Alva

Following a jury trial, Juan Jose Alva was convicted, as charged, of incest, in violation of section 285 of the Penal Code (count I), the commission of lewd and lascivious acts upon a child under the age of 14 years, in violation of section 288 of the Penal Code (count II), and unlawful sexual intercourse, in violation of section 261.5 of the Penal Code (count III).

Defendant was sentenced to the state prison on each count. The sentences were ordered to be served concurrently.

Prosecution Evidence

The complaining witness, L., was born on August 15, 1964. Her parents had been divorced for four years as of the time of trial. In November of 1976, L. went to live with her father, the appellant, because she could not get along with her mother. Appellant’s apartment consisted of a bedroom, a living room, and a kitchen. Appellant’s mother slept in the bedroom. L. slept with appellant in the living room on a couch which converted into a bed.

On a Wednesday evening in mid-February, at around 9:30 p.m., appellant got into bed, rolled L. over, pulled down his shorts and placed his penis inside her vagina. As he did so, L. told him to get off and she pushed him off. L. got up and…