Thomas

Defendant Willie Scott Thomas was charged in an information with one count of assault with intent to commit rape upon Carolyn J., a person under the age of 18 years, (Pen. Code, § 220) and one count of inflicting cruel and inhuman corporal punishment on a child. (Pen. Code, § 273d.) In a nonjury trial defendant was convicted of violating Penal Code section 273d and acquitted of the assault charge. Two prior felony convictions for rape were alleged and proved. Defendant appeals from the judgment.

The victim, Carolyn, is defendant’s 15-year-old stepdaughter. On November 5, 1975, the victim’s mother entered the hospital leaving Carolyn and her brothers and sisters in the care of the defendant. Late in the evening of November 6, the defendant made sexual advances to Carolyn which she resisted. Defendant then asked Carolyn if she was going to inform her mother about the incident. He told her that if she did he would have to return to prison.

When Carolyn continued to resist defendant’s advances, he picked up a broom and threatened her. He dropped the broom and then struck her repeatedly on the side of the head with his fists, knocking her down. He then began to choke her.…