Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06CF2466. Francisco P. Briseno, Judge. Affirmed.
Sharon M. Jones, 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, Assistant Attorney General, William Wood and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.
Before Sills, P.J., Aronson, J., and Ikola, J.
Defendant Edgar Morales Yanes challenges his conviction contending there was insufficient evidence to support the jury’s finding that he had the specific intent to commit rape before he entered the victim’s apartment. He also contends there was insufficient evidence to convict him of first degree robbery. Lastly, he challenges his one strike sentence of 25 years to life pursuant to Penal Code section 667.61, subdivision (d) (4) on the basis it constitutes cruel and unusual punishment. We affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
I
Proceedings
Defendant was convicted by a jury of forcible rape (count 1), first degree robbery (count 2), and first degree residential burglary (count 3). As to count 1, the jury returned three true findings for purposes of sentencing under the one strike law. Specifically, the jury found defendant personally used a dangerous or deadly weapon in the commission of the rape, he committed the first degree burglary with the intent to commit rape, and he committed the first degree burglary during the commission of rape. As to counts 2 and 3, the jury found true the allegation that he personally used a knife. Defendant was sentenced to 25 years to life pursuant to the one strike law. All other counts were imposed concurrently or stayed.
Facts
The victim, Maria, lived in a one bedroom apartment on the second floor of a multi-unit building in Santa Ana, with her husband and five young children ages 2 to 11 years of age.
On February 24, 2006, Maria got up very early in the morning and drove her husband to work. She returned to her apartment. As she was in the process of unlocking her apartment door she saw defendant, who also lived in the building, lurking around her unit. Suddenly, defendant grabbed her from behind and held a small knife to her face and neck. She screamed, and defendant covered her mouth with his hand. Terrified, she offered him $40 to $50 not to hurt her. Defendant took the money and put it in his mouth.
Defendant told Maria that he would not hurt her, and asked her who was inside of her apartment. Maria said her children were inside. He ordered Maria to open her apartment door. He put a knife to her throat and told her to cooperate, or her “children would be orphans.” The knife left a small cut under her chin.
Once inside the apartment, defendant ordered Maria to close the door to the bedroom where all of the children were sleeping. He grabbed her and pushed her down into a chair. He told her he “liked” her. He started to caress her, ordered her to embrace him, and then sat her down on the sofa. He told her to remove her clothes and threatened to kill her if she refused. He kissed her mouth, neck, breasts and vagina. He then mounted her, and ejaculated in her vagina.
Maria said she cooperated because she was afraid. The defendant had cut her with a knife, and she thought he was under the influence of drugs because he had some type of white powder showing under his nose.
Afterward, defendant put Maria in a chair and said that he would kill her if she reported the crime. He yanked the telephone cord out of the wall. At some point in time, Maria and defendant both wiped themselves off with a pink sweater that was lying on the floor of the apartment. After defendant left the apartment, Maria took a shower.
Shortly thereafter, Maria reported the crimes to the police using a neighbor’s phone. DNA analysis revealed the presence of defendant’s sperm in Maria’s vagina and also on the pink sweater. Maria positively identified defendant as her attacker. He lived in the same complex, and Maria had seen him before a number of times.
II
Discussion
A. Sufficient Evidence Established the One Strike Allegation under Section 667, Subdivision (d)(4)
Penal Code section 667.61 is commonly known as the “One Strike” law. (People v. Rayford (1994) 9 Cal.4th 1, 8.) The law mandates an indeterminate life term of 25 years to life for those who, among other things, commit a rape “during the commission of a burglary.” (§667.61, subd. (d)(4).) Section 667.61 mandates indeterminate sentences of 15 to 25 years to life for specified sex offenses that are committed under one or more “aggravating circumstances.” The law reflects a legislative determination to impose more lengthy prison sentences where the nature of the sex offense, or the location of the victim when the offense occurs, i.e., a victim of a residential burglary who is inside a structure, place the victim in a position of “elevated vulnerability.” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1295-1296.)
Defendant contends there was insubstantial evidence to support the jury’s true findings under section 667.61, subdivision (d)(4) that he raped Maria during the commission of a first degree burglary. He argues the evidence was insufficient to prove he intended to rape Maria before he entered her apartment. We disagree.
To determine whether there is sufficient evidence to sustain a conviction, the court “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) Reversal based on insufficiency of the evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction.]’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, there was more than ample evidence to support the jury’s finding that defendant possessed the intent to rape Maria prior to entering her apartment. Defendant was lurking near her apartment door with a knife in his possession. He surprised her as she was in the process of opening her apartment door, and held a knife to her throat. He immediately asked her who was inside of the apartment, and then he ordered her to go inside. Once inside, he immediately ordered her to close the bedroom door where her children were sleeping. He told her he “liked her,” and then he raped her. The rapidity in which the events occurred clearly established his intent.
The fact he told her he wasn’t going to do anything, carries little weight. A reasonable inference exists that defendant said those words to hide his true intentions from Maria. He wanted to prevent her from screaming again in order to avoid disclosure, and he wanted a quick entrance into the apartment so he could commit his crime behind closed doors. Even if the jury’s findings to some degree rest on circumstantial evidence, our conclusion that circumstances might reasonably be reconciled with a contrary finding does not render the evidence insubstantial. (People v. Wallace (2008) 44 Cal.4th 1032, 1077.)
Defendant’s argument fails.
B. Sufficient Evidence Establishes Defendant’s Intent to Steal
Defendant argues that there was insufficient evidence to establish his conviction of first degree robbery because the evidence failed to support the jury’s finding that he intended to steal from Maria prior to entering her apartment. He points to the fact that prior to entering the apartment Maria offered him money so that he would not hurt her.
Robbery is “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (§ 211.) The intent to steal must be formed either before or during the commission of the act of force. (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
Defendant argues because his larcenous purpose did not arise until after he poised the knife at Maria, there was no ‘joint operation of act and intent’ necessary to constitute robbery. (People v. Green (1980) 27 Cal.3d 1, 54, overruled on another point in People v. Morgan (2007) 42 Cal.4th 593, 612-613.) He contends the facts fail to support a finding that his application of force was motivated by his intention to steal.
We conclude otherwise. The jury here was properly instructed with former CALJIC instructions Nos. 3.31 and 9.40, which addressed not only the concurrence of act and specific intent, but also provided the jury with the definition of robbery. We presume the jurors followed the court’s instructions and were able to understand and correlate the instructions considered. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Moreover, even if defendant lacked the intent to steal from Maria when he initially accosted her, the evidence supports the jury’s finding that he formed the intent to take her money at some point while he had the knife pointed at her throat. He formed the intent to steal Maria’s money while he was perpetrating an act of force against her. Defendant’s contention is thus unavailing.
C. Sufficient Evidence Establishes Robbery of the First Degree
Defendant also argues that the robbery of Maria was not a first degree robbery, because the hallway or area outside of Maria’s apartment did not constitute an “inhabited dwelling.” We disagree.
Section 212.5 provides that every robbery “perpetrated in an inhabited dwelling house” is robbery of the first degree.
“The term ‘inhabited dwelling house’ for many years has been considered a broad, inclusive definition [Citations], and has been analyzed in terms of whether the dwelling was being used as a residence.” (People v. Cruz (1996) 13 Cal.4th 764, 776.) In Cruz, our Supreme Court recognized that the legislative purpose underlying the residential burglary statute is “to protect the peaceful occupation of one’s residence.” (Id. at p. 775.) Also, other courts have recognized that that “Victims inside buildings are more vulnerable to felonious conduct than victims out of doors.” (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987.)
To address these concerns, case law has expanded the definition of what constitutes an inhabited dwelling house to “include areas not normally considered part of the ‘living space’ of a home.” (People v. Woods (1998) 65 Cal.App.4th 345, 347-348.) Thus, within the context of a first degree burglary, various areas of a structure may be considered an “attached and integral” part of the inhabited dwelling house. (See People v. Cook (1982) 135 Cal.App.3d 785, 795-796.)
For example, the court in People v. Zelaya (1987) 194 Cal.App.3d 73, 75, held that an apartment house is “patently” a dwelling house. Thus, the entry into a garage, basement, hallway, and several storage rooms contained within the apartment house were sufficient to establish a first-degree burglary of a dwelling house. In People v. Nunley (1985) 168 Cal.App.3d 225, 231-232, the entry way of an apartment building constituted an inhabited dwelling house.
Other examples include People v. Woods, supra, 65 Cal.App.4th at p. 349, where this court concluded an apartment complex laundry room was an integral part of the complex, even though the laundry room was not integral to an individual apartment unit. (See also In re Christoper J. (1980) 102 Cal.ApP.3d 76, 80 [the entryway of a carport physically attached to an inhabited dwelling constituted an integral part of the dwelling]; People v. Moreno (1984) 158 Cal.App.3d 109, 112-113; [attached garage sharing same roof but lacking interior door to residence found to be functionally interconnected]; People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1108, [home and attached office functionally interconnected despite lack of interior door]; and People v. Coutu (1985) 171 Cal.App.3d 192, 193, [storeroom connected to an inhabited dwelling by a breezeway with a shared roof seen as functionally interconnected to dwelling house].)
Here, the area around Maria’s apartment door constituted a connected and integral part of the dwelling house in which she resided. Moreover, she was a particularly vulnerable victim because she was attacked while she was inside of her building, rather than outside of her building. Defendant’s argument fails.
D. The Sentence Imposed by the Court Pursuant to the One Strike Law did not Constitute Cruel and Unusual Punishment
Defendant argues that the 25 years to life sentence imposed by the court pursuant to the one strike law constitutes cruel and unusual punishment under both the state and federal constitutions. We do not agree.
A prison sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment if it is “grossly out of proportion to the severity of the crime. [Citations.]” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) Under the California Constitution, the test is whether the sentence is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.) Moreover, whether a particular punishment is cruel or unusual requires the examination of the particular offense and offender, the penalty imposed in the same jurisdiction for other offenses, and the punishment imposed in other jurisdictions for the same offense. (Id. at pp. 425-427; see also Solem v. Helm (1983) 463 U.S. 277, 290-292.)
Respondent correctly contends however, that defendant’s failure to raise this issue below waives his claim. When an inquiry regarding whether a sentence is cruel or unusual requires the resolution of factual issues relating to whether the sentence is grossly disproportionate to the offender’s culpability, failure to raise the issue below waives the argument on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Here, defendant failed to file a sentencing brief below, and did not object to the sentence imposed on the basis it constituted cruel and unusual punishment.
Nonetheless, the result would not change even if defendant had not waived his claim. Previous courts have rejected the argument that a one strike life term imposed for rape during the commission of a burglary violates the constitutional proscription against cruel or unusual punishment. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201. See also People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1282; People v. Crooks (1997) 55 Cal.App.4th 797, 805-809.)
Defendant’s claim that the punishment imposed under the one strike law is disproportionate because it exceeds a sentence imposed for a second-degree murder was also rejected by the court in People v. Alvarado, supra, 87 Cal.App.4th at p. 200.
Moreover, there is nothing inherent in defendant’s individual circumstances that would justify a reduction of his term of imprisonment, or that would establish his punishment was disproportionate under either the state or the federal Constitution. (Harmelin v. Michigan, (1991) 501 U.S.957, 1001; Solem v. Helm, supra, 463 U.S. 277; In re Lynch, supra, 8 Cal.3d at 424; People v. Dillon (1983) 34 Cal.3d 441.)
Defendant’s crime was egregious. He perpetrated a lying-in-wait rape upon the mother of five young children, and committed the offense just outside the bedroom where the children were sleeping. Defendant has suffered prior drug convictions in 2000, 2002, and 2003, and was also on probation for a drug offense when he committed the instant offense. His sentence was appropriate in light of the instant offense, his record of criminal behavior, and his lack of regard for his criminal rehabilitation. His argument fails.
III
Disposition
The judgment is affirmed.