acquit if juror lacks abiding conviction of truth of charge
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- acquit if juror lacks abiding conviction of truth of charge
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The opinion
MOSK, J.,
Concurring and Dissenting.—I concur in the judgment in most respects. After review, I have generally found no error warranting reversal.
I dissent, however, as to the affirmance of defendant’s conviction for the rape of Olga Cannon (Pen. Code, § 261) and the sustaining of the related felony-murder-rape special-circumstance finding (id., § 190.2, subd. (a)(17)(iii)).
The general principles applicable here are well settled. “In every prosecution for crime, it is necessary [for the People] to establish the corpus delicti, i.e., the body or elements of the crime. These are, broadly speaking, (1) the fact of the injury, loss or harm, and (2) the existence of a criminal agency as its cause.” (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 136, p. 152, italics deleted.) “The significance of the corpus delicti concept lies in the rule that no part of it can be proved by the extrajudicial admissions or confession of the defendant.” (Id., § 137, at p. 153, italics deleted.) “The purpose of the rule is to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator.” (People v. Cullen (1951) 37 Cal.2d 614, 625 [ 234 P.2d 1 ].) The People are not required to prove the corpus delicti beyond a reasonable doubt—but they are indeed required to make a prima facie showing as a matter of fact and not merely speculation. (See 1 Witkin & Epstein, supra, Elements of Crime, § 140, at p. 156.) Without such a showing, of course, any determination adverse to the defendant is unsupported as a matter of law. (See Jones v. Superior Court (1979) 96 Cal.App.3d 390, 398 [ 157 Cal.Rptr. 809 ]; People v. Coppla (1950) 100 Cal.App.2d 766, 771 [ 224 P.2d 828 ].)
In the case at bar, the People failed to establish the corpus delicti of the crime of rape and the related special circumstance of felony-murder-rape. The corpus includes unconsented-to sexual intercourse and, specifically, penetration. That is true of the offense. (See Pen. Code, §§ 261, 263.) It is true as well of the special circumstance. (See id., § 190.2, subd. (a)(17)(iii) [expressly incorporating Pen. Code, § 261].) To be sure, the People introduced evidence that allows speculation that unconsented-to sexual *393 intercourse might perhaps have occurred. But the evidence simply does not make a prima facie showing that it did.
For the reasons stated above, I would reverse defendant’s conviction for the rape of Olga Cannon and set aside the related felony-murder-rape special-circumstance finding.
Broussard, J., and Kennard, J., concurred.
Appellant’s petition for a rehearing was denied May 29, 1991.