Young

Defendant was convicted by jury of count I, lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)); count II, oral copulation with a child under the age of 14 and more than 10 years younger than defendant (§ 288a, subd. (c)); count III, forcible rape (§261, subd. (2)). The jury further found that defendant had substantial sexual conduct while occupying a position of special trust (§ 1203.066, subd. (a)(9)), and carnally abused a female person under the age of 10 years (§ 645). We reverse the judgment of conviction on count III and affirm the remaining convictions.

Facts

Six-year-old S. lived in Madera with her younger brother J., her five-year-old stepsister A., her twenty-six-year-old father (defendant) and her stepmother, Diane. They initially lived in an apartment on Greenwood which they moved into in September of 1983 and subsequently in a house on Regal Road which they moved into in the first part of February 1984. Defendant had custody of S. and J. S. saw her mother on weekends.

Both defendant and Diane worked, and S. attended school when they lived in Madera.

While Diane was at work and defendant was home alone with the…