Franklin

This is an appeal from a judgment of eonvic- ' tion of rape (§261, subd. 3, Pen. Code).

In an information filed in Los Angeles on September 11, 1967, appellant herein was charged in count 1 with raping Valerie King on or about June 26, 1967. Counts 2 and 3 of the information referred to appellant’s eodefendant Tommy Lee Ray wherein he was charged in count 2 with having raped Valerie King at the time and occasion above mentioned. Each of the defendants pleaded not guilty. The prosecutor’s motion to consolidate the cause for trial with People v. Dizadare, No. A001504 (another forcible rape charge upon Valerie King) was granted. A jury trial was waived. Defendants were found guilty as charged. Appellant was sentenced to the state prison. A timely notice of appeal was filed.

A résumé of some of the facts is as follows: on June 25, 1967, in the evening, Valerie King upon invitation got into a car in which Franklin was riding. Thereafter the car in which appellant and Valerie King were riding was driven to the residence of Diana Hill where the latter agreed to go skating •with the group. Contrary to the first understanding that they were going to a skating rink in Hollywood the car…