Opinion
H043974
06-08-2018
THE PEOPLE, Plaintiff and Respondent, v. CARLOS ANTONIO COTICHACAJ AKA: CARLOS ANTONIO COTI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. Nos. C1367518, B1370152)
Following a jury trial, defendant Carlos Antonio Cotichacaj (aka Carlos Anthony Coti) was found guilty of assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1)) (count 1), two counts of felony false imprisonment (§§ 236, 237, subd. (a)) (counts 2 & 5), assault with intent to commit rape during the commission of first degree burglary (§ 220, subd. (b)) (count 3), and attempting to dissuade a witness by force (§ 136.1, subd. (c)(1)) (count 4). The court imposed an indeterminate term of seven years to life on the conviction of assault with intent to commit rape during the commission of first degree burglary (count 3) to be served consecutively to an aggregate determinate term of eight years four months. The determinate term consisted of a three-year term on the conviction of attempt to dissuade a witness by force (count 4), a consecutive eight-month term (one-third the midterm) on each conviction of false imprisonment (§§ 236, 237, subd. (a)) (counts 2 & 5), and a full, consecutive four-year term on assault with attempt to commit rape (count 1).
All further statutory references are to the Penal Code unless otherwise specified.
Defendant timely appeals from the judgment of conviction. He asserts that (1) the trial court should have instructed on attempted sexual battery as a lesser included offense of assault to commit rape, that (2) the evidence was insufficient to prove attempt to dissuade a witness by force (§ 136.1, subd. (c)(1)) (count 4), that (3) the trial court should have stayed the sentences imposed on his false imprisonment convictions pursuant to section 654, and that (4) the sentence imposed on his conviction under section 220, subdivision (b), was unauthorized and must be corrected.
We modify the judgment to stay the sentences imposed on the two convictions of false imprisonment and to impose the sentence mandated by section 220, subdivision (b). We affirm the judgment as modified.
I
Evidence
Y. Doe
Y. Doe came to the United States on July 3, 2013, when she was 18 years old and pregnant. When she came to the United States, she moved in with her mother and defendant, who was her stepfather, for about a month. She then moved in with some of her mother's friends, including A.T.
"Doe" surnames were used in the information and at trial to protect the privacy of the alleged victims of the charged offenses. To further protect their privacy, we use only the first initial of their first names.
During the evening of August 22, 2013, defendant called Y. to arrange to meet her. Y. supposed that the purpose of getting together with defendant was to help her reconcile with her mother, with whom she was having problems over the pregnancy and other issues, or to go buy baby clothes. Shortly after the call, defendant picked her up at A.T.'s apartment.
Defendant drove to a liquor store on El Camino Real in Santa Clara. Defendant asked Y. whether she wanted juice. Y. waited in the car while defendant went into the liquor store. Defendant returned to the car with juice and beer.
Defendant then drove to a place "for a massage," and Y. asked what they were doing there. Defendant parked the car and told her to wait in the car. Defendant returned to the car without any explanation and continued driving. They talked about Y.'s problems with her mother, and she asked defendant why he drank.
Defendant drove to a motel, parked, got out of his vehicle, paid cash for a room, and then returned to the vehicle a short time later. Defendant then took Y. to a motel room, explaining only that "he was looking for a place to go drink." When Y. realized that it was a motel room she "felt weird" because she had "never been in a motel room" before and she was there alone with defendant. She went inside the motel room because she "wanted to talk to him about the problems [she] was having with [her] mother."
In the motel room, Y. sat in a chair, and defendant put the beer in the room's refrigerator and then sat on the bed. They talked about her pregnancy and her mother. Defendant drank a beer and gave a beer to her. She was "scared" to reject the beer because defendant was looking at her in an intense way that felt somehow threatening. Defendant told her to drink the beer and "the problems were going to disappear for a while." Y. admitted that she was curious to try beer, which she had not had before.
As defendant drank beer, they talked about Y.'s pregnancy because her mother was "not accepting the pregnancy." Defendant approached Y., who was still seated in the chair, and began touching or rubbing her belly over her clothing, which made Y. want to leave. While kneeling in front of Y., defendant told her that he accepted her pregnancy and that he would take care of her baby.
Defendant began kissing her on the neck. He then lifted her blouse to touch her breast. She did not like what he was doing and tried to stop him. Y. stood up and said she wanted to leave; she took her purse from a table. Defendant replied that it was not time to leave and became furious.
Defendant grabbed Y., pushed her onto the bed on her back, and got on top of her, straddling her. He grabbed her arms and then he held her by her wrists, which caused pain. She was unable to move. Y. was telling defendant to stop and to get off her, and defendant was telling Y. to be calm. They struggled, and Y. tried to get out from under him. While on top of her, defendant was trying to pull down Y.'s elastic-waist pants, and he managed to pull them down to her hips. Y. pulled her pants up and pushed him off her.
Y. was crying and asked whether they were going to leave. Defendant said yes, but then Y. grabbed her bag and ran out of the motel room toward the street.
Y. asked a man, Pedro D., who was standing on the sidewalk on El Camino Real, for help. Y. asked to use his phone. Pedro saw that Y. was nervous and shaking, and she told him that someone had tried to sexually assault her. He lent his phone to her. Y. tried to call her mother and then her brother, but neither answered. Y. reached A.T. by phone, but A.T. could not understand her. Pedro T. then began speaking and explained that something had happened, and he told A.T. to come pick up Y.
Irma D., Pedro's wife, arrived to pick him up. Irma saw Y. "huddled up to [her] husband" for protection; she seemed "very scared." Y. told Irma that her mother's husband had tried to sexually assault her.
Defendant pulled up in his car, and loudly ordered Y. to get in the car two times. Y. told Pedro "[t]hat is him, the one who wanted to do things to me." She said, "Please don't leave me. Don't let him take me." Pedro yelled at defendant to leave and said he was calling the police, and defendant drove away.
A.T. and a male companion arrived, and Y. was happy to see them and began crying. Pedro and Irma left. Y. told A.T. that defendant, whom A.T. knew, had tried to sexually assault her in a nearby hotel. A.T. called 911 on her phone and spoke to the 911 operator while Y. was standing next to her. Y. was nervous, crying, and shaking. Y. thought she would be deported, and she was afraid because she could not feel the baby moving.
Daniel Bybee, a Palo Alto police officer, was the first responder on the scene. When Officer Bybee made contact with Y., she was crying on A.T.'s shoulder. He was unable to obtain a statement because she was sobbing.
Paramedics responded to the scene. Police Officer Sal Madrigal arrived at the scene while Y. was being attended by the paramedics. Officer Madrigal was unable to obtain a statement from Y. because "[s]he was crying hysterically," and "she actually passed out for a few seconds." Officer Madrigal followed the paramedics to Stanford emergency room, and he obtained some information from Y. but not a complete statement because of her emotional state. He saw "[r]ed marks on her wrists."
Subsequently, the police asked Y. to make a recorded pretext call to defendant, which she did. The recording was admitted into evidence and played for the jury. During the call, defendant admitted that he had disrespected Y.
On September 3, 2013, defendant went to the Palo Alto police station to give a voluntary statement. Maximilian Nielepko, a detective with the Palo Alto Police Department, conducted an interview of defendant with the assistance of Officer Marco Estrada, who also served as the Spanish translator. During the interview, defendant eventually admitted getting on top of Y. while she was lying down, straddling her, wanting to have sex with Y., trying to pull down her pants, and grabbing her wrists. Defendant acknowledged that Y. was holding her pants and telling him not to do anything. Defendant estimated that she told him to let go of her five or six times.
Subsequent to the incident, Y. told A.T. that her mother had said that if defendant got in trouble, the family could not afford to keep Y. in the United States and she would be sent back to Guatemala. Prior to trial, Y. recanted her statement to police in part because she was scared that she would be deported to Guatemala. M. Doe
In 2013, M. lived in a two-bedroom, two-story apartment on Lafayette Street with her sister, her sister's boyfriend, her sister's two children, defendant's aunt, and his aunt's husband. The bedrooms were upstairs, but M. slept on a bed in the living room on the ground floor. In addition, the living room contained two sofas, one smaller than the other. The kitchen was also on the ground floor.
Defendant was married to M.'s cousin or "half cousin," and he lived in the same apartment complex with his wife and their two children. M.'s sister previously had been married to defendant's father.
Approximately two months before October 9, 2013, defendant came by M.'s apartment and knocked on the door at about 8:30 p.m. When M. opened the door, defendant told her that he wanted to talk to her, and she stepped outside with him. They went to defendant's van to talk. M. did not know what he wanted to talk about, and she "thought he might have something to reproach [her] with." She got into his car with him.
Defendant did not want to talk in the van in the parking lot because his wife might "arrive." Defendant drove up Lafayette Street and parked in front of some apartments, and they talked about M.'s work for about 15 minutes. He indicated that there was a job opening at the place where he worked.
The conversation turned in another direction, and defendant indicated that he wanted to take M. out for coffee or something to eat. M. indicated that she would not go anywhere with him because he was her cousin's husband. Defendant began touching M.'s legs. M. became angry because he had a wife, and she told him to take her home. Defendant drove to "some offices on Aldo" and parked. Defendant began to rub her hands and legs. Defendant said that "he was thinking of going out with [her]." M. told him to take her home and indicated that she would call her sister. At that point, defendant drove her back.
After that incident, M. felt afraid of defendant. She saw him in the apartment complex's parking lot, and sometimes he knocked on the window of her car and wanted to talk to her. She refused to talk with him. She told him that she did not have anything to talk to him about.
Shortly before 5:00 p.m. on October 9, 2013, defendant went to M.'s apartment, and M.'s sister answered the door. He said that he was looking for his aunt. M.'s sister told defendant that his aunt was not there because she had gone to work, and he left. Defendant's aunt regularly worked nights as a janitor, beginning at 6:00 p.m. His aunt's husband started work at the same time. M.'s sister, her sister's children, and the children's father left the apartment at approximately 5:30 p.m. As M.'s sister was being driven away from the apartment complex's parking lot, she saw defendant sitting by himself in a car that was parked on the street. If a person stood at the spot of defendant's parked car, the person could see the front door of M.'s apartment.
At approximately 5:30 p.m. on October 9, 2013, M. arrived home to her apartment. No one else was there. She sat down at the kitchen table to eat some tacos that she had brought home. Defendant walked in through the unlocked front door, and M. was scared. She asked defendant what he wanted or what he was doing there, and "[h]e said that today he was going to get what he wanted." Defendant told her that he knew that she was alone. Defendant indicated that he was going to take what he wanted, and he said that "he wanted to have relationships with [her]." M. was scared and just remained seated at the kitchen table.
Defendant pulled at M.'s hand or wrist to take her to the sofa, and she began to resist. Defendant grabbed M. by her upper arms and forced her to a sofa.
Defendant threw her down on the sofa, and M. struggled and tried to stand. Defendant was "trying to lay [her] down" on the sofa. M. was asking why he was doing that to her. They continued to struggle. He was trying to lift her blouse, but M. resisted. He tried to kiss M., but she defended herself. The struggling went on for 20 or 25 minutes.
While they were still struggling, M. told defendant that she was going to call the police. Defendant "said he didn't give a fuck if [she] called the police," and he told her to go ahead. When M. tried to get her phone to call the police, defendant grabbed it and threw it. M. did not know where it fell.
Somehow M. got defendant off her, but then she ended up on the other sofa with him. Defendant knocked M. into the wall heater above that sofa, and she hit her head on it. M. began crying and asked him why he was doing that to her. Defendant released her once she started crying.
M. kicked at defendant, got up, grabbed her wallet, and tried to leave. Defendant went to the door. When M. tried to open the door, she found that it was locked, inferably by defendant, and she could not get out. Defendant told her "not to leave, that he would leave."
After defendant left M.'s apartment, she looked for her telephone, and she found it under her bed. M. first tried to call her sister, but her sister did not answer. She then called defendant's aunt and told her what happened. About 10 minutes after defendant left the apartment, M. called 911. She was distraught.
Police officers responded to M.'s apartment complex. Officer Craig Shapiro contacted M., who was "crying hysterically" inside her apartment.
M. was injured during the October 9, 2013 incident with defendant. M.'s arms were black and blue, and her chest was bruised. Photographs were taken on October 11, 2013. She had bruising on both arms, including on her upper arms, her elbows, and her forearms. The bruising was consistent with being grabbed.
Sometime after the October 9, 2013 incident, M. moved out of the apartment.
II
Discussion
A. Failure to Instruct on Attempted Sexual Battery
At trial, defense counsel had argued attempted sexual battery was a lesser related offense, and he had unsuccessfully asked the court to give CALCRIM No. 935, the standard sexual battery instruction. On appeal, defendant now makes the different argument that he was deprived of a fair trial and due process because the trial court failed to instruct the jury on attempted sexual battery as a lesser included offense of assault with intent to commit rape in violation of section 220.
"Lesser included offenses are distinguished from lesser related offenses, which 'merely bear some relationship' to another offense. (People v. Birks (1998) 19 Cal.4th 108, 119.)" (People v. Robinson (2016) 63 Cal.4th 200, 207, fn. 3 (Robinson).) A criminal defendant is not entitled to a jury instruction on lesser related offenses, which are not necessarily included in the charge. (People v. Birks, supra, at p. 136 (Birks).) "A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties. [Citations.]" (People v. Jennings (2010) 50 Cal.4th 616, 668.) The prosecutor opposed defense counsel's request to instruct on attempted sexual battery as a lesser related offense to assault with intent to commit rape in violation of section 220, subdivision (a)(1) or (b).
Defendant asserts that People v. Dixon (1999) 75 Cal.App.4th 935 (Dixon) was wrong when it concluded that " the crime of attempted sexual battery is not a lesser included offense of assault with intent to rape." (Id. at p. 937.) In Dixon, the defendant had been convicted of both attempted sexual battery (§§ 243.4, subd. (a), 664) and assault with intent to commit rape (§§ 220, 261, subd. (a)(2)), and he contended that the conviction for attempted sexual battery had to be reversed because it was a necessarily included offense of assault with intent to rape. (Dixon, supra, at p. 937.)
1. Governing Law
"A criminal defendant has a constitutional right to have his or her jury determine 'every material issue presented by the evidence' and this includes the right, where appropriate, to have the jury instructed on lesser included offenses. [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 513.) "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (Birks, supra, 19 Cal.4th at p. 112, italics added.) "Substantial evidence in this context is evidence from which a reasonable jury could conclude that the defendant committed the lesser, but not the greater, offense. 'The rule's purpose is . . . to assure, in the interest of justice, the most accurate possible verdict encompassed by the charge and supported by the evidence.' [Citation.] In light of this purpose, the court need instruct the jury on a lesser included offense only '[w]hen there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of' the lesser offense." [Citation.] (People v. Shockley (2013) 58 Cal.4th 400, 403-404 (Shockley), italics added.)
"To determine if an offense is lesser and necessarily included in another offense for [the purpose of jury instruction], [courts] apply either the elements test or the accusatory pleading test. 'Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.' (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)" (Shockley, supra, 58 Cal.4th at p. 404.)
If "the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and . . . there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense." (People v. Smith (2013) 57 Cal.4th 232, 244.) But "[w]hen . . . the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense. [Citations.]" (Robinson, supra, 63 Cal.4th at p. 207.) In this case, counts 1 and 3 of the information tracked the statutory definitions of the charged violations of section 220 so we will focus on the statutory elements test.
2. Analysis
A person is guilty of sexual battery under section 243.4, subdivision (a), if he "touches an intimate part of another person while that person is unlawfully restrained by the accused . . . , and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse." (Italics added.) In this context, " '[i]ntimate part' means the sexual organ, anus, groin, or buttocks of any person, and the breast of a female" (§ 243.4, subd. (g)(1)) and " 'touches' means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense." (§ 243.4, subd. (f).) "Someone is unlawfully restrained when his or her liberty is controlled by words, acts, or authority of another and the restraint is against his or her will. Unlawful restraint requires more than just the physical force necessary to accomplish the sexual touching." (CALCRIM No. 935.) By statutory definition, sexual battery "does not include the crimes defined in [s]ection 261" (§ 243.4, subd. (g)(2)), which defines rape.
The elements of other crimes of sexual battery vary, although each requires proof that the touching was done for the purpose of sexual arousal, sexual gratification, or sexual abuse. (See § 243.4.) To prove a violation of section 243.4, subdivision (b), it must also be proved that the victim was "institutionalized for medical treatment" and "seriously disabled or medically incapacitated" and that "the touching [was] against the will of the person touched." To prove a violation of section 243.4, subdivision (c), it must also be proved that the victim was at the time of the unlawful touching "unconscious of the nature of the act because the perpetrator fraudulently represented that the touching served a professional purpose." To prove a violation of section 243.4, subdivision (d), it must be proved that the defendant "cause[d] another, against that person's will while that person [was] unlawfully restrained either by the accused or an accomplice, or [was] institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person." A person commits a straight misdemeanor sexual battery if he "touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse." (§ 243.4, subd. (e)(1).) For purposes of straight misdemeanor sexual battery, the word "touch" is defined more broadly than it is for purposes of other sexual battery offenses to mean "physical contact with another person, whether accomplished directly, through the clothing of the person committing the offense, or through the clothing of the victim." (§ 243.4, subd. (e)(2).)
The assault element of assault with intent to commit rape requires proof that the defendant committed an intentional act with awareness of facts sufficient to establish that the act by its nature would directly and probably result in the application of physical force against another and with the present ability to apply such force. (See People v. Wyatt (2012) 55 Cal.4th 694, 702; People v. Wyatt (2010) 48 Cal.4th 776, 779, 781, 786; People v. Williams (2001) 26 Cal.4th 779, 790; CALCRIM No 890.) The assaultive act must be done with the intent to commit rape. (§ 220.) Rape involves an act of sexual intercourse (§ 261, subd. (a)), and its definition includes nonspousal sexual intercourse "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (§ 261, subd. (a)(2).)
The jury was instructed as to this form of rape.
"An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.; see People v. Toledo (2001) 26 Cal.4th 221, 230.) An attempt to commit sexual battery pursuant to section 243.4, subdivision (a), "requires (1) an intent to and (2) a direct but ineffectual act in an attempt to, touch an intimate part of the body (contact with the victim's skin) of a victim unlawfully restrained . . . , without the victim's consent, for the purpose of sexual arousal, sexual gratification, or sexual abuse. [Citations.]" (Dixon, supra, 75 Cal.App.4th at p. 942.)
In Dixon, following a bench trial, the defendant was convicted of committing attempted sexual battery, assault with intent to rape, and misdemeanor false imprisonment of a single victim. (Dixon, supra, 75 Cal.App.4th at p. 940.) The defendant argued that his conviction of attempted sexual battery had to be reversed because the crime was "a necessarily included offense of assault with intent to rape (§§ 220, 261), and a defendant cannot be convicted of both a greater and necessarily included offense." (Ibid.)
The appellate court in Dixon concluded that "assault with intent to commit forcible rape may be committed without necessarily committing attempted sexual battery, because the latter requires a finding that the defendant had the purpose of 'sexual arousal, sexual gratification, or sexual abuse,' where[as] the former does not require any such finding." (Dixon, supra, 75 Cal.App.4th at p. 943.) It stated that "an assault with intent to commit rape may be committed without a finding that the defendant harbored the purpose required by the sexual battery statute" (ibid) and that "[a] finding that the defendant has the purpose to abuse the victim is not required for the crime of assault with intent to commit rape." (Ibid.) It reasoned that, "[w]hile the law may view nonconsensual sexual intercourse as sexual abuse (which we shall assume in defendant's favor), the crime of assault with intent to commit forcible rape does not require a finding that the defendant had this purpose." (Ibid.)
Defendant essentially argues that Dixon's analysis was flawed because rape is a form of "sexual abuse" and that a "violation of section 220 necessarily includes an attempt to touch the victim's body in a way that constitutes 'sexual abuse,' and consequently is an attempted sexual battery." Relying upon dictionary definitions of "sexual abuse" and the definition of "sexual abuse" set forth in section 11651, subdivision (a), a provision of the Child Abuse and Neglect Reporting Act (CANRA) (§ 11164 et seq.), defendant maintains that intent to commit rape is also an intent to commit sexual abuse. He suggests that sexual activity "carried out for sexual motives or purely out of cruelty . . . is still 'sexual abuse.' "
For purposes of the CANRA, "sexual abuse" is defined to mean "sexual assault," including but not limited to rape, and "sexual exploitation." (§ 11165.1, subd. (a).)
Defendant has overlooked the fact that the term "sexual abuse" has been construed in the context of the substantial similar phrase "for the purpose of sexual arousal, gratification, or abuse," which is part of the definition of the crime of sexual penetration. In People v. White (1986) 179 Cal.App.3d 193, which neither party cites, the defendant was convicted of violating former "section 289, subdivision (a), penetration of the anal opening by a foreign object accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury for the purpose of sexual arousal, gratification or abuse." (Id. at p. 195, italics added.) Accepting that the word "sexual" qualified the word "abuse," the appellate court determined that "[t]he term 'abuse' imports an intent to injure or hurt badly, not lewdness" (id. at p. 205) and that "it is the nature of the act that renders the abuse 'sexual' and not the motivations of the perpetrator." (Id. at pp. 205-206.)
Section 289 currently defines "sexual penetration" as "the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object." (§ 289, subd. (k)(1), italics added.) In People v. McCoy (2013) 215 Cal.App.4th 1510, 1041, an appellate court stated that "the intent required to commit the act of sexual penetration includes an intent to abuse, meaning 'to injure or hurt badly, not lewdness.' (People v. White (1986) 179 Cal.App.3d 193, 205.)" (Id. at p. 1541.)
"In construing a statute, unless a contrary intent appears [citations], the court presumes that the Legislature intended that similar phrases be accorded the same meaning [citation], particularly if the terms have been construed by judicial decision. [Citation.]" (People v. Wells (1996) 12 Cal.4th 979, 986.) Defendant has not cited any authority establishing that the term "sexual abuse" has a different meaning in the context of sexual battery (§ 243.4, subds. (a), (d)) than it does in the context of sexual penetration (§ 289).
Moreover, defendant has not shown that an intent to commit rape necessarily encompasses "a purpose of sexual arousal, sexual gratification, or sexual abuse" other than rape. As stated, sexual battery "does not include the crimes defined in [s]ection 261" (§ 243.4, subd. (g)(2)), i.e., rape. Consequently, there can be no attempted sexual battery when a defendant's sole intent and purpose is to commit rape. Defendant has failed to demonstrate that attempted sexual battery is a lesser included offense of assault with intent to commit rape because the latter offense cannot be committed without necessarily committing the former offense. (See People v. Lopez (1998) 19 Cal.4th 282, 288 ["[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]"].)
The trial court did not err by not instructing on attempted sexual battery. B. Sufficiency of the Evidence to Prove Attempt to Dissuade a Victim
It is a crime to attempt to "dissuade another person who has been the victim of a crime" from "[m]aking any report of that victimization to any peace officer or state or local law enforcement officer" "by force or by an express or implied threat of force or violence." (§ 136.1, subds. (b)(1), (c)(1).) The crime requires proof of specific intent to dissuade. (See People v. Young (2005) 34 Cal.4th 1149, 1210; People v. Pettie (2017) 16 Cal.App.5th 23, 68.) In closing argument, the prosecution argued that defendant attempted to dissuade M. by throwing her cell phone during the October 9, 2013 incident and that "the intent behind throwing the phone [was] clearly to prevent M. from calling 911."
Defendant contends that the evidence of defendant's attempt to dissuade M. was insufficient because "it is unclear when [he] threw the phone." He maintains that since M. did not specifically remember the point at which defendant threw the phone, the evidence did not establish beyond a reasonable doubt that he was aware of M.'s subjective intent to call the police when he threw the phone.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
"We 'must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]' [Citation.] 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal. [Citation.]" (Zamudio, supra, 43 Cal.4th at pp. 357-358.)
"Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.] 'Whether the evidence presented at trial is direct or circumstantial, . . . the relevant inquiry on appeal remains whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' [Citation.]" (People v. Bloom (1989) 48 Cal.3d 1194, 1208.)
The jurors could reasonably infer from the totality of the evidence that defendant had the specific intent to dissuade her from calling the police when he grabbed and threw M.'s cell phone. It is not disputed that the evidence at trial was sufficient to prove that defendant committed first degree burglary by entering M.'s apartment and that in the commission of that crime, he assaulted her with intent to commit rape. The jurors could reasonably infer from M.'s testimony that she told defendant that she was going to call the police before he grabbed her phone and threw it. Moreover, a victim may call 911 to report a crime and seek police assistance when the crime is in progress. Even if M. had not yet announced her intent to call the police when she attempted to get her phone during the assault, the jurors could reasonably infer that defendant's intent in grabbing and throwing M.'s cell phone was to prevent her from calling 911 to report the crime. C. Section 654 and Sentences Imposed on False Imprisonment Convictions
Defendant argues that the sentences imposed on his two convictions of false imprisonment (counts 2 & 5) must be stayed under section 654. We agree.
1. Background
At the time of sentencing, defense counsel argued: "As to [c]ounts 2 and 5, the false imprisonment, . . . I would submit to the [c]ourt that they were 654. The witnesses testified that [defendant] held them or pinned them down and prevented them to leave at certain times." The prosecutor took the position at sentencing that section 654 did not apply because, as to both counts of false imprisonment, "the People's theory of false imprisonment . . . was not holding the women down" but rather "keeping the women inside of the respective rooms where the assault occurred."
The trial court determined that section 654 did not bar punishment of the two false imprisonment convictions because "the People's theory did not allow for a 654" and imposed consecutive sentences on those convictions.
2. Analysis
Section 654 states in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) "Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358 (Jones).) "[S]ection 654 also applies to multiple convictions arising out of an 'indivisible' course of conduct committed pursuant to a single criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11.)" (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6 (Scott).)
With judicial limitations not here applicable, section 654 generally bars multiple punishment "[i]f all of the offenses [in a criminal course of conduct] were incident to one objective." (Neal v. State of California, supra, 55 Cal.2d at p. 19, disapproved on another point by People v. Correa (2012) 54 Cal.4th 331, 334 (Correa) and superseded by statute on another point as indicated in People v. Salmorin (2016) 1 Cal.App.5th 738, 752, fn. 10; cf. People v. Latimer, supra, 5 Cal.4th at p. 1216 ["Although the kidnapping and the rapes were separate acts, the evidence does not suggest any intent or objective behind the kidnapping other than to facilitate the rapes"].) Contrariwise, "[i]f [a defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639.)
In Correa, supra, 54 Cal.4th at p. 334, the California Supreme Court disapproved dictum in Neal, which stated "[a]lthough section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section or to multiple violations of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. [Citations.]" (Neal v. State of Califonia, supra, 55 Cal.2d at p. 18, fn. 1.) The Supreme Court held that "section 654 does not bar multiple punishment for violations of the same provision of law." (Correa, supra, 54 Cal.4th at p. 344.)
"Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense. [Citations.]" (People v. Jackson (2016) 1 Cal.5th 269, 354.) The court's implied or express "factual determination" will be upheld on appeal if supported by substantial evidence (People v. Osband (1996) 13 Cal.4th 622, 730-731.)
Defendant contends that "the only intent and objective of the acts of false imprisonment was to carry out sexual assaults for which [he] was independently punished." He maintains that the sentences imposed on the convictions of false imprisonment (counts 2 & 5) must be stayed pursuant to section 654 because "[n]o evidence was presented that [he] wanted to keep the victims in the rooms for any other reason than to engage in some sort of sexual activity with them." The People assert that substantial evidence supports the trial court's implicit conclusion that defendant had an intent and objective in restraining Y. and M. other than committing rape.
"False imprisonment is the unlawful violation of the personal liberty of another." (§ 236.) " 'Any exercise of force, or express or implied threat of force, by which in fact the other person is deprived of his liberty or is compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment. . . .' [Citations.]" (People v. Agnew (1940) 16 Cal.2d 655, 659-660; accord People v. Zilbauer (1955) 44 Cal.2d 43, 51.) "Force is an element of both felony and misdemeanor false imprisonment." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462.)
Misdemeanor false imprisonment "requires no force beyond that necessary to restrain the victim." (People v. Babich (1993) 14 Cal.App.4th 801, 806.) False imprisonment that is "effected by violence, menace, fraud, or deceit" is a felony. (§ 237, see § 17.) Defendant was charged with felony false imprisonment "effected by violence, menace, fraud, and deceit." "Violence" as used in section 237 "means the exercise of physical force 'greater than that reasonably necessary to effect the restraint.' [Citations.]" (People v. Newman (2015) 238 Cal.App.4th 103, 108 (Newman); see CALCRIM No. 1240.) " 'Menace' is an express or implied threat of force. [Citations.]" (Newman, supra, at p. 108; see CALCRIM No. 1240.)
At trial, the prosecution's theory as to count 2 was that defendant prevented Y. from leaving the motel room when she wanted to leave. The prosecutor asked the jurors whether they remembered that, when Y. told defendant that "she wanted to leave," "his response was to grab her and throw her on the bed and pin her down." The prosecutor further contended that defendant was guilty of felony false imprisonment because he "used more force than was necessary to keep her in that room," in other words, defendant used violence. The prosecutor pointed out that "defendant kept [Y.] in the motel room by pinning her to the bed that day" and that Y. "did not want to be pinned to that bed and kept inside that motel room."
Now, on appeal, the People contend that multiple punishment is permissible because defendant's act of falsely imprisoning Y. was completed before he threw her on the bed and assaulted her and that, until defendant said that it was not time to leave, his express intent was to help Y. resolve her conflict with her mother (defendant's wife). We find that argument unconvincing and disingenuous because the evidence does not suggest that defendant had any intent and objective other than rape when he told Y. that it was not time to leave. Further, it is important to keep in mind that the crime of which defendant was convicted was forcible false imprisonment.
In this case, Y. went with defendant to the motel room, and defendant told her that he wanted someplace private to drink. After they had talked for a while about Y.'s pregnancy and her mother, defendant began rubbing Y.'s stomach, kissing her neck and trying to lift her blouse to touch her breast. Y. tried to stop defendant because she did not like what he was doing, said she wanted to leave, and stood up to leave. Defendant replied that it was not time to leave. The evidence is not sufficient to support a finding that defendant's intent and objective in preventing Y. from leaving the motel room at that point was not incidental to his intent and objective of committing rape.
Furthermore, the evidence showed that defendant immediately became furious, he grabbed Y., and pushed her on the bed. He forcibly held her down on the bed and tried to pull down her pants. The prosecution relied on that evidence of violence to prove felony false imprisonment, the crime with which defendant was charged and convicted.
At trial, the prosecution's theory as to count 5 was that defendant kept M. in her apartment against her will and that defendant used more violence than was necessary to restrain M. by throwing her on her sofa and pinning her there for 20 to 25 minutes. Citing People v. Saffle (1992) 4 Cal.App.4th 434 (Saffle), the People now argue on appeal that defendant's act of following M. to the door of her apartment and not letting her leave at the end of the October 9, 2013 incident could be "reasonably understood as wanting to prevent to M. from going outside and reporting the assault to neighbors, family, or police."
In Saffle, the appellate court rejected defendant's argument that false imprisonment "was committed for the purpose of committing the sex offenses [of which he was convicted] and the court violated section 654 by imposing punishment for that conviction." (Saffle, supra, 4 Cal.App.4th at p. 437.) The appellate court concluded that section 654 did not prohibit multiple punishment because "once the sexual offenses were completed, Saffle's objective changed." (Saffle, supra, at p. 440.) "He was no longer interested in fulfilling a sexual objective; he was seeking to prevent [the victim] from reporting the incident." (Ibid.) In Saffle, while holding a knife and not allowing the victim to answer the knocking at the door of her apartment (id. at p. 437), the defendant "threatened [the victim] with future violence to herself and her children if she report[ed] the crimes." (Id. at p. 440.) The appellate court observed that the defendant's conduct, "constituting an attempt to dissuade a victim from reporting a crime, under the attendant circumstances, could have been separately charged as a violation of section 136.1, subdivisions (a)(2) and (c)(1)." (Ibid., fn. omitted.) The court determined that "[i]t was to further the objective of dissuading a witness that the false imprisonment occurred." (Id. at p. 440.)
Unlike Saffle, there was no evidence in this case that defendant prevented M. from walking out the front door at the end of the incident by "violence, menace, fraud, or deceit." (§ 237.) The evidence suggests that he momentarily stood at the door and inferably locked the door or blocked her exit, and then he said he would go and left. The conduct elevating count 5 to felony false imprisonment, however, was defendant's earlier use of physical force greater than needed to simply restrain M., i.e., his acts of grabbing her and throwing her down on the sofa and forcibly assaulting her. The evidence discloses no intent or objective for that conduct other than rape.
Substantial evidence does not support implied findings that defendant entertained separate intents and objectives for the conduct underlying the convictions of forcible false imprisonment. The sentences imposed on the false imprisonment convictions (counts 2 & 5) must be stayed. (§ 654; see Jones, supra, 54 Cal.4th at p. 353 ["the law is settled that the sentences must be stayed to the extent that section 654 prohibits multiple punishment"].) D. Sentence Imposed on the Conviction of Violating Section 220 , Subdivision (b)
Section 220, subdivision (b), makes an assault with the intent to commit rape committed during a first degree burglary punishable "by imprisonment in the state prison for life with the possibility of parole." But the trial court sentenced defendant on his conviction of that offense (count 3) to a term of seven years to life.
"An appellate court may 'correct a sentence that is not authorized by law whenever the error comes to the attention of the court.' [Citation.]" (In re Harris (1993) 5 Cal.4th 813, 842.) "[A] sentence is generally 'unauthorized' where it could not lawfully be imposed under any circumstance in the particular case." (Scott, supra, 9 Cal.4th at p. 354.) Defendant and the People agree that the abstract of judgment must be amended to reflect the correct sentence, namely life imprisonment with the possibility of parole. We concur.
DISPOSITION
We modify the judgment as follows: (1) the sentences imposed upon defendant's convictions of false imprisonment (counts 2 & 5) are stayed and (2) the sentence imposed upon defendant's conviction of violating section 220, subdivision (b), (count 3) is imprisonment in the state prison for life with the possibility of parole. As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting the modifications.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.