People v. Barnett

Opinion

AULT, J.

Simmie Edward Barnett appeals from a judgment entered after a jury trial convicting him of rape (Pen. Code § 261, subd. 3), oral copulation accompanied by force (Pen. Code § 288a), acting in concert to commit an act of oral copulation (Pen. Code § 288b), and assault (Pen. Code § 240).

[1049]

During April 1974 Dorine D., her husband and their baby shared with . and rented a house in Oceanside from Marine Staff Sergeant Asbury.

At 9 a.m. April 9, 1974 Dorine answered a knock on her front door. The caller was Barnett whom she had met as a friend of Asbury the day before. Barnett asked if Asbury was home, explaining Asbury had asked to meet him at the house. Dorine agreed to let Barnett in to wait for Asbury. The only other person in the house was Dorine’s young child.

A few minutes later Barnett drew a handgun, pointed it at Dorine, ordered her into a rear bedroom, and told her to undress. After she had removed most of her clothes, Barnett ordered Dorine to lie on the bed. Barnett then had intercourse with her.

Just after the rape, Dorine saw a second black male peek into the bedroom. Barnett told her not to look at him. The second man entered the bedroom and put a diaper over Dorine’s eyes, Barnett left the room and the second man forced Dorine to commit an act of oral copulation upon him.

When the second man got off Dorine, she cried for her child, whom Barnett brought to her. Dorine was then put in a closet and told not to leave.

Sentence was pronounced under Penal Code sections 261, subdivision 3, 288a, 288b and 240, the sentences to be served concurrently.

I

Barnett contends Penal Code section 288b does not set forth a separately chargeable offense from that of section 288a. Thus, he argues, he should not have been convicted of two criminal offenses, and that the trial court erred when it pronounced and imposed concurrent sentences under both sections 288a and 288b.

The contention is technically correct. Only one act of oral copulation took place. It was accomplished by defendant’s companion with defendant’s aid and assistance, against the will of the victim, and compelled by force and threat of great bodily harm. The fact Barnett was not in the room the very moment the act took place does not dispel the conclusion he acted in concert with his companion to accomplish it, nor does it dissipate the initial force and threats he used. “Voluntarily acting