‘Redundant’ Charge Dumped in Crime Spree

SAN FRANCISCO (CN) - A man who raped a store clerk in a bathroom during a burglary cannot be convicted on two burglary counts, one for entering the store and one for entering the store's bathroom, the California Supreme Court ruled Thursday.

On May 18, 2011, a female store clerk noticed defendant Hugo Garcia riding his bicycle back and forth outside her Escondido store, which primarily offers food and other services to pregnant women and children.

Alone in the store, the clerk became concerned when Garcia entered the store several times before approaching the counter with one hand in his pocket and asking her "weird" questions about the store's welfare recipient voucher program.

Worried about her safety, the clerk sent a text message to her coworker telling her about Garcia's presence in the store.

In an effort to distract her, Garcia asked the clerk about a jar of candies on the store counter. When the clerk reached for the jar, Garcia pulled a gun on her and demanded the money from the cash register and then took the few dollars the clerk had in her pants pocket.

Garcia told the clerk to shut and lock the store's door, turn off the "open" sign and shut off the lights.

Ignoring her pleas not to hurt her, Garcia ordered the clerk to move to the back of the store while asking her to take him to the bathroom, which was toward the back of the store out of view.

Garcia ordered the clerk to take off her clothes and turn around and face him so he could tie her hands. Garcia fumbled with the gun while trying to tie up the clerk and the clerk - afraid of being shot - told Garcia she could tie herself up, and he bound her feet.

Once she was tied up, Garcia turned the clerk around to face the bathroom mirror, raped her, cleaned himself up, took one more look around the store for items to steal and then left in the clerk's vehicle.

A jury convicted Garcia of two counts of burglary, aggravated kidnapping, forcible rape and rape with a foreign object along with various enhancements. The verdict reflected the jury's determination that Garcia committed separate burglaries when he entered the store and subsequently entered the bathroom with intent to commit a felony in each space.

A judge sentenced him to 74 years to life in prison.

But while an appeals court upheld the convictions, the California Supreme Court struck one of the burglary convictions as redundant.

Writing for the court, Justice Mariano Cuellar said Garcia's entry into the bathroom does not constitute a subsequent entry since the bathroom is a room within the store.

"When a burglar enters a structure with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides separate and objectively reasonable expectations of protection from the intrusion relative to the larger structure," Cuellar wrote.

Counter to the lower court's decision that the bathroom can be characterized as a separate structure, Cuellar said that allowing such a characterization would allow for an individual to be charged with burglary every time they entered and exited a room while robbing a single-family home or other single structure.

"Indeed, there would have been nothing preventing the prosecution here from charging Garica with even more than two burglaries, given that the record shows he entered and exited the store bathroom several times before sexually assaulting the clerk inside," Cuellar wrote.

In the ruling, Cuellar clarifies that in order for the store bathroom to be considered a separate dwelling, it had to have provided additionally privacy and safety once the store had been breached. The store bathroom did not meet this condition since it was unlocked and open for use.

"On the facts of this case, the risks to a store occupant's personal safety occurred at the moment that Garcia entered the store with the intent to commit a felony; the bathroom itself did not provide a separate, reasonable expectation of additional protection," Cuellar wrote. "Convicting Garcia of a second burglary was redundant and unlikely to serve the purposes of the burglary statute.

"Garcia should have been charged with, and convicted of, only a single burglary offense."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit