Diaz

Certified for Partial Publication. [*]

Mark Diaz was convicted of sexual penetration of a victim who was unable to resist due to intoxication, anesthesia, or controlled substance (Pen. [1] Code, § 289, subd. (e)), two counts of oral copulation by means of intoxication, anesthesia or controlled substance (§ 288a, subd. (i)), and two counts of rape by intoxication, anesthesia or controlled substance (§ 261, subd. (a)(3)). He appeals his conviction and sentence on six grounds, alleging that: (1) the primary evidence against him, 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 of the United States Constitution; (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 his 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 v. Washington (2004) 542 U.S.…