Guiterrez

—Appellant Daniel Guiterrez appeals following jury trial where he was convicted on five counts of violating Penal Code sections 261, subdivision (2), and 264.1 (rape by force while acting in concert with others). He asserts the court erred (1) by refusing to instruct on the offense of battery; (2) by denying his motion for judgment of acquittal and for a new trial based on the insufficiency of the evidence; (3) in declaring a proposed prosecution witness unavailable, and thus permitting his preliminary hearing testimony to be received as evidence; and (4) by refusing to instruct the jury on the statute of limitations. We shall affirm.

Statement of the Facts

Carol J., the victim in this case, testified that on March 25, 1983, she and some friends went to a club, had some drinks and danced until approximately 2 a.m. After that time she returned to her Union City condominium, where she and her boyfriend had an argument. Ms. J. testified that she needed some time alone, and decided to walk to the 7-Eleven store to buy food for breakfast. She walked toward the store and sat down on the curb across from the store. She noticed a van drive by and then return a few minutes…