Opinion
D070752
09-26-2017
THE PEOPLE, Plaintiff and Respondent, v. KENNETH EUGENE SATTERFIELD, Defendant and Appellant.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD263444) APPEAL from a judgment of the Superior Court of San Diego County, Kathleen Lewis, Judge. Affirmed. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Kenneth Eugene Satterfield guilty of forcible rape (count 1; Pen. Code, § 261, subd. (a)(2)), forcible sexual penetration (count 2; § 289, subd. (a)(1)(A)), and forcible oral copulation (count 3; § 288a, subd. (c)(2)(A)). The jury also found true several enhancement allegations attached to each count, namely, that Satterfield personally used a deadly weapon and tied and bound the victim within the meaning of section 667.61, subdivisions (a), (c), and (e), personally used a deadly weapon within the meaning of section 667.61, subdivisions (b), (c), and (e), tied or bound the victim within the meaning of section 667.61, subdivisions (b), (c), and (e), and committed the crimes during the commission of a first degree burglary and a second degree burglary within the meaning of section 667.61, subdivisions (a), (c), and (d) and subdivisions (b), (c), and (e).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
After the jury returned its verdicts, Satterfield admitted having suffered six prison priors (§§ 667.5, subd. (b), 668), a serious felony prior (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior (§§ 667, subds. (b)-(i), 1170.12, 668). The trial court sentenced Satterfield to an aggregate term of 70 years to life in prison.
On appeal, Satterfield claims that the trial court erred in excluding his out-of-court statement to a witness giving rise to the charged offenses suggesting that he had previously engaged in consensual sexual activity with the victim. Satterfield also claims that the trial court erred in instructing the jury with respect to the section 667.61 burglary allegations. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
1. Satterfield meets the victim
The victim, C.T., posted an advertisement on a website stating that she was looking for a room to rent. JoJann Roberts responded to the advertisement and informed C.T. that there was a garage that had been converted to living quarters for rent.
C.T. went to look at the room in July 2015. She met with Satterfield, Roberts's boyfriend. C.T. returned to the house a day or two later and agreed to rent a different room, a bedroom, in the house. C.T. moved into the house in late July. Satterfield and Roberts also rented a room in the house.
2. The charged offenses
On the evening of August 17, 2015, C.T. returned home in her car a little after midnight. As she parked, C.T. heard noises coming from her bedroom and she saw the light in her room go off. C.T. went into the house and opened her bedroom door.
While she was looking around in her dark bedroom, Satterfield came up behind C.T. and put a knife to her throat. Satterfield said, "Shut up, bitch, I'm robbing you," and dragged C.T. over to her bed. Satterfield was wearing dark pantyhose on his head that made it difficult to see his face.
Satterfield tied C.T.'s hands to the headboard of her bed with rope, blindfolded C.T. with a scarf, and went through her purse. He then began cutting off her clothing with his knife. When C.T. screamed, Satterfield threatened her with the knife. Satterfield also choked C.T. in order to gain her cooperation.
Satterfield put his tongue and then his fingers inside C.T.'s vagina. He pulled down his shorts and put his penis inside of her vagina. Satterfield then masturbated on top of C.T., before continuing to rape her.
While Satterfield was masturbating on top of C.T. a second time, Roberts knocked on C.T.'s bedroom door and asked whether everything was okay. Satterfield said, "Nothing's going on in here." Roberts opened the door, saw Satterfield on top of C.T., and yelled, "Oh my God, Kenneth, what are you doing?" Roberts then left the room. Satterfield got off of C.T., punched her in the mouth, and left the room.
Brant Uber also lived in the house. According to Uber, on the night of the charged offenses, Roberts came to his room "in a panic" and said, "Brant, come back here, he's hurting this girl." Uber followed Roberts and saw Satterfield run into a hallway while wearing an item on his head that appeared to be "pantyhose." Satterfield was not wearing pants. Satterfield ran past Uber and went out the front door. Uber peered into C.T.'s room and saw her putting on a nightgown. C.T. turned around and yelled, "He raped me." After hearing that, Uber ran out the front door and began to chase Satterfield. Uber explained that he stopped chasing Satterfield because it "seemed a little dangerous."
As soon as C.T. was able to untie herself, she found her phone and called 911. The police arrived within a few minutes.
3. Physical evidence
Among other items found in C.T.'s room, police recovered a rope tied to C.T.'s headboard, duct tape, a flashlight, and a scarf with duct tape on it. In a nearby bedroom, police found items taken from C.T.'s purse. C.T. had not gone into that bedroom prior to the attack.
Satterfield's DNA was found on a vaginal swab taken from C.T.
C.T. had a small cut on her nose and one on her stomach. She also had markings on her neck that were consistent with having been choked, and abrasions throughout her body. C.T. also suffered a split lip that appeared to be consistent with her having been punched in the mouth. B. Defense Evidence
Satterfield's defense was that the sexual activity was consensual. Roberts testified that when she opened the door to C.T.'s room on the night of the charged offenses, she saw that C.T.'s hands were tied up and she was naked. According to Roberts, Satterfield was "giving [C.T.] oral sex." Roberts asked, "What is going on?" Satterfield ran out of the room and then out of the house. Roberts maintained that it appeared to her that the sexual activity between C.T. and Satterfield was consensual.
Satterfield testified on his own behalf. Satterfield stated that, approximately a week before the charged offenses, he and C.T. had watched the movie, "50 Shades of Grey." Soon after that, Satterfield asked C.T. whether she wanted to engage in some of the sexual activity that they had seen in the movie. Satterfield got some rope and they went into C.T.'s bedroom and had sex.
On the night of the charged offenses, C.T. asked Satterfield whether he wanted to go to her room and to have sex again. Satterfield and C.T. were engaging in consensual sexual activity when Roberts angrily interrupted them, which led to him running out of the house.
III.
DISCUSSION
A. The trial court did not err in excluding Satterfield's statement to Uber suggesting that Satterfield had engaged in consensual sexual activity with C.T. prior to the charged offenses
Satterfield claims that the trial court erred in excluding his statement to Uber suggesting that he had engaged in consensual sexual activity with C.T. prior to the charged offenses. "A trial court's ruling on the admission or exclusion of evidence is reviewed for abuse of discretion." (People v. Sanchez (2016) 63 Cal.4th 411, 850.)
1. Factual and procedural background
Prior to trial, the People filed a motion in limine seeking to exclude "[Satterfield]'s self-serving hearsay statements to law enforcement and to Brant Uber." (Some capitalization omitted.) The People argued in relevant part:
"When [Satterfield] was arrested, he was [M]irandized, agreed to waive his rights and gave a statement to Detectives. In his statement to Detectives, [Satterfield] . . . stated that he told Brant Uber that 'he had hit that (referring to [C.T.]) and she is kinky[.]' The People do not plan on offering [Satterfield]'s statement in their case in chief. In addition, when Brant Uber was interviewed by Detectives, Mr. Uber stated[,] '[Sattefield] told me had messed around with the Asian girl [C.T.] but I thought no way.' Thus, [Satterfield's] statements to Detectives and Brant Uber are self-serving in nature, inherently unreliable, and should be excluded in the People's case in chief."
The court held a hearing on the People's motion. Defense counsel opposed the People's motion, arguing:
"Your Honor, regarding the statement to Brant Uber, I think that that wouldn't be offered for my client's side of the story, but rather as state of mind of Mr. Uber as to what was going on in the house that night and what his thoughts were behind the relationship between the two and how he viewed the scene. So I think it would be an exception under state of mind for Mr. Uber."
In response, the trial court asked the prosecutor what the "facts [were] as to Mr. Uber," inquiring, "He arrived later that night?"
The prosecutor explained that Uber had moved into the house approximately one day before the incident. According to the prosecutor, Uber had been drinking with Satterfield prior to the incident. The prosecutor stated further, "Supposedly [Satterfield] made that statement that he had been with [C.T.] in the past . . . ." The prosecutor continued by explaining that, on the evening of the charged offenses, Roberts came into Uber's room and said, " 'Help, he's hurting someone, come help.' " According to the prosecutor, "When Mr. Uber came out in the hallway he saw [Satterfield] running out with a stocking over his head." Uber then saw C.T. naked in her room. According to the prosecutor, Uber chased Satterfield briefly before stopping.
After providing this context, the prosecutor contended that Satterfield's statement should be excluded, arguing:
"The only possible relevance of that statement is to get in [Satterfield]'s story before the jury without him being subject to cross-examination that he, in fact, was with the victim prior to that day, consensual, and there's no proof, there's no corroboration,
there's no opportunity for the People to cross-examination about that statement."
We have quoted the People's argument as it appears in the reporter's transcript.
The trial court asked defense counsel whether she had any further argument. Defense counsel responded, "No, your Honor." The court then granted the People's motion, ruling as follows:
"The court: As to Mr. Uber, I find that is a hearsay statement so I am going to grant the motion to exclude that statement. The statement, as I understand it, is, quote, '[Satterfield] told me had'—I'm assuming 'he.' He had messed around with the Asian girl. I assume 'the Asian girl' is assumed to be the alleged victim?
"[The prosecutor]: Correct.
"The court: —'but I thought, "no way." ' That's the whole statement. '[Satterfield] told me that he messed around with the Asian girl but I thought, "no way." ' As far as [Satterfield] having told Mr. Uber or there's any questions about what [Satterfield] told Mr. Uber as far as, quote, 'messing around with the Asian girl,' I'm going to exclude that. I think it's a hearsay statement. I don't see any exception. That's subject, though, to further motion should something come up during testimony and you feel something comes up that changes my ruling. Otherwise it's granted as to Mr. Uber."
After ruling on the statement that Satterfield made to Uber, the court inquired whether defense counsel was seeking to admit the statement that Satterfield made to the detective to the effect that Satterfield had previously engaged in sexual activity with C.T.
Defense counsel argued, "[G]iven the Court's ruling on the fresh complaint doctrine[,] I would argue that the statement should come in by my client to the detective as well."
Earlier in the hearing, the trial court had ruled that C.T.'s statements to a detective reporting the alleged sexual offenses were admissible pursuant to the "fresh complaint doctrine." "Under the fresh complaint doctrine, 'proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victim's disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of fact's determination as to whether the offense occurred.' " (People v. Arredondo (2017) 13 Cal.App.5th 950, 955, fn. 2.) Satterfield raises no argument on appeal pertaining to the trial court's fresh complaint ruling.
The court granted the People's motion with respect to Satterfield's statement to the detective, ruling in relevant part:
"At this point[,] I'm going to grant that motion as well, to exclude his statements to the detective, but, again, that's subject to the Court reevaluating that should there be something that comes up during the case. Otherwise I see it [as] hearsay at this time."
2. Governing law
a. Relevant evidence
Evidence is relevant if it has any tendency in reason to prove a disputed material fact. (Evid. Code, § 210.)
b. The hearsay rule
" 'Hearsay evidence,' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Id., subd. (b).) The prohibition on the introduction of hearsay evidence is known as the "hearsay rule." (Id., § 1200.) There are a number of exceptions to the hearsay rule. (Id., § 1201.)
c. Evidence offered to establish a declarant's state of mind
Evidence Code section 1250 outlines an exception to the hearsay rule for statements that are offered to prove the declarant's state of mind. That section provides: "(a) Subject to Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
"(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
"(2) The evidence is offered to prove or explain acts or conduct of the declarant.
"(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
Evidence Code section 1252 provides, "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
In People v. Ortiz (1995) 38 Cal.App.4th 377, 389, the court explained the distinction between hearsay evidence offered pursuant to the state of mind exception to prove a declarant's state of mind, and nonhearsay statements offered to prove a declarant's state of mind:
"The evidence admitted under [Evidence Code] section 1250 is hearsay; it describes a mental or physical condition, intent, plan, or motive and is received for the truth of the matter stated. [Citation.] If offered to prove the declarant's state of mind, the statement may be introduced without limitation, subject only to [Evidence Code]
section 352. However, the declarant's state of mind must be at issue in the case. . . .
"In contrast, a statement which does not directly declare a mental state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not received for the truth of the matter stated, but rather whether the statement is true or not, the fact such statement was made is relevant to a determination of the declarant's state of mind. [Citation.] Again, such evidence must be relevant to be admissible—the declarant's state of mind must be in issue."
3. Application
Satterfield argues that evidence of his statement to Uber was relevant to assist the jury in assessing Uber's "credibility." Satterfield contends, "The evidence was clearly relevant because it reflected upon Uber's knowledge regarding any relationship between [Satterfield] and C.T. and illuminated Uber's subsequent conduct when JoJann Roberts alerted him to [Satterfield] and C.T.'s subsequent interaction."
We fail to see how Satterfield having told Uber that he had previously engaged in consensual sexual activity with C.T. is relevant to the jury's assessment of Uber's proffered testimony concerning Uber's observations immediately after the alleged commission of the charged offenses. Defense counsel's brief argument against excluding the evidence in which she argued that Satterfield's statement was relevant to prove Uber's "state of mind," did not elucidate the relevance of this evidence. Further, the People's description of Uber's anticipated testimony at the hearing on the motion in limine, which was consistent with Uber's trial testimony, does not suggest any relevance of the statement. Thus, we reject Satterfield's contention that evidence of his statement to Uber that he had previously engaged in consensual sexual activity with C.T. was relevant to the jury's assessment of Uber's observations on the night of the charged offenses.
In his reply brief, Satterfield argues that evidence of Uber's statement expressing doubt as to Satterfield's contention that he had engaged in sexual activity with C.T. was admissible to prove Uber's state of mind. Defense counsel did not clearly raise this argument in the trial court. (See part III.A.1, ante, ["Your Honor, regarding the statement to Brant Uber"], italics added.) Thus, Satterfield is not entitled to reversal of the judgment on this ground. (See Evid. Code, § 354 ["A verdict . . . shall not be set aside, nor shall the judgment . . . based thereon be reversed, by reason of the erroneous exclusion of evidence unless . . . it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means"].) Further, Satterfield did not raise this contention in his opening brief or provide any reason for raising it for the first time in reply. Accordingly, we decline to consider Satterfield's contention. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].)
Satterfield also appears to contend that evidence of Satterfield's statement to Uber suggesting that he had engaged in consensual sexual activity with C.T. was admissible pursuant to Evidence Code section 1250 to prove Uber's state of mind. This argument fails because Evidence Code section 1250 permits admission of the evidence of "a statement of the declarant's then existing state of mind." (Id., subd. (a).) Since Satterfield is the declarant, Evidence Code section 1250 did not authorize the admission of his statement to prove Uber's state of mind.
Satterfield further argues, "Even if [Satterfield]'s statement did not qualify as an exception to the hearsay rule under Evidence Code section 1250, the due process clause of the Fourteenth Amendment required that the statement be admitted." This argument was not raised in the trial court, and may not be raised for the first time on appeal. (See People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [defendant may not argue on appeal that due process required admission of evidence for reasons other than those articulated in the trial court].) In any event, Satterfield's argument is without merit. The evidence was far from the type of "crucial exculpatory evidence" (People v. Espinoza (1992) 3 Cal.4th 806, 818), for which exclusion might violate constitutional principles of due process irrespective of the lack of admissibility under state law.
We reject Satterfield's contention in his reply brief that this argument merely restates the argument that he raised in the trial court. The argument Satterfield raises on appeal is that, even if exclusion of the evidence was proper under state law, constitutional principles of due process nevertheless required its admission. As our quotation of the transcript in part III.A.1, ante, demonstrates, that argument was not raised in the trial court.
Finally, Satterfield also appears to argue that the trial court's erroneous evidentiary ruling under state law was so egregious as to violate his constitutional rights. Satterfield's claim fails because we conclude that the trial court did not err under state law in excluding the evidence. (See Carasi, supra, 44 Cal.4th at p. 1289, fn. 15 [stating that "[n]o separate constitutional discussion is required, or provided, where rejection of a claim that the trial court erred on the issue presented to that court necessarily leads to rejection of any constitutional theory or 'gloss' raised for the first time here"].) B. The trial court did not commit reversible error in instructing the jury with respect to the section 667 .61 burglary allegations
Although Satterfield did not raise this contention in the trial court, he may raise it for the first time on appeal. (See People v. Carasi (2008) 44 Cal.4th 1263, 1289, fn. 15 (Carasi) [defendant may assert for the first time on appeal contention that "the trial court's act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the Constitution," citing Partida, supra, 37 Cal.4th at pp. 433-439].)
Satterfield claims that the trial court erred in instructing the jury with respect to the section 667.61 burglary allegations. As discussed below, the instructions informed the jury that in order to find the allegations true, the jury was required to find, among other elements, that Satterfield entered either (1) a building/house or (2) a room within such structure. We refer to the first theory as the "house theory" of burglary, and the second theory as the "room theory" of burglary.
With respect to the "house theory," Satterfield argues that the trial court erred in instructing the jury that it could find the allegations true based on his entry into a building or house, because he lived in the house in which the offenses occurred, and a person cannot burglarize his own residence. With respect to the "room theory," Satterfield argues that the court erred in failing to instruct the jury that it was required to determine whether Satterfield had a possessory interest in the victim's bedroom in which the offenses allegedly occurred.
1. Factual and procedural background
The information alleged that Satterfield committed each of the alleged offenses during the commission of a first degree burglary (§ 460, subd. (a)) within the meaning of section 667.61, subdivisions (a), (c), and (d) and during the commission of a burglary (§ 459) within the meaning of section 667.61, subdivisions (b), (c), and (e).
The trial court instructed the jury pursuant to a modified version of CALCRIM No. 3178 (sex offense committed during first degree burglary) in relevant part as follows:
"To prove this allegation, the People must prove that; one, the defendant entered an inhabited house or a room within an inhabited house; two, when the defendant entered the house or room within the house, he intended to commit forcible rape, forcible oral copulation, or forcible penetration; and, three, after the defendant entered the house or room within the house he committed forcible rape, forcible oral copulation, or forcible penetration before he escaped to a place of temporary safety." (Italics added.)
The court also instructed the jury pursuant to a modified version of CALCRIM No. 3180 (sex offense committed during burglary) in relevant part as follows:
"To prove this allegation, the People must prove that: One, the defendant entered a building or inhabited house or a room within an inhabited house; two, when the defendant entered a building or house or a room within the house he intended to commit forcible rape, forcible oral copulation, or forcible penetration; and, three, after the defendant entered the building, house, or room within a house, he committed forcible rape, forcible oral copulation or forcible penetration before he escaped to a place of temporary safety." (Italics added.)
2. The trial court's error in instructing the jury that it could find the burglary enhancement allegations true based in part on Satterfield's entry into a building or house was harmless
Satterfield contends that the trial court erred in instructing the jury that it could find the allegations true based in part on Satterfield's entry into an "inhabited house" (CALCRIM No. 3178) or a "building or inhabited house" (CALCRIM No. 3180), because he lived in the house and a person cannot burglarize his own residence. We apply the de novo standard of review to Satterfield's claim. (See People v. Quiroz (2013) 215 Cal.App.4th 65, 76 [stating appellate court reviews de novo trial court's assessment of whether there is substantial evidence warranting the giving of a jury instruction].)
a. Relevant law governing jury instructions
"[I]nstructions not supported by substantial evidence should not be given." (People v. Ross (2007) 155 Cal.App.4th 1033, 1050.) " ' "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1215.) "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).)
b. Relevant substantive law
In People v. Gauze (1975) 15 Cal.3d 709, the California Supreme Court concluded that a "defendant cannot be guilty of burglarizing his own home." (Id. at p. 714.) The court concluded that, "[a] burglary remains an entry which invades a possessory right in a building," and that a burglary "must be committed by a person who has no right to be in the building." (Ibid.) Thus, the Gauze court concluded that the defendant, who had entered the living room of his apartment with a gun and committed a shooting (id. at p. 711), could not be guilty of a burglary. (Id. at p. 714.) The Gauze court reasoned:
"[The defendant's] entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly, defendant had an absolute right to enter the apartment." (Ibid.)
c. Application
The trial court erred in instructing the jury that it could find the burglary allegations true premised in part on Satterfield's entry into a building or house, since it is undisputed that Satterfield lived in the building or house in which the offenses occurred. (See Gauze, supra, 15 Cal.3d at p. 714 [concluding that a person cannot burglarize his own residence].)
Error in giving an instruction that is a correct statement of law but has no application to the facts of the case is an error of state law subject to the harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Guiton, supra, 4 Cal.4th at pp. 1129-1130.) "Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (Guiton, at p. 1130.)
We reject Satterfield's contention that "[t]he instructions allowed [Satterfield] to be convicted of an allegation which, as a matter of law, was improper." (Italics added.) The instruction was legally correct. A defendant may commit a burglary by entering a building or house with an unlawful intent. Thus, we reject Satterfield's contention that the standard of prejudice outlined in People v. Chiu (2014) 59 Cal.4th 155 applies. (See id. at p. 176 ["When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground."].)
In assessing whether the assumed error was prejudicial, we begin by noting that, as Satterfield concedes, "[a] defendant may be found to burglarize a room within a residence." (Italics added.) The jury was specifically instructed, with respect to all of the elements of both burglary allegations, that the jury could find the allegations true based on Satterfield's entry into a "room." (See pt. III.B.1, ante.) Further, we conclude in part III.B.3, post, that the jury was properly instructed that it could find the burglary allegations true based on Satterfield having unlawfully entered the victim's room. Thus, the jury was provided with a valid theory upon which it could base true findings on the burglary enhancement allegations.
Where a jury is instructed on a valid and invalid theory, the reviewing court shall affirm the judgment unless the record shows a reasonable probability that the jury in fact based its verdict solely on the unsupported theory. (Guiton, supra, 4 Cal.4th at p. 1130; see also, e.g., People v. Debose (2014) 59 Cal.4th 177, 206 [applying Guiton and stating "any error was harmless because it is not reasonably probable the jury would have reached a result more favorable to defendant at the guilt phase had the instruction regarding pursuit not been given"].) In this case, there is no reasonable probability that the jury would have based its true findings on the burglary allegations based on Satterfield having entered his own residence. As the People argue, "No one ever suggested the burglary allegations in this case were based on [Satterfield]'s entry into the house." On the contrary, during closing argument, the prosecutor made clear that the People were relying on the "room theory," while discussing the first degree burglary enhancement allegation:
"[T]he defendant entered an inhabited house, or a room in this case, within an inhabited house. When the defendant entered the room he intended to commit forcible rape, forcible oral copulation, or forcible sexual penetration. And after he entered the room, he committed the same three crimes, forcible rape, forcible oral copulation, or forcible sexual penetration, before he escaped to a place [of] temporary safety." (Italics added.)
Similarly, in discussing the other burglary enhancement allegation, the prosecutor made clear that the People were contending that Satterfield had entered the victim's room with an unlawful intent. Moreover, it was undisputed that the incident giving rise to the charged offenses took place in the victim's bedroom. Under these circumstances, we conclude that it is not reasonably probable that the jury based its true findings on the theory that Satterfield entered his residence with an unlawful intent.
Accordingly, we conclude that the trial court did not commit reversible error in instructing the jury that it could find the burglary allegations true based in part on Satterfield's entry into a building or house.
3. The trial court did not err in failing to instruct the jury that it was required to determine whether Satterfield had a possessory interest in C.T.'s room
As discussed above, Satterfield concedes that a defendant may be convicted of burglarizing a room within a residence. However, Satterfield argues that, in the wake of Gauze, a defendant may not be convicted of burglarizing a room that the defendant has an unconditional possessory right to enter. Satterfield further contends that the trial court was required to instruct the jury that it must determine whether he had an unconditional possessory interest in C.T.'s room.
a. Relevant law concerning a trial court's sua sponte instructional duties
In People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks), the Supreme Court outlined the following relevant law concerning a trial court's sua sponte instructional duties:
" ' "It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence" ' and ' "necessary for the jury's understanding of the case." ' [Citations.] It is also well settled that this duty to instruct extends to defenses 'if it appears . . . the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' "
b. Application
i. The People were not required to prove that Satterfield lacked an unqualified possessory interest in C.T.'s room
Satterfield appears to argue that a defendant's lack of a possessory interest in a room that the defendant is accused of burglarizing is an element of the offense of burglary that the People were required to prove in order to establish the burglary enhancement allegations. To the extent that Satterfield intends to raise this argument, we reject it. A defendant's lack of possessory interest is not mentioned in the statute defining the crime of burglary. (See § 459 [" Every person who enters any . . . room . . . with intent to commit . . . any felony is guilty of burglary."]; see also Gauze, supra, 15 Cal.3d at p. 713 [stating that in People v. Barry (1892) 94 Cal. 481, the Supreme Court concluded that "trespassory entry was no longer a necessary element of burglary"].) Moreover, courts have stated that a defendant's possessory interest in a piece of property is a defense to a charge of burglary of such property. (See People v. Felix (1994) 23 Cal.App.4th 1385, 1397 [stating that "[t]here are occasions when consent given by the owner of the property will constitute a defense to a burglary charge," such as "when the accused is the owner of the property," (italics altered), citing Gauze, at p. 714; People v. Ulloa (2009) 180 Cal.App.4th 601, 606-607 ["Even assuming defendant had a possessory interest in the apartment under the lease at the time of the charged crimes, this was not a complete defense to the burglary charge because there was substantial evidence he had moved out of the apartment prior to the crimes"], italics added.)
While Satterfield cites People v. Davenport (1990) 219 Cal.App.3d 885 (Davenport), and Fortes v. Municipal Court (1980) 113 Cal.App.3d 704 (Fortes), neither case directly states that a defendant's lack of possessory interest in a room that he is accused of burglarizing is an element of the offense of burglary. We acknowledge that the Davenport court did state, "To sustain a burglary conviction, the People must prove that a defendant does not have an unconditional possessory right to enter his or her family residence." (Davenport, at p. 892.) However, the only authority that the Davenport court cited in support of this statement is Fortes, at pages 713-714. (Davenport, at p. 892.) Fortes does not support the proposition.
In Fortes, supra, 113 Cal.App.3d 704, the People charged the defendant with murder and burglary based on evidence that he entered the home that he had shared with his wife until approximately three weeks prior to the charged offenses and shot a man. (Id. at p. 706.) The People subpoenaed the defendant's wife to testify against her husband at the preliminary hearing. (Ibid.) Defendant's wife invoked her statutory privilege (Evid. Code, §§ 970, 971) not to testify against her husband. (Fortes, at pp. 706-707.) The People claimed a statutory exception to the privilege (Evid. Code, § 972, subd. (e)(2)), which applies when a defendant's spouse is charged with a crime against a third person that was committed during the commission of a crime against the other spouse. (Fortes, at p. 707.) The People's "apparent theory" was that the defendant committed the killing during a burglary against his wife. (Ibid.) The trial court ruled that the wife would be required to testify against her husband at the hearing. (Id. at p. 706.)
In writ proceedings considering the propriety of the trial court's privilege determination, the Fortes court concluded, "[W]here the factual or legal basis of an exception to a claim of privilege has been put in issue (Evid. Code, § 405) the People must make at least a prima facie showing of a commission of the offense or offenses which give rise to an exception." (Fortes, supra, 113 Cal.App.3d at p. 708.) The Fortes court further concluded that the People could not meet that burden because they had stipulated that the defendant entered the family house; and under Gauze, he could not burglarize his own home. (Fortes, at pp. 713-714.)
Thus, the Fortes court addressed the requisite showing to be made in order to prove an exception to a statutory privilege under the Evidence Code. The Fortes court did not address the People's burden in proving the underlying offense of burglary. Accordingly, Fortes does not constitute authority, as ascribed to it by the Davenport court, that in order to obtain a burglary conviction, the prosecution must prove that a defendant lacks an unconditional right to enter the structure that he is accused of burglarizing. We therefore decline to follow this statement in Davenport and we reject Satterfield's suggestion that the People were required to prove that he lacked an unqualified possessory interest in C.T.'s room in order to establish the burglary enhancement allegations.
Other than citing to Fortes, the Davenport court did not provide any other support for its statement. (Davenport, supra, 219 Cal.App.4th at p. 892.)
ii. There is not substantial evidence in the record that Satterfield had an unqualified possessory interest in C.T.'s room
Satterfield also argues that, irrespective of whether the People were required to prove that he lacked a possessory interest in C.T.'s room, an instruction on this issue was required because there "was evidence [Satterfield] had a possessory interest in the room and had received permission to enter the room and did enter the room on a regular basis." (See Brooks, supra, 3 Cal.5th at p. 73 [trial court has sua sponte duty to instruct on defenses " 'if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case' "].)
Satterfield does not argue that he relied on this defense at trial.
We disagree that there is any substantial evidence in the record that Satterfield had a possessory interest in C.T.'s room. C.T. testified that she rented a "room" in a house in which Satterfield was living. According to C.T., Satterfield was living in another room in the house with Roberts. Satterfield acknowledged that he was not the owner of the house, and he testified that he paid rent to live in the house. Defense counsel asked Satterfield whether he assisted Roberts in finding "individuals in order to try to rent [a] room," in the house. Satterfield responded in the affirmative.
C.T. testified that her understanding of the "use of the house," was that "everyone shared the bathroom." However, C.T. stated that she "figured it was just a mutual agreement no one would be entering other rooms . . . ." C.T. also testified that there was a lock on the door to her bedroom that she would lock when she was home. C.T. explained that she did not lock the door to her bedroom when she left the house because she did not have a key.
While Satterfield notes that C.T. granted him permission to go into her room on occasion, this evidence supports the conclusion that Satterfield did not have a possessory interest in the room such that he could enter the room without C.T.'s permission. In short, Satterfield points to no substantial evidence in the record from which the jury could reasonably find that he had an unqualified right to come and go into C.T.'s room as he pleased, and our own review of the record reveals none.
For example, C.T. testified that, on one occasion, she sent a text to Satterfield asking him to enter her room in order to look for her purse. --------
Accordingly, we conclude that the trial court did not err in failing to instruct the jury that it must determine whether Satterfield had a possessory interest in C.T.'s room in order to find true the burglary enhancement allegations.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: NARES, Acting P. J. DATO, J.