P. v. Montiel CA4/3

Filed 5/9/13 P. v. Montiel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G046514

v. (Super. Ct. No. 07SF1060)

KEVIN MONTIEL, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Kevin Montiel received a prison term of life with the possibility of parole after being found guilty of violating Penal Code section 220, subdivision (b) (section 220(b); all further statutory references are to the this code) with the finding a non-accomplice was present (§ 667.5, subd. (c)(21)). Section 220(b) imposes a life term on anyone “who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape . . . .” On appeal, defendant argues the trial court committed reversible error by not instructing the jury first degree burglary and assault with intent to commit rape are lesser included offenses of section 220(b). We agree the court so erred, but find the error harmless under the circumstances of this case. Therefore, we affirm the judgment.