P. v. Hernandez
Defendant Rene Hernandez appeals after conviction, by jury trial, of rape (Pen. Code, § 261, subd. (a)(2)),[1] penetration with a foreign object (§ 289, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (former § 245, subd. (a)(1)). The jury found true allegations that defendant kidnapped the victim before committing the rape and penetration. (§ 667.61, subds. (b), (e)(1).) Defendant was sentenced to consecutive terms of 15 years to life for the rape and penetration, with the term for the assault stayed pursuant to section 654.
On appeal, defendant contends: (1) there was insufficient evidence to support the kidnapping allegations; (2) the trial court failed to instruct the jury that in determining whether defendant kidnapped the victim, it should consider whether the forcible movement was incidental to the commission of the associated offenses; (3) the trial court erred by allowing the prosecution to admit 10 booking photos of defendant to show his changed appearance and consciousness of guilt; (4) the trial court failed to instruct the jury to view defendant’s oral admissions with caution and failed to give a corpus delicti instruction; (5) the trial court coerced a verdict on the kidnapping allegations by directing the jury to continue deliberating on those allegations after the jury reported a deadlock on count 1; (6) the cumulative effect of the errors denied defendant due process and a fair trial; (7) section 654 barred the trial court from imposing One Strike law sentences for both the rape and penetration with a foreign object based on the same act of kidnapping; and (8) this court should order a suppression hearing or find that trial counsel was ineffective for failing to bring a suppression motion, because defendant’s DNA was taken after arrest on an unrelated felony charge for which he was not convicted, in violation of the Fourth Amendment.
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