People v. Meza CA3

Filed 2/7/24 P. v. Meza CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C096776

Plaintiff and Respondent, (Super. Ct. No. CR20203140)

v.

JOSE TRINIDAD PEREZ MEZA,

Defendant and Appellant.

The prosecution charged defendant Jose Trinidad Perez Meza with two counts of assault with intent to commit a sex offense, among other charges. The trial court used CALCRIM No. 890 to instruct the jury on these counts, saying the jury was required to find defendant acted with intent to commit “rape, sodomy, oral copulation, or penetration by a foreign object.” Based on this instruction, the prosecutor told the jurors in closing argument that they did not need to agree which of the specific offenses best captured defendant’s intent, so long as they all agreed “he intended to commit one of those”

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offenses. The jury found defendant guilty on both counts of assault with intent to commit a sex offense. On appeal, defendant argues the trial court erred because it was required to identify the specific sex offense at issue, rather than provide a list of multiple offenses, and the prosecutor was incorrect when he told the jurors they did not need to have unanimity as to the specific sex offense intended by defendant. Defendant further argues trial counsel was ineffective because he failed to object to the jury instruction at issue. We find no merit in defendant’s contentions and will affirm the judgment. BACKGROUND Defendant assaulted the two victims, L.C. and X.Z., in separate incidents. The prosecution charged defendant with two counts of assault with intent to commit a sex offense (Pen. Code1, § 220, subd. (a); counts 1 & 4), one count each of forcible sexual penetration (§ 289, subd. (a)(1)(A); count 2), sexual battery (§ 243.4, subd. (a); count 3), attempted rape by force (§§ 664, subd. (a), 261, subd. (a)(2); count 5), assault likely to cause great bodily injury (§ 245, subd. (a)(4); count 6), second degree robbery (§§ 211, 212.5, subd. (c); count 7), and misdemeanor dissuading a witness (§ 136.1, subd. (b)(1); count 8). As relevant here, L.C. testified at trial that defendant attacked her while she was walking to her car at her apartment complex. L.C. was on crutches, fell over when defendant pushed her, and hit her head on the pavement. As she was lying on the ground, defendant reached under her dress with a “claw like motion” and groped her buttocks and vagina. It felt as if he was trying to push his fingers or part of his hand into her vagina. L.C. cried out for help; some neighbors called the police and chased defendant away. X.Z. testified she was finishing work one night and decided to walk along a nearby bike path when defendant came up behind her and placed her in a chokehold. Defendant