Filed 10/21/14 P. v. Ventura CA2/6
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SECOND APPELLATE DISTRICT

                                              DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B253888
                                                                            (Super. Ct. No. 1387054)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

JUAN CESAR RAMIREZ VENTURA,

     Defendant and Appellant.



                   Juan Cesar Ramirez Ventura appeals from the judgment following
his conviction by jury of assault with intent to commit rape during a residential
burglary (Pen. Code, § 220, subd. (b))1 and rape of an intoxicated person (§ 261,
subd. (a)(3)). The trial court sentenced him to life with the possibility of parole,
pursuant to section 220, subdivision (b), and stayed the sentence for the rape,
pursuant to section 654. Appellant contends that the assault with intent to commit
rape during a residential burglary merged with the rape, and that the former crime
must be reversed. He bases his contention upon the merger doctrine which
precludes liability for second degree felony murder where the underlying felony is
assaultive in nature. (People v. Chun (2009) 45 Cal.4th 1172, 1189 (Chun);
People v. Ireland (1969) 70 Cal.2d 522 (Ireland).) We affirm.


         1 All statutory references are to the Penal Code unless otherwise stated.
                               FACTUAL HISTORY

              The pertinent facts are not at issue on appeal. D. was a college
student. She became intoxicated during a night of heavy partying with friends.
She returned to her apartment and fell asleep on a futon in her living room. A man
broke into her apartment through a window. When D. awoke, he was lying on top
of her, thrusting his penis into her. The man fled after she awoke. He was later
identified by DNA analysis.
                                   DISCUSSION
              Appellant contends that we should extend the merger doctrine which
limits felony murder rule liability and reverse his conviction of assaulting the
victim with the intent to commit rape during a residential burglary. (§ 220, subd.
(b).) He argues that the assault merged with the rape of an intoxicated person.
(§ 261, subd. (a)(3).) We disagree.
              Section 220, subdivision (b) provides in relevant part as follows:
"Any person who, in the commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460 [a residential burglary], assaults another with intent
to commit rape, . . . shall be punished by imprisonment in the state prison for life
with the possibility of parole."
              It is the duty of this court in construing a statute to ascertain and give
effect to the intent of the Legislature. We begin with the language of the statute,
affording the words their ordinary and usual meaning and viewing them in their
statutory context. (People v. Farley (2009) 46 Cal.4th 1053, 1118.) "[T]he power
to define crimes and fix penalties is vested exclusively in the legislative branch.
The courts may not expand the Legislature's definition of a crime nor may they
narrow a clear and specific definition." (Id. at p. 1119 [internal quotation marks
and citations omitted].)
              Appellant cites Chun, supra, 45 Cal.4th at page 1200, and Ireland,
supra, 70 Cal.2d at page 539, in arguing that the section 220, subdivision (b)
assault with the intent to commit rape during a residential burglary "merged" with

                                          2
the section 261, subdivision (a)(3) rape offense. The Ireland court held that
assault "merged" with homicide so that assault could not be the underlying felony
used to support second degree felony murder. (People v. Doyle (2013) 220
Cal.App.4th 1251, 1263-1264.) In urging the application of the merger doctrine
here, appellant claims that it has been applied "in a variety of assault contexts."
He cites only homicide cases, however, as support for that claim. The merger
doctrine has consistently been limited to homicide cases. (Ibid.)2 Moreover,
neither section 220, subdivision (b) nor section 261, subdivision (a)(3) precludes
conviction of both crimes. As required by section 654, the trial court stayed his
sentence for the rape.
              We decline to extend the merger rule to appellant's assault with
intent to commit rape during a residential burglary. The Legislature defined that
crime and fixed its penalty in section 220, subdivision (b). We can neither narrow
its "clear and specific definition" of that crime nor modify the penalty the
Legislature fixed for it. (People v. Farley, supra, 46 Cal.4th at p. 1119.)
                                   DISPOSITION
              The judgment is affirmed.
              NOT TO BE PUBLISHED.
                                                          PERREN, J.
We concur:


              GILBERT, P. J.


              YEGAN, J.

       2 Appellant also argues that application of the merger doctrine in this case
"preserves the legislative intent behind . . . section 667.61, subdivision (d)(4),"
which provides enhanced penalties for certain felony sex offenses committed
during a burglary. Because the rape at issue here (rape of an intoxicated person in
violation of § 261, subd. (a)(3)) is not listed among the offenses which trigger the
section 667.61, subdivision (d)(4) enhancement, he urges us to apply the merger
doctrine to his case. We do not find this argument persuasive.

                                          3
                             Jean M. Dandona, Judge
                     Superior Court County of Santa Barbara
                      ______________________________


             Vanessa Place, under appointment by the Court of Appeal, for
Defendant and Appellant.

             Kamala D. Harris, Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Joseph P. Lee, Jaime L. Fuster, Deputy Attorneys
General, for Plaintiff and Respondent.




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