Opinion
C041581
10-31-2003
THE PEOPLE, Plaintiff and Respondent, v. RONALD LEE BLANSON, JR., Defendant and Appellant.
A jury convicted defendant on count two, committing an act of sexual penetration while the victim was unconscious (Pen. Code, § 289, subd. (d)), and count three, assault with intent to commit penetration of the genitals with a foreign object (Pen. Code, § 220). Defendant was found not guilty on count one, residential burglary (Pen. Code, § 459). Defendant was sentenced to six years for count two and four years for count three. The sentence for count three was stayed pursuant to Penal Code section 654.
Defendant contends the prosecutor misstated the law in her closing argument and this was prejudicial error. He also argues that his conviction under Penal Code section 220 for sexual assault must be reversed because it is a lesser included offense of his conviction for violating Penal Code section 289, subdivision (d) (hereafter Penal Code section 289(d)). We agree that Penal Code section 220 is a lesser included offense of section 289(d) and reverse defendants conviction for that offense. The judgment is affirmed in all other respects.
FACTS
Approximately one week before September 7, 2001, defendant met the victim at the house of a mutual friend, J.S. J.S. had a son, N.B. who was two or three years old at the time. N.B.s father and defendant were first cousins.
On the evening of September 7, 2001, the victim was at her home in Sacramento with her mother (mother), her sister (sister), her mothers friend, J.S., and N.B.
At approximately 9:00 p.m. sister noticed a man standing in front of their house. The victim and S.J. were in the victims room. Sister did not recognize the man and called to the girls "[], theres someone standing out in front of our gate." The victim inquired who it was and then went outside to meet the person. She recognized defendant and talked with him. He asked if J.S. was there and if he could come inside. The victim told him that J.S. was there and that she was getting ready for bed so he could not come in. The victim told defendant that if he wanted to talk to J.S. they would have to talk outside. Soon after J.S. left with her son and the victim got ready for bed. At approximately 11:00 p.m. the victim went to bed wearing underwear and a tank top night shirt.
At 5:55 a.m. the victim was awakened by someone scratching her vagina. She felt fingers inside her underwear pushing against the opening of her vagina inside the folds of her vagina. She saw a man crouching next to her bed with one hand between his legs masturbating. She noticed the box fan that had been lodged in her window along with some cardboard was on the floor. The victim said, "who are you?" and the man responded, "its me, Ron." She then asked how he got in and he said she had let him in. The victim said, "No, I didnt let you in.
. . . Youre not supposed to be here." She noticed he was wearing a collared shirt with thick-and-thin stripes and dark pants. As she woke up and realized what was happening, the victim scooted to the corner of her bed so defendant could not reach her. The victim said she recognized his face and his voice as that of defendant. She then ran to the door and yelled for her mom and sister. As she exited the room, she heard defendant leave through the window.
The victim went to the living room calling to her mom and her sister. Sister saw the victim shaking and crying. Sister went outside with the family dog but did not see anyone. Sister then called 911.
Sacramento Police Department officer Randy Lozoya responded to the call and arrived at the victims house at 6:11 a.m. After waiting for the victim to calm down, he interviewed her. She told him she knew the man that came in her window as Ron, a relative of J.S.s son.
Officers Lozoya and Stephen Grimaldi went to defendants grandmothers house at 7:04 a.m. When they arrived the sprinklers were on. Defendants grandmother let the police in and escorted them to where the defendant lay sleeping on a couch. Defendant was wearing a short-sleeve striped shirt. Officer Lozoya arrested defendant and testified that he told defendant he was being arrested "because he had an altercation with a woman and possibly broke into the womans house." Later, when asked if he knew why he was being detained Lozoya testified that defendant said "yeah, someone broke into a house and touched a lady." Officer Grimaldi retrieved defendants tennis shoes which were wet and had grass clippings on them.
The grandmother testified that she let defendant in at 3:00 a.m. and that she would have been aware of anyone coming or leaving her house after that.
Defendant testified that he had been in the victims bedroom before with her consent, and that he had entered through the window. J.S. testified that defendant, the victim, and herself had met many times including at the victims house.
DISCUSSION
I
Defendant contends the prosecutor committed misconduct by misstating the law on the presumption of innocence in her closing argument. We first look to the statement itself to determine if it misstates the law. In her rebuttal closing argument, the prosecutor stated: "At the beginning of the case when we were doing jury selection, yes, he was presumed to be innocent. Not now. No. The trial is over. Hes not presumed innocent." "He sits there the contrary having been proven." Defendant objected and the trial court overruled his objection.
This is not a misstatement of the law. A defendant is presumed innocent until he is proven guilty, and the prosecutor was arguing she had proven her case. (Coffin v. United States (1894) 156 U.S. 432, 453 [39 L. Ed. 481, 491, 15 S. Ct. 394].)
Concerning the presumption of innocence the jury was instructed: "A defendant in a criminal action is presumed to be innocent until the contrary is proved." Also, the jury was instructed to follow the law given in the jury instructions if it was in conflict with the law stated by the attorneys. Before any witnesses were called the court instructed: ". . . you must apply the law that I state to you in the jury instructions.
. . . If anything concerning the law that is said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions." In closing argument, the defense also reiterated the law, consistent with the courts instructions, requiring a presumption of innocence.
A reasonable jury would not take the prosecutors argument out of the context of her whole argument, disregard the jury instructions, ignore the defenses statement of the law, and therefore disregard the defendants presumption of innocence while deliberating. The jury likely reasonably understood that the defendant was entitled to a presumption of innocence until they found to the contrary. The jury would not have understood that the presumption of innocence ended with the trial. Therefore, we find no merit in defendants argument that overruling the defenses objection "placed [the courts] imprimatur on the prosecutors misstatement of law."
II
Defendant next contends that his conviction for sexual assault under Penal Code section 220 must be reversed because it is a lesser included offense of section 289(d) of which defendant was also convicted. Defendant analogizes the current penetration crime to rape. He contends that one who commits rape also necessarily commits an assault with attempt to commit rape and an attempted rape. (Pen. Code, § 1159.) Defendant, therefore, asks this court to find that assault with the intent to penetrate is a necessarily lesser included crime of unlawful penetration.
Assault with intent to commit rape is an aggravated form of attempted rape that includes an assault. (In re Jose M. (1994) 21 Cal.App.4th 1470, 1477-1478.) Both assault with intent to commit rape and attempted rape are necessarily included in the crime of rape in concert. (Ibid.) In People v. Babcock (1911) 160 Cal. 537, 540, 117 P. 549, the court found assault with the intent to commit rape was a lesser included offense of rape upon a female under the age of 16 years even where no force was used. The court said, even where the victim consents, "the law resists for her." (Id. at p. 539.)
Based on Penal Code section 654, the California Supreme Court found that although a defendant may not be punished for more than one offense arising out of one act or course of conduct, he may be convicted for such. (People v. Ortega (1998) 19 Cal.4th 686, 692, 968 P.2d 48.) However, in People v. Sanchez (2001) 24 Cal.4th 983, 987, the court noted the limit on this rule stating "A defendant . . . cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. [Citation.]"
There are two tests to determine whether a lesser offense is necessarily included in a greater offense and, therefore, a defendant cannot be properly convicted of both. (People v. Sanchez, supra, 24 Cal.4th at p. 988.) Defendant does not rely on the "statutory elements" test and therefore it does not require analysis. (People v. Birks (1998) 19 Cal.4th 108, 117, 960 P.2d 1073.) Instead, the defendant relies on the "accusatory pleading" test.
The accusatory pleading test is satisfied if "the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks, supra, 19 Cal.4th at p. 117.) The test requires looking at the accusatory pleading used in this particular case instead of the statute in general. (People v. Ortega (1998) 19 Cal.4th 686, 698-699, 968 P.2d 48;People v. Birks, supra, at p. 119.) The test allows the prosecutor to narrow the methods by which a crime can be committed by omitting statutory options or by referring to a special factual allegation. (People v. Pearson (1986) 42 Cal.3d 351, 356, fn. 2, 228 Cal. Rptr. 509, 721 P.2d 595; People v. Marshall (1957) 48 Cal.2d. 394, 397, 309 P.2d 456; People v. Nicholson (1979) 98 Cal. App. 3d 617, 623, 159 Cal. Rptr. 766.) Where a defendant is charged with two crimes, based on the same act, he cannot be properly convicted of both if in committing one of the offenses he has necessarily committed the other. (People v. Birks, supra, at p. 117.)
As to count two, section 289(d), the information alleged as follows: ". . . defendant did unlawfully cause the penetration of the genital opening of [the victim] for the purpose of sexual arousal, gratification and abuse by a foreign object, substance, instrument, and device, and by an unknown object, the victim being unconscious of the nature of the act, this being known by the defendant(s)."
As to count three, Penal Code section 220, the information alleged as follows: ". . . defendant did willfully and unlawfully assault [the victim] with the intent to commit penetration of the genital opening in violation of Penal Code Section 289."
Defendant contends that in order to have completed a violation of section 289(d) he must have completed the actions required for a violation of Penal Code section 220. In other words, the issue is whether one can unlawfully cause the penetration of the genital opening for the purpose of sexual arousal without also willfully and unlawfully assaulting the named person with the intent to commit penetration of the genital opening. We find that one cannot, and therefore reverse the conviction for assault with intent to penetrate (Pen. Code, § 220).
The People argue that the difference between the assault with intent to penetrate and the penetration charge is that the former requires an assault. In People v. Wright (1996) 52 Cal.App.4th 203, 210, this court found "An assault consists of an attempt coupled with the present ability to inflict an `injury unlawfully on another; this `injury can be the least unwanted touching." (See People v. Colantuono (1994) 7 Cal.4th 206, 214 & fn. 4, 865 P.2d 704.) It is well established that the force required for an assault "need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark." (People v. Rocha (1971) 3 Cal.3d 893, 899-900, fn. 12, 92 Cal. Rptr. 172, 479 P.2d 372; People v. Colantuono, supra, at p. 214, fn. 4.) It "includes any wrongful act committed by means of physical force against the person of another, even although only the feelings of such person are injured by the act." (People v. Bradbury (1907) 151 Cal. 675, 676, 91 P. 497;People v. Rocha, supra, at p. 899; People v. Colantuono, supra, at p. 214, fn. 4.) Also, it is not necessary to intend to cause a particular injury, to severely injure the person, or to act so that one inflicts bodily harm. (People v. Rocha, supra, at p. 899.)
A person could not deliberately penetrate a genital opening on an unconscious person without also attempting an unwanted touching.
An assault is an attempt to commit "the least unwanted touching." (People v. Wright, supra, 52 Cal.App.4th at p. 210.) Penetration requires "causing the penetration, however slight, of the genital or anal opening of any person." (Pen. Code, § 289, subd. (k)(l).) Once there is penetration of a persons genital or anal openings there is necessarily an assault. (Ibid.)
The Attorney General argues that some sex offenses, those that are forcible, require force greater than that which is required for the sexual act itself, and others, like sexual penetration on an unconscious person, do not. (See People v. Senior (1992) 3 Cal.App.4th 765, 774.) He argues that the sex offenses that do not require the greater force do not have assault as a lesser included offense. We disagree. The fallacy of the Attorney Generals argument is that while a forcible sex offense may require force greater than that necessary to complete the sexual act, assault does not. Assault requires only an attempt to cause the least touching. (People v. Wright, supra, 52 Cal.App.4th at p. 210.) The same least touching is included in an unlawful penetration of an unconscious person.
The Attorney General also argues that the premise presented in In re Jose M., supra, 21 Cal.App.4th at page 1477, that every act of rape necessarily includes an assault, is dicta if one were to read it to apply to all rapes. We agree that in that case the court held that assault with intent to commit rape is a lesser included offense to the crime of rape in concert. (Ibid.) However, we also agree with its reasoning and find the distinction the prosecution makes, that rape in concert requires more force than the sexual penetration here of no consequence because both necessarily include an assault.
The greater crime of penetration under section 289(d) cannot be committed without also committing assault with the intent to penetrate under Penal Code section 220. Therefore, defendant cannot be convicted of both and his conviction for violation of Penal Code section 220 is reversed.
DISPOSITION
The conviction for assault with intent to penetrate (Pen. Code, § 220) is reversed; in all other respects the judgment is affirmed.
We concur: NICHOLSON, Acting P.J. and ROBIE, J.