Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. NA071856, James B. Pierce, Judge
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant John Lopez appeals from judgment after conviction by jury of two counts of performing lewd acts on a child (Pen. Code, § 288, subd. (a), counts 1 and 2) and three counts of performing forcible lewd acts on a child (Id., subd. (b)(1), counts 3, 4 and 5). The jury found true an allegation that count five (ibid.) was committed during a residential burglary. (§ 667.61, subds. (a) & (d)(4).) The trial court sentenced appellant to 35 years to life in state prison, including 25 years to life for count five pursuant to section 677.61, subds. (a) & (d)).
All statutory references are to the Penal code unless otherwise stated.
Appellant contends that the jury's finding that count five count was committed during a residential burglary (§ 667.61, subds. (a) & (d)) must be reversed because the jury was not instructed that, if the victim consented to appellant's entry into her home knowing that he intended to engage in lewd acts with her, no burglary occurred. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant, age 28, lived with his wife and their children in an apartment. S. M., who was 13, lived in the same complex with her own family. Appellant and S. M.'s stepfather were good friends, and S. M. worked for appellant and his wife as a babysitter.
When S. M. visited appellant and his wife, or babysat for them, appellant would offer her things and blow her kisses. One evening in August or September of 2006, after she had completed babysitting and was getting ready to leave, appellant grabbed S. M.'s hand and kissed her on the mouth (count 1). She stormed out and went home. She testified that she was shocked.
S. M. continued to babysit for appellant and his wife. She testified that she went back because appellant's wife asked her to. She "liked [appellant's wife] as [her] own mother," "they have a perfect family," she "didn't want to mess up what they were having . . .," and she needed money for her school supplies. When she returned to appellant's home, she wondered if appellant would act normally.
On a second occasion in August or September when S. M. was babysitting, appellant touched her vaginal area over her clothing (count 2). Appellant asked if she liked it and she said "no." On a third occasion when S. M. babysat in August or September, appellant reached through the open window as she was leaving and squeezed her breast (an alternative act for count 2). S. M. screamed and swore at him and told him he was being "stupid."
At 9:00 p.m. a couple of days before September 30, 2006, S. M. answered a knock at her apartment door. Her mother and stepfather were sleeping. Appellant was at the door and asked to speak to S. M.'s stepfather. As S. M. turned to get her stepfather, appellant grabbed her hand, pushed her against a wall and put his hand on her vagina inside her clothes. She told him to stop and tried to push him away. He asked if she liked it and she said, "no." She was shocked and she did not yell because she did not want to start problems. Appellant put on a condom and put his penis partway inside her vagina (count 3). The condom snapped, and appellant hurried away. S. M. testified that afterward she was too scared to tell her parents and was afraid that people would say bad things about her if she told.
On the evening of September 30, S. M.'s family watched a movie with appellant's family. After returning home, S. M. watched television in her apartment. At about 10:00 p.m., appellant knocked on the door. S. M. answered and appellant asked to speak to her stepfather. S. M. testified that this time, appellant seemed to be acting normally and to really want to speak to her stepfather. S. M. said, 'hold on" and opened the door for appellant. She opened the door for appellant because she "didn't want it to be weird." She loved appellant's wife, who was "always there for her" and "would support [S. M.] in anything." She knew appellant's wife loved him and S. M. did not want to ruin that.
When S. M. opened the door, appellant came in and grabbed her wrist and took her to the kitchen. He held her with one hand and took his penis out of his pants with another. She told him "no," "stop," and "just go home." He forced her hand onto his penis, and then he took an already unwrapped condom from his pocket and put it on. He took off S. M.'s shorts, pushed her legs apart and put his penis in her vagina (count 4). At one point she was able to push away and get to the living room, but he pushed her down on the coach and again put his penis into her vagina (count 5).
S. M. testified that at first she did not yell because she was afraid her mother would not believe that appellant was forcing himself on her, but that eventually she did scream for her mother. S. M.'s mother, stepfather and brother came into the living room. S. M. 's mother testified that she came into the room after hearing S. M.'s screams, and saw appellant's hand over S. M.'s mouth and his pants down. The family attacked appellant, restrained him and called the police. Police arrived, arrested appellant and interviewed S. M. and appellant. A forensic nurse practitioner examined S. M. and found a genital tear consistent with sexual assault.
Appellant did not testify. He gave police investigators conflicting versions of events, each of which the jury heard. Appellant first told police that on September 30 he only went into the apartment to see S. M.'s stepfather, he did not touch S. M., and S. M.'s mother came out screaming at him. He said he thought S. M. was 12 years old. The officer who took this initial statement, at the time of arrest, observed that appellant's pant zipper was down and he was not wearing shoes.
After appellant's first statement, officers searched him and found two used condoms in his sock. Appellant said, "Now I'm screwed. I'm in big trouble now. I know I'm in trouble," and gave another version of events. He said that he went to the apartment to see S. M.'s stepfather, and S. M. invited him into the apartment, asked him to sit on the couch next to him, and told him she likes to "mess around" with older men. He said he resisted her advances, but eventually he touched her breasts and vagina and kissed her lips and breasts and she touched his penis. He said he did not penetrate her vagina. The officers noticed that appellant smelled of alcohol. Appellant said he had consumed eight beers.
Two days after his arrest, appellant was interviewed again. This time, he said that when he went to S. M.'s apartment and asked for her stepfather, S. M. grabbed his hand and kissed his lips without warning. He said she removed her own pants, pushed him toward the living room couch, and participated in mutual intimate touching with him. He initially said that S. M. answered the door completely nude, but later admitted that she was fully clothed when she answered the door. He admitted that he touched her breasts and put his penis in her vagina. He admitted to the instances of sexual conduct that occurred before September 30 with S. M., but he said the conduct was mutual.
With respect to count five, the trial court instructed the jury on the sentencing factor of burglary. (CALCRIM 3180.) Defense counsel did not request amplification of this instruction. The jury returned guilty verdicts on all five counts and found the burglary allegation to be true.
DISCUSSION
Appellant contends that the trial court should have instructed the jury on count five that, if the victim consented to appellant's entry into her home knowing that he intended to engage in lewd acts with her, no burglary occurred. Appellant waived this contention by failing to request the instruction in the trial court. The court did not have a sua sponte duty to give the instruction because there was no substantial evidence that S. M. expressly invited appellant into her apartment knowing that he intended to commit a lewd act upon her. Appellant's counsel did not render ineffective assistance because no substantial evidence supported the instruction and it is not reasonably probable that the result would have been different if the instruction were given.
The instruction given (CALCRIM 3180), correctly states the law regarding burglary as a sentencing factor for sex offenses. (Pen. Code, § 667.61, subd. (c).) "A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024.) Defense counsel did not request amplification of the instruction to include the issue of consent.
A trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence, including the elements of all charged offenses (People v. Cummings (1993) 4 Cal.4th 1233, 1311) and any defenses that are supported by substantial evidence that are either relied on by the defense or not inconsistent with the defense theory. (People v. Flannel (1979) 25 Cal.3d 668, 684, superseded by statute on other grounds as noted in In re Christia (1994) 7 Cal.4th 768, 777.) Lack of consent is not an element of burglary. (People v. Pendleton (1979) 25 Cal.3d 371, 382.) An occupant's express consent to enter is a defense to a burglary charge if the occupant actively invites the accused to enter knowing their criminal purpose (People v. Superior Court (Granillo)(1988) 205 Cal.App.3d 1478, 1483), but consent to enter without knowledge of the entrant's criminal purpose is insufficient to constitute a defense. (People v. Felix (1994) 23 Cal.App.4th 1385, 1398.) In this case, there was no substantial evidence that S. M. invited appellant into the apartment on September 30 with knowledge of his criminal purpose. She either invited him into the apartment believing that he intended only to talk to her stepfather (according to her testimony and her statements), or appellant entered without any intent to engage in sexual activity with S. M. (according to his various versions of events). Consent is no defense if the occupant who gives it is either unaware of the visitor's felonious intent or, if aware of the felonious intent, does not endorse it. (Ibid.)
Appellant argues that his attorney rendered ineffective assistance of counsel by failing to request a consent instruction. To prevail on that claim, appellant must demonstrate that counsel's performance was deficient and that the deficiency prejudiced appellant's defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Counsel's performance was not deficient, because no substantial evidence warranted a consent instruction. Even if a consent instruction should have been requested, the deficiency would not have been prejudicial. The jury conveyed its belief that S. M. did not consent to appellant's actions on the night of September 30 when it found him guilty of committing forcible lewd acts upon her. It is not reasonably probable that a determination more favorable to appellant would have resulted if a consent instruction had been given.
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.