People v. DeLeon-Mendez CA4/3

Filed 10/13/15 P. v. DeLeon-Mendez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050105

v. (Super. Ct. No. 12NF2321)

ESWIN SAMUEL DELEON-MENDEZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed as modified with directions. Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted defendant Eswin Samuel Deleon-Mendez (DeLeon) of assault with intent to commit rape during a first degree burglary (Pen. Code, § 220, subd. (b); count 1; all statutory citations are to the Penal Code unless noted), first degree robbery (§§ 211, 212.5, subd. (a); count 2), first degree residential burglary (§§ 459, 460, subd. (a); count 3), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 4). As to the first three counts, the jury found DeLeon personally used a knife (§ 12022, subd. (b)(1)). DeLeon contends, and the Attorney General concedes, the trial court erred by imposing an indeterminate term of seven years to life for assault with intent to commit rape (count 1), erred by imposing a six-year term for first degree robbery (count 2), erred by sustaining DeLeon’s burglary conviction (count 3) (a necessarily lesser included offense of assault with intent to commit rape (count 1)), and erred by ordering AIDS testing. We accept the concessions, modify the judgment, and direct the trial court to prepare an amended abstract of judgment. I FACTUAL AND PROCEDURAL BACKGROUND On the morning of July 13, 2012, DeLeon was drinking and smoking marijuana with two friends, Jorge and Carlos. DeLeon, Jorge and Carlos made a plan to “scare” J.J., another resident in the housing complex where they resided. The three young men put tape over their hands, covered their faces with shirts, and walked to J.J.’s apartment. Ultimately, DeLeon entered the apartment by himself. J.J. returned to the apartment about 6:30 a.m. after spending the night at a friend’s house. Upon entering her bedroom she noticed some of her clothes were out of place, and moved toward the closet to see if anything was missing. Suddenly, DeLeon dashed out of the closet with his face covered. He covered J.J.’s mouth with his hand, held a knife to her back, and asked where she kept her money. J.J. gave DeLeon $40 from her wallet. DeLeon searched J.J.’s backpack and removed her laptop.