[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.

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 companion did the same with Mrs. H. The defendant then directed Mr. H. to move across the bed and up against the headboard. Mr. H. did so and defendant placed some pillows over his head. At this time the two men conversed in Spanish and Mr. H. heard them call his wife a bitch. Defendant then left the bedroom and was heard rummaging through the house. His companion raped Mrs. H. The two robbers then left after telling Mr. and Mrs. H. not to move.

Defendant was also convicted of the robbery of a Der Wienerschnitzel, but, again, no contention is made as to the substantiality of the evidence on that count and, again, we need not further discuss it.

The record clearly shows that the defendant aided, abetted and encouraged the rape. While he was not personally present during the physical assault, his actions prior thereto show clearly that he aided and encouraged this assault.

Defendant was the one with the gun. He stuck his gun under Mrs. H.'s dress and against her buttocks. When his companion did the same, they both laughed. Then he was present when his companion unzipped Mrs. H.'s dress and bit her breast. When he and his companion spoke, they referred to Mrs. H. as a bitch. Most important, defendant was the one who moved Mr. H. over on the bed so that his partner could commit the rape.

This record shows rather forcefully that the defendant knew of his companion's intent to rape Mrs. H. and that he helped him out in his plan. *Page 886

According to the defendant since the punishment for actually participating in the rape or aiding and abetting in the rape is punishable, under Penal Code section 264, for three, six or eight years, and the penalty for rape when acting in concert is five, seven or nine years, under Penal Code section 264.1, the imposition of the additional penalty for acting in concert requires that he either physically take part in the rape or that he be personally present during the rape.

The trouble with this argument is that it flies in the face of common sense and the language of the statute. Penal Code section264.1 provides that, "The provisions of Section 264 notwithstanding, in any case in which defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed the rape, either personally or by aiding and abetting such other person. . . ." [italics added] is to receive the enhancement punishment. It was necessary to use the "acting in concert language" to cover both the person who committed the physical act and the person who aided and abetted. We presume that the Legislature meant exactly what it said that when two or more persons voluntarily act in concert either personally or by aiding and abetting each other commit the rape, there is to be an enhanced penalty. There is nothing very mysterious about this. Rape is never very funny and one-on-one rape is hardly a laughing matter. However, it is even more reprehensible when committed by two or more persons. The language "acting in concert" is necessary because if the section had already assessed the actual punishment for aiding and abetting then the aider and abettor would actually receive more punishment than the person committing the physical act. Thus, by using the "in concert" this section covers both the person who commits the physical act and the person who aids and abets.

But, says the defendant, in spite of this clear legislative language, the Legislature really meant to punish only the one who personally committed the physical act or who was present when the act was committed. *Page 887 His argument is ingenious but not very persuasive. His argument goes something like this:

In People v. Calimee (1975) 49 Cal.App.3d 337 [122 Cal.Rptr. 658], the court held that acting in concert did not require proof of pre-arrangement, planning or scheme. There, the court recognized Webster's definition of the term "concert" which definition included the word "together." From this, he leaps to the conclusion that together means physical presence. Of course, that is not what Webster says. Webster says that concert means to plan together, to settle by agreement, to agree, to plan and devise. So Webster really offers the defendant no valid support. Actually, reference to Calimee is unfortunate from the standpoint of the defendant. There, the judge told the jury that the term "acting in concert" is synonymous with the term "aiding and abetting." The judgment was affirmed and the issue was whether the court had erred in failing to instruct that acting in concert necessitated planning. The court simply held that the section was not intended to require proof of prearrangement, planning or scheme. (See also People v. Barnett (1976)54 Cal.App.3d 1046 [127 Cal.Rptr. 88].)

If the Legislature wanted to limit section 264.1 to gang rape with only the active participants being held culpable, it could easily have done so simply by saying that this situation was restricted to those cases in which a defendant personally took part in the act or was personally present when the act was being consummated. The Legislature has had no hesitation in imposing those limitations in specific situations. For instance, the personal use of a deadly weapon is demanded in Penal Code section 12022.5 as is the personal use of a firearm in section 1203.06. Another example of legislative specificity is one of the former mutations of Penal Code section 190.2, subdivision (c)(3)(i), in establishing standards for the imposition of the death penalty. It provided that a defendant be personallypresent during the commission of the act. Penal Code section264.1 makes no such provision. It deliberately avoids the results suggested by the defendant by its plain and unambiguous language.

Actually, it is difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert. As was noted, such an instruction was given inCalimee. However, because of the possibility that some peculiar factual situation may arise in the future, we decline to make any blanket ruling that all aiding and abetting *Page 888 necessarily constitutes acting in concert. Such blanket pronouncements have an uncomfortable faculty of coming back and haunting the author of the opinion. We simply address ourselves to the facts in this case and hold specifically that there is no requirement that the defendant either participate in or be personally present during the act for the purposes of acting in concert.

Here, the defendant obviously acted in concert. He was the one with the gun. He was the one who moved Mr. H. so that his companion would have a more convenient place for the rape of Mrs. H.

The defendant's real complaint seems to be that no case to date has permitted the imposition of the additional penalty without active participation or the defendant having been present during the sexual attack.

There is now.

Grant, of course, adds nothing new to the law. It is merely the current offering in a long line of cases which have debated the problem of whether aiding and abetting with knowledge is sufficient or whether there must be a shared intent to facilitate the commission of the offense. Here, the court gave the current version of CALJIC No. 3.01 which omits the intent aspect.¹ A series of opinions have held that this instruction is proper. Another series have held that it is not. Grant summarizes the conflicts and deems that the instruction is faulty by reason of the omission of the intent factor. We feel that there is nothing to be gained by adding one more discussion to this increasingly lengthy line of divergent opinions. We merely hold that in this case, assuming error *Page 889 in the giving of CALJIC No. 3.01, there is no reversible error.² Here, the conclusion is inescapable that the defendant's actions were with the intent to facilitate the commission of the rape.

Any dispassionate reading of this record reflects that this defendant was playing games with the court on this issue. He knew he had no possible defense to the charges so he hoped to get error in the record.

Prior to trial, the defendant had had a Marsden (People v.Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]) hearing in which he tried to change lawyers. The court heard him out. His complaint was without substance. His attorney, the public defender, was as prepared as she could be considering the fact that she had an uncooperative client. She had made the section 995 motion but she had not made other motions she considered lacking in merit. She detailed the work she had done. She had discussed the case with the defendant many times and had an investigator working on the case although the defendant's lack of cooperation hampered any investigation. The court found that the defendant's request for substitute counsel was without substance and found that the public defender had adequately prepared the case.

Then the defendant tried another gambit. He said if the court would not grant his request for another attorney, he would represent himself. This, of course, was a polite form of blackmail. Nothing came of this.

Then after trial started, he did request to represent himself. Again, this was based on the court's refusal to appoint another attorney. However, he said he would need three weeks to prepare for trial.

As of this time, the trial having commenced, the granting of an in pro. per. motion was addressed to the sound discretion of the trial court. (People v. Windham (1977) 19 Cal.3d 121 [137 Cal.Rptr. 8, 560 P.2d 1187].) The trial court denied the motion and we find no abuse of discretion because granting defendant's request would have disrupted the trial in view of the fact that he wanted three weeks to prepare himself. His request was at best equivocal and hardly an unqualified waiver *Page 890 since he only wanted to represent himself if the court would not give him another attorney. As we indicated, it is pretty obvious that this defendant was simply playing games with the court. We find no abuse of discretion in the court's denial of his motion to represent himself.

Judgment affirmed.

Kaufman, J., and McDaniel, J., concurred.