Filed 10/7/26 P. v. Faizi CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051928
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
ISMAT BAKHSHI, NO CHANGE IN JUDGMENT
Defendant and Appellant.
THE PEOPLE, H051925
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v.
HAMED KHAMUSH
Defendant and Appellant.
THE PEOPLE, H051803
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v.
QAIS FAIZI,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion, filed September 11, 2026, be modified as follows:
1. On page 13, the third sentence in the first full paragraph, beginning “But the
comment falls” and ending “… subdivision (a)(2)” is deleted and the following
sentence inserted in its place:
But the comment falls outside the scope of section 745, subdivision (a)(2)
because it was not made “[d]uring the defendant’s trial, in court and during the
proceedings.”
2. On page 13, at the end of footnote 6, add the following sentence:
Having obtained the Facebook group records via RJA discovery, the sole relief
Bakhshi sought at trial was the opportunity to introduce Welch’s statements to
impeach his anticipated testimony. He did not allege that Welch’s conduct
entitled him to an RJA remedy under section 745, subdivision (e), even after
the prosecution decided not to call Welch as a witness. (See, e.g., People v.
Lashon (2024) 98 Cal.App.5th 804, 812; Moore v. Shaw (2004) 116
Cal.App.4th 182, 200, fn. 10.)
There is no change in the judgment.
Appellant Ismat Bakhshi’s petition for rehearing is denied.
LIE, Acting P. J.
WILSON, J.
ADAMS, J.
2
Filed 9/11/26 P. v. Faizi CA6 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051928
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v.
ISMAT BAKHSHI,
Defendant and Appellant.
THE PEOPLE, H051925
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v.
HAMED KHAMUSH
Defendant and Appellant.
THE PEOPLE, H051803
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C2204454)
v.
QAIS FAIZI,
Defendant and Appellant.
A jury convicted Ismat Bakhshi, Qais Faizi, and Hamed Khamush of rape in
concert (count 1) and convicted Faizi and Khamush of rape of an intoxicated person
(count 2). The trial court sentenced Faizi and Khamush to serve nine years in prison, and
Bakhshi to seven years. On appeal, Bakhshi alleges various violations of the California
Racial Justice Act of 2020 (RJA) and contends that the prosecutor committed error under
Griffin v. California (1965) 380 U.S. 609 (Griffin) by improperly commenting on his
right not to testify during closing argument; Faizi argues that the trial court prejudicially
erred by failing to instruct the jury on the lesser included offense of battery in connection
with the rape of an intoxicated person charge; Khamush contends the trial court
prejudicially erred in referencing the jury instruction on rape (CALCRIM No. 1000)
when instructing the jury on the “forcible rape” element of rape in concert; and all three
defendants dispute the sufficiency of the evidence to support their convictions.
Concluding that there is no prejudicial error and that sufficient evidence supports the
respective convictions, we will affirm.
I. BACKGROUND
The Santa Clara County District Attorney charged Bakhshi, Faizi, and Khamush
with rape in concert (Pen. Code, § 264.1, subd. (a); count 1) and rape of an intoxicated
person (§ 261, subd. (a)(3); count 2).1 Both charges involved the same 2017 incident and
pertained to the same victim, then 21-year-old Hannah Doe. The prosecution also alleged
that each defendant personally inflicted great bodily injury on Doe during the
commission of the offenses and alleged multiple circumstances in aggravation.
A. Trial Evidence
1. The Prosecution’s Case
Doe “matched” with Khamush through Tinder, a dating app, and began
exchanging messages with him on a social media app called Snapchat. “[A] month, if not
1
Undesignated statutory references are to the Penal Code.
2
months” after matching, Khamush messaged Doe and told her he wanted to take her out
for drinks for her 21st birthday. Doe, a college student living in Santa Cruz at the time,
agreed to meet Khamush at the Cardiff Lounge, a bar in Campbell. She believed they
were getting together for a “one on one” date, but at some point after making plans,
Khamush messaged her on Snapchat and let her know he would be “bringing someone
else along as well.”
When Doe arrived in Campbell, she saw that Khamush had brought an “older”
friend, Faizi. They all went to the Cardiff Lounge and either Khamush or Faizi ordered
for Doe two shots of tequila followed by a “very strong” mixed drink, which Doe
consumed. The two men appeared “eager” for Doe to start drinking and “egg[ed] [her]
on to take more shots.” Either Khamush or Faizi eventually suggested they leave the
Cardiff Lounge to go to a brewery a short distance away. Doe was feeling “a little
intoxicated” by this point and was “stumbling a little bit,” and Khamush made a
“light-hearted” comment about it.
While walking to the brewery, Khamush and Faizi ran into some acquaintances
and said a brief hello. Doe and Khamush danced at the brewery and they may have
kissed. Doe remembered feeling like she did not want to drink anymore but Faizi bought
more shots. When Doe went to drink hers, she spilled some of it and Faizi gave her his.
After consuming the additional shots, Doe felt “extremely intoxicated” and “ill.” She
recalled sitting at a table with Khamush and throwing up on the table and “probably a
little bit on [her]self as well,” and the bouncers asking them to leave.
Once outside, Khamush advised Doe that she “probably wasn’t going to be okay
to drive,” and she agreed. She did not remember many of the details of what happened
next but recalled sitting in the passenger seat of Faizi’s car, continuing to feel “extremely
intoxicated,” and the car pulling over so she can throw up outside.
The next thing Doe remembered was arriving at a hotel and being inside a room,
though she did not recall how she got there. She recalled lying on a bed with her shoes
3
off and Khamush over her, removing her pants and underwear, parting her legs, and
having sex with her without consent. During the intercourse, Doe felt “pinned down” by
Khamush’s weight and could not get up or get Khamush off her. While Khamush was
having sex with Doe, Doe looked to her left and saw Faizi “pantless” and masturbating
next to the bed. After Khamush ejaculated inside her, Faizi got on top of Doe and had
sex with her too. Doe tried “getting into the fetal position to try to protect [her]self” but
Faizi moved her around so that her chest was against the bed and continued to have sex
with her. While Faizi was having sex with her, Doe saw that three more men had arrived
and were masturbating inside the room, close to the door. Faizi pulled up Doe’s shirt and
ejaculated on her stomach.
Doe recalled a third man next had sex with her. This man wore “a long sleeve
buttoned-up … shirt” of a “darker” color. Doe tried but failed to pull away and bring her
legs together. This third man was one of those who had been masturbating while Faizi
raped her. Afterward, she thought another one or more of the men in the room had sex
with her but she could not be sure because she had her eyes closed. Khamush had
intercourse with her a second time.
Eventually, Doe felt like she had “woken up” and found herself in the hotel room
alone with Khamush. She yelled at him, “ ‘What did you do to me? Where am I?
What’s going on? Where [are] my things?’ ” Khamush told Doe to calm down, and that
“nothing happened.” He returned her phone and car keys, which had been in his
possession, though Doe could not recall whether she had given them to him to hold. Doe
messaged and then Facetimed her friends Kayla L. and Kim N., telling them she had been
raped, that the men had “taken turns on her,” and asking them for help. While Doe
sought help from her friends, Khamush at one point took the phone and spoke with Kim
4
N. He told Kim N. that he did not know why Doe was crying and that she had been
“ ‘too drunk to drive.’ ”2 One of Doe’s friends called the police.
When police arrived, they found Doe inside the room, naked from the waist down.
There were bloodstains on the bedsheets and an unused condom on the nightstand.
Khamush, who was still in the room, was taken into custody and Doe was taken to the
Santa Clara Valley Medical Center, where she underwent a SART exam. A swab was
taken of Khamush’s penis for DNA analysis. The swab turned “[s]lightly pink” when
taken, which was not a normal result, and was consistent with the penis having “potential
blood” on it.
Registered Nurse Kristine Setterlund performed the SART exam on Doe.3 The
exam indicated that Doe had multiple “circular bruises” on both legs, consistent with
having her legs being pulled apart. An examination of her genitalia area revealed
“significant” and “substantial” trauma all around the area, consistent with “penetration
injury.” Those injuries included swelling, redness, abrasions, lacerations, vaginal
bleeding, and “denuding” of the outermost layer of skin of the labia majora. Setterlund
classified Doe’s injuries as “coming up close to some of the more traumatic injuries” she
had seen in 36 years of practice as a SART nurse. She allowed on cross-examination that
the injuries are not necessarily the result of rape, but could also occur with “non-
lubricated, vigorous sex.” Setterlund also swabbed different parts of Doe’s body for
DNA analysis.
A criminalist analyzed the swabs collected from Doe’s body and Khamush’s
penis. The swab of Doe’s vagina contained sperm cell DNA from Khamush, Faizi, and a
2
Although Khamush also asked the friends to “ ‘come get’ ” Doe, he supplied the
wrong room number.
3
Setterlund was qualified and testified as the prosecution’s expert “in the topic of
medical evidence and female victims of sexual assault.”
5
third person not Bakhshi. The swab of Doe’s right breast contained sperm cell DNA
from Khamush, Bakhshi, and another person not Faizi. The swab of her chest contained
sperm and skin cell DNA from Khamush and Bakhshi. The swab of Doe’s upper
abdomen contained sperm cell DNA from Khamush, Bakhshi, and another person not
Faizi. The swab of Doe’s genital perineal (area between the anus and vaginal opening)
contained sperm and skin cell DNA from Khamush, Faizi, and Bakhshi. The swab of her
perianal area contained sperm cell DNA from Khamush, Faizi, and Bakhshi. The swab
of Khamush’s penis contained sperm cell DNA from Faizi and at least one other
individual.
During the ensuing investigation, the police learned that the hotel room was
reserved in Bakhshi’s name, though Bakhshi later denied reserving a room that night.
Surveillance video footage from the hotel showed Doe walking up to the hotel room with
Khamush and Faizi, though she had no independent memory of doing so. Video footage
also showed Bakhshi at the hotel, wearing a black buttoned-up shirt and engaging with
Khamush, and the two men walking together in the direction of the room. Faizi also
encountered Bakhshi outside the hotel that night and they spoke for about four or five
minutes.
2. Defense’s Case
The defense case comprised Faizi’s testimony and a short surveillance video
presented on behalf of Bakhshi. On the evening of the incident, Faizi, then 27 years old,
agreed to go on a “ ‘double date’ ” between Khamush and Doe, and Faizi and one of
Doe’s friends. Faizi knew that Khamush had met Doe on Tinder and understood Tinder
to be a dating app where people met to “go have sex.” While driving to the date,
Khamush received a call from Doe saying her friend had cancelled. Faizi attempted to
cancel the date at this point because he did not wish to be a “ ‘third wheel,’ ” but Doe
encouraged both Faizi and Khamush to come out, saying “ ‘We’re going to have fun.’ ”
6
The two men met Doe near the Cardiff Lounge and they went inside and ordered drinks.
Altogether, Faizi recalled that each had three drinks while at the Cardiff.
At some point, Doe suggested going to a second brewery. On the walk over, they
ran into some of Khamush’s and Faizi’s acquaintances and engaged in brief conversation.
After getting to the brewery, Faizi, Doe, and Khamush ordered one additional shot of
Tequila each. While Faizi was returning to the bar area from the restroom, he got a call
from Khamush, who reported that he and Doe had been kicked out of the brewery
because Doe “threw up in front of the [security] guard.” They then decided to go to a
hotel, and Doe rode in Faizi’s car while Khamush drove Doe’s, as she did not want to
leave her car behind. On the way to the hotel, Faizi had to pull his car over for Doe to
throw up again. Khamush called Faizi to let him and Doe know that he would stop
somewhere to get condoms, and Doe replied, “ ‘Don’t worry. We don’t need
condoms,’ ” a statement that made Faizi “happy.” When Faizi checked into a room at the
hotel, he said, “ ‘I know Bakhshi,’ ” and got a discount.
Faizi admitted having sexual intercourse with Doe but denied using force or
violence. He did not believe Doe was too intoxicated to exercise reasonable judgment
and testified that she consented to the sexual acts. According to Faizi, Khamush and Doe
were already having sex when he first walked into the hotel room. He asked, “ ‘Can I
join you guys?,’ ” and Doe said yes. Doe then “grabbed [his] penis and she started …
giving [him] a blow job” while Khamush continued having intercourse with her. The
men switched positions and Doe orally copulated Khamush while having intercourse with
Faizi. After they were done having sex, Doe laid her face against Faizi’s chest and the
three of them fell asleep.
When Faizi woke up about an hour later, he saw two other men inside the room
and told them, “ ‘You guys are not supposed to be here. You guys gotta leave.’ ” He
then went outside to smoke. While outside, Faizi received a call from another friend
inviting him to a party, and he went. When he returned to the hotel early that morning,
7
he saw “cop cars everywhere” and left. A few days after the incident, Faizi observed a
story posted to Doe’s Snapchat account, showing her “drinking and partying.”4
On cross-examination, Faizi testified that he understood from the “get-go” that
Doe had consented to a “threesome night” based on her being on Tinder and agreeing to
have Faizi join her on her date with Khamush. Upon being shown surveillance footage
from the hotel, Faizi agreed with the prosecutor that Doe was “having trouble walking”
by the time they arrived at the hotel. He also agreed that Doe had been “[t]oo drunk to
drive the car” to the hotel. From the same surveillance footage, Faizi identified a man
wearing a black button-up shirt as Bakhshi and noted that the footage showed Bakhshi
walking with Khamush into the hotel room. When Faizi asked Bakhshi why he was
there, Bakshi replied that he had “brought smokes” for Khamush and planned to leave.
Faizi acknowledged that from the surveillance footage, he could see other men
interacting with Khamush and Bakhshi and going into the hotel room, but he could not
identify who these men were, other than Bakhshi.
B. Verdict, Trial on Aggravating Circumstances, and Sentencing
The jury convicted Khamush and Faizi of rape in concert and rape of an
intoxicated person but did not reach a verdict on the great bodily injury allegation, and
the trial court dismissed it. The jury convicted Bakhshi of rape in concert but did not
reach a verdict on the rape of an intoxicated person charge, and the district attorney
subsequently dismissed the charge. The jury found not true the allegation that Bakhshi
personally inflicted great bodily injury on Doe. In the subsequent trial on alleged
aggravating factors, the jury found as to all three defendants that (1) the crimes involved
great violence, threat of great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness, and (2) Doe was a particularly vulnerable victim.
4
In rebuttal, the prosecution presented evidence that Doe’s cell phone was
collected on the morning of the incident and not released back to her until “[a]lmost a
week, week and a half after.”
8
(Cal. Rules of Court, rule 4.421(a)(1), (3).) The jury found the following additional
factor to be true as to Khamush only: that he “induced others to participate in the
commission of [count 1 only] or occupied a position of leadership or dominance of other
participants in its commission.” (Id., rule 4.421(a)(4).)
The trial court sentenced Khamush and Faizi to the upper term of nine years for
count 1, and the middle term of six years for count 2, with the latter stayed under
section 654. The trial court sentenced Bakhshi to the middle term of seven years for
count 1.
Each defendant timely appealed.
II. DISCUSSION
On appeal, each defendant contends that insufficient evidence supports their
convictions, and other claims of error. Bakhshi contends that his trial was infected by
multiple violations of the RJA, and that the prosecutor committed Griffin error in closing
argument. Faizi contends that the trial court committed prejudicial error by not
instructing the jury on battery, which he argues is a lesser included offense of rape of an
intoxicated person. Khamush contends that the trial court misinstructed the jury on the
elements of rape in concert, and in so doing, impermissibly diminished the prosecution’s
burden of proof. These claims lack merit.
A. Alleged Violations of the RJA (Bakhshi)
Bakhshi first contends that a prospective juror, a police officer, and the trial
prosecutor violated the RJA. Effective January 1, 2021, the RJA aims “to eliminate
racial bias from California’s criminal justice system” and “to ensure that race plays no
role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317,
§ 2, subd. (i).) To that end, the RJA prohibits the state from seeking or obtaining a
criminal conviction, or seeking, obtaining, or imposing a sentence, “on the basis of race,
ethnicity, or national origin.” (§ 745, subd. (a); see also People v. Barrera (2026)
19 Cal.5th 919, 977 (Barrera).)
9
A violation of the RJA occurs if “[d]uring the defendant’s trial, in court and during
the proceedings, the judge, an attorney in the case, a law enforcement officer involved in
the case, an expert witness, or juror, used racially discriminatory language about the
defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus
towards the defendant because of the defendant’s race, ethnicity, or national origin,
whether or not purposeful.” (§ 745, subd. (a)(2).) The RJA defines “ ‘[r]acially
discriminatory language’ ” as “language that, to an objective observer, explicitly or
implicitly appeals to racial bias, including, but not limited to, racially charged or racially
coded language, language that compares the defendant to an animal, or language that
references the defendant’s physical appearance, culture, ethnicity, or national origin.”
(§ 745, subd. (h)(4).)
1. Prospective Juror
a. Additional Background
Before voir dire, all prospective jurors completed a questionnaire, which included
a “supplement” (capitalization omitted) page containing four questions: (1) “When you
hear the word Muslim, what is the first adjective that comes to mind?” (2) “What
experience(s) do you have, if any, with Muslims or with the religion of Islam?” (3) “Do
you think people from Islamic countries and cultures treat women worse than people
from other countries and cultures?” and (4) “Do you think people from Islamic countries
and cultures are more tolerant of rape or sexual violence against women than people from
other countries and cultures?”
The prosecutor objected to the questions, and more broadly, to “any questions
relating to the religion of Islam,” stating he did not believe the defendants’ religion
“[could] ever be relevant in a criminal trial.” The prosecutor also objected to the
questionnaire’s proposed preamble that “ ‘the attorneys request that each p[ro]spective
juror answer the following question[s],” indicating he did not endorse these questions, did
not want them asked, and did not want “anything to do with it.” The trial court allowed
10
the questions to remain but ordered the preamble modified to make clear that the
questions were being asked at the request of “ ‘defense counsel.’ ”
In response to the questions, prospective juror L.A. stated that when she hears the
word “Muslim,” the first adjective that comes to mind is “scared.” L.A. also answered
“yes” when asked if she believed people from Islamic countries and cultures treated
women worse than people from other countries and cultures, and if she believed people
from Islamic countries and cultures were more tolerant of rape and sexual violence
against women. During jury selection, L.A. elaborated on her answers as follows:
“When I was young, my neighbors were very close. One of the daughters was married to
a Muslim, and I was probably 10 years old, and I saw him hit her for no reason. And two
of the sisters wanted to run in there, and the third sister said, ‘No. That’s their way.’
And I’ve never questioned anybody. I have no knowledge, so that’s just what I was left
with.” L.A. agreed with defense counsel that this experience was “traumatic” for her and
did not leave a good impression of how Muslim men treated women but maintained that
her experience would not affect her ability to be fair to the defendants in the case.
Counsel for Khamush sought to strike L.A. for cause “based upon bias against
[Khamush] and the defendants based upon their ethnicity.”5 The trial court denied the
challenge, based on the “totality of the circumstances” and on the fact that L.A. had
“clearly stated” she could be fair and impartial. Counsel for Faizi subsequently struck
L.A. with a peremptory challenge. None of the defendants moved to discharge the venire
in light of L.A.’s comments, nor sought a curative admonition from the trial court.
b. Analysis
Bakhshi contends that prospective juror L.A. violated the RJA because she “used
racially discriminatory language” (§ 745, subd. (a)(2)) by (1) indicating in her
5
Before trial, the trial court granted Khamush’s motion to deem any objection
made by one defendant to be an objection made by all defendants.
11
questionnaire that she was “[s]cared” when she heard the word “ ‘Muslim,’ ”
(2) answering “[y]es” when asked if she believed Muslims treated women worse than
non-Muslims, and (3) recounting her experience of witnessing spousal abuse by a
Muslim man. The Attorney General contends that Bakhshi’s claim is forfeited, and even
if not forfeited, lacks merit because the RJA applies only to jurors, not prospective jurors.
Assuming that this RJA claim is not forfeited, we agree with the Attorney General
that the claim lacks merit because the statute by its terms applies only to “racially
discriminatory language” used by “juror[s],” not prospective jurors. (§ 745, subd. (a)(2);
Barrera, supra, 19 Cal.5th at p. 978 [finding no violation of the RJA because the
“statutory list in section 745[, subdivision ](a)(2) includes jurors, but it does not, by its
terms, include prospective jurors”].) “[A] prospective juror who is not seated as a juror
plays no role in the process of ‘seek[ing] or obtain[ing] a criminal conviction or ...
sentence.’ ” (Barrera, at p. 978.) Like the defendant in Barrera, Bakhshi suggests that
L.A.’s comments should be treated as an RJA violation because “other sitting jurors
heard these discriminatory remarks.” To be sure, a trial court must not “permit[] the jury
panel to be exposed to views so biased and prejudiced that … the panel as a whole could
not be fair and impartial.” (People v. Martinez (1991) 228 Cal.App.3d 1456, 1465.) But
no such showing has been made here, and “the RJA contains no provision addressing
expressions of bias made by persons who play no role in the prosecution or adjudication
of a criminal matter, simply because these statements may have been heard by others who
do play a role.” (Barrera, at p. 979.)
2. Police Officer
a. Additional Background
Bakhshi next contends that San Jose Police Officer Ryan Welch violated the RJA
through a 2010 social media comment in a private Facebook group of active and retired
San Jose police officers. In one post characteristic of the group, an officer not involved
in the case purported to advise those “desir[ing] ‘… jihad’ ” on the use of roadside
12
bombs. Responding to the original poster’s implication that jihadists reading the post
would inadvertently harm only themselves, Welch commented: “Does that mean they
don’t get their 40 virgins? Maybe like 20 who just lost their virginity?” During the
preliminary hearing, Welch admitted to posting the comment. Bakhshi moved in limine
to admit the post and Welch’s comment at trial as evidence of Welch’s alleged “racial
and ethnic bias” against the defendants. After the prosecutor indicated he would not call
Welch as a witness, the trial court denied Bakhshi’s motion as moot.
b. Analysis
Bakhshi argues that Welch’s social media comment relating to the “40 virgins”
constitutes racially discriminatory language directed towards “Afghanis, [Bakhshi’s]
ethnic group and Muslims, [Bakhshi’s] religious identity,” in violation of the RJA. We
agree that Welch’s comment is inappropriate and his participation in the group worthy of
censure. But the comment falls outside the scope of the RJA because it was not made
“[d]uring the defendant’s trial, in court and during the proceedings,” which is a required
element of subdivision (a)(2).6 (See § 745, subd. (a)(2) [requiring a court participant to
have used racially discriminatory language “[d]uring the defendant’s trial, in court and
during the proceedings”].) Because Welch’s social media comment was not made under
these circumstances, we cannot find a RJA violation based on it.
3. Prosecutor’s Examination of DNA Analyst
a. Additional Background
Lastly, Bakhshi contends that the trial prosecutor violated the RJA when he asked
DNA analyst Jeremiah Garrido whether the random match probability statistics Garrido
provided would still be accurate if he assumed the defendants were “ethnically Afghani.”
6
Nor does Bakhshi allege a violation of section 745, subdivision (a)(1), which
occurs when “a law enforcement officer involved in the case … exhibited bias or animus
towards the defendant because of the defendant’s race, ethnicity, or national origin.”
13
Before trial, the defendants moved to exclude testimony relating to “random match
[DNA] statistics because they don’t apply to the defendants’ ethnic group.” (Boldface
and some capitalization omitted.) Specifically, the defendants argued that because they
“are Afghani, and other potential contributors of crime scene DNA may also be
Afghani,” any random match database presented by the prosecutor should be deemed
irrelevant “unless the ethnic database used matches the defendants’ ethnicity.” In short,
defendants argued that “only evidence of frequency data for Afghanis should be
presented.”7 As an alternative to exclusion, the defendants requested a pretrial hearing on
whether a random match DNA database should be used when the race of the defendants
is known. According to counsel for Bakhshi, “we should be able to have a full
evidentiary exploration of whether the database that led to these astronomical numbers is
an appropriate database to use when there is reliable extrinsic information that the
[defendants] are Middle Eastern, some of them are relatives, and that they’re generally a
group of Afghani men.” The trial court denied the request for a pretrial hearing but
indicated that counsel was free to explore the issues on cross-examination.
On direct examination, the prosecutor asked Garrido about the process he used to
calculate random match probability statistics, and the following exchange occurred: “Q.
When [you calculated] the statistic for each ethnicity—I believe you said you used
Caucasian, African-American, Hispanic, and Asian… [¶] … [¶] Are the numbers
wildly different? Do they go from 1 in 24 septillion to 1 in 25,000? [¶] A. No. [¶] Q.
Why not? [¶] A. Because despite being different ethnicities, these barcodes or these
markers occur in other ethnicities, too, and are not uncommon in these other ethnicities.
If I have a large statistic in one ethnicity, I wouldn’t expect it to be that much off to
another ethnicity. [¶] … [¶] Q. Okay. …. So if I can give you a hypothetical. Take
7
At the preliminary hearing, counsel for Faizi also asked Garrido several
questions relating to whether and how the defendants’ ethnicity might affect Garrido’s
random match probability analysis.
14
the samples that you used in this case that you just testified about, and assume now that
you know that Hamed Khamush, Qais Faizi, and Ismat Bakhshi are ethnically Afghani,
okay? Not Iraqi, not Persian, not Turkish—ethnically Afghani. Are you still confident in
the statistics that you provided in this case? [¶] A. Yes. [¶] Q. Why? [¶] A. Based
on the fact that no matter what population database that is relied on for the frequency of
these profiles, the conclusion is not going to change as far as inclusion. The number may
vary or the statistical weight may be slightly off, but I wouldn’t expect it to diverge
enormously. [¶] Q. Per the protocols in your crime lab and the guidance that you get
from larger organizations, like the National Research Council, if you knew that they were
Afghani, should you have done anything different in this case? [¶] A. No.” (Italics
added.)
Based on this exchange, Bakhshi moved for mistrial, alleging that the prosecutor
committed misconduct by introducing the defendants’ ethnicity into the case in a manner
that was both “prejudicial” and “gratuitous.”8 Bakhshi argued, “there is a lot of antipathy
towards the Afghani government,” and specifically, the government’s treatment of
women, and people tended to “make the association between the government and [its
citizens].” The “first thing people say” when Afghanistan is mentioned, according to
Bakhshi, is “Taliban. … all of the bad things that happened there,” including the war and
“people who have been hurt” there. The prosecutor countered that it was not he, but
defense, that injected both ethnicity and religion into the trial, first through the jury
questionnaire and then through the in limine motion on the precise issue of whether and
how ethnicity impacted random match probability calculations. Substantively, the
prosecutor disputed that the word “ ‘Afghani’ ” has “such a powerful negative association
8
Though Bakhshi did not reference the RJA in his motion for mistrial, counsel for
Khamush and Faizi indicated they were joining Bakhshi’s motion “due to [their]
uncertainty about the scope of the Racial Justice Act and the litigation around that.”
15
that that single word would compel a mistrial,” and cautioned against “trafficking in very
ugly stereotypes.”
The trial court denied Bakhshi’s motion for mistrial, declined to find misconduct,
but struck the portion of the direct examination that referenced the defendants’ Afghani
descent. In so doing, the court indicated it disagreed with Bakhshi’s “characterizations
about a lot of things, including perceptions about [the Afghanistan people].” While it
was “reasonable to infer” that people have a “negative view” of the “current
[Afghanistan] government,” information the court had before it was “limited at this
point.” It is also “reasonable to infer,” the court continued, that there are “a lot of
positive opinions about Afghani folks … their culture, their friendliness, their welcoming
of others.” Finally, the court noted that it knew “a little bit about the three defendants
and how long they have lived here in the United States,” and understood they had left
Afghanistan some time ago.
b. Analysis
Bakhshi argues the prosecutor violated the RJA by asking Garrido to assume that
the defendants were “ethnically Afghani” during direct examination. Bakhshi contends
that the word “Afghani” constitutes racially discriminatory language under the RJA
because it “evoke[s] a strong negative association with jihad,” “roadside bombs,” and the
government’s poor treatment of women.
To begin, we are hard pressed to accept Bakhshi’s position, without additional
contextual evidence, that the words “ethnically Afghani” appeal to a person’s racial bias,
and Bakhshi has not presented any competent evidence (here or in the trial court) on this
point. And though he now attempts to fill in these gaps with citations to sources outside
the record, his citations are merely news and law review articles about terrorism and the
Taliban’s oppression of women and girls. He supplies no basis to infer that jurors would
assume one who is ethnically Afghani and living in the United States is ideologically
aligned with the Taliban as opposed to seekers of asylum or descendants of refugees.
16
And absent more solid evidentiary support, we cannot conclude that an “objective
observer” would understand “ethnically Afghani” in this context to evoke the stereotypes
Bakhshi attributes to the phrase. (See § 745, subd. (h)(4) [defining as “ ‘racially
discriminatory’ … language that, to an objective observer, explicitly or implicitly appeals
to racial bias”].) In effectuating the RJA’s purpose of “eliminat[ing] racial bias from
California’s criminal justice system” (Stats. 2020, ch. 317, § 2, subd. (i)), we decline to
reinforce the negative stereotypes that the statute is designed to eradicate.
Nor does the context of the prosecutor’s use suggest such an appeal. (People v.
Bankston (2026) 19 Cal.5th 786, 866 [“carefully consider[ing] context when determining
whether particular statements violate the RJA”]; see also Barrera, supra, 19 Cal.5th at
p. 981 [noting that “the RJA’s prohibition on uses of discriminatory language is
necessarily sensitive to context”].) When viewed in context, no objective observer would
have understood the prosecutor’s questioning of Garrido as either “explicitly or implicitly
appeal[ing] to racial bias” against the defendants. (See § 745, subd. (h)(4).) On the
contrary, the prosecutor’s questioning of Garrido can most reasonably be understood as
an effort to ensure the jury’s understanding of Garrido’s random match probability
statistics—specifically, his point that those statistics applied across the board irrespective
of ethnicity. (Cf. Barrera, at pp. 979–980 [co-counsel’s singling out of prospective
jurors for questioning about their “ ‘shared heritage’ ” with defendants did not violate
RJA because “no objective observer would have understood [co-counsel’s] questioning
as either [explicitly] or implicitly appealing to racial bias against his Latina client … or
against Barrera”].)
On this record, we decline to find the prosecutor’s reference to the defendants as
“ethnically Afghani” to constitute racially discriminatory language under the RJA.
B. Claim of Griffin Error in Closing Argument (Bakhshi)
Separate from his RJA claims, Bakhshi argues that the trial prosecutor committed
Griffin error by improperly commenting on his right to not testify. A Griffin error occurs
17
“whenever the prosecutor … comments, either directly or indirectly, upon defendant’s
failure to testify in his defense.” (People v. Medina (1995) 11 Cal.4th 694, 755.) “It is
well established, however, that the rule prohibiting comment on defendant’s silence does
not extend to comments on the state of the evidence, or on the failure of the defense to
introduce material evidence or to call logical witnesses.” (Ibid.; People v. Taylor (2010)
48 Cal.4th 574, 633 (Taylor).)
1. Additional Background
During closing argument, the prosecutor first argued that the testimony of
Bakhshi’s codefendant, Faizi, was not credible in showing that he “actually and
reasonably believed that [Doe] consented to the intercourse.”9 The prosecutor then
turned to Bakhshi and Khamush: “When you get to the other two defendants, then,
you’ve got to be careful here. Under no circumstances are you to take … anything from
them not testifying, right? They exercised their constitutional right, and you’re not
allowed to make any inferences from that. You’ve got to put that aside. But when you
get back there and deliberate and look at the four corners of the evidence, all of the
testimony, all of the exhibits, is there any evidence of what Mr. Khamush and Mr.
Bakhshi actually thought that night? There is none, and this is—and there has to be
evidence of actual and reasonable belief, and there is no evidence of anything they
believed. So this instruction [on consent] doesn’t even apply to them.”
The prosecutor reiterated this argument in rebuttal, again emphasizing Khamush
and Bakhshi’s right to not testify but urging the jurors to “search the four corners of the
evidence, look at every exhibit. Find me some actual evidence of Mr. Khamush’s
mindset that he actually thought that she consented to sex. Find me some actual evidence
that Mr. Bakhshi thought that she actually consented. It’s not in there. This [instruction]
9
CALCRIM No. 1000 provides that a defendant’s actual and reasonable belief
that the victim consented to the intercourse is a defense to rape in concert (count 1).
18
certainly doesn’t apply to them. There has to be actual evidence. Mr. Faizi provided you
actual evidence.”
Counsel for Khamush did not object to the initial argument but objected during
rebuttal. Bakhshi joined in the objection. The trial court found no Griffin error.
2. Analysis
Preliminarily, Bakhshi interprets the prosecutor’s reminding the jury of Bakhshi’s
Fifth Amendment right as “a classic example of the rhetorical device of paralipsis,”
which Bakhshi describes as “emphasiz[ing] something while claiming to not say
anything.” To be sure, the rhetorical purpose Bakhshi would have us impute is among
the alternative interpretations of the prosecutor’s reference to Bakhshi’s exercise of his
right not to testify. But without further support in the record, we lack a basis here to
conclude that the prosecutor did more than “merely paraphrase[] the language of
[CALCRIM No. 355], which had already been read to the jury.” (See People v. Bradley
(2012) 208 Cal.App.4th 64, 86.) The prosecutor also expressly told the jury that it was
“not allowed to make any inferences” from Bakhshi’s exercise of this constitutional right.
(See ibid. [finding no Griffin error under similar circumstances].) And “[e]ven if the
prosecutor’s reference[] to [Bakhshi’s] constitutional right not to testify can be regarded
as error, ‘ “indirect, brief and mild references to a defendant’s failure to testify, without
any suggestion that an inference of guilt be drawn therefrom, are uniformly held to
constitute harmless error” ’ ” under Chapman v. California (1967) 386 U.S. 18
(Chapman). (Bradley, at p. 86.) In so holding, we do not suggest that a prosecutor’s
undue emphasis of a defendant’s exercise of his Fifth Amendment right can never violate
Griffin, supra, 380 U.S. 609, only that we lack a basis to draw the most damaging
inference from the prosecutor’s argument over the reasonable alternative.
Next, while acknowledging that Griffin does not prohibit the prosecution “from
commenting on the state of the evidence … or on the defense’s failure to introduce
material evidence or to call witnesses other than the defendant” (Taylor, supra,
19
48 Cal.4th at p. 633), Bakhshi contends that the prosecutor violated Griffin because only
Bakhshi could have provided evidence of whether he “actually and reasonably believed”
that Doe consented to the intercourse charged in count 1. Only Bakhshi could provide
direct evidence of what he actually and reasonably believed, but mental state can also be
inferred from circumstantial evidence. That no such evidence was introduced—no
evidence or testimony from which a person in Bakhshi’s position could have inferred, if
mistakenly, that Doe had communicated a willingness to have sex with multiple men
including Bakhshi—does not transform the prosecutor’s comment on the evidence into a
comment on Bakhshi’s silence.
Finally, Bakhshi contends that the prosecutor violated Griffin because he
“explicitly contrasted testimony by one defendant as to a required element of the crime to
the absence of such proof by another.” The prosecutor argued in rebuttal that there was
no evidence that “Bakhshi thought that [Doe] actually consented,” whereas “Faizi
provided you actual evidence.” (Italics added.) It is true that Faizi’s “actual evidence”
was his own testimony. But we do not believe there is a “ ‘reasonable likelihood that a
jury would construe or apply the prosecution’s statement to mean that [Bakhshi] refused
to testify in front of the jury.’ ” (People v. Denard (2015) 242 Cal.App.4th 1012, 1021.)
Rather, it is clear from the context of the prosecutor’s rebuttal that in making this
comparison, the prosecutor was arguing that because Faizi presented “actual evidence”
on consent, the pertinent portion of CALCRIM No. 1000 should apply only to him and
not to the others.
On this record, Bakhshi has not shown that the prosecutor’s remarks amounted to
prejudicial Griffin error.
C. Sua Sponte Duty to Instruct on Lesser Included Offense (Faizi)
Next, we consider Faizi’s claim of instructional error. Relying on People v.
Mirabal (2025) 115 Cal.App.5th 708 (Mirabal), Faizi argues that the trial court erred by
failing to instruct the jury on simple battery, which he contends is a lesser included
20
offense of rape of an intoxicated person (count 2). Faizi’s position is that he was entitled
to instruction on simple battery because he “reasonably believed that [Doe] was capable
of consenting to sexual intercourse.” (CALCRIM No. 1002.)10
“[T]he sua sponte duty to instruct on a lesser included offense arises if there is
substantial evidence the defendant is guilty of the lesser offense, but not the charged
offense.” (People v. Breverman (1998) 19 Cal.4th 142, 177.) “[T]he existence of ‘any
evidence, no matter how weak,’ will not justify instructions on a lesser included offense”
(Id. at p. 162), and “[s]peculative, minimal, or insubstantial evidence” will not give rise
to the trial court’s sua sponte duty to instruct (People v. Simon (2016) 1 Cal.5th 98, 132;
People v. Ibarra (2024) 106 Cal.App.5th 1070, 1081 (Ibarra)). In deciding whether there
is substantial evidence of a lesser included offense, we do not weigh credibility but
consider the evidence in the light most favorable to the defendant. (Mirabal, supra,
115 Cal.App.5th at p. 729, fn. 22.)
We agree with Mirabal that battery can be a lesser included offense of rape of an
intoxicated person. (Mirabal, supra, 115 Cal.App.5th at p. 712.) But here the trial court
had no duty to instruct on battery because the record lacks “substantial evidence the
defendant is guilty of the lesser offense, but not the charged offense.” (Breverman,
supra, 19 Cal.4th at p. 177.) We appreciate that Faizi testified at one point that Doe
appeared “perfectly fine” to him and did not seem “drunk at all.” But even considered in
the light most favorable to Faizi, this statement of subjective belief lends no support for
the reasonableness of that stated belief. Unlike the defendant in Mirabal, who had
witnessed the victim consume only a single drink in four hours (Mirabal, at p. 730), Faizi
10
Like the defendant in Mirabal, Faizi “testified he did not know Doe was
incapable of consenting to sexual intercourse.” (Mirabal, supra, 115 Cal.App.5th at
p. 729.) In evaluating whether he was entitled to the trial court’s sua sponte instruction
on battery, we assume the truth of Faizi’s claim that he was subjectively ignorant that
Doe was too intoxicated to consent to sex and examine only the reasonableness of that
belief. (See ibid.)
21
helped Khamush ply Doe with alcohol throughout the evening; Faizi admitted seeing Doe
consume three drinks within 30 to 40 minutes at the first bar and at least one additional
shot at the brewery; Faizi knew that Doe had vomited “twice in 30 minutes”—first “in
front of the [security] guard” at the brewery, and the second time in Faizi’s car while he
was taking her to the hotel; Faizi understood that Doe was “[t]oo drunk to drive her car”
and even had trouble walking by the time they got to the hotel. Nor was there evidence
that Doe could carry on a coherent conversation with Faizi or that she engaged in the type
of physical foreplay that might reasonably have been construed as affirmative consent. In
Mirabal, conversely, the alleged victim had engaged in coherent conversation with the
defendant and others, appeared to enjoy the defendant’s company, and upon arriving at
her home, permitted him to rub her feet and did not resist when he initiated sex. (Id. at
p. 730.)
Without making credibility determinations, we conclude that, unlike the evidence
presented in Mirabal, Faizi’s testimony is too “minimal” and “insubstantial” to support
the inference that he reasonably believed that Doe had the capacity to consent to sex,
even if he genuinely and subjectively believed she had such capacity. (Ibarra, supra,
106 Cal.App.5th at p. 1081.)
Faizi also highlights the testimony of Marcela Velasco, the prosecution’s expert on
the effects of alcohol on the human body. Velasco testified that Doe’s blood alcohol
content (BAC) was 0.079 at the time of the blood draw and extrapolated from there that it
was between 0.09 and 0.16 during the incident (between 1:45 to 3:00 a.m.). From that,
Faizi argues that a BAC level in this range (or even much higher) “does not automatically
mean an adult woman cannot legally consent to having sex.” Faizi further contends that
Doe’s conduct throughout the evening contributed to the reasonableness of his belief that
she had the capacity to consent to sex, because she (1) “willingly” met the men at a bar,
(2) “willingly” consumed the drinks, (3) “willing[ly]” went with the two men to a motel,
(4) “clearly remembered having sex with [Khamush and Faizi],” (5) never lost
22
consciousness before engaging in sex, and (6) “was sober enough to message her friends
less than an hour after the sexual activity commenced.”
To the extent Faizi suggests that Doe’s initial willingness to meet and have drinks
with him and Khamush translated into durable, even irrevocable consent to engage in
intercourse hours later—and even after Doe had become (in her own words) “extremely
intoxicated” and “ill”—we reject that premise as unsupported in law or common sense.11
And his remaining assertions, if believed, would constitute not only substantial evidence
that Faizi reasonably believed that Doe had the capacity to consent to sex, but that she in
fact had such capacity and did consent, which would in turn leave Faizi not guilty of both
the lesser and greater offenses. And the “trial court need not … instruct on lesser
included offenses when the evidence shows that the defendant is either guilty of the crime
charged or not guilty of any crime.” (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
D. Rape in Concert Jury Instruction (Khamush)
We next consider Khamush’s claim of instructional error—specifically, his
contention that the trial court prejudicially erred in instructing the jury on the offense of
rape in concert (count 1). We review a claim of instructional error de novo. (People v.
Cole (2004) 33 Cal.4th 1158, 1210.) We independently review the wording of a jury
instruction and assess whether the instruction accurately states the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.) “When making this determination, we consider the
instructions taken as a whole.” (People v. Campbell (2020) 51 Cal.App.5th 463, 493
(Campbell).)
A defendant commits rape in concert when “the defendant, voluntarily acting in
concert with another person, by force or violence and against the will of the victim,
11
We likewise reject Faizi’s premise that Doe consented to having a sexual
“threesome night” simply by being on Tinder and agreeing Faizi could join her meeting
with Khamush that evening. Assuming the sincerity of Faizi’s claimed belief, nothing in
this record would make that belief a reasonable one.
23
commit[s] an act described in Section 261.” (§ 264.1, subd. (a).) The trial court, using
CALCRIM No. 1001, instructed the jury that to prove the defendants committed rape in
concert, the prosecution must prove either: (1) “a defendant personally committed
forcible rape and voluntarily acted with someone else who aided and abetted its
commission”; or (2) “a defendant voluntarily aided and abetted someone else who
personally committed forcible rape.” “To decide whether a defendant or other unknown
males committed forcible rape,” the court directed the jury to modified CALCRIM
No. 1000.12 Modified CALCRIM No. 1000, in turn, specifies that rape occurs when a
“defendant accomplished the intercourse by force, violence, duress, or fear of immediate
and unlawful bodily injury to the woman,” and that “[i]ntercourse is accomplished by
force if a person uses enough physical force to overcome the woman’s will.”13 Khamush
now argues that CALCRIM Nos. 1000 and 1001, taken together, lowered the
prosecution’s burden of proof by permitting the jury to find Khamush guilty of rape in
concert without any evidence of force or violence.
The challenged instructions are correct statements of the law. (See Campbell,
supra, 51 Cal.App.5th at p. 495 [forfeiture principles do not apply if instruction is an
incorrect statement of law]): CALCRIM No. 1001, as given, accurately instructed the
jury that to convict Khamush of rape in concert, it had to find he either “personally
committed” (while acting in concert with another), or “voluntarily aided and abetted
12
CALCRIM No. 1001, as written, does not use the word “forcible” to modify
rape in this last paragraph. During the jury instruction conference, the word “forcible”
was added at defense’s request.
13
The defense asked that element 4 of CALCRIM No. 1000 be limited to say,
“defendant accomplished the intercourse by force,” as opposed to “force, violence,
duress, menace, or of fear of immediate or unlawful bodily injury to the woman or
someone else,” on grounds that these other theories are “not supported by the evidence at
trial.” The trial court modified the element to omit several theories but left intact the
phrase “force, violence, duress, or fear of immediate and unlawful bodily injury” over
defense’s objection.
24
someone else who personally committed,” forcible rape. The jury would understand
from this instruction that it had to find rape by force. In addition, modified CALCRIM
No. 1000 further clarified both the terms “force” and “rape.” In People v. Dearborne
(2019) 34 Cal.App.5th 250, 262 (Dearborne) and People v. Middleton (2023)
91 Cal.App.5th 749, 772 (Middleton), courts confronted with similar instructions
discerned no instructional error, explaining: “[T]he word ‘force’ does not have a
technical legal meaning in this context, and is instead used in its ordinary sense.
Accordingly, the court was only required to tell the jury that the rape had to be by force.
It did so by telling the jury the rape had to be ‘forcible.’ ” (Italics added.)
To the extent Khamush contends that the instructions are “unclear or confusing”
because CALCRIM No. 1001’s reference to CALCRIM No. 1000 incorporated the latter
instruction’s nonforcible theories of rape, he has forfeited that argument by failing to
raise it in the trial court. (See Dearborne, supra, 34 Cal.App.5th at p. 262.) “ ‘A trial
court has no sua sponte duty to revise or improve upon an accurate statement of law
without a request from counsel [citation], and failure to request clarification of an
otherwise correct instruction forfeits the claim of error for purposes of appeal.’ ” (Ibid.;
Middleton, supra, 91 Cal.App.5th at p. 772 [accord].)
Khamush argues his claim is not forfeited because trial counsel “made a timely
objection, which was overruled.” Counsel did object to the inclusion in CALCRIM
No. 1000 of theories of duress or fear, as well as violence, but only on grounds that these
theories were “not supported by the evidence at the trial.” She did not object to
CALCRIM No. 1001’s incorporation by reference of CALCRIM No. 1000, nor did she
suggest that the inclusion of duress or fear in CALCRIM No. 1000 impermissibly
lowered the prosecution’s burden of proof under section 264.1 by permitting the jury to
find rape in concert by duress or fear without force or violence. Trial counsel’s objection
thus neither “ ‘fairly inform[ed]’ ” the trial court of the claim Khamush now raises nor
permitted the court the opportunity to make a “ ‘fully informed’ ” ruling on the issue—
25
including providing revisions or clarifications to CALCRIM Nos. 1000 and 1001 as
necessary. (People v. Guenther (2024) 104 Cal.App.5th 483, 525; cf. People v.
Covarrubias (2016) 1 Cal.5th 838, 893–894 (Covarrubias) [in the prosecutorial
misconduct context, holding defendant’s claim forfeited because “he did not object on the
specific ground of prosecutorial misconduct that he now asserts on appeal” and the trial
court had “no opportunity to rule on the issue”].)
In any event, any instructional error would have been harmless beyond a
reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Khamush argues that
CALCRIM Nos. 1000 and 1001, as given, permit the jury to convict him of rape in
concert even in the absence of any force or violence, based solely on a theory of duress or
fear. We disagree. Even assuming that the instructions were erroneous, the jury would
still have found Khamush guilty of rape in concert if it had been given only the “correct”
instruction, which (according to Khamush) would have limited the definition of forcible
rape to only rape by force or violence.
There is nothing in the “common usage definitions of the term ‘force,’ or in the
express statutory language of section 261 itself, that suggests force in a forcible rape
prosecution actually means force ‘substantially different from or substantially greater
than’ the physical force normally inherent in an act of consensual sexual intercourse.”
(People v. Griffin (2004) 33 Cal.4th 1015, 1023.) Rather, “ ‘the prosecution need only
show the defendant used physical force of a degree sufficient to support a finding that the
act of sexual intercourse was against the will of the [victim].’ ” (Id. at pp. 1023–1024.)
Pinning a victim’s arms to the floor during intercourse constitutes sufficient force to
sustain a forcible rape conviction (Id. at p. 1029), as does the “positioning of [the
victim’s] body in accomplishing the act” of intercourse (People v. Young (1987)
190 Cal.App.3d 248, 258 (Young)).
The evidence that Faizi and Bakhshi used force to rape Doe was strong. Doe
testified that when Faizi got on top of her, she tried “getting into the fetal position to try
26
to protect [her]self” but Faizi moved her around so that her chest was against the bed
before penetrating her. When Bakhshi raped her, she tried to physically resist but could
not do so, and a reasonable inference can be drawn that this was because Bakhshi held
her legs apart. Doe had multiple “circular bruises” on both legs and suffered additional
“significant” and “substantial” trauma around her genitalia including “denuding” of the
outermost layer of skin of her labia majora, all consistent with the use of force.
The evidence that Khamush voluntarily aided and abetted Faizi and Bakhshi in
their forcible rape of Doe was likewise strong.14 Khamush persuaded Doe to meet with
him—ostensibly for a one-on-one birthday date—only to tell her that he was bringing
Faizi; with Faizi, Khamush plied Doe with copious quantities of alcohol impairing not
only her capacity to consent but her ability to effectively resist; he worked with Faizi to
transport Doe to the hotel, and gave others including Faizi and Bakhshi access to the
hotel room and to Doe. Indeed, the jury found during the bifurcated trial that Khamush
“induced others to participate in the commission of [rape in concert] or occupied a
position of leadership or dominance of other participants in its commission.”
An alternative-theory error is harmless despite the exacting Chapman standard
“where it would be impossible, based on the evidence, for a jury to make the findings
reflected in its verdict without also making the findings that would support a valid theory
of liability.” (In re Lopez (2023) 14 Cal.5th 562, 568.) Such is the case here.
14
To find a defendant guilty of rape in concert under an aiding and abetting
theory, the prosecution must show: “(1) a perpetrator committed a rape by force or
violence and against the will of the victim; (2) the defendant knew the perpetrator
intended to commit the rape; (3) before or during the commission of the rape, the
defendant intended to aid and abet the perpetrator in committing the crime; and (4) the
defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the
rape.” (Middleton, supra, 91 Cal.App.5th at p. 775.)
27
E. Sufficiency of the Evidence
Finally, each defendant contends there is insufficient evidence to support his
convictions.15 When considering a challenge to the sufficiency of the evidence, “ ‘we
review the entire record in the light most favorable to the judgment to determine whether
it contains substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt.’ ” (Covarrubias, supra, 1 Cal.5th at p. 890.) “ ‘Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from that
evidence.’ ” (People v. Grant (2020) 57 Cal.App.5th 323, 330.) And we “ ‘presume in
support of the judgment the existence of every fact the trier of fact reasonably could infer
….’ ” (Covarrubias, at p. 890.) “ ‘If the circumstances reasonably justify the trier of
fact’s findings, reversal of the judgment is not warranted simply because the
circumstances might also reasonably be reconciled with a contrary finding. [Citation] A
reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ”
(Ibid.)
1. Faizi’s Challenges
Faizi contends there is insufficient evidence that he committed either rape of an
intoxicated person or rape in concert.
For count 2, rape of an intoxicated person, Faizi contends there is insufficient
evidence that he was unreasonable in believing Doe had the capacity to consent to sex.
Not so: Faizi was present as Doe progressed from “a little intoxicated” and “stumbling a
bit” when she and the defendants left the Cardiff Lounge, to feeling “extremely
intoxicated” and “ill” by the time they left the brewery. Faizi admitted knowing she had
vomited on a table at the brewery and that the brewery security guard kicked them out
15
Khamush challenges the sufficiency of the evidence only as to count 1 (rape in
concert).
28
accordingly. Faizi acknowledged that Doe was “[t]oo drunk to drive” and that he saw
Doe vomit a second time while in his car. Faizi also admitted that Doe had trouble
walking by the time they arrived at the hotel—trouble she had not exhibited when
walking earlier that evening when sober. And Velasco opined that the alcohol in Doe’s
bloodstream at the time of the incident could have been as high as 0.16 percent—more
than eight times the level at which “problems with processing information and judgment”
begin.
As to count 1, Faizi disputes the sufficiency of the evidence of rape in concert
because he (1) did not personally used force or violence against Doe, and (2) was not
present during Khamush’s forcible rape. We have already addressed the evidence of
Faizi’s use of force and its legal sufficiency in rejecting Khamush’s claim that he suffered
Chapman prejudice from the omission of a battery instruction as a lesser included
offense: Faizi overcame Doe’s defensive fetal position by “moving [her] around” until
she was prone on the bed, then had intercourse without her consent, contributing to Doe’s
“significant [genital] trauma.” A fact finder could reasonably infer from this evidence
both that Faizi used force to position Doe’s body to effect the rape (Young, supra,
190 Cal.App.3d at p. 258) and that the penetration injury she suffered reflected enough
physical force “ ‘to support a finding that the act of sexual intercourse was against
[Doe’s] will’ ” (People v. Griffin, supra, 33 Cal.4th at p. 1023). Viewed in the light most
favorable to the verdict, there is substantial evidence that Faizi personally committed
forcible rape against Doe.
Faizi next argues there is insufficient evidence that he was present during
Khamush’s forcible rape. But because substantial evidence supports the theory that Faizi
personally committed forcible rape, the prosecution did not need to also show that he was
present during forcible rape by another—only that he “voluntarily acted with someone
else who aided and abetted” Faizi’s own act. As we have explained, there is substantial
evidence that Faizi voluntarily acted with Khamush, who aided and abetted Faizi’s
29
commission of the forcible rape by (1) bringing Faizi on what was supposed to be an
one-on-one date, (2) along with Faizi, plying Doe with alcohol until she became
“extremely intoxicated” and “ill” to the point of throwing up on a table and on herself;
(3) coordinating with Faizi to transport Doe to a hotel, and (4) providing Faizi (and
others) with access to the room knowing the men intended to rape Doe.
2. Bakhshi’s Challenges
Bakhshi contends his conviction for rape in concert must be reversed because
there is no evidence that he was “present or aware of any force used” by the other two
defendants, as he did not arrive at the hotel until later. This argument, however, is
premised on this court accepting Bakhshi’s position that he was not one of the men in the
room while Faizi was raping Doe. But viewed in the light most favorable to the verdict,
there is substantial evidence to support a reasonable inference both that Bakhshi was
present in the room when Faizi forcibly raped Doe, and that he committed forcible rape
himself.
Doe recalled that the third man who raped her had been masturbating nearby while
Faizi raped her. Her description of this third man’s shirt was consistent with what
surveillance video showed Bakhshi to be wearing, and Bakhshi’s sperm cell DNA were
found in swabs taken from Doe’s chest, right breast, upper abdomen, and perianal area.
And while Bakhshi maintains (as he did at trial) that he could not have been the third man
to rape Doe because Doe had described the assailant as having “long, thick hair, which
[Bakhshi] did not have” but another man did, on a substantial evidence review, we do not
reweigh evidence or reevaluate a witness’s credibility. (See People v. Ochoa (1993)
6 Cal.4th 1199, 1206; People v. Gerson (2022) 80 Cal.App.5th 1067, 1079.)
3. Khamush’s Challenges
Khamush contends that insufficient evidence supports his conviction for rape in
concert because the first time he and Doe engaged in intercourse, they were “alone in the
hotel room, and [Khamush] was not acting in concert with any other individual.”
30
Accepting Khamush’s argument as to the first act of intercourse—that he was
neither acting in concert nor using force16—substantial evidence nevertheless supports his
conviction for rape in concert based on his second act of intercourse with Doe, under an
aiding and abetting theory. As to that second act of intercourse, Khamush concedes that
it “occurred in the presence of other men,” arguing only that “[s]ubstantial evidence does
not establish that any act of sexual intercourse accomplished by any of the men, who
were acting in concert while sequentially having sex with Doe, was committed by force
or violence.” As we have explained, there is substantial evidence both that Faizi and
Bakhshi forcibly raped Doe, and that Khamush “voluntarily aided and abetted” in these
acts—again, by setting up the date, working with Faizi to incapacitate Doe with alcohol,
transporting Doe to the hotel, and making her available for the other men to join in
exploiting her incapacity and violating both her body and her autonomy. And because
under an aiding and abetting theory, there is “no requirement” that Khamush “participate
in or be personally present during the act for the purposes of acting in concert,”
substantial evidence supports Khamush’s conviction for this offense—even assuming that
he did not personally use force when raping Doe himself. (People v. Lopez (1981)
116 Cal.App.3d 882, 888.)
In short, there is substantial evidence that Bakhshi and Faizi forcibly raped Doe,
and Khamush aided and abetted them in their commission of these acts, in violation of
section 264.1.
III. DISPOSITION
The judgment is affirmed.
16
It is unclear whether Khamush concedes that there is substantial evidence of
force in connection with the first act of intercourse. We will assume here that with
respect to the first act of intercourse, Khamush neither acted in concert nor with force.
31
LIE, Acting P. J.
WE CONCUR:
WILSON, J.
ADAMS, J.
People v. Faizi / People v. Khamush / People v. Bakhshi
H051803, H051925, H051928