One Strike finding that defendant committed sex offense during residential burglary upheld where invited overnight guest entered bedroom of home to commit sex offense against minor. Garcia, while staying as an invited guest in his sister-in-law’s house, entered a bedroom and committed forcible sex acts against his 12-year-old niece. The jury convicted him of numerous sex offenses, and found that he committed them during a residential burglary. The burglary finding resulted in a sentence of LWOP under the One Strike law (Pen. Code, § 667.61). On appeal he argued the burglary finding must be stricken because he was an invited guest in the home. Held: Affirmed. A person commits first degree burglary when he enters any inhabited dwelling house or room with the intent to commit theft or any felony (Pen. Code, § 459). Burglary is a breach of the occupant’s possessory rights, so may not be committed by a person who has an unconditional possessory right to enter the structure, or who is invited by the occupant who knows of and endorses the felonious intent. Here, as an invitee, Garcia did not have an unconditional possessory right in the bedroom where the crimes occurred and the occupant testified she did not give her consent for him to enter the room in order to commit sex acts with the minor. Thus, as a matter of law, Garcia, as an invited overnight guest in his sister-in-law’s home, could be found to have burglarized the room in which he was staying, by entering it to commit sex acts against the minor therein.

There was sufficient evidence to sustain the burglary finding. The burglary statute (Pen. Code, § 459) requires that a defendant enter into a room or house with the intent to commit a felony. There was substantial evidence that Garcia entered the bedroom of his sister-in-law’s house with the intent to engage in sexual acts with the minor. This was sufficient to support the burglary finding.

The burglary instruction given to the jury was erroneous, but the error actually favored defendant, so it was harmless. The trial court instructed the jury on the elements of burglary using a modified version of CALCRIM No. 3178. The instruction stated it was a defense to burglary if the defendant entered the room with the unconditional permission of the owner, but not if the defendant entered the room for a purpose that was not explicitly or impliedly agreed to by the owner. However, the absence of consent is not an element of burglary; rather consent is a defense. Thus, the trial court erred when it instructed the jury that the prosecution had the burden to show an absence of consent. In addition, the owner must give express and clear consent, not implied consent. But these instructional errors favored Garcia because the “absence of consent” language had the effect of adding an additional element the prosecution was required to prove. In addition, permitting implicit as well as explicit agreement to constitute unconditional permission to enter the room, could only have helped Garcia. Thus, the error was harmless.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A139924.PDF