Estrada

Defendant Mike Estrada was convicted of first degree burglary and forcible rape and sentenced on the rape conviction to 25 years to life under California’s one strike law, Penal Code section 667.61. For the reasons explained below we conclude the trial court erred in not instructing the jury what facts it must find for purposes of the special sentencing allegation under section 667.61 but the error was harmless; the trial court had no discretion to strike the burglary allegation for purposes of sentencing under section 667.61; and defendant’s sentence does not constitute cruel or unusual punishment under the facts of this case. Therefore, we affirm the judgment.

Facts and Proceedings Below

The victim was asleep in the bedroom of her apartment. At approximately 2:30 a.m. she was awakened by a “creaking” sound. She saw the defendant standing in the hall outside her bedroom looking into the bathroom. The victim screamed and defendant ran into the bedroom. After a brief struggle, defendant raped the victim. He then asked the victim to forgive him and left. The defense was based on mistaken identity/alibi. Defendant claimed he was home asleep when the rape occurred.

A jury…