Hernandez

A jury convicted 21-year-old Carlos Morales Hernandez of sodomy and rape, and as to both counts found true the special allegations that he (1) committed the crimes during the commission of a burglary with the intent to commit a sex crime; (2) personally used a dangerous and deadly weapon; and (3) used a deadly weapon. The trial court sentenced Hernandez to 50 years to life, plus a consecutive eight-year term.

Hernandez argues that he is entitled to a new trial because the court erred in failing to instruct the jury on his theory of the defense, specifically, his reasonable but mistaken belief that the victim consented, and that the jury was required to unanimously agree on the elements triggering the life sentences under the one strike law, Penal Code section 667.61. (Undesignated statutory references are to the Penal Code.) Following oral argument, we requested and received supplemental briefing on the requirements for pleading the burglary circumstance under section 667.61, subdivisions (a) and (d)(4). We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The victim was the main witness for the prosecution. She lived in a one-bedroom cottage with her two-year-old…