In Re John Z.

114 Cal.Rptr.2d 89 (2001) 94 Cal.App.4th 33 In re JOHN Z., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.

John Z., Defendant and Appellant.

No. C036210. Court of Appeal, Third District.

November 30, 2001. Review Granted February 20, 2002. [90] Carol L. Foster, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Michael J. Weinberger, Supervising Deputy Attorney General, John G. McLean, Supervising Deputy Attorney General, for Plaintiff and Respondent.

SIMS, J.

In People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161 (Vela), the Fifth District held that the crime of forcible rape (Pen.Code, § 261, subd. (a)(2)) is not committed where a woman consents to initial penetration by the male but the woman withdraws consent during intercourse and the male continues intercourse against the woman's will.[1] (Id. at p. 243, 218 Cal.Rptr. 161.)

In People v. Roundtree (2000) 77 Cal. App.4th 846, 91 Cal.Rptr.2d 921, Division Four of the First District concluded that Vela was wrongly decided and that the crime of forcible rape could be committed in the circumstances described above. (Id. at p. 851, 91 Cal.Rptr.2d 921.)

In this case, for reasons that follow, we agree with Roundtree.

Following a contested jurisdictional hearing on a unitary petition (Welf. & Inst.Code, §§ 602, 777, subd. (a)) filed on behalf of John Z. (the minor),[2] the juvenile court found he committed forcible rape (Pen.Code, § 261, subd. (a)(2)—count II) and that his previous disposition had been ineffective (count IV).[3] (Further statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch.

On appeal, the minor contends the evidence is insufficient to sustain the finding that he committed forcible rape, hence, reversal of counts II and IV is required. We disagree.