Brown

By information appellant was charged with two counts of rape (Pen. Code, § 261, subd. 2), one count of sodomy (Pen. Code, § 286), one count of attempted rape (Pen. Code, §§ 664, 261, subd. 2), and one count of unlawful possession of secobarbital (Health & Saf. Code, § 11910). The jury was unable to reach a verdict and a mistrial was declared. The prosecution filed an amended information charging the same five counts, plus two counts of unlawful sexual intercourse. (Pen. Code, § 261.5). The count relating to possession of secobarbital was struck on the People’s motion. Appellant’s motion to strike the two counts charging unlawful sexual intercourse was denied. The jury found appellant guilty of two counts of unlawful sexual intercourse and of the sodomy count, the victim in each case being Melinda K. Appellant was found not guilty on the other charges. As to one count of unlawful sexual intercourse the jury recommended imprisonment in the county jail, and as to the other count it recommended imprisonment in the state prison. Following a diagnostic study pursuant to Penal Code section 1203.03, the court sentenced to be imprisoned in the state prison on all counts, the…