People v. Marquez CA4/3

FACTS

I. Procedural Facts

In the initial information, the prosecution charged Marquez with rape of an unconscious person (§ 261, subd. (a)(4); count 1) and forcible rape (§ 261, subd. (a)(2); count 2). Prior to trial, the prosecution amended the information by substituting a charge of rape of an intoxicated person (§ 261, subd. (a)(3)) for the forcible rape charge. The prosecution did not give a reason for the substitution, and the defense did not object. Marquez proceeded to trial on the two charges. The jury was unable to reach a unanimous verdict, and the court declared a mistrial. Prior to the retrial, the prosecution made a plea offer to Marquez, which he rejected. The prosecution then filed a second amended information, restoring the forcible

1 All further statutory references are to the Penal Code, unless otherwise indicated.

2 rape charge; this time as count 3. The prosecutor explained she was reinstating the charge based on conversations she had with the first jury. The defense objected. The trial court inquired whether the “change in the charging” would “affect the defense preparation for trial or strategy?” When defense counsel responded it would not, the court…