People v. Palacio

BARNARD, P. J.

The defendants were jointly charged with a violation of section 265 of the Penal Code in that on February 27, 1948, they had unlawfully taken the complaining witness against her will and had by force, menace and duress compelled her to be defiled. In a second count they were charged, under subdivision 4 of section 261, with raping the same girl.

About 10 p. m. on February 28, 1948, the complaining witness, with her boy friend, was in an automobile which was

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parked on a country road about 3 miles from Tulare. The car was a convertible with a canvas top. The five defendants, in another car, passed the parked car and then turned around and returned. The defendants then attempted to get the complaining witness out of the convertible, which was locked from the inside. When the occupants of the convertible refused to unlock the door, the defendants succeeded in cutting a hole in the canvas top which enabled one of them to reach in and unlock the door. One of the defendants then entered the convertible, and put one arm around the complaining witness while holding his knife at her throat. She was pulled from that car and taken over and placed in the rear seat of the defendants’ car with three of the defendants while the two other defendants occupied the front seat. She was then blindfolded and that car was driven a distance of about 4 miles, at which point each of the five defendants accomplished an act of sexual intercourse with her. On the way back to Tulare they were met by two officers.

Each of the defendants separately admitted the facts to an investigating officer. Each entered a plea of not guilty and later withdrew it and entered a plea of guilty. In pronouncing judgment the court sentenced each defendant to San Quentin for the term prescribed by law on each count, the respective sentences to run consecutively. A motion for an order directing that these sentences be made to run concurrently, rather than consecutively, was made and denied. The defendants have appealed “from the sentence imposed on the second count of the information, and from the order of the court that the sentence run consecutively.”

The appellants request that the judgment be affirmed as to the first count, and that as to the second count it “be set aside and dismissed, or in any event that said sentence run concurrently and not consecutively.”