Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW119984-00. Jon E. Stuebbe, Judge.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Hill, J.
In 15-year old S.H.’s first appearance before the juvenile court, the court found true allegations that he committed attempted rape (Pen. Code, §§ 664/261, subd. (a)(2)), kidnapping for the purpose of rape (§ 209, subd. (b)(1)), assault with a deadly weapon (§ 245, subd. (a)(1)), and he personally used a knife to commit the first two offenses (§ 12022, subd. (b)(1)). The court adjudged him a ward of the court and committed him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice for a maximum confinement time of life plus three years eight months, less credit for time served. S.H. appealed claiming (1) the adjudication for attempted rape must be reversed because it is a lesser included offense to kidnapping for the purpose of rape and (2) the court erred under section 654 in setting the maximum period of confinement. Respondent concedes both issues. We agree and will modify the judgment accordingly.
Further statutory references are to the Penal Code.
FACTS
L.G.’s family operated a snack shack in their front yard. On January 25, 2009, about 7:00 p.m., S.H. asked to buy a snack. L.G. and S.H. went to school together; he lived in the neighborhood and had purchased snacks many times. As L.G. was unlocking the store, S.H. put a knife to her back and pushed her to bushes across the road. He pulled his grey sweat pants down and told her he wanted to have sex. She refused and said she wanted to go home. They struggled and she fell on him. They got up and he pulled and pushed her to a nearby grape field. He touched her breasts and tried unsuccessfully to unbutton her pants. When she resisted and began to cry, he started walking back to her house with her. Her father, who had come out of the house, saw them and S.H. ran away. Her parents called the police, who arrested S.H. that night.
S.H. testified he had had oral sex with L.G. three or four times on prior occasions in the snack shack. On January 25, 2009, she had agreed to have oral sex again but they were interrupted by L.G.’s mother calling her name and her father yelling for her. S.H. believed L.G. was frightened she would get in trouble with her parents.
DISCUSSION
Impermissible Double Adjudication
S.H. contends his adjudication for attempted rape must be reversed. Kidnapping for the purpose of rape cannot be committed without also committing attempted rape. Thus, attempted rape is a lesser included offense to kidnapping for the purpose of rape. The People concede the issue.
California law prohibits convicting a defendant of two offenses arising from a single criminal act when one is a lesser offense necessarily included in the other. (People v. Montoya (2004) 33 Cal.4th 1031, 1033.) This exception applies in juvenile proceedings. (See In re Edward G. (2004) 124 Cal. App.4th 962, 967.) In determining whether an offense is necessarily included in another, a court considers the statutory elements of the two offenses. (People v. Ramirez (2009) 45 Cal.4th 980, 985.) “[I]f a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (Ibid.) The People concede that a comparison of the elements of attempted rape and the elements of kidnapping for the purpose of rape demonstrate that attempted rape is a lesser included offense of kidnapping for the purpose of rape. Thus, S.H.’s adjudication for attempted rape must be reversed. (People v. Pearson (1986) 42 Cal.3d 351, 355.)
Section 654S.H. contends that his maximum period of confinement is limited by section 654 to life for the principal offense, kidnapping for the purpose of rape, plus one year for the weapon enhancement. The People concede error. They acknowledge that every offense S.H. committed was incident to the same objective.
Section 654 precludes multiple punishments for a single indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is indivisible depends on the actor’s intent and objective. If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. (People v. Cleveland (2001) 87 Cal. App.4th 263, 267.) Section 654 applies in juvenile proceedings for calculating the maximum period of confinement. (See In re M.S. (1995) 10 Cal.4th 698, 727.) And, section 654 error is not waived by failing to object in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
The court calculated S.H.’s maximum term of confinement based on his adjudications for kidnapping for the purpose of rape, attempted rape, assault with a deadly weapon and the weapon enhancements for the first two offenses. On appeal, the People concede that S.H. had only one criminal objective during his course of conduct--to rape L.G. Thus, under section 654, he may only be punished for the kidnapping for the purpose of rape and its associated weapon enhancement. S.H.’s maximum period of confinement must be reduced by two years eight months to life plus one year.
DISPOSITION
The adjudication finding for the violation of section 664/261, subdivision (a)(2) is reversed. The disposition is modified to reflect a maximum term of confinement of life plus one year. As modified, the judgment is affirmed.