P. v. Montiel























Filed 5/9/13 P. v. Montiel CA4/3











NOT TO BE PUBLISHED IN OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. KEVIN MONTIEL, Defendant and Appellant.

G046514 (Super. Ct. No. 07SF1060) O P I N I O N

Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, M. Marc Kelly, Judge.
Affirmed.

Catherine White, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon,
Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.



*
* *

Defendant Kevin Montiel
received a prison term of life with the possibility of parole after being found
guilty of violating Penal Code section 220, subdivision (b) (section
220(b); all further statutory references are to the this code) with the finding
a non-accomplice was present (§ 667.5, subd. (c)(21)). Section 220(b) imposes a life term on anyone
“who, in the commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, assaults another with intent to commit rape
. . . .” On appeal,
defendant argues the trial court committed reversible error by not instructing
the jury first degree burglary and assault with intent to commit rape are
lesser included offenses of section 220(b).
We agree the court so erred, but
find the error harmless under the circumstances of this case. Therefore, we affirm the judgment.



FACTS



The victim lived with
her teenage son in a first-floor apartment.
On the night of the incident, she fell asleep with her bedroom window
open and valuables in plain view. The
victim awoke when she felt “someone pulling my top up my back.” Turning around, she saw defendant.

She testified defendant
said he had a gun and reached for his pocket.
The victim began screaming and repeatedly kicked defendant. He fled out the bedroom window. The victim discovered the doors to her
bedroom and that of her son had been closed and her door locked. None of her valuables had been
disturbed.

The victim had a history
of drug use and, although she denied it, the defense presented evidence
suggesting she was involved in selling drugs.


Defendant testified he
entered the apartment through the victim’s bedroom window at the behest of a
person nicknamed “Krueger,” to steal a purportedly large stash of drugs Krueger
claimed she possessed. As he climbed
through the window, defendant stumbled and awakened the victim. He claimed the victim literally kicked him
out the window. He denied having a gun,
touching her, or shutting doors in the apartment.



DISCUSSION



1. Background

The
court used CALCRIM No. 890 to instruct the jury on the elements of section 220(b). In part the instruction states, “6. [w]hen the defendant acted, he was committing
a first degree burglary.” It also
instructed on first degree burglary using CALCRIM Nos. 1700 and 1701,
explaining that, to find defendant committed the crime the jury must find
“[t]he defendant entered a[n inhabited house or a room within an inhabited
house] . . . and [¶] 2.
[w]hen he . . . [did so], he intended to commit
rape.” The only lesser included offense
instruction given was for simple assault.

After an
hour and a half of deliberating, the jury submitted the following question to
the court: “Does ‘intent’ have to be
premeditated before [defendant] entered the apartment? Or can ‘intent’ begin after he was already in
the bedroom?” The court conferred with
counsel and then responded: “The
defendant must have the specific intent to commit rape when he entered the
apartment. [¶] Please see CALCRIM [No.]
890 (Element # 6) and CALCRIM [No.] 1700 (Element # 2).”

Deliberations
continued into a second day. The jury
then sent the court “a follow-up . . . question”: “If [defendant] entered the apartment with
the intent to steal or rob, and subsequently decides to rape [the victim], is
there or is there not intent to rape?”
Again, the court discussed the question with counsel and provided this
response: “To be found guilty of
PC 220(b), the People must prove beyond a reasonable doubt that the
defendant had the specific intent to rape at the time he entered [the victim’s]
apartment.” The next day, the jury sent the court a third
question concerning the elements of the charged crime: “The defendant is officially charged with
assault with intent to commit rape DURING [the] commission of First Degree
Burglary. [¶] CALCRIM [No.] 890 says he
is charged with ASSAULT WITH INTENT TO COMMIT RAPE WHILE COMMITTING FIRST
DEGREE BURGLARY. [¶] We are close to
reaching a verdict on these charges as written.
What we are struggling with and can’t get past is your answers to our
first two questions, which seem to require that the defendant have the intent
to commit rape BEFORE he entered the apartment.
[¶] Some of us believe he had the intent to rape [the victim] BEFORE
entering. Others . . . believe that it’s
reasonable to assume he may have entered to rob [the victim], and out of
frustration, or anger, or just because the opportunity presented itself, he
decided to rape [the victim] WHILE or DURING the commission of the
burglary. In both cases, we believe his
actions were the beginning of the rape process.
[¶] Are we misinterpreting either the official charge, or CALCRIM [No.]
890, or your answers to our first two questions? Can you provide us with any guidance on how
to proceed?” After a further conference
with counsel, the court provided the following response: “The People must prove Beyond a Reasonable
Doubt that the defendant had the specific intent to commit rape when he entered
the apartment, not after he entered the apartment.”

Later that
afternoon, the jury returned its verdict and finding.



>2.
Analysis

Citing the recent
decision in People v. Dyser
(2012) 202 Cal.App.4th 1015 and claiming his “intent was the critical issue at
trial,” defendant argues the trial court’s failure to instruct the jury that
first degree burglary and assault with the intent to commit rape are lesser
included offenses of section 220(b) requires reversal of his conviction. While we agree the trial court erred in
instructing the jury, the error was harmless.


Under
its general duty to instruct the jury on all relevant legal principles, even
without a specific request, a trial court must instruct on uncharged lesser
included

offenses if the evidence is sufficient to
allow a jury to reasonably conclude the defendant only committed the lesser
crime. (People v. Wyatt (2012) 55 Cal.4th 694, 698; >People v. Barton (1995) 12
Cal.4th 186, 194-195.) The courts
have applied two tests to determine whether an uncharged crime is a lesser
included offense. (People v. Bailey (2012) 54 Cal.4th 740, 748.) “The elements test is satisfied if the
statutory elements of the greater offense include all of the statutory elements
of the lesser offense, such that all legal elements of the lesser offense are
also elements of the greater.
[Citation.]” (>Ibid.)
The accusatory pleading test applies where “the facts actually alleged
in the accusatory pleading include all of the elements of the lesser
offense. [Citations.]” (Ibid.)

The
amended information charged defendant with violating section 220(b) in the
language of the statute. But in >People v. Dyser, supra, 202
Cal.App.4th 1015, the Court of Appeal held that under the elements test
both first degree burglary and assault with the intent to commit rape
constitute lesser included offenses of section 220(b). (People v. Dyser, supra, 202
Cal.App.4th at pp. 1020-1021.)


To its credit, the jury
realized the problem with the instructions as given. Nonetheless, the court repeatedly instructed
the jury that the intent to commit a rape must exist when the defendant entered
the victim’s apartment. In doing so, it
erred.

“‘When interpreting
statutes, we begin with the plain, commonsense meaning of the language used by
the Legislature. [Citation.] If the language is unambiguous, the plain
meaning controls.’ [Citation.]” (People
v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) A violation of section 220(b) occurs where
“[a]ny person who, in the commission of a burglary of the first degree, as
defined in subdivision (a) of Section 460, assaults another with intent to
commit rape, sodomy, oral copulation, or any

violation of
Section 264.1, 288, or 289 . . . .” Section 460, subdivision (a) defines first
degree burglary as “[e]very burglary of an inhabited dwelling house
. . . or the inhabited portion of any other building.” In turn, a person commits the crime of
burglary when he

or she “enters any house, room, [or] apartment
. . . with intent to commit grand or petit larceny or any felony
. . . .” (§ 459; see
People v. Dyser, supra, 202
Cal.App.4th at p. 1020 [“‘Every burglary of an inhabited dwelling house
. . . is burglary of the first degree’”].) Section 220, subdivision (a)(1) declares the
crime of assault with the

intent to commit rape occurs where a “person . . . assaults another
with intent to

commit . . . rape
. . . .” Consequently,
“assault with intent to commit rape is a lesser included offense of assault
with intent to commit rape during the commission of first degree burglary,”
because “[a]ll of the pertinent elements in [section 220,] subdivision (b) are
also included in [section 220,] subdivision (a)(1).” (People v. Dyser, supra, 202
Cal.App.4th at p. 1021.)

Further,
the evidence supported giving instructions on these lesser crimes. “‘“[I]nstructions on a lesser included
offense . . . are required whenever evidence that the defendant
is guilty only of the lesser offense is ‘substantial enough to merit
consideration’ by the jury.
[Citations.]”’ [Citations.]” (People
v. Wyatt, supra, 55 Cal.4th at p. 698.) The Attorney General disputes the sufficiency
of the evidence to support instruction on first degree burglary, claiming it is
supported only by defendant’s “self-serving testimony
. . . .” Maybe so, but
“[i]n this regard, the testimony of a
single witness, including that of a defendant, may suffice to require lesser included
offense instructions. [Citation.] Courts must assess sufficiency of the
evidence without evaluating the credibility of witnesses, for that is a task
reserved for the jury. [Citation.]” (Ibid.) Defendant acknowledged entering the victim’s
apartment, but testified he did so to steal the drug supply she purportedly
possessed. He further denied ever
touching her, much less doing so with an intent to rape her.

The Attorney General
acknowledges it is not necessary for a defendant to form the intent to commit
rape before entering the victim’s dwelling, noting the trial court so
instructed the jury in this case “because the prosecution’s theory was that

[defendant]
entered the apartment with the intent to rape, not to rob
. . . .” But “neither the
prosecution nor the defense should be allowed, based on their trial strategy,
to preclude the jury from considering guilt of a lesser offense included in the
crime charged. To permit this would
force the jury to make an ‘all or nothing’ choice between conviction of the
crime charged or complete acquittal, thereby denying the jury the opportunity
to decide whether the defendant is guilty of a lesser included offense
established by the evidence.” (>People v. Barton, supra, 12
Cal.4th at p. 196, fn. omitted.)

However, “[t]he failure to instruct on a lesser
included offense in a noncapital case does not require reversal ‘unless an
examination of the entire record establishes a reasonable probability that the
error affected the outcome.’
[Citations.]” (>People v. Wyatt, supra, 55
Cal.4th at p. 698; see also People
v. Breverman (1998) 19 Cal.4th 142, 178.) The record here clearly reflects there is no
reasonable probability that, absent the instructional error, defendant would
have achieved a more favorable result.

To justify finding
defendant guilty of only the lesser crime of first degree burglary, the jury
would have had to believe defendant’s claim he never touched the victim or
conclude he had no intent to commit a sexual assault. But it is clear the jury had no problem
finding defendant did assault the victim with the intent to commit rape. First, the jury was provided the opportunity
to convict him of the lesser crime of simple assault. Second, not only did it reject that
alternative, the jury’s questions on the elements of section 220(b) clearly
reflect it believed defendant assaulted the victim with the intent to rape
her. The jury’s primary, if not sole,
difficulty with the evidence concerned when he formed that intent; before he
entered the apartment or after making entry.
In either circumstance, he would still be guilty of violating that
statute. Thus, defendant has failed to
show a reasonable probability of a different result.







DISPOSITION



The
judgment is affirmed.









RYLAARSDAM,
ACTING P. J.



WE CONCUR:







MOORE, J.







THOMPSON, J.