P. v. Venzor
Charles David Venzor, Jr. appeals his conviction, by jury, of the forcible rape (Pen. Code, 261, subd. (a)(2)), and sodomy by force ( 286, subd. (c)(2)), of K.M. The jury further found that appellant inflicted great bodily injury on K.M. during both crimes. In the bifurcated portion of the trial, at which appellant waived jury, the trial court found that appellant was eligible for sentencing on the rape count pursuant to section 667.61, subdivision (a) because he had a prior conviction of sexual penetration with a foreign object. ( 289, 667.61, subd. (c),(d)(1).) The trial court further found that appellant had three prior serious or violent felony convictions within the meaning of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), that he had one five-year prior serious felony conviction ( 667, subd. (a), 1192.7, subd. (c)(25)), and that he had served three prior prison terms. ( 667.5, subd. (b).) As a result, it sentenced appellant to a total term in state prison of 29 years plus 75 years to life.[2]
Appellant contends evidence of two prior sex offenses should have been excluded pursuant to Evidence Code sections 352 and 1101, subdivision (b), that admission of the evidence pursuant to Evidence Code section 1108 violated his rights to due process, equal protection and a fair trial, that the sodomy conviction should be reversed because the trial court erred in answering questions posed by the jury during its deliberations, and that the trial court failed to make the factual findings required to impose five-year enhancements pursuant to section 667, subdivision (a). In light of Cunningham v. California ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], the trial court's imposition of the upper sentence term on the sodomy count must be reversed and the matter remanded for resentencing. In all other respects, the judgment is affirmed.
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