Calimee

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…