Hernandez

Defendant Rafael Aguirre Hernandez was convicted by a jury of first degree burglary (Pen. Code, § 459). The court found true the special allegations that Hernandez had suffered a prior conviction for residential burglary (§ 667) and a prior conviction for possession of a controlled substance for sale (§ 667.5, subd. (b).) The court sentenced Hernandez to the middle term of four years for the burglary, a consecutive term of five years for the section 667 prior, and a consecutive term of one year for the section 667.5, subdivision (b) prior.

On appeal, Hernandez contends (1) the evidence was insufficient to support his conviction for burglary of an inhabited dwelling; (2) the court gave conflicting and confusing instructions on the definition of an inhabited dwelling; (3) the court erroneously refused to give requested instructions on the definition of an inhabited dwelling; (4) the unjustified use of physical restraints violated his constitutional rights; (5) the court erred in refusing to allow him to set aside his prior conviction; (6) the court erroneously refused a requested defense instruction on the lesser related offense of unauthorized entry into a noncommercial…