California v. SoriaAnnotate this Case
Defendant Theodore Soria appealed after a jury found him guilty of rape of an unconscious person and rape of an intoxicated person. Defendant admitted habitual criminal prior serious felony and strike conviction allegations. Defendant was sentenced to a total aggregate term of 11 years. In sentencing defendant, the trial court imposed sentence on count two, but stayed execution of that sentence. On appeal, defendant originally argued that conviction on one of the two counts must be stricken because both counts were based on a single act of intercourse with the victim. The State originally agreed that defendant could not be convicted of two counts, but argued the correct procedure was to consolidate the counts. The Court of Appeal agreed. However, the State requested rehearing subsequent to the filing of the Court's original opinion, contending that "California v. Gonzalez," (60 Cal.4th 533 (2014)) compelled a different result: that defendant could be convicted of two counts and that the counts should not be consolidated or stricken. In addition to arguing about the controlling case law and whether the counts against him should have been consolidated or stricken, defendant also argued: the DNA evidence was unreliable and should not have been admitted; trial counsel provided ineffective assistance of counsel by failing to object to the DNA evidence; the trial court erred in giving a jury instruction on adoptive admissions; and the court abused its discretion in denying his motion to strike the prior strike conviction. In the published portion of its opinion, the Court of Appeal concluded that the trial court erred by staying the sentence on one of the rape counts, and held that defendant’s convictions for rape of an intoxicated person and rape of an unconscious person had to be consolidated into a single count reflecting rape under both subdivisions (a)(3) and (a)(4) of Penal Code section 261. In the unpublished portions of this opinion, the Court concluded that defendant forfeited his objection to the DNA evidence, and in any event that evidence was admissible and defense counsel did not provide ineffective assistance of counsel by not objecting to the DNA evidence. The Court also concluded that the trial court did not err in instructing on adoptive admissions and did not abuse its discretion when it refused to dismiss the strike allegation. The Court modified the judgment to order imposition of mandatory fees and assessments not imposed by the trial court.