People v. Calimee
| Decision Date | 24 June 1975 |
| Docket Number | Cr. 6869 |
| Citation | 122 Cal.Rptr. 658,49 Cal.App.3d 337 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Lee CALIMEE, Defendant and Appellant. |
Defendant Robert Lee Calimee was convicted by a jury of sodomy with a special finding that he acted in concert with and aided and abetted Russell Sheen Mathews in committing sodomy on the victim with force and violence and against his will (Pen.Code §§ 286 & 286.1). He was committed to the California Youth Authority for the term prescribed by law which, under Penal Code section 286.1, is from 5 years to Calimee appeals, contending the court prejudicially erred in explaining to the jury the meaning of the term 'acting in concert' as used in Penal Code section 286.1. The meaning of the term has not been defined in California, and the case is one of first impression.
life. Without the special finding, the term of confinement would have been not less than one year (Pen.Code § 286).
Only a brief recital of the sordid facts is necessary to our discussion of the issue. Calimee was convicted as an aided and abettor. During January and February 1974 he was one of seven men confined in a small cell in the San Diego County jail. The others were Mathews, Holloman, Riley, Taylor, Metcalf and K. (the victim). They were so crowded that Mathews, K. and another inmate had to sleep on a mattress on the floor.
On January 31, using jailhouse vernacular and in the presence of everyone in the cell, Mathews accused K. of being a homosexual. K. denied he was a homosexual. Mathews threatened to beat up K. and commit sodomy upon him if a note he sent out to another cell tank came back confirming that K. was a homosexual. That night, about an hour after 'lights out,' Mathews, who was a big man, told K. '. . . looks like either you're going to have to give it up or else you're going to get the . . . knocked out of you first.' He then talked to others in the cell to get them to back him up. He ordered Riley, who was afraid of him, to start a fight with K. When K. seemed to get the better of the fight, Mathews and others in the cell joined in the effort to subdue him. K. was severely beaten by Mathews and the others. He sustained a broken rib and bruises and contusions on his face, head and body. There was testimony that Calimee joined in the effort to subdue K., striking him in the head and face with his fists.
Finally Mathews kicked K. in the face, knocking him across the cell. He told K. to put out and to take off his pants. K. removed his pants after Mathews hit him several more times, and he was forced to lie on his stomach on a mattress on the floor. Holloman then committed an act of sodomy on K. When K. was crying out and struggling to get away, Calimee, who was sitting on the bunk near his head told him to 'shut up and stay still' and hit him several times on the head and face with his fists. After Holloman was finished, Mathews then committed a second act of sodomy on K.
Calimee did not personally engage in an act of sodomy with K.
Penal Code section 286.1 provides:
'The provisions of Section 286 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 sodomy upon a human being, either personally or by aiding and abetting such other person, such fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, defendant shall suffer confinement in the state prison from five years to life.'
During its deliberations the jury requested further instructions from the court, including a clarification of the instruction on aiding and abetting and a definition of the term 'acting in concert.' In answer to these specific requests, the trial judge reread the instruction he had given on aiding and abetting using the following language:
'All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission or,...
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People v. Champion
...in gang-type sexual assaults." (Id. at p. 907, 139 Cal.Rptr. 737.) Similarly, the Court of Appeal in People v. Calimee (1975) 49 Cal.App.3d 337, 341, 122 Cal.Rptr. 658, while rejecting the defendant's contention that the trial court erred in instructing the jury that the term "in concert" w......
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People v. Deo, C047126 (Cal. App. 6/13/2008), C047126
... ... ( People v. Lopez (1981) 116 Cal.App.3d 882, 888.) The Lopez court found it "difficult to conceive of a factual situation in which mere aiding and abetting would not constitute acting in concert." ( Id. at p. 887.) In People v. Calimee (1975) 49 Cal.App.3d 337, 340, the court told the jury the term acting in concert was synonymous with aiding and abetting. On appeal defendant contended this instruction was error. The appellate court found the instruction not entirely accurate because acting in concert included the principal ... ...
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People v. Adams
...172 Cal.Rptr. 374.) The purpose of proscribing "in concert" conduct is to protect against gang sexual assault. (People v. Calimee (1975) 49 Cal.App.3d 337, 341, 122 Cal.Rptr. 658.) "It also exhibits a legislative recognition that [sexual assault] is even more reprehensible when committed by......
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