Linwood

A jury convicted Jerry Linwood of rape of an intoxicated person, and two counts of attempted rape of an intoxicated person (Pen. Code, §§261, subd. (a)(3), 664). In a subsequent proceeding, the trial court found Linwood had two prior serious felony convictions (§ 667, subd. (a)), and two prior serious/violent felony convictions or strikes (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced Linwood to an indeterminate term of 25 years to life under the three strikes law for the rape of an intoxicated person conviction and a concurrent term of 25 years to life for the attempted rape of an intoxicated person conviction. The sentence on the second attempted rape of an intoxicated person conviction was stayed pursuant to section 654. The court also imposed two 5-year terms pursuant to section 667, subdivision (a)(1).

We reject Linwood’s contention the crime of rape of an intoxicated person (§ 261, subd. (a)(3)) violates constitutional principles of due process. We are also unpersuaded by Linwood’s argument the judgment must be reversed because the jury was improperly instructed regarding the requisite mental state, the trial court made improper comments to the jury…