What is the test for reversal of a finding of guilty on one count of sexual assault?

California, United States of America


The following excerpt is from People v. Polowicz, 5 Cal.App.4th 1082, 7 Cal.Rptr.2d 640 (Cal. App. 1992):

"[A] verdict of conviction on one count which appears inconsistent with a verdict of acquittal on another count '... shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.' " (People v. Hamilton (1978) 80 Cal.App.3d 124, 130, 145 Cal.Rptr. 429, citing In re Johnston (1935) 3 Cal.2d 32, 36, 43 P.2d 541.)

"However, there is a limited judicial exception to this rule where all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty. [Citations.]" (People v. Hamilton, supra, 80 Cal.App.3d at p. 130, 145 Cal.Rptr. 429, (italics added.)

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