Navarro

Defendants Armondo Navarro and Jose Luis Huerta were charged by information with forcible rape (Pen. Code, § 261, subd. (2)) and statutory rape (Pen. Code, § 261.5). Invoking the enhancement provided by section 264.1, it was further alleged that they acted in concert in committing the forcible rape. Trial was to the court. The court found defendants guilty of forcible rape, found to be true the allegation that they acted in concert and dismissed as moot the charge of statutory rape.

At sentencing, the court struck the acting-in-concert allegation and sentenced each defendant to state prison for the lower term of three years. The court stated, however, that it would have granted the defendants probation with jail time had it not concluded they were ineligible for probation because of section 1203.065 which prohibits probation for certain sex offenses, including forcible rape. Defendants appeal from the judgment of conviction.

Factual Background

Defendant Navarro is the stepfather of the victim, Sharron T., who at the time of the alleged incident was 17 years old and living at home. On the night of September 27, 1980, defendants were at the Navarro home drinking beer. At…