Opinion
C090076
08-26-2020
THE PEOPLE, Plaintiff and Respondent, v. ANGEL BURNETT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18FE014642)
A jury found defendant Angel Burnett guilty of assault with intent to commit sexual penetration during the commission of a first degree burglary, first degree burglary, forcible sexual penetration, and misdemeanor possession of methamphetamine. The jury found true various sentencing enhancements, and the trial court sentenced defendant to an indeterminate term of 25 years to life.
Defendant raises two issues on appeal. First, he contends the trial court erred in refusing to instruct the jury on voluntary intoxication. Second, defendant contends, and the People concede, that his conviction for first degree burglary should be dismissed as a lesser included offense to assault with intent to commit sexual penetration during the commission of a first degree burglary. We reject defendant's first contention, accept the People's concession as to defendant's second contention, and dismiss the conviction for first degree burglary. In all other respects, we affirm.
I. BACKGROUND
The victim, a business traveler, arrived in Sacramento on the evening of July 18, 2018. She made her way to an Airstream trailer she had arranged as accommodation for the night. She locked the doors and readied herself for bed. She then went to sleep, activating a sleep tracking application on her phone.
The victim was awakened sometime later by a man in the trailer. The man, later identified as defendant, climbed on top of the victim and held her down. A struggle ensued. The victim screamed, but defendant placed his hand over her mouth. He repeatedly referred to the victim as "Ma'am," and urged her to "Listen." He also repeatedly told the victim, "I have a weapon." When the victim continued to scream and call for help, defendant said, "Now you're getting loud. Now you got me mad." The sounds of the struggle—including defendant's statements—were captured by a recording feature on the victim's sleep tracking application. The recording was played for the jury.
It was stipulated that the male voice on the recording was defendant's. The victim testified that defendant repeatedly said, "Listen" and "Let me explain." However, the transcript of the recording indicates that defendant repeatedly said, "Listen," but did not offer to "explain."
During the struggle, defendant, still on top of the victim, placed his hand inside her pants and digitally penetrated her vagina. Moments later, the victim managed to wriggle out from under defendant. She retrieved her phone and glasses, despite an attempt by defendant to prevent her from doing so. She fumbled with her phone for a moment, and then succeeded in dialing 911. Defendant hesitated, and then fled.
Police officers arrived on the scene. Defendant was long gone, but police found a silver necklace and green lighter in the trailer, neither of which belonged to the victim. Police also found a syringe cap on the ground outside near the trailer door, and a latent fingerprint, later matched to defendant, on the interior side of the frame of the door.
The victim underwent a Sexual Assault Response Team (SART) examination. The examining physician collected swabs from the victim's body and scrapings from her fingernails. DNA analysis showed that the samples contained a mixture of defendant's DNA and the victim's.
Defendant was arrested in downtown Sacramento on July 30, 2018. A search of defendant's backpack revealed burglary tools. Police also found a baggie containing methamphetamine in defendant's sock. A syringe containing liquid methamphetamine was found in the car used to transport defendant to jail.
Defendant was charged by amended complaint with assault with intent to commit forcible sexual penetration during the commission of a burglary in the first degree (Pen. Code, § 220, subd. (b)—count one), first degree burglary (§ 459—count two), forcible sexual penetration (§ 289, subd. (a)(1)—count three), and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)—count four). With respect to count two, the amended complaint alleged that another person, other than an accomplice, was present in the residence during the commission of the burglary. (§ 667.5, subd. (c)(21).) With respect to count three, the amended complaint alleged that the offense took place during the commission of a burglary within the meaning of sections 667.61, subdivision (d)(4) and 667.61, subdivision (e)(2). Defendant pled not guilty and denied the allegations.
Undesignated statutory references are to the Penal Code.
The matter was tried to a jury in June 2019. The prosecution's witnesses testified substantially as described ante. Defendant did not testify or present a case in chief. The jury found defendant guilty on all counts, and found true the allegation that another person, other than an accomplice, was present in the residence during the commission of the burglary charged in count two. The jury also found true the allegation that defendant committed the offense of forcible sexual penetration of the victim during the commission of a residential burglary, with the intent to commit sexual assault upon entry, within the meaning of section 667.61, subdivision (d)(4).
The trial court sentenced defendant to an indeterminate term of 25 years to life on count three, stayed the sentences on counts one and two pursuant to section 654, and deemed him "time[]served" on count four.
This appeal timely followed.
II. DISCUSSION
A. Voluntary Intoxication
After the close of evidence, defense counsel asked the trial court to reconsider its denial of a prior off-the-record request for an instruction on voluntary intoxication. The trial court denied the request a second time, pointing to the absence of evidence that defendant was under the influence at the time of the assault. Defendant argues there was substantial evidence supporting an intoxication instruction. We disagree.
A defendant is entitled to a jury instruction on voluntary intoxication only when there is substantial evidence that the defendant was voluntarily intoxicated and that the intoxication affected the defendant's actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677 [witness testimony that defendant was " 'probably spaced out' " provided "scant" evidence of intoxication].) An intoxication instruction is not required when the evidence shows a defendant ingested drugs or alcohol, unless the evidence also shows he became intoxicated to the point where he failed to form the requisite intent or attain the requisite mental state. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.)
Defendant argues substantial evidence for an intoxication instruction could be found in the syringe cap recovered from the area outside the trailer door, his "bizarre behavior" during the assault, and the discovery of methamphetamine on his person and in the patrol car used to transport him to jail 11 days later. But these bits and pieces of evidence only raise an inference that defendant may have been a drug user. They do not amount to substantial evidence that defendant was intoxicated at the time of the assault, let alone that he was so intoxicated he could not form the requisite intent.
As the People observe, there was no evidence that the syringe cap found near the door belonged to defendant. And even assuming defendant used methamphetamine before entering the trailer, leaving the syringe cap outside the door, there was no evidence of the effect of any such drug use on defendant's state of mind. Defendant makes much of his purportedly "crazy" statements to the victim, but calling an unfamiliar woman "Ma'am," and urging her to "Listen," amidst other threats and entreaties to be quiet, do not constitute behavior so unusual as to provide a basis for inferring that defendant was intoxicated at all, much less that his intoxication interfered with his ability to form the requisite intent. Likewise, the presence of methamphetamine in defendant's sock and in the patrol car, when he was arrested days later, may provide a reasonable basis for inferring that defendant was a drug user, but they provide only a speculative basis for inferring that defendant used drugs on the night of the assault, and no basis at all for inferring that he was intoxicated to the point that he could not form the requisite intent. Speculative evidence of voluntary intoxication does not constitute substantial evidence warranting an intoxication instruction. (People v. Lewis (2001) 26 Cal.4th 334, 369 [speculative evidence is not substantial evidence].)
Defendant directs our attention to the trial court's admission of evidence of the burglary tools over his objection. He notes that the trial court permitted the jury to draw an inference about his intent to enter the trailer on the night of the assault from the fact that he possessed burglary tools some 11 days later. He suggests that the same reasoning should have compelled the trial court to instruct the jury on voluntary intoxication. Specifically, he argues that the jury should have been allowed to infer, from the fact that he possessed methamphetamine at the time of his arrest, that he used methamphetamine on the night of the assault. But, again, defendant's argument fails for lack of substantial evidence that any such methamphetamine use had any effect on his ability to form the required intent. (See People v. Roldan (2005) 35 Cal.4th 646, 716 [evidence that defendant was a habitual user of marijuana did not constitute substantial evidence he was intoxicated or under the influence at the time of the crime], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Defendant's statements to the victim do not constitute substantial evidence that he used methamphetamine at all on the night of the assault, let alone that he was rendered incapable of forming the requisite intent. The trial court properly refused to instruct on voluntary intoxication. B. Lesser Included Offense
Next, defendant argues that his conviction for first degree burglary (§ 459—count two) should be dismissed because it is a lesser included offense of assault with intent to commit sexual penetration during the commission of a first degree burglary (§ 220, subd. (b)—count one). The People concede the issue, and we accept the concession. (See People v. Dyser (2012) 202 Cal.App.4th 1015, 1021 [holding that "first degree burglary is a lesser included offense of section 220, subdivision (b)"].) Accordingly, we shall modify the judgment by dismissing count two as a lesser included offense of count one.
III. DISPOSITION
Defendant's conviction for first degree burglary (count two) is dismissed. The trial court is directed to issue an amended abstract of judgment removing the first degree burglary conviction and its associated sentence, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
MAURO, Acting P. J. /S/_________
DUARTE, J.