Filed 7/22/26 P. v. Gomez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B345327
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. COMTA158622)
CARLOS MEJIA GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kevin Stennis, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles V. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Sophia A. Lecky, Deputy Attorney General for
Plaintiff and Respondent.
INTRODUCTION
A jury convicted Carlos Mejia Gomez of assault with intent
to commit rape or sexual penetration while committing first
degree burglary. (Pen. Code, § 220, subd. (b).)1 The trial court
sentenced Mejia Gomez to life in prison with the possibility of
parole. Mejia Gomez argues that substantial evidence did not
support the jury’s finding he intended to commit rape or sexual
penetration. Mejia Gomez also argues the trial court erred in
failing to instruct the jury sua sponte on the lesser included
offenses of simple assault and burglary with the intent to commit
sexual battery, assault, or battery.
We conclude that substantial evidence supported the jury’s
finding Mejia Gomez intended to commit rape or sexual
penetration and that the trial court did not prejudicially err in
failing to instruct the jury on any lesser included offenses.
Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Mejia Gomez Enters Aide O.’s Apartment Through an
Open Window and Sexually Assaults Her
Aide lived in a ground-floor, two-bedroom apartment with
her son, Ricardo A., who was 21 years old, and her two younger
children, who were 16 and 12 years old. Aide and Ricardo slept
on separate couches in the living room, and the younger children
slept in the two bedrooms.
On August 8, 2022 Aide went to bed at approximately
10:00 p.m. Ricardo was not home, but returned later in the
1 Statutory references are to the Penal Code.
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evening. The younger children were not in the apartment that
night.
Early the next morning Mejia Gomez entered Aide’s
apartment through an open bedroom window. Aide woke up and
felt a heavy weight pressing against her as she lay on her back.
When she opened her eyes, she saw Mejia Gomez shirtless and on
top of her. Mejia Gomez was pressing his forearm against Aide’s
neck and touched her vagina over her clothing. Aide was afraid
and “in shock.” As she stirred, Mejia Gomez made a “shushing”
motion with his finger. Mejia Gomez kissed Aide on her mouth
and on her vagina over her clothing. Unable to get Mejia Gomez
off her, Aide called out for Ricardo. Ricardo woke up, helped Aide
push Mejia Gomez off her, and forcibly removed him from the
apartment.
During Mejia Gomez’s interaction with Ricardo, which
lasted only a few minutes, Mejia Gomez said he was drunk and
had entered through a bedroom window. Neither Aide nor
Ricardo recalled smelling any alcohol on his breath, though
Ricardo thought Mejia Gomez may have been drunk.
After Mejia Gomez left the apartment, Aide looked in the
bedroom and saw that the bed was unmade and that both
windows were open. Aide recalled the bed was made before she
went to sleep that night. Ricardo found a cellphone in the
apartment containing a selfie of Mejia Gomez and a social media
account associated with the name “Carlos.” The phone’s data
history showed Mejia Gomez used the phone to access
pornographic websites in the time leading up to his attack on
Aide. Mejia Gomez did not take anything from the apartment.
Aide went to work that morning. She “started to feel
panicky,” called her daughter, and told her what had happened.
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Her daughter contacted law enforcement, and the police went to
Aide’s apartment later that day. Aide told the police what
happened and gave them the cellphone Ricardo found.
Mejia Gomez returned to Aide’s apartment the following
evening at 11:30 p.m. He knocked on the living room windows
and said, “Hello.” Aide told him that she was going to call the
police, and he left. Aide testified that during her first encounter
with Mejia Gomez, there was a light on in her apartment and she
could see him. When he returned the next evening, she could see
his face as he stood outside her living room window.
Mejia Gomez testified in his defense. He stated he was not
the person who entered Aide’s apartment and attacked her on the
morning of August 9, 2022 and that he was homeless at the time
and did not have a phone. Though Mejia Gomez testified he had
several tattoos on his upper body and arms that he received
several years prior to 2022, Aide did not recall seeing any tattoos
or markings.
B. The Jury Convicts Mejia Gomez of Assault with Intent
To Commit Rape or Sexual Penetration While
Committing First Degree Burglary
The People initially charged Mejia Gomez with three
crimes: first degree residential burglary of an inhabited dwelling;
assault with intent to commit rape, sodomy, or oral copulation;
and assault to commit rape, sodomy, oral copulation, or
penetration during the commission of a first degree burglary.
(§§ 459, 220, subd. (a)(1), 220, subd. (b).) During trial the court
granted the People’s motion to dismiss the first two charges.
The trial court instructed the jury on the elements of
burglary in connection with the crime of assault with intent to
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commit rape or sexual penetration while committing a burglary.
The court did not instruct the jury on any lesser included
offenses.
The jury found Mejia Gomez guilty of assault with intent to
commit rape or sexual penetration while committing first degree
burglary. The trial court sentenced Mejia Gomez to life in prison
with the possibility of parole. Mejia Gomez timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“Any person who, in the commission of a burglary of the
first degree, . . . assaults another with intent to commit rape . . .
shall be punished by imprisonment in the state prison for life
with the possibility of parole.” (§ 220, subd. (b); see People v.
Dyser (2012) 202 Cal.App.4th 1015, 1020.) “Burglary is
committed when a person enters a structure with the intent to
commit a felony or theft.” (People v. Myles (2023) 89 Cal.App.5th
711, 729; see § 459; People v. Holt (1997) 15 Cal.4th 619, 669.)
“One may be liable for burglary upon entry with the requisite
intent, regardless of whether the felony or theft actually
committed is different from that originally contemplated, or
whether any felony or theft actually is committed.” (In re
Matthew A. (2008) 165 Cal.App.4th 537, 540; see People v.
Lawrence (2000) 24 Cal.4th 219, 232; People v. Bard (1968)
70 Cal.2d 3, 5.)
“‘“The crime of assault with intent to commit rape is
established when the prosecution proves that the defendant
intended to have sexual intercourse with his victim and to use
force to overcome her resistance.”’” (People v. Cook (2017)
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8 Cal.App.5th 309, 315.) Though assault with intent to commit
rape often involves using force on the victim, the use of force is
not an element of the offense. (Id. at 313.) “An assault is an
unlawful attempt, coupled with a present ability, to inflict a
violent injury on a person (§ 240), and unlike a battery, . . . it
does not require contact with the victim.” (Id. at p. 315.)
“‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Hin (2025) 17 Cal.5th 401, 451.) “Mental state
and intent are rarely susceptible of direct proof and must
therefore be proven circumstantially.” (People v. Thomas (2011)
52 Cal.4th 336, 355; see People v. Nguyen (2015) 61 Cal.4th 1015,
1055 [“‘Evidence of a defendant’s state of mind is almost
inevitably circumstantial, but circumstantial evidence is as
sufficient as direct evidence to support a conviction.’”)
B. Substantial Evidence Supported the Jury’s Finding
Mejia Gomez Intended To Rape or Sexually Penetrate
Aide
Mejia Gomez argues substantial evidence did not support
his conviction for assault with the intent to rape or sexually
penetrate Aide because his conduct was “inconsistent with an
intent to rape or sexually penetrate.” Substantial evidence,
however, supported the jury’s finding on that element of the
crime.
Mejia Gomez entered Aide’s apartment through a bedroom
window, climbed on top of her while she slept, placed his hand on
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her neck, and held her down on the living room couch. He kissed
her mouth and her vagina over her clothing. The evidence of
these actions supported the jury’s finding Mejia Gomez intended,
as he immobilized Aide with force, to use his hands as they
hovered over her vagina to sexually penetrate her or force her to
have sex with him. (See People v. Bard, supra, 70 Cal.2d at p. 4
[substantial evidence supported the defendant’s conviction for
assault with intent to commit rape where the defendant entered
an apartment through a window, climbed in bed with a sleeping
woman, fondled her “private parts,” and left after the woman
woke up and told him to leave]; People v. Cook, supra,
8 Cal.App.5th at p. 315 [“‘“[t]he crime of assault with intent to
commit rape is established when the prosecution proves that the
defendant intended to have sexual intercourse with his victim
and to use force to overcome her resistance,”’” not by proving the
defendant committed certain physical acts].)
Mejia Gomez argues substantial evidence did not support
his conviction because he never tried to remove Aide’s clothes or
took off any of his. Mejia Gomez, however, was half undressed
when he attacked Aide. And, though Aide remained dressed
during the incident, the jury could reasonably infer Mejia Gomez
intended to commit rape because he remained on top of her, with
his full body, in prime position to commit sexual intercourse.
(See People v. Meichtry (1951) 37 Cal.2d 385, 389 [substantial
evidence supported the defendant’s conviction for assault with
the intent to commit rape, even though “there was no testimony
that he was exposed so as to be able to complete the act”]; see also
People v. Scott (2011) 52 Cal.4th 452, 488 [“Attempted rape . . .
does not require penetration.”].)
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Mejia Gomez also argues that “the evidence supports only
an inference of lewdness or an intent to seduce, not an intent to
rape,” and that “the absence of any force or threat of force
negates the specific intent requirement.” The argument is based
on a false premise: that he “displayed no force whatsoever.” After
entering the apartment through the bedroom window, Mejia
Gomez climbed on top of Aide while she slept on her back, held
her down by putting his forearm on her neck, and touched her
vagina over her clothes. When she woke up and struggled to get
him off her, he threatened her by making a “shushing” motion
with his finger, remained on top of her, and kissed her mouth and
vagina over her clothing. Aide could not push Mejia Gomez
away. Ricardo saw Mejia Gomez holding onto Aide, and it took
force from Ricardo to finally get Mejia Gomez off her. The jury
reasonably inferred from this evidence Mejia Gomez intended to
commit rape or sexual penetration. (See People v. Craig (1994)
25 Cal.App.4th 1593, 1604 [“While other reasonable inferences
also might be drawn, it was for the jury, not us, to draw them.”].)
C. The Trial Court Did Not Prejudicially Err in Failing
To Instruct on Any Lesser Included Offenses
A trial court has a sua sponte obligation to instruct the jury
on an offense that is necessarily included in a charged offense if
there is substantial evidence that the defendant committed only
the lesser offense. (People v. Shockley (2013) 58 Cal.4th 400, 403;
People v. Smith (2013) 57 Cal.4th 232, 239-240; see People v.
Brothers (2015) 236 Cal.App.4th 24, 29 [a “trial court has a duty
to instruct the jury sua sponte on all lesser included offenses if
there is substantial evidence from which a jury can reasonably
conclude the defendant committed the lesser, uncharged offense,
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but not the greater”]; cf. People v. Cunningham (2001) 25 Cal.4th
926, 1008 [“a trial judge has no duty to instruct on any lesser
offense unless there is substantial evidence to support such
instruction”].)
“A trial court must instruct a jury on lesser included
offenses when the evidence raises questions regarding whether
every element of a charged offense is present. [Citation.] No
instruction on lesser included offenses is required if there is no
evidence that there was any offense less than that charged.
Instructing the jury on a lesser included offense is not required
when the evidence supporting such an instruction is weak, but
‘“‘whenever evidence that the defendant is guilty only of the
lesser offense is “substantial enough to merit consideration” by
the jury,’”’ such an instruction is required. [Citation.] Whether
the evidence is substantial is tested by considering whether a
jury would conclude the lesser but not the greater offense was
committed.” (People v. Vargas (2020) 9 Cal.5th 793, 827.) “On
appeal, we independently review whether a trial court
erroneously failed to instruct on a lesser included offense.”
(People v. Trujeque (2015) 61 Cal.4th 227, 271.)
Mejia Gomez argues the trial court erred in failing to
instruct the jury on the lesser included offenses of simple assault
and burglary where the intent was to commit sexual battery or
“some other crime such as simple assault or battery, which would
not result in a burglary at all.” The People concede residential
burglary and assault are lesser included offenses of assault with
intent to commit rape or sexual penetration while committing
first degree burglary. (See People v. Dyser, supra,
202 Cal.App.4th at p. 1020 [residential burglary is a lesser
included offense of assault with intent to commit rape during the
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commission of a burglary]; People v. Elam (2001) 91 Cal.App.4th
298, 308 [assault is a lesser included offense of assault with
intent to commit rape or sexual penetration while committing a
residential burglary]; People v. Jennings (2000) 81 Cal.App.4th
1301, 1308 [same].)2 The trial court did not err.
Although “‘the court must instruct on [an] alternate theory
even if it is inconsistent with the defense elected by the defendant’”
(People v. Breverman (1998) 19 Cal.4th 142, 157, disapproved on
another ground in People v. Schuller (2023) 15 Cal.5th 237, 260,
fn. 7; accord, People v. Chestra (2017) 9 Cal.App.5th 1116, 1121;
People v. Sinclair (1998) 64 Cal.App.4th 1012, 1017), “when a
defendant completely denies complicity in the charged crime,
there is no error in failing to instruct on a lesser included
2 Assault to commit rape is also a lesser included offense of
assault to commit rape while committing first degree burglary
(People v. Dyser, supra, 202 Cal.App.4th at pp. 1017, 1021), but
Mejia Gomez does not argue the trial court erred in failing to
instruct on that crime. Attempted sexual battery and sexual
battery, however, are not lesser included offenses of assault with
intent to commit rape because the elements of these offenses
require a different intent. (See People v. Dixon (1999)
75 Cal.App.4th 935, 943 [“an assault with intent to commit rape
may be committed without a finding that the defendant harbored
the purpose required by the sexual battery statute”].) Nor is
sexual battery a lesser included offense of forcible sexual
penetration. (See People v. Ortega (2015) 240 Cal.App.4th 956,
966 [“Sexual battery is . . . not a lesser included offense of forcible
sexual penetration under the statutory elements test.”].) Though
Mejia Gomez does not cite any authority that burglary with the
intent to commit sexual battery is a lesser included offense of
assault with the intent to commit rape or sexual penetration
while committing burglary, we assume without deciding that
it is.
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offense.” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 709;
see Sinclair, at pp. 1021-1022 [“the duty to instruct on
inconsistent defenses does not extend to cases . . . where the
sworn testimony of the accused completely obviates any basis for
finding a lesser included offense”]; see also Chestra, at p. 1123
[where the evidence is “such that defendant was either guilty of”
the charged offense “or not guilty of any offense,” the failure to
instruct on a lesser included offense is not error]; People v.
Trimble (1993) 16 Cal.App.4th 1255, 1260 [“Where a defendant
‘denies any complicity in the crime charged, and thus lays no
foundation for any verdict intermediate between “not guilty” and
“guilty as charged” . . . [¶] . . . it is error to so instruct [on the
lesser offense] because to do so would violate the fundamental
rule that instructions must be pertinent to the evidence in the
case at bar.’”].)
As discussed, Mejia Gomez denied that he ever went to or
into Aide’s apartment, that he had a phone, that he accessed
pornographic websites, or that he touched Aide at all, in a sexual
way or otherwise. Mejia Gomez stated he had never seen Aide or
Ricardo. In light of Mejia Gomez’s testimony disavowing he was
in Aide’s home, none of the evidence suggesting a lesser intent
when he entered Aide’s home would be evidence a reasonable jury
would find persuasive. (See People v. Chestra, supra,
9 Cal.App.5th at p. 1123 [“Defendant’s trial testimony would not
permit a jury composed of reasonable persons to conclude he was
guilty of voluntary manslaughter but not murder, nor would his
confession to the detectives, which was plainly inconsistent with
his trial testimony and provided no support for a lesser included
offense verdict on the murder charge.”]; People v. Sinclair, supra,
64 Cal.App.4th at pp. 1021-1022 [“When defendant denied he
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shot the decedent, none of the alleged evidence of heat of passion
and imperfect self-defense was of the type ‘that a reasonable jury
could find persuasive.’”].)
Moreover, there was no evidence, let alone substantial
evidence, Mejia Gomez intended merely to assault or batter Aide.
All of Mejia Gomez’s physical contact with Aide was sexual.
Mejia Gomez did not hit Aide in the head, push her to the
ground, or use force in an indiscriminate or non-sexual way. He
kissed her and touched and kissed her vaginal area while pinning
her down against her will and silenced her when she tried to
move. No reasonable juror would have concluded Mejia Gomez
intended to commit simple assault or battery instead of a sexual
offense. (See People v. Leal (2009) 180 Cal.App.4th 782, 792 [trial
court did not err in failing to instruct on assault as a lesser
included offense of assault with intent to commit rape where the
defendant “broke into his victim’s home in the middle of the
night, crept into her bedroom, and digitally penetrated her
vagina as she slept” because “no reasonable juror could have
found that he was guilty of simple assault but not guilty of
assault with intent to commit either rape or another sexual
offense”]; see also People v. Wilson (1992) 3 Cal.4th 926, 941-942
[where “there was no evidence to support the theory that the
underlying offense, if committed by defendant, was other than
robbery,” the trial court did not err in failing to instruct on
theft].)3
3 For the same reason the court did not err in failing to
instruct on burglary with the target offense of simple assault or
simple battery, the trial court did not err in failing to instruct the
jury on simple assault. Substantial evidence did not support an
instruction on simple assault because Mejia Gomez’s entire
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Whether substantial evidence supported an instruction on
burglary with the intent to commit sexual battery is a closer call.
Section 243.4, subdivision (a), provides: “Any person who touches
an intimate part of another person while that person is
unlawfully restrained by the accused or an accomplice, and if the
touching is against the will of the person touched and is for the
purpose of sexual arousal, sexual gratification, or sexual abuse, is
guilty of sexual battery.” (See People v. Ortega (2015)
240 Cal.App.4th 956, 966.) Before Ricardo pulled him off Aide,
Mejia Gomez managed only to kiss and grope Aide through her
clothing, which arguably could support a finding he intended only
to commit sexual battery when he entered Aide’s home.
Any error in failing to instruct on the offense of burglary
with the target offense of sexual battery, however, was harmless.
“The failure to instruct on lesser included offenses supported by
substantial evidence [is] state law error,” and the defendant
“must show that a different result was reasonably probable under
the Watson standard.”4 (People v. Gonzalez (2018) 5 Cal.5th 186,
196, 201; accord, People v. Perez-Robles (2023) 95 Cal.App.5th
222, 235.) Contrary to Mejia Gomez’s assertion, the “hotly
contested” issue in the trial was not his felonious intent when he
entered Aide’s home and assaulted her. Rather, Mejia Gomez
maintained this case was one of mistaken identity. The jury’s
choice was to believe Aide—that she awoke to find Mejia Gomez
attempting to rape or penetrate her—or to believe Mejia Gomez—
that he was not even there; there was no middle ground. Mejia
course of conduct in Aide’s home indicated he intended to commit
a sexual crime.
4 People v. Watson (1956) 46 Cal.2d 818, 836.
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Gomez never argued he committed a lesser offense. Mejia
Gomez’s use of force throughout the encounter was
uncontroverted; Aide could not get him off her, and she lay in fear
until Ricardo was able to get him off her. It was not reasonably
probable that, had the trial court given an instruction on
burglary as a lesser included offense, the jury would have found
Mejia Gomez intended to commit sexual battery but not rape or
sexual penetration when he entered Aide’s home.
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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