Sparks

Certified for Partial Publication. [1]

McDONALD, J.

Michael Joseph Sparks appeals a judgment following his jury conviction of one count of residential burglary (Pen.Code, §§ 459, 460, subd. (a)) [2] and one count of forcible rape (§ 261, subd. (a)(2)). The jury made true findings on allegations that: (1) in committing the residential burglary Sparks personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)); (2) the forcible rape was committed during the commission of a residential burglary with the intent to commit forcible rape (§ 667.61, subds.(a), (d)(4)); (3) in committing the forcible rape he personally used a deadly or dangerous weapon (§§ 667.61, subds.(b), (e)(4), 12022, subd. (b)(1)); (4) the forcible rape was committed during the commission of a residential burglary (§§ 667.61, subds.(b), (e)(2), 460, subd. (a)); and (5) in committing the forcible rape he personally used a deadly weapon (§ 12022.3, subd. (a)).

Sparks contends: (1) the trial court erred by instructing that residential burglary can be committed by the formation of intent to rape after entry into an inhabited dwelling house but before entry into a different room in the house in which the rape…