Varona

Defendants were charged jointly with: (count I) kidnaping, in violation of section 207 of the Penal Code; (count II) rape, in violation of subdivisions (2) and (3) of section 261 of the Penal Code. Defendant Jorge Varona was also charged with: (count III) sodomy, in violation of subdivision (c) of section 286 of the Penal Code; and (count IV) oral copulation, in violation of subdivision (c) of section 288a of the Penal Code. The case was tried to a jury. At the close of the case, the trial court, on motion of the People, dismissed count HI. On count I, both defendants were found guilty of false imprisonment, in violation of section 236 of the Penal Code, a necessarily included offense; both were found guilty on count II. Jorge was found guilty on count IV. They were sentenced accordingly. They have appealed; we reverse.

The prosecutrix testified that, on the evening in question, she had been visiting a friend, who, at 11:30 p.m., drove her to within two blocks of a bus stop where she planned to take a bus home. While walking to the bus stop, she was attacked by defendants, who took her to a nearby house where the alleged rape and oral copulation occurred. The defense was…