P.

FACTS

The victim lived with her teenage son in a first-floor apartment. On the night of the incident, she fell asleep with her bedroom window open and valuables in plain view. The victim awoke when she felt “someone pulling my top up my back.” Turning around, she saw defendant. She testified defendant said he had a gun and reached for his pocket. The victim began screaming and repeatedly kicked defendant. He fled out the bedroom window. The victim discovered the doors to her bedroom and that of her son had been closed and her door locked. None of her valuables had been disturbed. The victim had a history of drug use and, although she denied it, the defense presented evidence suggesting she was involved in selling drugs. Defendant testified he entered the apartment through the victim’s bedroom window at the behest of a person nicknamed “Krueger,” to steal a purportedly large stash of drugs Krueger claimed she possessed. As he climbed through the window, defendant

2 stumbled and awakened the victim. He claimed the victim literally kicked him out the window. He denied having a gun, touching her, or shutting doors in the apartment.

DISCUSSION

1. Background The court used CALCRIM…