People v. Calimee

[339]

Opinion

AULT, J.

Defendant Robert Lee Calimee was convicted by a jury of sodomy with a special finding that he acted in concert with and aided and abetted Russell Sheen Mathews in committing sodomy on the victim with force and violence and against his will (Pen. Code, §§ 286 & 286.1). He was committed to the California Youth Authority for the term prescribed by law which, under Penal Code section 286.1, is from five years to life. Without the special finding, the term of confinement would have been not less than one year (Pen. Code, § 286).

Calimee appeals, contending the court prejudicially erred in explaining to the jury the meaning of the term “acting in concert” as used in Penal Code section 286.1. The meaning of the term has not been defined in California, and the case is one of first impression.

Facts

Only a brief recital of the sordid facts is necessary to our discussion of the issue. Calimee was convicted as an aider and abettor. During January and February 1974 he was one of seven men confined in a small cell in the San Diego County jail. The others were Mathews, Holloman, Riley, Taylor, Metcalf and K. (the victim). They were so crowded that Mathews, K. and another inmate had to sleep on a mattress on the floor.

On January 31, using jailhouse vernacular and in the presence of everyone in the cell, Mathews accused K. of being a homosexual. K. denied he was a homosexual. Mathews threatened to beat up K. and commit sodomy upon him if a note he sent out to another cell tank came back confirming that K. was a homosexual. That night, about an hour after “lights out,” Mathews, who was a big man, told K. “ . . . looks like either you’re going to have to give it up or else you’re going to get the ... knocked out of you first.” He then talked to others in the cell to get them to back him up. He ordered Riley, who was afraid of him, to start a fight with K. When K. seemed to get the better of the fight, Mathews and others in the cell joined in the effort to subdue him. K. was severely beaten by Mathews and the others. He sustained a broken rib and bruises and contusions on his face, head and body. There was testimony that Calimee joined in the effort to subdue K., striking him in the head and face with his fists.