Alvarez

J.—On August 22, 1973, an information was filed charging

defendant with the forcible rape of Terry F. on July 22, 1973. A second count of the information charged defendant with burglary. The information also charged six prior felony convictions, one of which was a 1963 conviction for “statutory” rape. (Former Pen. Code, § 261, subd. 1.)

The case was twice tried to juries. The first jury was unable to reach a verdict after deliberating for more than a day and a half, and a mistrial was declared. At the time the jury stood seven to five. The second trial started on January 16, 1974, and resulted in jury verdicts finding the defendant guilty on both counts. He was sentenced to state prison. No verdicts on the prior felonies were ever submitted to the jury, nor did the court refer to them in its judgment.

Facts

On July 21, 1973, the victim Terry F., age 14, was spending the night at the home of Mrs. Cynthia S., as she customarily had on Friday and Saturday nights. Mrs. S. was out playing cards. Defendant and Mrs. S. had lived together until late June 1973, when they broke up. Terry’s custom of spending the night with Mrs. S.’ children had antedated the breakup between…