(Super. Ct. No. SF115432A)
The opinion of the court was delivered by: Nicholson , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Jackie Ray Woods of rape of an incompetent person (Pen. Code, § 261, subd. (a)(1); count 1)*fn1 and forcible rape (§ 261, subd. (a)(2); count 2). The jury found defendant had two prior convictions for forcible rape, pleaded as prior sexual offenses (§§ 667.61, subd. (d)(1), 667.71) and as prior serious and violent felonies (§§ 667, subds. (b)-(i), 1170.12). Defendant was sentenced to state prison on count 2 for 25 years to life. An identical term on count 1 was stayed pursuant to section 654.*fn2 The trial court ordered no visitation between defendant and the victim. (§ 1202.05.)
Defendant contends, and the Attorney General concedes, one rape conviction must be reversed because both counts pertain to the same act against the same victim. The parties further agree the no-visitation order was unauthorized and must be stricken. We modify the judgment.
Defendant had two prior separate convictions of forcible rape.
The current facts are not at issue and may be summarized as follows. K.M. lives in a two-bedroom home in Stockton. She has a daughter, C.M., who was born in June 1992. When C.M. was about six years old, K.M. lost custody of her.
Shortly before her 18th birthday, C.M. began having visitations with K.M. She lived in a foster home during the week and spent weekends with K.M. As an adult, C.M. suffers from depression, mood problems, and personality problems. She has a history of treatment for posttraumatic stress disorder and attention deficit hyperactivity disorder with psychotic features. She functions at the level of about a 10- to 12-year-old girl.
K.M. met defendant in June 2010. Her attorney had asked whether defendant could stay at her home for a few days. K.M. agreed to let him stay for two or three days.
Defendant brought a bed, television, videocassette recorder, clothing, and pornography into the house. He moved into the southeast bedroom and told K.M. that he needed to stay about a week. K.M. agreed to the longer stay. She told him that her daughter would be visiting, that the daughter was "childish in nature," and that she needed supervision. Very quickly, defendant and K.M. began a romantic and sexual relationship.
Defendant met C.M. on Saturday, July 3, 2010, when she arrived for a visit. Defendant joined K.M. and C.M. while they were doing some gardening in the yard. The trio began throwing mud at one another in a "mud fight." After reentering the house, the trio began tickling and spanking one another in a playful manner. That evening, defendant went to bed in the southeast ...