P. v. Rathbun
Appellant, Mark Wayne Rathbun, was convicted by jury of 14 counts of residential burglary (Pen. Code, 459, undesignated section references are to that code) and 45 counts of forcible sex offenses, predominantly rape ( 261, subd. (a)(2)) and oral copulation ( 288a, subd. (c)(2)), involving 14 victims. With respect to 40 counts, the jury made one-strike findings under section 667.61, subdivisions (a), (b), (d)(4), and (e)(5). The court found appellant had a prior strike conviction ( 667, 1170.12), and two prior serious felony convictions ( 667, subd. (a)(1)).
Appellant was sentenced to terms of 540 years plus 500 years to life. On appeal, he contends that the court erred in (1) declining to admit expert testimony about false confessions; (2) refusing to order discovery of DNA evidence from uncharged offenses; (3) admitting DNA evidence that did not qualify under People v. Kelly (1976) 17 Cal.3d 24 (Kelly); (4) admitting DNA evidence that was irrelevant and prejudicial; and (5) refusing to treat appellants apprehension as a cold hit. In addition, appellant contends with respect to his sentence that; (6) the sentence violates the separation of powers; and (7) the sentence constitutes cruel and unusual punishment; and (8) the sentence must be modified in light of Cunningham v. California (2007) U.S. [127 S.Ct. 856] (Cunningham) and its antecedents. Court find appellants contentions unmeritorious, except that under Cunningham the sentence on one count must be vacated and remanded for resentencing, as provided for by People v. Sandoval (July 19, 2007, S148917) Cal.4th [2007 WL 2050897] (Sandoval). Court order and otherwise affirm the judgment.
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