Best

Defendants Best and Hansen were each convicted by a jury of committing rape in concert. (Pen. Code, §§ 261, subd. 2; 264.1.) The substantive issue presented in this appeal is whether Penal Code section 264.1 deals with an enhancement or a crime of substance. Defendants argue that it provides an enhancement and as such the court erred in refusing to strike the enhancement.

The following facts, gleaned from the record in the light most favorable to the judgment (People v. Johnson (1980) 26 Cal.3d 557, 578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 ]), reveal the defendants and some of their roommates had been drinking rather extensively at their home one evening. At about midnight, defendant Hansen called the victim, Karen S., at her home to see if she wanted to “come over and party.” Hansen had an intent to engage in sex with her; however, he urged her to come because one of his roommates, Robert Othon, one of her “very good friend[s]” she had been dating, wanted to talk to her.

Karen accepted the invitation and explanation. Defendants drove to her house, picked her up, and returned to their residence. Karen was intoxicated. When the three entered the house, Karen found that…