P. v. Niebla
Defendant Jose Niebla was convicted by jury of kidnapping, two counts of inflicting corporal injury on a former cohabitant, residential burglary, two counts of dissuading a witness by force or threat, assault by means likely to produce great bodily injury, uttering a criminal threat, sexual penetration with a foreign object, forcible oral copulation, three counts of forcible rape, two counts of battery inflicting injury upon a peace officer, and resisting an executive officer by use of force or violence. (Pen. Code, 207, subd. (a); 273.5, subd. (a); 459; 136.1, subd. (c)(1); 245, subd. (a)(1); 422; 289, subd. (a)(1); 288, subd. (c)(2); 261, subd. (a)(2); 243, subd. (c)(2); 69.) He was also convicted of the misdemeanor offenses of assault, committing a lewd act in the presence of a minor, and child endangering. ( 240; 273g; 273a, subd. (b).) The jury found that the sexual penetration with a foreign object, oral copulation, and rapes were committed during the commission of a burglary. ( 667.61, subds. (b) and (e)(2).) Defendant was sentenced to five consecutive 15 year-to-life terms and a consecutive determinate term of 39 years and eight months. He appeals, contending that the trial court failed to properly instruct the jury on the burglary charge and sentenced him improperly to consecutive life terms for the offenses of sexual penetration with a foreign object, oral copulation, and rape and concurrent terms for the offenses of assault and inflicting corporal injury on a former cohabitant. He also argues that his counsel was ineffective for failing to request a pinpoint instruction on the burglary charge. In anticipation that this matter will be remanded for resentencing, he asserts that the imposition of full consecutive sentences under section 667.6 violates his Sixth Amendment right to a jury trial. Court affirm the convictions and remand the matter for resentencing.
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