People v. Jones

[968]

Opinion

McCARTY, J.

*

and appellant Kevin Sterling Jones was found guilty in a court trial of two counts of first degree burglary (Pen. Code, § 459)1, rape (§ 261, subd. (2)), rape in concert with another (§§ 261, subd. (2), 264.1), rape with a foreign object (§ 289, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), and residential robbery (§211, former § 213.5). Most of the convictions also included special findings that defendant was armed and used a deadly weapon during the commission of the offense. He was sentenced to a total of 25 years and 8 months in prison. He appeals, challenging only the sufficiency of the evidence to support the “in concert” finding with respect to one of the rape counts.

Background

On the evening of November 20, 1984, Melba S. was awakened by two men who entered her home. One of the men came toward the foot of the bed, while the other man stood at the door. She could not see their faces because they were wearing ski masks or knit caps over their heads.

The first man, whom the trial court later found to be defendant, told her to be quiet and that he would not hurt her. He told her to take off her panties and she complied. He then unzipped his pants and, against her will, placed his penis in her vagina. After completing the act, he got up and told the second man to “hurry up.” The second man then got into the bed and forced her to have sex with him as well.

When the second man was finished, defendant told Melba not to call the police or anyone, that he would be watching the house, and that he would kill her and whoever else came to the house.

The trial court found defendant guilty of rape and further found the allegation that he had done so “in concert with another person” to be true.

Appeal

Defendant does

not

challenge the sufficiency of the evidence that established his identity as the first man who raped the victim, However, he asserts that the trial court could not validly find that he committed this rape “in concert” with another because the second man merely stood by and did not actively assist defendant in committing the rape. He notes that