(Super. Ct. No. 09F05097)
The opinion of the court was delivered by: Butz ,j.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Joe Lewis Martinez of two serious felonies against a 22-year-old victim--rape of an unconscious woman (Pen. Code, § 261, subd. (a)(4)--count one)*fn1 and rape of an intoxicated woman (§ 261, subd. (a)(3)--count two).
The trial court sentenced defendant to state prison for the midterm of six years on each count, staying sentence on count two (§ 654).
Defendant appeals. He contends (1) insufficient evidence supports his convictions and (2) counsel rendered ineffective assistance. In supplemental briefing, defendant contends he was improperly convicted of two counts of rape for one act of sexual intercourse. The Attorney General concedes that only one conviction of rape can stand for a single act of intercourse. We agree that only one conviction can stand and shall modify the judgment. We reject defendant's other contentions.
In January 2009, the 22-year-old victim moved to Sacramento to complete an internship offered through her college. The university arranged for the victim to live with three women in an apartment at a complex located in Natomas. About a week after the victim moved in, she met the 26-year-old defendant at the complex gym. Defendant lived in the complex with his mother. The victim thought defendant was nice, but she had a boyfriend and tried to avoid defendant. After running into defendant a number of times, the victim exchanged phone numbers with him. They quickly became friends and visited at their respective apartments. The victim met defendant's mother. Defendant told the victim that he had children and asked if the victim had any. She explained that she was a virgin and was saving herself for marriage.
On January 20, 2009, the victim invited defendant to a party at her apartment. Later, at defendant's apartment, they kissed for the first time. Defendant wanted oral sex but she refused. Defendant digitally penetrated her vagina but when he tried to take off her shorts, she said "no" and he stopped.
The next day, defendant ignored the victim; she felt used. The victim suggested they not contact one another.
On January 22, 2009, defendant was very apologetic. The victim agreed to remain friends.
One night, defendant took her to a bar located in Natomas. They had a drink and then returned to his apartment. They kissed and defendant performed oral sex on the victim. Then the victim decided to leave, explaining she just wanted to be friends. Angry, defendant called her by his former girlfriend's name and accused the victim of "cheating on him" and sleeping with other men. Defendant invited the victim to join him in self-mutilation by cutting. The victim stayed until ...