorothy must stand. The confusion attending instruction No. 27 and the jury's failure to return verdicts as to counts 4, 5 and 6 was in no way prejudicial to her. (3a) Nor may she properly complain of the jury's failure to reach a verdict as to her codefendant Anthony. The fact that a codefendant was not convicted does not invalidate a conviction based on substantial evidence. (People v. Gutierrez, 207 Cal.App.2d 529, 530 [24 Cal.Rptr. 441]; People v. Massie, 122 Cal.App.2d 235, 236 [264 P.2d 671]; People v. Taylor, 88 Cal.App.2d 983, 987 [199 P.2d 751].)

 We note incidentally that Dorothy concedes that evidence was presented sufficient to convict her as an "aider and abettor." Under Penal Code sections 31 and 971 such evidence then as a matter of law was sufficient to convict her as a "principal." (3b) Additionally, contrary to her insistence, there was substantial evidence to convict her on the "innocent conduit" theory. Nor do we find the jury's verdicts to be contradictory; they simply show agreement, although perhaps on different theories, as to Dorothy's guilt, and disagreement as to whether Anthony was a willing participant in the acts of rape, or instead a innocent unwilling conduit in their commission.

 For the reasons stated we find no merit in Dorothy's related contention that she was erroneously prejudiced by the trial court's denial of her motion to dismiss counts 1, 2 and 3 or counts 4, 5 and 6. While, as indicated, it would have been better to try the case on counts 1, 2 and 3 alone, no prejudice resulted from the denial of the motion. And error did not, as contended, attend the trial court's denial of motions for "judgment of acquittal," "mistrial," and "new trial," for lack of substantial evidence to support the verdicts.

 We do not, as urged by Dorothy, find her conviction of rape to be  "unique in the annals of American criminal law." Women have been convicted as "aiders and abettors" and therefore principals (see Pen. Code, § 31) to the crime of rape. (See People v. Smith, 204 Cal.App.2d 797 [23 Cal.Rptr. 5]; People v. Young, 132 Cal.App. 770 [23 P.2d 524]; People v. Bartol, 24 Cal.App. 659 [142 P. 510].) It would be unreasonable to hold a woman immune from prosecution for rape committed by a man under her "threats or menaces sufficient to show that [he] had reasonable cause to and did believe [that his life] would be endangered if [he] refused." (See Pen. Code, § 26, subd. Eight.) If such were the law it would create a crime without a punishable perpetrator.
 The judgment is affirmed.