P. v. >Montgomery>

 

 

 

 

 

 

 

 

Filed 12/4/13  P. v. Montgomery CA3

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   AARON BOONE MONTGOMERY,                           Defendant and Appellant.

C067823   (Super. Ct. No. 09F06717)

 

 

 

 

            A jury convicted defendant Aaron
Boone Montgomery of oral copulation by force, sexual intercourse by force, and genital
penetration with a foreign object by force, and found true allegations that he
used a knife and that there were two or more victims.  The trial court sentenced him to a
determinate sentence of six years in prison, consecutive to an indeterminate
sentence of 140 years to life. 

            Defendant now contends (1) the trial
court failed in its sua sponte duty
to instruct on battery as a lesser included offense; (2) the trial court failed
in its sua sponte duty to instruct on intoxication; and (3) the trial court
erred in instructing the jury with CALCRIM No. 361 (failure to explain or deny
adverse testimony).

            We conclude the trial court did not
have a sua sponte duty in this case to instruct on battery or
intoxication.  And although the use of
CALCRIM No. 361 was not warranted, the error was harmless.

            We will affirm the judgment. 

BACKGROUND

            Defendant was indicted for multiple sexual
assaults against a victim in 2006, and also for sexual assaults against two
other victims in separate incidents on the same day in 2009.  Defendant admitted that he took each of the
three victims to an abandoned house. 
They smoked marijuana or crystal methamphetamine and engaged in various
sex acts, all of which he contended was consensual.  Further details of the crimes are included in
the discussion where relevant to the contentions on appeal.

            The jury convicted defendant of oral
copulation by force (Pen. Code, § 288a, subd. (c)(2)href="#_ftn1" name="_ftnref1" title="">[1] -- counts one, three, four, six, nine and
ten), sexual intercourse by force (§ 261, subd. (a)(2) -- counts two,
eight), and genital penetration with a foreign object by force (§ 289, subd.
(a)(1) -- count seven).  On counts one
and two, the jury found true allegations that defendant personally used a deadly
weapon (a knife) in committing the crimes, and on counts one, two, three, four,
six, eight, nine and ten, the jury found true allegations that there were two
or more victims.  The trial court
sentenced defendant to a determinate sentence of six years in prison, consecutive
to an indeterminate sentence of 140 years to life. 

DISCUSSION

I

            Defendant contends the trial court
failed in its sua sponte duty to instruct on battery as a lesser included
offense.  Specifically, he argues (A) there
was evidence he was too intoxicated to form the specific intent required to
commit genital penetration, (B) there was href="http://www.fearnotlaw.com/">insufficient evidence of genital
penetration, and (C) if he actually but unreasonably believed the victims
consented, he was guilty only of battery.

A

            Defendant first claims the trial
court should have instructed on battery
as a lesser included offense because there was evidence defendant was too
intoxicated to form the specific intent required to commit genital
penetration.  The specific intent element
of the crime is that penetration be accomplished “for the purpose of sexual
arousal, gratification, or abuse.”  (§
289, subd. (k)(1).)

            The victim of the 2006 genital
penetration crime said she smoked methamphetamine with defendant shortly after
they met.  A friend of defendant’s later drove
them to an area unfamiliar to her so they could look for more drugs.  They did not find drugs and the victim was
surprised when defendant told the driver to leave them there.  When she said she wanted to go home,
defendant became angry and hit her in the eye and nose with a closed fist.  Defendant admitted hitting her hard enough to
break her nose and cause a lot of bleeding, but he said it was because she had
thrown money back at him after he ordered her to buy marijuana.  He later claimed he hit her because she
accidentally hit him first and was “being disrespectful” toward him. 

            Defendant made the victim go into an
abandoned house where people had been using drugs and into a room that had no
furnishings other than a chair and a lamp. 
The victim testified she was “scared for [her] life” because defendant
told her he could kill her and nobody would ever be able to find her.  Defendant forced her out of her jeans,
breaking the zipper.  He told her to lie
on the ground while he hit a stick or hanger against his hand, telling her they
were going to have sex.  He sexually
assaulted her throughout the night.  The
next morning, as they walked outside so defendant could look for more drugs,
the victim saw a police car, ran toward it and jumped into the back seat,
telling the officer she had been raped. 
Among other things, she told the police officer that defendant had put
his finger inside her vagina while her hands were tied behind her back. 

            Defendant admitted he was a drug
dealer and testified that he and the victim used methamphetamine and marijuana
that day.  On appeal he points to his
testimony that methamphetamine caused hallucinations and paranoia, but he
points to no evidence that he was hallucinating or paranoid or otherwise intoxicated
at the time of the 2006 crime.  The
testimony about hallucinations and paranoia was offered as part of defendant’s
claim that the victim was a methamphetamine user who consented to sex but was
irritable afterward because he “wasn’t trying to smoke” and would not give her
more of the drug.  He claimed she jumped
in the police car to avoid being arrested on drug charges. 

            During a discussion of jury
instructions, defense counsel argued
for instructions on “reasonably related” offenses but explicitly stated that he
was “not arguing for the lesser included” and that he agreed with the
prosecutor that there were no lesser included offenses.  The trial court determined that the evidence did
not warrant giving lesser included or lesser related instructions.  We agree.

            A trial court must instruct on
lesser included offenses when the evidence presented leaves a question about whether
the prosecution has proven one or more of the elements of the charged offense.  (People
v. Kelly (1992) 1 Cal.4th 495, 529-530.) 
The purpose of this limitation is to ensure that the jury’s attention is
focused only on relevant legal theories. 
(People v. Wickersham (1982)
32 Cal.3d 307, 325, disapproved on other grounds by People v. Barton (1995) 12 Cal.4th 186, 200.)  The trial court must consider whether
substantial evidence warrants such an instruction.  (People
v. Strozier (1993) 20 Cal.App.4th 55, 63.) 
A jury instruction on lesser included offenses is required only when a
reasonable jury could have concluded that the facts underlying that instruction
existed; this test “ â€˜frees the court from any obligation to present
theories to the jury which the jury could not reasonably find to exist.’ â€  (Ibid.)

            Here, in connection with the genital
penetration charge, the evidence of drug use did not support a finding that
defendant was too intoxicated to form the requisite intent.  (See People
v. Sanchez (1982) 131 Cal.App.3d 718, 735, disapproved on other grounds in >People v. Escobar (1992) 3 Cal.4th 740,
752 [instruction on intoxication not warranted when evidence showed defendant
had been drinking but not that he was intoxicated].)  Although defendant argues voluntary
intoxication requires jury consideration of lesser offenses, the cases he cites
are inapposite, involving defendants whose intoxication was relevant to distinctions
between murder and manslaughter charges. 
But in this case, there was no evidence that defendant could not
formulate the intent to penetrate the victim for the purpose of sexual arousal,
gratification or abuse, and hence there was no basis for the trial court to instruct
on battery. 

B

            Defendant next claims the trial
court should have instructed on battery as a lesser included offense because
there was insufficient evidence of genital penetration. 

            The basis for this contention is
that the victim did not initially identify digital penetration in response to
the prosecutor’s request that she list the sexual acts committed by defendant against
her.  But the prosecutor interrupted her response
to ask what she meant when she said defendant “made [her] have sex” with
him.  She later acknowledged reporting
the digital penetration to police on the day of the crime, a fact that was
corroborated by the officer into whose car she jumped as she fled from
defendant.  Defendant contends the trial
court should have instructed the jury on battery in case it found that he
touched but did not actually penetrate her vagina. 

            On this record, the trial court did
not have a sua sponte duty to instruct on battery as a lesser included
offense.  The evidence of genital penetration
was not contradicted and the jury concluded defendant was guilty as charged.  There was no evidence to support an
alternative instruction, so none was required. 
(People v. Strozier, supra, 20
Cal.App.4th at p. 63.)

C

            Defendant further claims the trial
court should have instructed on battery as a lesser included offense because if,
due to intoxication, he actually but unreasonably
believed the victims consented, he was only guilty of battery. 

            One of the 2009 victims testified
that defendant acted as if he were in “this weird other world.”  She thought he was on methamphetamine.  She testified that, because she had no money,
he threw her to the ground and told her she had to pay for the marijuana he had
shared with her by giving him sex.  When
she told him she had a sexually transmitted disease, he choked her, forced her
to her knees and told her she would have to give him oral sex.  Defendant admitted that he “took a few hits”
of marijuana before the victim “just unzipped me and went to work.” She
believed it was “obvious” he was “on something” because he was “very, very bipolar
and he was just acting very different,” then he stopped “making [her] gag” on
his penis and “came back to his senses” and started a fire.  He said he abruptly stopped the sex act and
slapped her because she showed him a big bottle of antibiotics for the sexually
transmitted disease and he considered her “dirty.”  He denied lighting a fire in her presence,
saying, “Hell, no” and “I got asthma[;] I barely can smoke weed . . . .”  

            As we have already explained, the
evidence does not indicate that defendant was intoxicated to the point that he
could not form the requisite intent.  In
addition, there is no evidence that he did not understand what was going on
around him.  Defendant testified that he
smoked marijuana and methamphetamine, but significantly, he did not testify to
being intoxicated or even impaired.  On
this record, the trial court had no discernible basis to instruct on battery.

            Moreover, there is no authority for
the proposition that unreasonable belief in consent converts a sexual assault by
force into simple battery.  Defendant
attempts an analogy to “imperfect self-defense,” but that attempt is unavailing.  For example, with regard to the ability to
form the requisite intent, a claim of “imperfect self-defense” is not available
to negate intent just because an accused murderer claims to have been confused
or impaired.  (In re Christian S. (1994) 7 Cal.4th 768, 783 [accused killer must
show not just actual and unreasonable belief of need for self-defense, but also
an actual fear of imminent harm].)  And even
where sexual assault requires proof of specific intent -- such as where rape is
the basis for a felony murder charge -- a defendant’s admitted use of copious
amounts of intoxicants does not necessarily vitiate intent to commit sexual assault.  (People
v. Hernandez (1988) 47 Cal.3d 315, 346 [intoxication did not negate
specific intent to rape or sodomize, even though defendant was substantially
impaired by alcohol and marijuana and was an alcoholic who, according to an
expert, “would have impaired judgment as to whether someone was sexually
receptive or not”].) 

             In any event, the trial court instructed the jury
that, as to each forcible sex crime charged, a “defendant is not guilty of [the
forcible sex crime] if he actually and reasonably believed that the other
person consented to the act.  The People
have the burden of proving beyond a reasonable doubt that the defendant did not
actually and reasonably believe that the other person consented.”  This was the Mayberry instruction requested by the defense.  (See People
v. Mayberry (1975) 15 Cal.3d 143, 155 [a reasonable and bona fide belief
that the victim consented negates the requisite intent for a rape conviction].)  The given instructions allowed defendant to
prove his theory of the case, and there was no href="http://www.mcmillanlaw.com/">instructional error.

II

            In a related contention, defendant claims
the trial court failed in its sua sponte duty to instruct on intoxication.  As we have already discussed, this assignment
of error involves the impact of defendant’s alleged intoxication on the
reasonableness of his belief that two of the three victims consented. 

            A trial court has no sua sponte duty
to instruct on intoxication for any reason. 
(People v. Castillo (1997) 16
Cal.4th 1009, 1014.)  The absence of
specific intent to commit a crime because of intoxication, however, can be
argued to a jury.  (Ibid.)  Defense counsel in
this case argued in closing that defendant had a sincere and reasonable belief
that all of the victims consented to sex and, even if they did not actually
consent, they induced him to believe they had consented because they wanted
money or drugs from him. 

            Defendant concedes that intoxication
is not a defense to rape.  Nonetheless,
he argues the jury should have been instructed on intoxication because it was
“relevant to assessing the honesty and reasonableness of his belief that [the
two victims] had consented.”  But he
acknowledges that this court rejected the very same argument in >People v. Bishop (1982) 132 Cal.App.3d
717, 722. 

            Defendant adds that his trial
counsel’s failure to request an instruction on intoxication was ineffective
assistance of counsel.  But on this
record, and applying the standard enunciated in Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d
674, 693], we conclude counsel’s failure to request an instruction on
intoxication did not “f[a]ll below an objective standard of reasonableness.”  Defendant testified at length but never said
he was impaired by drugs or alcohol.  The
omission in requesting an intoxication instruction did not constitute ineffective
assistance.

III

            In addition, defendant argues the
trial court erred in instructing the jury with CALCRIM No. 361 (failure to
explain or deny adverse testimony).href="#_ftn2" name="_ftnref2" title="">[2]  He says
the instruction was not warranted because he responded to each of the questions
posed to him on cross-examination.  The
Attorney General responds that defendant “had no explanation for the extent of the
injuries the victims suffered or why they would conspire against him.”  

            An instruction regarding the failure
to explain or deny is not justified by contradictions in the evidence, but only
by a failure to explain facts or evidence in the People’s case that were in the
defendant’s particular knowledge to explain. 
(People v. Saddler (1979) 24
Cal.3d 671, 682-683.)  The trial court gave
the CALCRIM No. 361 instruction sua sponte without explanation.  The prosecution’s theory was that defendant
lured each of the three victims to a remote place, used drugs with them, then
sexually assaulted them; the defense theory was that the victims freely entered
abandoned houses to use drugs with defendant and then consented to sex.  We agree that the jury had reason to question
the plausibility of the defense, but there were no obvious unexplained gaps in
the evidence warranting the instruction. 
(See People v. Marsh (1985)
175 Cal.App.3d 987, 994 [it was error to give the instruction despite
significant inconsistencies between the prosecution evidence and defendant’s
testimony]; People v. Haynes (1983)
148 Cal.App.3d 1117 [same].) 

            But given the compelling evidence
against defendant, it is not reasonably probable that a more favorable result
would have been reached without the instruction.  (See People
v. Watson (1956) 46 Cal.2d 818, 836 [harmless error analysis].)  Defendant admitted most of the salient facts,
including hitting all three victims in the face.  Still, he testified adamantly, “I didn’t
force somebody to do nothing[.]  [¶]
. . . [¶] I didn’t have to. 
I’m a lady’s man out there, Man. 
I don’t have to force nobody to do nothing.”  The jury did not believe him.  Instead, it believed three unrelated victims with
similar descriptions of violent sexual assault. 
The credibility issue was not likely to have been resolved differently
in the absence of the erroneous instruction. 


DISPOSITION

            The judgment is affirmed.

 

 

 

 

 

                                                                                                          MAURO                        , J.

 

 

We concur:

 

 

                       RAYE                             , P. J.

 

 

                       MURRAY                      , J.