Barnett

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).

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…