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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                 C067823

         v.                                                                      (Super. Ct. No. 09F06717)

AARON BOONE MONTGOMERY,

                   Defendant and Appellant.




         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



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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)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.




1 Undesignated statutory references are to the Penal Code.


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                                       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 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

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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;

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this test “ ‘frees the court from any obligation to present theories to the jury which the
jury could not reasonably find to exist.’ ” (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

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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

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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 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.



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       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).2 He says the




2 CALCRIM No. 361 states: “If the defendant failed in his testimony to explain or deny
evidence against him, and if he could reasonably be expected to have done so based on
what he knew, you may consider his failure to explain or deny in evaluating that
evidence. Any such failure is not enough by itself to prove guilt. The People must still

                                              8
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



prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to
explain or deny, it is up to you to decide the meaning and importance of that failure.”

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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.




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