Lopez

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 884 OPINION In this case we hold that to sustain a finding of acting in concert in forcible rape there is no requirement that the defendant either personally participate in the physical act or be personally present during the physical act. Defendant was convicted of three counts of robbery (Pen. Code § 211 ) and one count of forcible rape while acting in concert (Pen. Code § 261 , subd. 2). Armed and use allegations were found to be true. THE ORDEAL OF MR. AND MRS. H. One night, defendant and a companion forced their way into the home of Mr. and Mrs. H. Defendant was armed with a shotgun. Mrs. H. ran to the bathroom and closed the door. Defendant kicked the door open and ordered Mrs. H. to come out. Mr. and Mrs. H. were then ordered to lie on the bed. Defendant placed the shotgun barrel under *Page 885 Mrs. H.'s dress and touched her buttocks. His companion then touched Mrs. H.'s buttocks with his hand. They both laughed. A robbery took place. No issue is made as to the sufficiency of the evidence on these charges so we need only discuss the…

For sometime I have been concerned with the increasing rate of robberies being committed in the privacy of the home and the lack of an adequate sanction for this particularly outrageous crime. The courts have been zealous in protecting the sanctity of the home from governmental intrusion and some of our finest judicial prose is to be found in our pursuit of that commendable ambition. ("An intrusion by the state into the privacy of the home for any purpose is one of the most awesome incursions of police into the life of the individual." ( People v. Ramey (1976) 16 Cal.3d 263 , 275 [ 127 Cal.Rptr. 629 , 545 P.2d 1333 ].) "The courts have implicitly recognized that man requires some sanctuary [the home] in which his freedom to escape the intrusions of society is all but absolute." ( People v. Dumas (1973) 9 Cal.3d 871 , 882 [ 109 Cal.Rptr. 304 , 512 P.2d 1208 ].)) It appears to me that society should exert no less effort in protecting the sanctity of the home from armed robbers. There is nothing very funny about robbery in any setting, but it is particularly disturbing to find these predators plying their trade in residential areas. 1 Footpads have always lurked on our streets and…

— In this case we hold that to sustain a finding of acting in concert in forcible rape there is no requirement that the defendant either personally participate in the physical act or be personally present during the physical act.

Defendant was convicted of three counts of robbery (Pen. Code § 211) and one count of forcible rape while acting in concert (Pen. Code § 261, subd. 2). Armed and use allegations were found to be true.

The Ordeal of Mr. and Mrs. H.

One night, defendant and a companion forced their way into the home of Mr. and Mrs. H. Defendant was armed with a shotgun. Mrs. H. ran to the bathroom and closed the door. Defendant kicked the door open and ordered Mrs. H. to come out. Mr. and Mrs. H. were then ordered to lie on the bed. Defendant placed the shotgun barrel under Mrs. H.’s dress and touched her buttocks. His companion then touched Mrs. H.’s buttocks with his hand. They both laughed.

A robbery took place. No issue is made as to the sufficiency of the evidence on these charges so we need only discuss the facts relative to the rape.

Defendant’s companion then unzipped Mrs. H.’s dress and bit her breast. The defendant tied and gagged Mr. H. while his…