Opinion
D072978
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. ADAM M. ARAUJO, Defendant and Appellant.
Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD268801) APPEAL from a judgment of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed in part and reversed in part. Daniel J. Kessler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Adam M. Araujo of assault with intent to commit a specified sex crime during the commission of a first degree burglary (Pen. Code, § 220, subd. (b); count 1), first degree burglary (§§ 459, 460; count 2), indecent exposure - unlawful entry (§ 314, subd. (1); count 3), lewd conduct (§ 647, subd. (a); count 4), prowling and peeking (§ 647, subd. (i); counts 5, 6).
All further statutory references are to the Penal Code unless otherwise specified.
The court sentenced Araujo to life with the possibility of parole for count 1, the remaining felony counts were stayed under section 654 and the sentence for the misdemeanor counts was time served.
Araujo appeals challenging the conviction for count 2, contending count 2 is a lesser included offense (LIO) of count 1, and he also argues if we reverse count 2 we should remand the case to allow the court to reconsider its imposition of a $10,000 restitution fine. The People correctly concede count 2 must be reversed. They contend there is no reason to remand for reconsideration of the restitution fine. We agree with the People on both issues. Accordingly, we will reverse the conviction for count 2 and affirm the balance of the judgment.
STATEMENT OF FACTS
Araujo does not challenge the admissibility or the sufficiency of the evidence to support his convictions. We will adopt the summary of the facts regarding counts 1 and 2 as contained in the respondent's brief in order to provide background for the discussion which follows.
"Jane Doe" lived in a house in San Diego. Around 9:00 p.m. on September 21, 2016, Doe arrived home and parked her car in the driveway. Doe entered her house through a metal security screen and the front door. She left the screen closed but unlocked. She also left the front door open, opened a sliding glass door, and opened the windows, because it was a warm night. A short time later, Doe went to the bedroom to change from her work clothes into her pajamas. After she was naked and about to step into her pajama pants, she heard the security screen door being opened and heard footsteps inside the house. She then saw the profile of a man, appellant, inside her house. Once they made eye contact, Doe told appellant to "get the fuck out of my house."
Appellant began to approach the French doors that led into the bedroom. Appellant then blocked the doorway of the bedroom, hooked his thumbs into the elastic band in the front of his athletic shorts, and exposed his penis and testicles. Appellant let go of the front of his shorts, causing them to again cover his genitals, then began approaching Doe in the bedroom. Doe, seeing that appellant was attempting to gather some sort of cord in his hands, quickly exited the bedroom through a different door that led into the hallway. Appellant moved backward toward the front door to block it, then moved rapidly toward Doe. Doe loudly screamed, "No, no, no."
Appellant continued to moved forward, softly and mockingly repeated, "No, no, no," and raised the cord tightly between his hands. Thinking that appellant was going to restrain her with the cord, and strongly vowing to herself that she would not be a victim, Doe lunged at appellant, shoved him backward, and ran out of the open sliding glass door. When she got past the sliding glass door into the courtyard she screamed for help. She then put on her pajama pants and ran into the street topless. After not seeing appellant for a short period of time, Doe returned to her house, retrieved her cell phone, walked back outside to the sidewalk, and dialed 911. The police responded and found the USB cord that appellant had left behind. Appellant was arrested later that night.
DISCUSSION
A. Count 2
Araujo contends count 2, first degree burglary is a LIO of count 1, a sexual assault during the commission of a first degree burglary. As the People correctly concede, count 2 is an LIO of count 1.
Under the statutory elements test, section 220, subdivision (b) includes first degree burglary as one of its elements. (People v. Dyser (2012) 202 Cal.App.4th 1015, 1021.) Where a defendant has been convicted of both the greater offense and the lesser included offense, the remedy is to reverse the conviction for the lesser offense. (People v. Sanders (2012) 55 Cal.4th 731, 736.) Accordingly, we will reverse the conviction for count 2 and direct the trial court to prepare an amended abstract of judgment.
B. The Restitution Fine
The trial court imposed a $10,000 restitution fine. (§ 1202.4, subd. (b).) Araujo contends if we reverse count 2, we should remand for the court to reconsider the restitution fine. He posits the removal of count 2 might impact the court's calculation of the fine. We disagree that the reversal of count 2 is significant in the calculation of the fine.
The trial court did not clearly explain why it set the fine at the maximum amount and Araujo does not contend the trial court abused its discretion in setting the fine at that amount. The court was required by statute to set such fine in an amount from $300 to $10,000. (§ 1202.4, subd. (b)(1); People v. Guiffre (2008) 167 Cal.App.4th 430, 433-434, fn. 2.) There are several ways in which the court might calculate such fine, considering the number of years of imprisonment, the number of felony convictions, or the gravity of the offenses and the circumstances of the commission of the crimes. (People v. DeFrance (2009) 167 Cal.App.4th 486, 505; § 1202.4, subds. (b)(2), (d).)
Here the court imposed a life sentence with the possibility of parole. That sentence has not been impacted by the reversal of count 2. As to count 2, the court imposed a middle term of three years and stayed the sentence under section 654. There is no reason in this record to speculate that the elimination of a stayed sentence would somehow cause the trial court, who set the fine at the maximum amount possible, to change its analysis of the offenses and the offender in this case. We decline to order the remand of this case.
DISPOSITION
The conviction for first degree burglary in count 2 is reversed. The superior court is directed to prepare an amended abstract of judgment reflecting the change and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.