People v. Sparks
| Decision Date | 03 May 2001 |
| Docket Number | No. D034981.,D034981. |
| Citation | 88 Cal.App.4th 1054,106 Cal.Rptr.2d 409 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Michael Joseph SPARKS, Defendant and Appellant. |
Robert E. Boyce, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Joseph Sparks appeals a judgment following his jury conviction of one count of residential burglary (Pen.Code, §§ 459, 460, subd. (a))2 and one count of forcible rape (§ 261, subd. (a)(2)). The jury made true findings on allegations that: (1) in committing the residential burglary Sparks personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)); (2) the forcible rape was committed during the commission of a residential burglary with the intent to commit forcible rape (§ 667.61, subds.(a), (d)(4)); (3) in committing the forcible rape he personally used a deadly or dangerous weapon (§§ 667.61, subds.(b), (e)(4), 12022, subd. (b)(1)); (4) the forcible rape was committed during the commission of a residential burglary (§§ 667.61, subds.(b), (e)(2), 460, subd. (a)); and (5) in committing the forcible rape he personally used a deadly weapon (§ 12022.3, subd. (a)).
Sparks contends: (1) the trial court erred by instructing that residential burglary can be committed by the formation of intent to rape after entry into an inhabited dwelling house but before entry into a different room in the house in which the rape occurred; (2) the trial court erred by not instructing sua sponte on the intent element of the deadly or dangerous weapon personal use allegations; (3) the trial court erred by instructing with CALJIC No. 17.41.1; and (4) his sentence is cruel and unusual punishment, violating the federal and state constitutions. We reverse the judgment of conviction of residential burglary in count 1, and the true findings on the residential burglary enhancement allegations in count 2 and the true findings on the deadly or dangerous weapon personal use enhancement allegations in counts 1 and 2; in all other respects we affirm the judgment.
On April 20, 1998, Ana I. lived with her family in a house in Vista. At about noon that day, Sparks knocked on the front door and Ana opened it. Sparks asked if her parents were home. Ana told him she was home alone. Sparks asked if she would like to buy magazines. She replied she was not interested because she could not read English.3 She told him that he could come back later because her brother might be interested. Sparks stated that he had magazines in Spanish. She replied that she still was not interested in buying magazines. He gave her a card listing the names of the magazines he had to offer and then asked her for a glass of water. Ana gave him a glass of water outside the front door. Sparks drank the glass of water and then entered the house after asking if he could come in.4 Sparks sat down at the dining room table and continued to talk about the magazines, while Ana stood near the kitchen doorway. Ana became uncomfortable and asked him about three times to leave because she had to pick up her niece from school.5 Ana walked into the living room to turn off the stereo. Sparks stood up and followed her into the living room. Ana then went to her bedroom to get her tennis shoes.
Sparks followed Ana to the bedroom. Ana tried to leave the bedroom, but Sparks blocked the doorway. Sparks shoved her onto the bed face down and she started screaming. He pressed a pillow against the back of her head, using both of his hands. Ana unsuccessfully tried to scratch and grab him because she could not breathe. She stopped struggling after she lost her strength because of her inability to breathe. Sparks then turned her over onto her back and she began struggling again. He pressed the pillow against her face. She stopped struggling because of her lack of strength. Sparks then raped her. Ana then climbed out the window and ran to the school and picked up her niece.
After Ana returned home, she told her sister that someone had come into the house and choked her with a pillow. Ana went to the hospital later that night and she told a police officer about the incident. Ana sustained noticeable red spots or dots on her face that remained for approximately one week.
At trial a forensic pathologist explained the physical process of asphyxia caused by smothering, and that death could occur if the mouth and nose were covered for seven to nine minutes. With oxygen deprivation, a person first becomes unconscious and eventually dies. A person's oxygen is depleted more quickly if he or she violently struggles. Asphyxia also could cause petechiae, or pinpoint hemorrhages or red spots on a person's face, resulting from a lack of oxygen and the resultant increased pressure in veins. The photographs taken of Ana's face after the incident were consistent with petechiae caused by asphyxia.
The jury convicted Sparks of both charged offenses and made true findings on all of the enhancement allegations. The trial court imposed a sentence of 29 years to life, consisting of 25 years to life for the forcible rape committed during a residential burglary with intent to rape (§§ 261, subd. (a)(2), 667.61, subds. (a), (d)(4))6 and a consecutive four-year term for personally using a deadly weapon while committing the forcible rape (§ 12022.3, subd. (a)).7
Sparks timely filed a notice of appeal.
Burglary Instructions
Section 459 provides:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building ... with intent to commit grand or petit larceny or any felony is guilty of burglary." (Italics added.)
Section 460, subdivision (a) provides: "Every burglary of an inhabited dwelling house ... is burglary of the first degree."
Section 667.61 was enacted in 1994 as part of the "one strike" law that enhances the sentences imposed for certain sex offenses, including section 261, subdivision (a)(2) forcible rapes, if there are one or more aggravating circumstances. (People v. Palmore (2000) 79 Cal.App.4th 1290, 1295, 94 Cal.Rptr.2d 784; People v. Jones (1997) 58 Cal.App.4th 693, 703, 68 Cal. Rptr.2d 506.) Section 667.61 provides in pertinent part:
The trial court instructed on burglary as follows:
[¶]
(Italics added.)
The jury returned a verdict finding Sparks guilty of the crimes of section 460, subdivision (a) residential burglary and of section 261, subdivision (a)(2) forcible rape and that Sparks committed forcible rape during the commission of a residential burglary within the meaning of sections 667.61, subdivisions (b) and (e)(2), and 667 .61, subdivisions (a) and (d)(4).
Sparks asserts the trial court erred by instructing that a section 460, subdivision (a) residential burglary is committed by entry into any room within an inhabited dwelling house with the accompanying intent to commit rape.8 He asserts that to be guilty of residential burglary, the defendant must have the requisite intent at the time he or she enters the inhabited dwelling house, not later at the time of entry into any room within that house other than the room initially entered. At trial he argued the evidence was insufficient to show he had the intent to rape Ana before he entered her house and asserts the trial court's instructional error was therefore prejudicial.
Sparks concedes that People v....
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