Unreported / Non-Citable
Background
A Santa Clara County jury convicted Ismat Bakhshi, Qais Faizi, and Hamed Khamush of rape in concert, and convicted Faizi and Khamush of rape of an intoxicated person, all arising from one 2017 incident involving a single victim. The jury did not reach a verdict on the great-bodily-injury allegation against Faizi and Khamush, which the trial court dismissed, and did not reach the intoxicated-person charge against Bakhshi, which the prosecution later dismissed; it found not true that Bakhshi personally inflicted great bodily injury. The court sentenced Faizi and Khamush to the upper term of nine years for count 1 plus a six-year middle term for count 2 stayed under Penal Code section 654, and sentenced Bakhshi to the middle term of seven years for count 1.
The prosecution's case rested on the victim's testimony, medical and DNA evidence, hotel surveillance footage, and evidence of the defendants' movements. Faizi testified the sex was consensual and that he did not believe the victim was too intoxicated to consent. In a bifurcated proceeding, the jury found aggravating factors of great violence or callousness and victim vulnerability as to all three defendants, and found as to Khamush alone that he induced others to participate or occupied a leadership or dominant role.
All three defendants appealed. Bakhshi raised claims under California's Racial Justice Act of 2020 (RJA) and alleged Griffin error in closing argument; Faizi argued the court should have instructed on battery as a lesser included offense; Khamush challenged the rape-in-concert instructions; and each disputed the sufficiency of the evidence. The Court of Appeal issued its opinion on September 11, 2026, and on October 7, 2026 modified that opinion while denying Bakhshi's rehearing petition, with no change in the judgment.
The Court’s Holding
The court rejected Bakhshi's RJA claims. The provision covering racially discriminatory language during trial applies to seated jurors, not prospective jurors, so prospective juror L.A.'s questionnaire answers were not covered. Officer Welch's 2010 social-media comment fell outside the statute because it was not made during the defendant's trial, in court, and during the proceedings. And the prosecutor's question asking a DNA analyst to assume the defendants were 'ethnically Afghani' was not, in context, an appeal to racial bias; it addressed whether random-match statistics varied by ethnicity.
The court found no prejudicial Griffin error. Although the prosecutor referenced the defendants' right not to testify, he also told jurors they could draw no inference from it, and the remaining argument commented on the absence of evidence of an actual and reasonable belief in consent — a mental state provable circumstantially — rather than on silence. Contrasting Faizi's testimony with the lack of other consent evidence did not create a reasonable likelihood that jurors would treat the argument as penalizing Bakhshi for not testifying.
On Faizi's claim, the court agreed that battery can be a lesser included offense of rape of an intoxicated person but found no substantial evidence that Faizi was guilty only of battery: his subjective belief was unreasonable given his admissions that the victim drank heavily, vomited, was too drunk to drive, and had trouble walking. The court upheld the rape-in-concert instructions as accurate statements of law, found Khamush's confusion argument forfeited, and deemed any error harmless beyond a reasonable doubt. Reviewing the record favorably to the verdicts, it found substantial evidence supporting each conviction and affirmed the judgment.
Key Takeaways
- The RJA's discriminatory-language provision covers seated jurors, not prospective jurors, even if other venire members heard the remarks.
- A police officer's years-old social-media comment was outside the RJA because it was not made during the trial, in court, and during the proceedings.
- The prosecutor's 'ethnically Afghani' question was evaluated in context and did not appeal to racial bias on this record.
- No battery instruction was required absent substantial evidence of a reasonable belief in the victim's capacity to consent alongside guilt of only the lesser offense.
- The October 7, 2026 order modified the opinion's reasoning and denied Bakhshi's rehearing petition but expressly left the judgment unchanged.
Why It Matters
The decision illustrates how the RJA's limits turn on statutory text, the speaker's role, timing, and context: the court could condemn the officer's comment as inappropriate while holding it did not satisfy the statutory elements. It also shows appellate separation of comments on the state of the evidence from prohibited comment on a defendant's silence.
The opinion clarifies that lesser-included-offense instructions require substantial evidence of guilt of the lesser but not the greater offense, and its sufficiency analysis details the force and aiding-and-abetting evidence supporting the rape-in-concert convictions. The later modification refined the RJA reasoning without altering any conviction or sentence.