Mom

In this matter we conclude the force necessary to commit the offense of rape in concert, as defined in Penal Code section 264.1, is no greater than the force necessary to commit a forcible rape within the meaning of Penal Code section 261, subdivision (a)(2). (Further section references are to the Penal Code unless otherwise designated.)

Defendant was convicted by a jury of robbery in concert of an inhabited dwelling (§§ 211, 213, subd. (a)(1)(A)), rape in concert (§ 264.1), first degree burglary (§ 459) and assault with a deadly weapon or with force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury also found a principal was armed with a firearm in the commission of each of the offenses (§ 12022, subd. (a)(1)) and defendant personally used a firearm in connection with all but the assault offense (§§ 12022.5, subd. (a)(1), 12022.53, subd. (Jo)).

Defendant was sentenced to an indeterminate term of 25 years to life for the rape, to be served concurrently with a nine-year term for the robbery and a 10-year enhancement for personal use of a firearm. Terms on the other offenses were stayed pursuant to section 654.

Defendant appeals contending there is…