Montero

Ralph Montero was convicted by a jury of five counts of forcible rape (Pen. Code, § 261, subd. (2)), five counts of unlawful sexual intercourse (§ 261.5) and one count of committing a lewd and lascivious act upon Marianna D., a child under 14 years of age (§ 288, subd. (b)). The jury hung on a forcible rape charge involving Marianna’s sister Christina. The court declared a mistrial as to that count and dismissed it on the prosecution’s motion in the interests of justice (§ 1385). The judge sentenced Montero to a 30-year prison term.

Montero appeals, contending there was insufficient evidence to support the forcible rape convictions, improper multiple convictions, instructional error, and sentencing error. We affirm.

I

At trial, Marianna testified to five separate acts of sexual abuse by Montero. The first act occurred in 1981 when she was 13 years old and lived in Brawley, California, with her mother, brother, two sisters and Montero. At that time, Marianna shared an upstairs bedroom with her two sisters.

Early in the morning of December 20, 1981, Montero came into the bedroom and shook Marianna awake. He told her to take off her clothes but she refused. Montero then…