Filed 10/21/14 P. v. Ventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JUAN CESAR RAMIREZ VENTURA,

 Defendant and Appellant.

2d Crim. No. B253888

(Super. Ct. No. 1387054)

(Santa Barbara County)

Juan Cesar Ramirez Ventura appeals from the judgment following 

his conviction by jury of assault with intent to commit rape during a residential 

burglary (Pen. Code, § 220, subd. (b))1 and rape of an intoxicated person (§ 261, 

subd. (a)(3)). The trial court sentenced him to life with the possibility of parole, 

pursuant to section 220, subdivision (b), and stayed the sentence for the rape, 

pursuant to section 654. Appellant contends that the assault with intent to commit 

rape during a residential burglary merged with the rape, and that the former crime 

must be reversed. He bases his contention upon the merger doctrine which 

precludes liability for second degree felony murder where the underlying felony is 

assaultive in nature. (People v. Chun (2009) 45 Cal.4th 1172, 1189 (Chun);

People v. Ireland (1969) 70 Cal.2d 522 (Ireland).) We affirm.

 

1 All statutory references are to the Penal Code unless otherwise stated. 
2

FACTUAL HISTORY

The pertinent facts are not at issue on appeal. D. was a college 

student. She became intoxicated during a night of heavy partying with friends. 

She returned to her apartment and fell asleep on a futon in her living room. A man 

broke into her apartment through a window. When D. awoke, he was lying on top 

of her, thrusting his penis into her. The man fled after she awoke. He was later 

identified by DNA analysis. 

DISCUSSION

Appellant contends that we should extend the merger doctrine which 

limits felony murder rule liability and reverse his conviction of assaulting the 

victim with the intent to commit rape during a residential burglary. (§ 220, subd. 

(b).) He argues that the assault merged with the rape of an intoxicated person. 

(§ 261, subd. (a)(3).) We disagree.

Section 220, subdivision (b) provides in relevant part as follows: 

"Any person who, in the commission of a burglary of the first degree, as defined in 

subdivision (a) of Section 460 [a residential burglary], assaults another with intent 

to commit rape, . . . shall be punished by imprisonment in the state prison for life 

with the possibility of parole." 

It is the duty of this court in construing a statute to ascertain and give 

effect to the intent of the Legislature. We begin with the language of the statute, 

affording the words their ordinary and usual meaning and viewing them in their 

statutory context. (People v. Farley (2009) 46 Cal.4th 1053, 1118.) "[T]he power 

to define crimes and fix penalties is vested exclusively in the legislative branch. 

The courts may not expand the Legislature's definition of a crime nor may they 

narrow a clear and specific definition." (Id. at p. 1119 [internal quotation marks 

and citations omitted].) 

Appellant cites Chun, supra, 45 Cal.4th at page 1200, and Ireland, 

supra, 70 Cal.2d at page 539, in arguing that the section 220, subdivision (b) 

assault with the intent to commit rape during a residential burglary "merged" with 
3

the section 261, subdivision (a)(3) rape offense. The Ireland court held that 

assault "merged" with homicide so that assault could not be the underlying felony 

used to support second degree felony murder. (People v. Doyle (2013) 220 

Cal.App.4th 1251, 1263-1264.) In urging the application of the merger doctrine 

here, appellant claims that it has been applied "in a variety of assault contexts." 

He cites only homicide cases, however, as support for that claim. The merger 

doctrine has consistently been limited to homicide cases. (Ibid.)2 Moreover, 

neither section 220, subdivision (b) nor section 261, subdivision (a)(3) precludes 

conviction of both crimes. As required by section 654, the trial court stayed his 

sentence for the rape. 

We decline to extend the merger rule to appellant's assault with 

intent to commit rape during a residential burglary. The Legislature defined that 

crime and fixed its penalty in section 220, subdivision (b). We can neither narrow 

its "clear and specific definition" of that crime nor modify the penalty the 

Legislature fixed for it. (People v. Farley, supra, 46 Cal.4th at p. 1119.) 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J. 

YEGAN, J.

 

2 Appellant also argues that application of the merger doctrine in this case 

"preserves the legislative intent behind . . . section 667.61, subdivision (d)(4),"

which provides enhanced penalties for certain felony sex offenses committed 

during a burglary. Because the rape at issue here (rape of an intoxicated person in 

violation of § 261, subd. (a)(3)) is not listed among the offenses which trigger the 

section 667.61, subdivision (d)(4) enhancement, he urges us to apply the merger 

doctrine to his case. We do not find this argument persuasive.
4

Jean M. Dandona, Judge

Superior Court County of Santa Barbara

______________________________

Vanessa Place, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Kamala D. Harris, Attorney General, Lance E. Winters, Senior 

Assistant Attorney General, Joseph P. Lee, Jaime L. Fuster, Deputy Attorneys 

General, for Plaintiff and Respondent.