P. v. Gonzalez
Appellant Cesar O. A. Gonzalez appeals his conviction by jury of forcible rape (Pen. Code, 261, subd. (a)(2)),[1]kidnapping to commit rape ( 209, subd. (b)(1)), assault with a deadly weapon ( 245, subd. (a)(1)), assault with intent to commit rape ( 261, subd. (a)(2)) and false imprisonment by violence ( 236). The jury found true allegations that appellant kidnapped the victim and the movement substantially increased the risk of harm ( 667.61, subds. (a) & (d)), and that appellant personally used a dangerous and deadly weapon ( 667.61, subd. (b), 12022.3, subd. (a) & 12022, subd. (b)(1)). The trial court sentenced appellant to 25 years to life in state prison for the rape, and stayed midterm sentences of 7, 3, 4, and 2 years, respectively, for the kidnapping, assault with a deadly weapon, assault with intent to commit rape and false imprisonment. ( 654.) The court ordered appellant to pay $550 for the cost of a medical examination. ( 1203.1h.) Appellant contends that erroneous admission of evidence of a subsequent sex offense, opinion testimony by a nurse and prosecutorial misconduct all combined to undermine the fairness of his trial with respect to the rape charge. He contends that he was prejudiced because the victim gave conflicting testimony about sexual penetration and the prosecution would have had difficulty proving rape in the absence of the cumulative errors. He also challenges the imposition of costs of the medical examination because there was no finding of ability to pay. Court strike the order imposing costs of the medical examination and otherwise affirm.
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