Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF115244A, Gary T. Friedman, Judge.
Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Benningson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
INTRODUCTION
On August 23, 2006, appellant, Garnett Lawrence Drake, was charged in an information with assault with intent to commit rape (Pen. Code, §§ 220/261, count one), battery by a prison inmate on a nonprisoner (§ 4501.5, count two), and kidnapping with intent to commit rape (§ 209, subd. (b)(1), count three). The information alleged two qualifying prior serious felony convictions within the meaning of the three strikes law (§§ 667, subds. (c)-(j) & 1170.12, subds. (a)-(e)), two prior serious felony convictions (§ 667, subd. (a)), and two prior prison term enhancements (§ 667.5, subd. (b)).
Unless otherwise noted, all statutory references are to the Penal Code.
After a jury trial, Drake was found guilty on August 1, 2007, on all three counts. In a bifurcated proceeding, the trial court found the special allegations true. On August 29, 2007, the trial court denied Drake’s request for the court to exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the prior serious felony allegations. The court imposed consecutive sentences of 25 years to life on counts one and three and stayed Drake’s sentence on count two pursuant to section 654.
The stayed prison term on count two was 25 years to life. Drake’s sentence was consecutive to the prison term he was serving at the time he reoffended.
The court imposed two consecutive five-year sentences for the prior serious felony allegations plus one consecutive year for the prior prison term enhancement. Drake’s total prison term was a fixed term of 11 years plus two consecutive terms of 25 years to life. The court ordered Drake to pay a restitution fine and to register as a sex offender.
Because Drake was still in prison when he reoffended, the court apparently did not impose the second prior prison term enhancement as recommended by the probation report.
On appeal, Drake contends the assault with intent to rape and kidnapping with intent to rape were part of an indivisible course of conduct and the trial court erred in failing to apply section 654 to one of these counts. Alternatively, Drake argues it cannot be determined which act formed the jury’s verdict on count three. Drake argues he is entitled to a stay on count one as a matter of due process.
FACTS
On March 5, 2006 at about 4:45 a.m., Jane Doe was working as a supervising correctional cook with the Department of Corrections in Tehachapi. Drake was assisting Doe that morning and had worked with her for approximately a year and a half.
Jane Doe is a pseudonym for the victim.
Drake was serving a sentence for rape convictions.
The general layout of the kitchen area includes two offices that are almost completely glass. One office is for prison correctional officers assigned to the dining room and/or the kitchen. The other is the cooks’ office, which is located at the opposite end. This office is three-fourths glass. There are walk-in refrigerators, three six-foot grills, five 80-gallon steam pots, and three rows of ovens.
Outside the main kitchen room is a breezeway which is accessed through two doors. The doors are solid, but have extremely narrow windows about three inches wide and a foot long. Off the breezeway is a very large garbage disposal called a pulper where excess food is disposed. There is also a dishwasher in the pulper room.
On the day in question, Doe was supervising six inmates, including Drake. Drake was in the breezeway preparing carts with milk, juice, lunches, and bread. Doe went out into the breezeway because garbage cans had not been emptied the night before. Doe asked Drake if he could combine the contents of some of the garbage cans and bring three or four into the kitchen. Doe was standing between the cooks’ door and the pulper room.
As Doe finished talking to Drake, he grabbed her around her arms and picked her up in a “bear-hug.” They were face-to-face. Drake took Doe into the pulper room, going through a maze, and threw her against the block wall. At first, Doe could not think. She was in shock. Drake grabbed Doe’s whistle, a personal alarm called a “PAD,” and a break-away identification necklace, and threw them away.
Drake pushed Doe against the wall again, took his arm and put it against Doe’s chest, and started ripping her pants, shirt, and belt. Drake ripped the buttons off Doe’s pants, which were new, but did not succeed in removing Doe’s pants. Drake was holding Doe against the wall with his arm.
As Drake grabbed Doe’s T-shirt, she hit her head against the wall. Doe explained that this “knocked some sense” into her. She came out of her daze and screamed several times. After the fifth or sixth scream, Drake began to back up through the maze to leave the pulper room. Doe heard keys and knew someone was trying to find her. Doe saw her alarm, bent over, and picked it up along with her whistle. After two or three seconds, Doe was able to activate the alarm and four officers came out of the kitchen.
As a result of the attack, Doe had redness and bruising on her left side, left elbow, left wrist, and her tailbone. Investigating officers saw a slice on the inside of Drake’s wrist that resembled a “slice” from a razor blade. While searching the area of the attack, investigators found a razor blade from a disposable razor of the same type Drake had in his cell.
Drake testified that he and Doe had an ongoing, consensual relationship for several months and were in the pulper room kissing and talking. Drake stated that Doe stopped kissing him when she thought she heard correctional officers approaching the pulper room. Drake said Doe panicked and told him to leave the pulper room. Drake denied grabbing Doe or slamming her against a wall. Drake explained he did not tear Doe’s pants or grab her whistle or personal alarm.
SECTION 654Introduction
Appellant contends the trial court erred in sentencing him to consecutive sentences for assault with intent to commit rape (count one) and kidnapping with intent to commit rape (count three). Appellant argues he had a single criminal objective and his conduct was part of an indivisible course of conduct. Respondent argues that appellant had multiple simultaneous objectives and counts one and three were not merely incidental to one another. We find appellant’s contention to be founded on California Supreme Court holdings interpreting section 654 and will reverse the trial court’s imposition of consecutive sentences on counts one and three.
Sentencing Hearing
The probation officer recommended that the sentences on counts one and three be served consecutively. At the sentencing hearing, defense counsel argued the trial court should stay the sentence on one of these counts pursuant to section 654 because his client’s conduct was “one continuous course of conduct.” Defense counsel argued counts one and two were an instantaneous course of conduct as to count three. Defense counsel added: “your Honor, I see one continuous course of conduct. It all is encompassed within the third count, which is the [§] 209. All the acts are in conjunction with that. [¶] If the picking up and taking her is the kidnap with the intent for a sexual assault, then all of that is contained within the [§] 209 and [§] 220 is encompassed within that, the assault aspects of it with the intent to commit the sexual assault. It is encompassed within [§] 209.”
The prosecutor argued that counts one and three were two separate acts that constitute separate crimes making section 654 inapplicable. The trial court reviewed its notes of Doe’s testimony and found that count three was a separate incident from what occurred in count one because the count one incident occurred after the victim was forcibly removed from the breezeway and brought to the pulper room.
Analysis
Section 654 provides that a defendant may not be punished multiple times for a single act. The act that invokes the statute constitutes a continuous course of conduct comprising an indivisible transaction. The divisibility of a course of conduct depends upon the intent and objective of the defendant. If the evidence shows that a defendant entertained multiple criminal objectives that were independent of, and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each criminal objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)
In arguing that section 654 does not apply to counts one and three, respondent relies on People v. Bradley (1993) 15 Cal.App.4th 1144, 1158 (Bradley), disapproved on another ground in People v. Rayford (1995) 9 Cal.4th 1, 21-22. In Bradley, the defendant grabbed the arm of the victim, who was 16, as she was using a pay phone. A companion of the defendant’s grabbed the victim’s other arm. The defendant forced the victim to walk 50 to 60 feet around the side of a building to a dimly lit dumpster area enclosed by walls six and a half feet high. At the dumpster site, the companion jumped into a dumpster. While continuing to hold the victim’s arm, the defendant pulled back her hair, kissed her back, attempted to kiss her mouth, caressed her underneath her shirt, slid his hand down her shorts, and caressed her vaginal area. When car lights shined on the dumpster site, the defendant and his companion fled after the victim kicked the defendant in the shins. (Bradley, supra, 15 Cal.App.4th at pp. 1149-1150.)
Bradley was convicted of kidnapping with intent to commit rape (§ 209, subd. (b)(1)), assault with intent to commit rape (§ 220), and sexual battery (§ 243.4, subd. (a)). (Bradley, supra, 15 Cal.App.4th at p. 1149.) The court in Bradley applied section 654 only to the sexual battery conviction. (Id. at pp. 1156-1157.) Bradley further found, however, that section 654 did not apply to the other two counts because only on the surface could the defendant’s objective be broadly labeled one for sexual gratification. (Id. at pp. 1157-1158.) The Bradley decision concluded that the movement of the victim leading to kidnapping was an act separate from the assault within the dumpster area. The court reasoned that acts resulting in the defendant’s assault enhanced his culpability over those acts resulting in his kidnapping conviction which only required that he forcibly move the victim with the intent to commit rape. (Id. at p. 1158.)
Here, there was one continuous course of conduct that happened very rapidly. Appellant grabbed the victim in a bear-hug and hurried into the pulper room. Once in the room, appellant threw the victim against the wall, and while holding her against the wall with his arm, appellant threw away the victim’s security devices and her identification before trying to tear off her clothes. There was no pause in appellant’s conduct and there was no incidental conduct to appellant’s attempt to rape the victim. There is no evidence in the record that appellant committed additional gratuitous violent or sexual acts.
Any force used by appellant against the victim was only the amount of force necessary to accomplish a forcible rape. (See People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024; People v. Mom (2000) 80 Cal.App.4th 1217, 1224-1225.) The victim testified that she hit her own head against the wall during the assault.
The persuasive authority controlling this case is a case decided by the California Supreme Court, People v. Latimer (1993) 5 Cal.4th 1203 (Latimer). Latimer was convicted of two counts of forcible rape (§ 261), one count of kidnapping (§ 207, subd. (a)), and one great bodily injury enhancement (§ 12022.8). He received consecutive sentences on all of the allegations, including the kidnapping count. (Latimer, supra, 5 Cal.4th at p. 1206.)
The defendant in Latimer drove the victim into the desert, assaulted her, forced the victim to orally copulate him, and raped her. The defendant then drove another 50 to 75 yards into the desert and raped the victim a second time. (Latimer, supra, 5 Cal.4th at p. 1206.) The Latimer court reasoned that although it could be argued that the defendant had two intents, to drive the victim against her will to an isolated area and then to rape her, cases applying Neal v. State of California (1960) 55 Cal.2d 11 make it clear that multiple punishment for the two rapes and the kidnapping is prohibited. Although the rapes and kidnapping were separate acts, the evidence did not suggest any intent or objective behind the kidnapping other than to facilitate the rapes. Because the kidnapping was for the purpose of committing the sexual offenses and the defendant had been punished for each sexual offense, section 654 barred execution of sentence on the kidnapping count and it had to be stayed. (Latimer, supra, 5 Cal.4th at p. 1216-1217.)
The Latimer court noted that section 654 has been applied not only where there is one criminal act, but also where a course of conduct violated more than one statute. (Latimer, supra, 5 Cal.4th at p. 1208.) The Latimer decision distinguished the circumstance where multiple sex crimes are committed because each offense has a separate objective of achieving additional sexual gratification. (Id. at p. 1212.) Latimer is not the only Supreme Court decision in which kidnapping for the purpose of committing a sex offense required the application of section 654. Where a kidnapping is committed with the intent to commit a sexual assault, both offenses are incident to one criminal objective and multiple punishment is prohibited. (People v. Failla (1966) 64 Cal.2d 560, 570 (Failla).)
The same legal principle applies to sexual assault and false imprisonment. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820-821.)
Appellant’s kidnapping and assault of the victim were part of a single course of criminal conduct with the single goal of rape. Where all the crimes committed are incidental to, or were the means of facilitating one objective, a defendant can be punished only once. (Latimer, supra, 5 Cal.4th at p. 1208; People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) Usually, a defendant’s intent and objective are factual questions for the trial court that we uphold if the court’s ruling is supported by substantial evidence. (People v. Coleman (1989) 48 Cal.3d 112, 162.) The trial court’s findings here, however, do not support the prosecution’s theory that the kidnapping was truly a separate incident with a separate criminal purpose from the assault with intent to commit rape.
We find the California Supreme Court cases of Latimer and Failla controlling in the case at bar, not Bradley. Appellant was sentenced under the alternative sentencing system pursuant to the three strikes law. His sentence on counts one and three was 25 years to life. Where a trial court erroneously fails to stay terms subject to section 654, the appellate court must stay sentence on the lesser offenses while permitting execution of the greater offense consistent with the intent of the sentencing court. (People v. Diaz (1967) 66 Cal.2d 801, 808; In re Wright (1967) 65 Cal.2d 650, 656; People v. Pena (1992) 7 Cal.App.4th 1294, 1312-1313.)
Although not expressly overruled by Latimer, we do not reach the issue of whether the analysis of section 654 in Bradley retains any vitality after Latimer, or, if the facts of Bradley are distinguishable from Latimer because the defendant’s conduct in Bradley constituted more than a single intent to commit rape. If the holding of Bradley conflicts with Latimer, the Supreme Court’s decision is controlling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
When the three strikes law is not applicable, section 220, subdivision (a) carries a sentence of two, four, or six years and section 209, subdivision (b)(1) carries a sentence of life with the possibility of parole. Count three, therefore, has a longer sentence outside the ambit of the three strikes law. Accordingly, on remand we will order the trial court to stay execution of appellant’s sentence on count one, assault with intent to commit rape, pursuant to section 654.
The court did not err in staying appellant’s sentence on count two.
Appellant’s remaining due process argument is made alternatively. In light of our ruling, we do not reach this issue.
DISPOSITION
The appellant’s sentence is reversed. The case is remanded to the trial court to stay execution of appellant’s consecutive sentence of 25 years to life on count one, the assault with intent to commit rape conviction. The court shall prepare an amended abstract of judgment reflecting this change and forward it to the appropriate authorities. The judgment is otherwise affirmed.