P. v. Young

Filed 3/23/06 P. v. Young CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hofmann, Judge. Affirmed.

Jacob L. Young was convicted by a jury of residential burglary of an inhabited building (Pen. Code,^[1] §§ 459, 460) while personally using a firearm (§ 12022.5, subd. (a)), and forcible rape (§ 261, subd. (a)(2)) during the commission of a burglary (§§ 460, subd. (a), 261, subd. (a)(2), 667.61, subds. (a), (c), (d)) with personal use of a dangerous and deadly weapon (§§ 12022, 12022.3 or 12022.5, 667.61, subds. (a), (c), (e)). The jury found he used a firearm during the burglary (§ 12022.3, subd. (a)) and the trial court found he had prior felony convictions within the meaning of the Three Strikes law (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court sentenced him to 75 years to life for the forcible rape during the commission of a burglary and a consecutive term of fourteen years for using a firearm and for two serious felony priors.

On appeal, Young contends there is insufficient evidence to support a burglary finding. He also contends the court erred when it (1) instructed the jury that entry into the victim's bedroom with intent to rape constituted burglary, (2) failed to give a unanimity instruction, and (3) imposed a firearm use enhancement. We affirm the judgment.

FACTS

At about 8:00 p.m. on September 2, 1999, Young drove to a Leucadia neighborhood and was knocking on the door to a darkened house when Marta R.,^[2] whose boyfriend lived in a guesthouse on the back of the property, arrived. The front door was not easily visible from the street. Marta asked Young if she could help. He said that he was looking for Brenda Johnson. She told him Brenda Johnson did not live there. He tried to engage her in further conversation, but she had a strange feeling about him, reiterated Brenda Johnson did not live there, entered the house and locked the door behind her. She told her boyfriend about Young and that she thought he might be "casing" the property.

Meanwhile, Judith S. and her 15-year-old daughter arrived home next door. Judith's daughter went to her room and opened the blinds. She saw Young talking to Marta. Shortly thereafter, she heard a knock on the front door and told her mother. Judith opened the front door. Young was standing there. He told her he was looking for Brenda Johnson^[3] who lived on the street or used to live on the street and asked to use the telephone. Judith let him in the house and showed him to the telephone. He sat down on the couch. Young picked up the phone and poked a few numbers, put the receiver down and started looking around. Judith's daughter, feeling scared, went to her bedroom and closed the door.

Judith was in the kitchen getting a phone book when Young, armed with a gun, grabbed her arm. He asked her if there was anybody else in the house. She said no. He started walking her down the hallway, telling her that if she did what he said, nobody would be hurt. She pleaded with him to let her go and offered him the money she had in her purse, but he ignored her. He told her that he had killed people. She thought he was going to rape her because he was not interested in money. Once in the bedroom, he directed her to take off her clothes and he raped her.

Judith's daughter had heard her mother's pleas to Young and Young talking to her mother in the bedroom. Frightened, she climbed out her bedroom window and summoned help from a neighbor. When the neighbor entered the house, and loudly asked if anybody was home, Young left the bedroom. He pointed his gun at the neighbor, ordered him to lie on the floor and then fled.

Judith, her daughter, and Marta participated in the creation of composite drawings of the rapist but Young was not charged until 2004 (five years later) when the California Department of Justice crime lab identified semen samples taken from a sanitary napkin Judith had put on shortly after the rape as matching Young's DNA. Further, DNA samples were collected from Young and it was determined to almost a medical certainty that it was his sperm on the sanitary napkin.

Defense

Young did not testify and did not present any witnesses.

DISCUSSION

I

Sufficiency of the Evidence

Young challenges the sufficiency of the evidence to support a finding he committed a burglary.

A person is guilty of burglary if he enters any house or room with the intent to commit a theft or a felony. (§ 459; People v. Horning (2004) 34 Cal.4th 871, 903.) "The entry need not be a trespass to support a burglary conviction. [Citations.] Thus, a person who enters for a felonious purpose may be found guilty of burglary even if he enters with the owner's or occupant's consent." (People v. Frye (1998) 18 Cal.4th 894, 954.) If a person enters a residence with an innocent intent but later enters another room within the residence with a felonious intent, the individual may be convicted of burglary. (People v. Sparks (2002) 28 Cal.4th 71, 73.) Thus, if an individual is invited into a victim's house, he may be convicted of burglary with intent to commit rape whether he formed the intent to rape before entering the house or after he entered the house but before entering a bedroom where he raped the victim. (Ibid.) " 'While the existence of the specific intent charged at the time of entering a building [or room] is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence.' " (People v. Earl (1973) 29 Cal.App.3d 894, 896, disapproved on other grounds in People v. Duran (1976) 16 Cal.3d 282, 292; People v. Holt (1997) 15 Cal.4th 619, 669.)

" 'Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation--the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.' " (People v. Gauze (1975) 15 Cal.3d 709, 715.) "It is manifest that the increased danger to the personal safety of the occupant, and the increased risk of loss or damage to his or her property contemplated by the statutory proscription, do not terminate at the moment entry is accomplished, but rather continue while the perpetrator remains inside the structure." (People v. Montoya (1994) 7 Cal.4th 1027, 1038.) "[E]ntry, from inside a home, into a bedroom of the home 'raise[s] the level of risk that the burglar will come into contact with the home's occupants with the resultant threat of violence and harm.' " (People v. Sparks, supra, 28 Cal.4th at p. 88.) The burglary laws also protect against invasions to possessory rights and property interests. (People v. Montoya, supra, at p. 1043.)

The crime of rape occurs when there is "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator" "[w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).)

Young concedes he could have been convicted of burglary based on a finding he entered the house with the intent to rape or on a finding he entered the house with no felonious intent but thereafter entered the bedroom with the intent to rape. (See § 459, People v. Sparks, supra, 28 Cal.4th at p. 73.) Young, however, argues that in this case the jury might have convicted him based on evidence he had no intent to commit a rape when he entered the house and that the rape commenced before he entered the bedroom, a situation, he asserts, which does not constitute a burglary. We disagree.

First, nothing in the burglary statute or the underlying purposes of the burglary law supports Young's position. Neither the statutory definition of burglary nor the case law requires an individual to wait until he has completed his entry into the structure or into a room within a structure to take the first steps toward committing the felony. Nor does anything in the statutory language or the case law require a potential victim to be within the structure or a room within the structure before the illegal entry. Thus, if Young had encountered the victim outside her house and forced her to enter the house so he could rape her, we believe he would have been guilty of the crime of burglary since he would have entered a structure with the intent to commit a felony. We see no difference between that situation and the one in this case where Young forced the victim into a bedroom to rape her. In both cases, taking a step toward committing the rape prior to the illegal entry merely manifested the intent to commit a rape; it does not negate the crime of burglary. (Compare State v. Hankerson (Kan.Ct.App. 2005) 122 P.3d 408 [defendant who moved victim inside house was found guilty of aggravated burglary based on his intent to kidnap victim].)

Applying the burglary law to this situation is consistent with the underlying purpose of the burglary law to protect against possessory invasions and dangerous encounters between a burglar and an occupant of the house. The invasion of a possessory interest and the danger to the victim exists whether the defendant surprises the victim inside the structure or room or forces the victim to move into an interior room of the structure.

Second, Young's argument is based on a premise the jury might have found he entered the victim's house with the intent of using the phone and only later, once he was inside, formed an intent to rape her. While this is remotely possible, it is highly unlikely. The prosecution presented the case on the theory Young entered the house with an intent to commit rape, that is, that Young's stated purpose of looking for a friend was merely a "ruse," "a trick to get into the house." The theory Young formed the intent only after entering the victim's house was presented by the prosecution merely as an alternate theory the jurors could consider "[i]f [the jury] were to think by some reason that maybe it's possible that [Young] really went there just wanting to use the phone." The defense did not argue that Young did not form the intent until after entering the structure nor argue the theory now urged on appeal. Overwhelming evidence supported a finding Young asked to use a telephone only as a ruse to gain entry to the house, that is, that he never had any innocent intent. Young came to the house armed with a gun. He knew the victim and her daughter were in the house since he was outside nearby when they arrived home. When given the phone, he did not dial any number but merely poked at a few numbers. Shortly after he entered the house, he assaulted and raped the victim. Moreover, he did not present any evidence to show Brenda Johnson existed, lived in the neighborhood or had ever lived in the neighborhood.

Third, Young's argument ignores the facts of the case. Simply put, the rape--that is, the sexual penetration of the victim--did not occur in the kitchen or in the hallway, it occurred in the bedroom. Although it is true, as Young argues, that his use of force against the victim began in the kitchen when he produced his firearm and grabbed her arm, that conduct did not amount to rape but rather was an assault with intent to commit rape. Alternatively, if the victim's neighbor had arrived while Young was still in the kitchen, causing Young to flee, Young could have been found guilty of attempted rape. (See People v. Holt, supra, 15 Cal.4th 619, 674 ["An assault with intent to commit rape is a form of attempted rape"].) Whether Young's conduct in the kitchen is viewed as an assault with intent to rape or an attempted rape, at that point in time, Young had only the intent to commit the rape. He was not then raping the victim; the rape did not occur until after he entered the bedroom. (Contrast People v. Niles (1964) 227 Cal.App.2d 749, 753-754, discussing termination of the burglary prior to the commission of a felony assault.)^[4]

In sum, there was sufficient evidence to support Young's conviction of burglary because substantial evidence supported a finding Young had a felonious intent to rape the victim before entering the victim's house or her bedroom.

II

Instructions on Entry Into the Victim's Bedroom

Young contends the trial court violated his Sixth and Fourteenth Amendment rights to a jury trial and due process of law by instructing the jury that entry into the victim's bedroom intending to commit rape constituted burglary. This argument is a variant of his first argument, that is, that no burglary was committed if he formed the intent to rape after entry into the structure and began to assault the victim with an intent to rape prior to entering her bedroom. We rejected that argument in part I and thus conclude there was no error in the court's instruction.

III

Unanimity Instruction

Young contends the trial court erred in failing to instruct the jury pursuant to CALJIC No. 17.01. As applicable here, it provides:

"The defendant is accused of having committed the crime of _____ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] . . . upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] . . . committed any one or more of the [acts] . . . . However, in order to return a verdict of guilty [to Count ____], all jurors must agree that [he] . . . committed the same [act] . . . [or] [acts] . . . . It is not necessary that the particular [act] . . . agreed upon be stated in your verdict."

A defendant in a criminal trial has a constitutional right to a unanimous jury verdict. (Cal. Const., art. I, § 16.) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Madden (1981) 116 Cal.App.3d 212, 219.) "A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged." (People v. Maury (2003) 30 Cal.4th 342, 423.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo, supra, 25 Cal.4th 1124, 1132.) " 'Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt.' " (People v. Jenkins (2000) 22 Cal.4th 900, 1025.)

Here, the evidence showed only a single discrete crime, that is, a single burglary although the jury was presented with alternate theories, that is, whether the burglary (1) was committed by an illegal entry into the victim's house with an intent to commit rape, or (2) was committed by an illegal entry into the victim's bedroom with an intent to commit rape. As we explained in part I, both theories were permissible and supported by the evidence. Under these circumstances, the court was not required to give a unanimity instruction.

IV

Firearm Enhancement

Young contends the court erred in imposing a firearm use enhancement under section 12022.3 because the court relied on firearm use to impose a life term under the One Strike law (§ 667.61).

Section 667.61, subdivisions (a), (c), (d) provide for a 25-year-to-life sentence if the defendant is found guilty of committing a forcible rape during the commission of a burglary. (§ 667.61, subdivisions (a), (d).) Section 667.61, subdivisions (b), (c), (e), provide for a 15-year-to-life sentence if the defendant personally used a deadly weapon in violation of section 12022, 12022.3, or 12022.5 during the commission of a forcible rape or for a 25-year-to-life term if the defendant used a firearm in violation of section 12022, 12022.3, or 12022.5 and another enumerated circumstance is also proven. "Subdivision (f) of section 667.61 provides in part that if the prosecution establishes more than 'the minimum number of circumstances' necessary to establish eligibility for sentencing under the One Strike law, 'the minimum number of circumstances shall be used as the basis for imposing the term provided in' the One Strike law, 'and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law.' " (People v. Acosta (2002) 29 Cal.4th 105, 122.) "Clearly, this provision contemplates, and indeed requires, that in some cases, a defendant eligible for sentencing under the One Strike law will receive the punishment 'authorized under any other law.' " (Ibid.)

The prosecution alleged and the jury found true two one-strike circumstances: (1) the rape occurred during the commission of a burglary, and (2) Young personally used a dangerous or deadly weapon during the commission of the offense within the meaning of sections 12022, 12022.3 12022.5. Pursuant to the One Strike law, the court imposed a 25-year-to-life term for the forcible rape count, which was tripled to 75 years to life under the Three Strikes law. The court also imposed a four-year consecutive term for a firearm enhancement under section 12022.3, subdivision (a).

Young principally relies on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) for the proposition the court could not use firearm use to enhance his sentence because it had been alleged and proven as a one-strike circumstance. His reliance is misplaced. In Mancebo, the issue was whether the trial court could substitute a circumstance (multiple victims) that had not been alleged or specifically proven as a one-strike circumstance for the firearm use circumstance to impose a one-strike sentence, and then use the firearm use to enhance the defendant's sentence under another statute. The Supreme Court held this was error because it violated the requirement that one-strike circumstances must be specifically alleged and proven (§ 667.61, subd. (i)) and violated the defendant's due process right to notice of the charges he was facing (Mancebo, supra, at p. 749). Here, in contrast, both the burglary and weapon use were alleged as one-strike circumstances. Only one circumstance, the burglary circumstance, was needed to impose the maximum 25-year-to-life term under the One Strike law. Therefore, pursuant to section 667.61, subdivision (f), the court was authorized to use the other alleged circumstance--the firearm use which had also been pleaded and proven under section 12022.3--to enhance Young's sentence under section 12022.3.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

IRION, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.

^[2] We use first names to preserve confidentiality and intend no disrespect.

^[3] Judith's daughter testified Young asked for Sabrina Johnson. Judith testified Young was asking for Brenda Johnson.

^[4] We note that what is really at issue here is the enhancement under the One Strike law for a rape occurring during the commission of a burglary, which results in an enhanced sentence of 25 years to life. (§ 667.61, subd. (e)(2).) "Commission of a burglary" encompasses the period during "the entire course of illegal entry, commission of a felony and escape." (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296; People v. Alvarado (2001) 87 Cal.App.4th 178, 188.) Here, substantial evidence shows Young raped the victim during the course of a burglary which began either during his illegal entry into the structure or the bedroom and continued until he fled the residence.