Perez

An information filed November 8, 1985, charged appellant Albert C. Perez with burglary of a residence (Pen. Code, §§ 459-460) and with forcible rape (§261, subd. (2)). Both counts included allegations of personal use of a deadly weapon (§ 12022, subd. (b)). Appellant pleaded not guilty and denied the allegations.

A jury trial began January 21, 1986. On January 23, 1986, the jury returned verdicts of guilt on both counts, but found untrue the allegations of personal use of a weapon. The jury specifically found the burglary was of an inhabited structure or room. Appellant was sentenced to six years in state prison for the rape; the burglary term of four years was stayed pursuant to section 654. Appellant filed a timely notice of appeal.

FACTS

Appellant had known the victim, Lucy V., for five years. From 1982 until April of 1985 they lived together in Lucy’s apartment. He saw her occasionally between April and October 7, 1985, and during that period they engaged in consensual intercourse.

On the evening of October 14, 1985, a knock at her front door awakened Lucy. She tried to ignore it, but then heard sounds at the kitchen window. She opened the curtains and saw…