Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of Riverside County No. RIF122342, James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
A jury found defendant guilty of one count of rape (Pen. Code, § 261, subd. (a)(2)), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), one count of false imprisonment (§ 236), and one count of attempted robbery (§§ 664/211). As to the rape (count 1) and two forcible oral copulation counts (counts 2 and 3), the jury found true the following allegations: (1) defendant possessed a deadly weapon during the commission of the sex offenses (§ 12022.3, subd. (a)); (2) defendant personally used a dangerous or deadly weapon during the offenses (§ 667.61, subd. (e)(4)); (3) defendant committed the offenses during the commission of a first degree burglary (§ 667.61, subd. (d)(4)); and (4) the offenses constituted serious felonies (§ 1192.7, subd. (c)(23)). Defendant admitted suffering a prior felony conviction that resulted in a prison sentence (§ 667.5, subd. (b)), as well as a prior strike conviction (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)), which also qualified as a prior violent felony (§ 667.5, subd. (a)). The court sentenced defendant to state prison for a determinate term of nine years plus an indeterminate term of 50 years to life.
All further statutory references will be to the Penal Code unless otherwise indicated.
The abstracts of judgment incorrectly note that defendant was found guilty by the court, rather than a jury.
The court pronounced defendant’s sentence as “59 years to life”; however, the abstracts of judgment correctly separate defendant’s determinate terms from his indeterminate term, and we too distinguish the separate terms. (People v. Lyons (1999) 72 Cal.App.4th 1224, 1228.)
Defendant contends the trial court erred by instructing the jury that (1) if it finds defendant suppressed evidence, then such a finding could be proof of consciousness of guilt (CALJIC No. 2.06); (2) if it finds defendant fled from the scene of the crime, then such a finding could be proof of consciousness of guilt (CALJIC No. 2.52); and (3) if it finds defendant gave false statements, then such a finding could be proof of consciousness of guilt (CALJIC No. 2.03). Defendant argues that sufficient evidence does not support the court’s decision to give these three instructions. Defendant further contends that there is insufficient evidence that the crimes were committed during the commission of a first degree burglary. We affirm in part and reverse in part.
FACTS
On March 5, 2005, the victim, who is female, was working as a housekeeper at a motel in Moreno Valley. While the victim was cleaning a motel room she noticed defendant pass by the room. Later, defendant approached the victim and asked for a glass, which the victim gave him. Defendant walked away, but returned and entered the room while the victim was cleaning. Defendant spoke to the victim in English, but the victim could only understand the word “bed,” which defendant said in Spanish. The victim moved towards the door, because she thought that defendant wanted sheets from her housekeeping cart.
Defendant became upset and pointed a knife at the victim. Defendant placed the knife blade against the victim’s throat and closed and locked the door of the motel room. Defendant walked the victim to the bed nearest the window. The victim pushed on her walkie-talkie hoping someone would hear defendant speaking and come to her aid, but no one came, and defendant took the walkie-talkie away after it made noise.
Defendant pushed the victim onto the bed and held the knife against her stomach. Defendant removed the victim’s pants and underwear. The victim was frightened. Defendant orally copulated the victim while he held the knife in his hand. Defendant then lowered his pants and instructed the victim to sit up, and forced her to orally copulate him. Defendant then laid down on top of the victim, placed his penis in her vagina, and forced her to engage in intercourse with him, while he held the knife at her stomach. The victim did not want to engage in oral copulation or intercourse with defendant, and she had told defendant to leave.
After defendant ejaculated, he forced the victim to move to the other bed in the room and pushed her head towards the headboard so that she was facing the headboard. Defendant then told the victim that he wanted money; however, she did not have any. Defendant then left the room. The victim ran from the room and yelled for help. A female co-worker assisted the victim, and police officers arrived soon after.
Riverside County Sheriff’s Sergeant Huskey, who was assigned to the Moreno Valley Police Department in March 2005, heard the dispatch call regarding the crime in the instant case. The call provided the location of the crime as well as a description of a “Hispanic or white male with a black hooded sweatshirt and blue jeans.” As Sergeant Huskey travelled towards the motel, approximately 20 minutes after he heard the dispatch call, he saw defendant in a crosswalk approximately one mile east of the motel wearing clothes that matched the suspect’s description. Sergeant Huskey tried to stop defendant, but was unsuccessful, and defendant entered a residence. Within approximately 30 seconds of defendant entering the house, Sergeant Huskey knocked on the door of the residence and defendant answered, but was not wearing a sweatshirt. Defendant exited the house, as did a female and male, who were identified as defendant’s cousins. Defendant had been visiting his relatives at the house for the weekend.
Defendant’s female cousin accompanied the sergeant into the residence and pointed him towards the laundry room and a pile of laundry where defendant’s sweatshirt was located. Defendant’s knife was also found in the laundry room, on the washing machine. The victim came to the house while defendant was outside and identified defendant as the person that attacked her.
Moreno Valley Police Department Investigator Owens interviewed defendant twice on March 5, 2005. During the first interview, defendant denied engaging in intercourse with the victim. Defendant then stated that he offered the victim money in exchange for sex and the victim willingly engaged in intercourse with him. Defendant told the investigator that he took his knife out of his back pocket and laid it on the nightstand, but did not use it against the victim. Defendant denied orally copulating the victim and forcing the victim to orally copulate him. Defendant then admitted that the victim may “have thought that he was going to rob her or kill her” and that she may have thought she was being raped. Defendant admitted smoking cocaine the night prior to attacking the victim.
During the second interview, Investigator Owens lied to defendant and told him that a video camera on the vacuum in the motel room had recorded the incident. Defendant then stated the knife had been hidden in his sleeve and he showed it to the victim, who then became scared and said, “No, please, no, please.” Defendant admitted instructing the victim to go to the bed and remove her clothes. Defendant also admitted orally copulating the victim. Defendant stated that he held his knife to the victim’s throat before she orally copulated him; however, defendant also stated that the knife was in his jacket pocket when the victim orally copulated him. Defendant then described climbing on top of the victim and engaging in intercourse. When Investigator Owens inquired into whether defendant asked the victim for money, defendant smiled and said that he had asked. The investigator asked if defendant knew the victim did not want to engage in intercourse with him. Defendant responded by nodding his head and saying “yes.” Defendant also said that the victim’s facial expression during the attack was the same as his expression when his uncle raped him.
Security cameras at the motel recorded the events that occurred outside the motel room where the victim was attacked, and the recording was played for the jury. The parties stipulated that DNA samples taken from the semen found in the victim’s vagina matched defendant’s DNA.
It appears from the record that a portion of the discussion regarding jury instructions was held off the record, because the court made an appointment for the attorneys to discuss the instructions in chambers and the record does not include a discussion that occurred in chambers. On the record the following exchange occurred:
“The Court: You were objecting to the Court giving CALJIC 2.06, which I think is the suppress evidence instruction.
“[Defendant’s trial counsel]: That’s correct.
“The Court: 252, which is a flight instruction.
“[Defendant’s trial counsel]: That’s correct.
“The Court: Court indicated that it will give those -- Court will give those over the objection.”
DISCUSSION
1.
BURGLARY ENHANCEMENT
Defendant contends that as a matter of law substantial evidence does not support the jury’s findings that he committed rape and two counts of oral copulation during the commission of a first degree burglary (§ 667.61, subd. (d)(4)), because the motel room was not inhabited at the time of the offenses. Defendant further asserts that his sentence must be reduced because the jury’s finding as to the burglary enhancement is not supported by the evidence. We agree that substantial evidence does not support a finding that defendant committed first degree burglary.
A. Evidence
When determining whether substantial evidence supports a jury’s finding, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272.)
Section 460, subdivision (a), defines first degree burglary, in part, as the burglary of an inhabited dwelling house or the inhabited portion of a building. In People v. Villalobos (2006) 145 Cal.App.4th 310, 321, this court held that a motel room is not “inhabited” unless it is being used as a place of repose. To illustrate our conclusion, we distinguished a motel room where a business meeting was being conducted from a motel room where the guests planned to stay overnight and sleep. (Ibid.)
Ms. Wu, an employee of the motel where the victim worked, provided the following testimony on direct examination:
“[Prosecutor]: How would [the victim] know what rooms to clean?
“[Ms. Wu]: Every day we would write [it] down [on] paper or we were told which room[s] to clean and [then we would] tell the maid [or] the front desk would tell them.
“[Prosecutor]: Now, the rooms that were clean[ed], these were rooms that had just recently been vacated; is that correct?
“[Ms. Wu]: Yes. Nobody [was] there.”
Ms. Wu’s testimony fails to provide substantial evidence that the motel room was inhabited at the time defendant attacked the victim, because she does not state whether a guest was planning to return to the room or whether a guest had checked into the room when the attack occurred. Accordingly, the evidence does not support a finding that defendant committed first degree burglary, because the motel room was not inhabited at the time of the crimes; therefore, the jury’s findings as to the enhancements in counts 1, 2, and 3 that defendant committed rape and two counts of oral copulation during the commission of a first degree burglary must be stricken.
The People acknowledge this court’s opinion in People v. Villalobos, but argue that the overall character and use of the building, rather than the individual motel rooms, should determine whether defendant entered an inhabited dwelling. The People argue that the victim had an expectation that she would be free from intrusion in the motel room and therefore the jury’s finding that defendant committed the offenses during the commission of a first degree burglary is supported by substantial evidence. We disagree with the People’s argument.
Section 460 plainly states that first degree burglary occurs when the defendant burglarizes an inhabited dwelling house or the inhabited portion of a building. Courts have traditionally considered individual motel rooms to be separate dwelling places. (See People v. James (1977) 19 Cal.3d 99, 119 [concluding that each entry into a different motel room within the same motel can properly be charged as a different count of burglary].) Accordingly, we cannot consider the overall character and use of the building, but must look to the portion of the building where defendant committed his crimes, i.e., the individual motel room. (See People v. O’Bryan (1985) 37 Cal.3d 841, 844 [noting that it is the inhabited portion of a hotel that falls within the definition of first degree burglary].)
B. Sentence
In his supplemental opening brief, defendant contends that because the burglary enhancements must be stricken, his sentence must be reduced. Defendant provides a detailed argument as to how his sentence should be modified. In his reply brief, defendant requests the matter be remanded for resentencing.
Since defendant is arguing for a detailed reformulation of his prison term, and our decision in People v. Villalobos was not published at the time of defendant’s sentencing, we conclude that the best solution is to direct the trial court to resentence defendant “rather than have us hazard a guess . . . as to the likely sentence that would have been imposed had the trial court been advised of our interpretation” of the burglary statute. (People v. Scott (1993) 17 Cal.App.4th 1383, 1388, fn. omitted.) We intend that our disposition leave unfettered the discretion of the trial court to impose a sentence that it believes is appropriate, in accord with applicable statutes and rules.
2.
JURY INSTRUCTIONS
The trial court instructed the jury with the pattern instructions for inferring a consciousness of guilt from the making of false or misleading statements (CALJIC No. 2.03), from the suppression of evidence (CALJIC No. 2.06), and from flight after the crime (CALJIC No. 2.52). Defendant contends these three jury instructions should not have been given because they were not supported by sufficient evidence.
CALJIC No. 2.03 provides: “If you find that before this trial [the] defendant made a willfully false or deliberately misleading statement concerning the crime[s] for which [he] is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
In one part of his opening brief, defendant argues the alleged instructional errors affected “all five charges, along with the sentence enhancing allegations.” This argument is repeated in another portion of the brief where defendant argues the alleged instructional errors harmed defendant “as to all charges and allegations.” Despite this argument, defendant “concedes there was sufficient evidence to support the jury’s verdict on the charges involving sexual assault” and concludes by arguing that “it is reasonably probable a result more favorable to [defendant] would have been reached on the special allegations absent the error.” Due to defendant’s conclusion, we presume that he concedes that the alleged instructional errors did not affect the jury’s findings as to the substantive offenses, which would include not only the sexual offense convictions, but the robbery conviction as well. We have concluded ante that the first degree burglary enhancements (§ 667.61, subd. (d)(4)) must be stricken. Consequently, we discuss defendant’s contention as it relates to the enhancements for possessing a deadly weapon during the sexual offenses (§ 12022.3, subd. (a)) and using a deadly weapon during the sexual assaults (§ 667.61, subd. (e)(4)).
When alleging an instructional error, a defendant must show that the instruction should not have been given and that the error was prejudicial. (See People v. Rankin (1992) 9 Cal.App.4th 430, 436.) Because defendant’s claim concerning prejudice is more easily refuted, we will limit our discussion to that issue.
Defendant argues that the three consciousness of guilt instructions improperly reduced the prosecution’s burden of proof, which allowed the jury to find the special allegations true despite insufficient evidence. We note that these three consciousness of guilt instructions, in themselves, do not “‘improperly endorse the prosecution’s theory or lessen its burden of proof.’” (People v. Boyette (2002) 29 Cal.4th 381, 438; see also People v. Zambrano (2007) 41 Cal.4th 1082, 1159-1160.)
Defendant contends that the three instructions were prejudicial because “[t]here was . . . evidence that [defendant] suffered from serious mental illness, and actually entered the [motel] room believing [the victim]’s life was in danger, which could have raised a reasonable doubt as to whether he used a knife to [perpetrate] the sexual assaults.” Defendant does not reference any portion of the record to support this argument.
Our review of the record reveals that defendant confessed to smoking cocaine the night prior to assaulting the victim, that he was under the influence of drugs when committing the sexual assaults, and that he entered the motel room because he heard voices telling him to kill the victim. We find nothing in the record supporting the argument that defendant entered the motel room because he thought the victim was in danger from anyone other than himself. Furthermore, a knife was recovered when defendant was arrested, the victim testified that defendant used a knife during the assaults, and defendant confessed to holding a knife to the victim’s throat before forcing her to orally copulate him, although he also made statements denying that he used a knife. Consequently, we find defendant’s argument that the three jury instructions were prejudicial to be unpersuasive due to the overwhelming evidence that defendant personally used and possessed a knife while assaulting the victim. Accordingly, if there were any error, it was harmless under any standard. (People v. Jackson (1996) 13 Cal.4th 1164, 1219; People v. Crew (2003) 31 Cal.4th 822, 849.)
DISPOSITION
The sentences for counts 1, 2, and 3 are reversed and the section 667.61, subdivision (d)(4) enhancements as to those three counts are stricken. In all other respects, the judgment is affirmed. The trial court is directed to resentence defendant on counts 1, 2, and 3.
We concur: Gaut, J., Miller, J.
CALJIC No. 2.06 provides: “If you find that a defendant attempted to suppress evidence against [himself] in any manner, such as by [concealing evidence], this attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, this conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide.”
CALJIC No. 2.52 provides: “The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he] is accused of a crime, is not sufficient in itself to establish [his] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”