P. v. Gonzalez
The jury found defendant Andres Gonzalez guilty of two counts of forcible rape, in violation of Penal Code section 261, subdivision (a)(2), one count of forcible sodomy, in violation of section 286, subdivision (c)(2), and one count of forcible oral copulation, in violation of section 288a, subdivision (c)(2). The victim in all counts was A. As to one forcible rape count (count sevenoccurring at defendants apartment), the jury found defendant kidnapped A. within the meaning of section 667.61, subdivisions (d)(2) and (e)(1). The jury acquitted defendant of kidnapping to commit rape in violation of section 209, subdivision (b)(1). The trial court imposed a 25 year to life sentence on the aggravated kidnapping conviction under section 667.61, subdivision (d)(2). Full, separate, and consecutive midterm sentences of six years were imposed pursuant to section 667.6, subdivision (d),[3]on the second rape conviction and on the forcible oral copulation conviction. A concurrent six-year term was imposed on the forcible sodomy conviction. Defendants total sentence was 37 years to life.
In this timely appeal, defendant contends the true findings on the kidnapping special allegations are inconsistent with his acquittal of kidnapping to commit rape, and substantial evidence does not support the kidnapping special allegations. He argues instructional error and that the imposition of consecutive terms violated his federal constitutional right to a jury trial. We hold the verdict is not inconsistent, substantial evidence supports the jurys verdicts, and no prejudicial instructional error occurred. We further hold the imposition of consecutive terms did not violate defendants constitutional rights. Therefore, Court affirm the judgment.
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