Hernandez

Statement of the Case

Appellant was charged by information in the Fresno County Superior Court with seven felony counts. Counts one and five charged violations of Penal Code section 288a, subdivision (c), forcible oral copulation. 1 Count two alleged a violation of section 289, subdivision (a), forcible penetration with a foreign object. Counts three and six alleged violations of section 261, subdivision (2), rape by force or fear. Counts four and seven charged violations of section 286, subdivision (c), sodomy by force or fear. It was further alleged in each count that appellant had kidnapped his victim (§§ 207, 667.8, subd. (a)). A prior serious felony conviction (rape, § 261) within the meaning of sections 667, subdivision (a), 667.6, subdivision (a) and 1192.7, subdivision (c)(3) was separately alleged.

A jury found appellant guilty of all counts, and further found each kidnapping allegation to be true. The court found the prior serious felony conviction allegation to be true.

At sentencing, having found appellant statutorily ineligible for probation (§ 1203.065), the trial court selected count four (sodomy by force or fear) *1017 as the principal term, giving…