California Court of Appeal

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People v. Diaz, B185735

Conviction and sentence for sexual penetration of a victim who was unable to resist due to intoxication, anesthesia, or controlled substance, and related counts of oral copulation and rape, are affirmed, except as to imposition of midterm sentences on three counts, over claims that: 1) the primary evidence against defendant, a videotape, was improperly seized and should have been suppressed; 2) the videotape was inadmissible hearsay and its admission violated his rights under the Confrontation Clause; 3) there was insufficient evidence of the victim's inability to give consent; 4) the instructions on the subject of rape improperly created a mandatory presumption and shifted the burden of proof to him; 5) the trial court improperly denied a motion for a new trial; and 6) the imposition of upper term and consecutive sentences violated his Sixth Amendment right to a jury trial as set forth in Blakely.

Appellate Information

  • Decided 04/25/2007
  • Published 04/25/2007

Judges

  • ZELON, J.

Court

  • California Court of Appeal

Counsel

  • For Appellees:
  • Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant., Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Deputy Solicitor General, Marc E. Turchin, Joseph P. Lee, Alene M. Games, Kristofer Jorstad, Lawrence M. Daniels, and Michael R. Johnsen, Deputy Attorneys General, for Plaintiff and Respondent.
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