People v. Montgomery CA3

Filed 12/4/13 P. v. Montgomery CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.