In Re Gilberto M.

Aggie Rose-Chavez, under appointment by the Court of Appeal, for Minor.

[Opinion certified for partial publication. [*] ]

OPINION

BUCKLEY, J. —

On November 20, 1989, Gilberto M. was taken into protective custody. His mother, Martha M., had been shot to death in a domestic disturbance between her roommate and her roommate's boyfriend.

Appellant Maximino M. is the stepfather of Martha, having previously married Martha's mother. When Martha was 12, appellant brought her from Mexico to the United States. Impregnated by appellant, Martha bore Gilberto M., her stepfather's son, just prior to her 15th birthday.

In May 1989, when Gilberto was about two and one-half years old, his mother Martha reported to police that she had been raped by appellant. Appellant was arrested and charged with two felony rape counts under Penal Code section 261, subdivision (a)(6) "[w]here the act is accomplished against the victim's will by threatening to retaliate." Appellant pled guilty to one of the two counts and was sentenced to the eight-year aggravated term in October 1989. In rendering sentence, the judge stated: "the circumstances in aggravation involve a premeditated offense, violating a…