Opinion
F075844
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. MARC EDWARD BROWN, JR., Defendant and Appellant.
Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CMS3623)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge. Robert F. Kane, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Marc Edward Brown, Jr., of simple assault (Pen. Code, § 240), a lesser included offense of the attempted rape offense (§§ 664/261) charged in count 1; sexual battery by restraint (§ 243.4, subd. (a)/count 2); attempted forcible sexual penetration (§§ 664/289, subd. (a)(1)(A)), a lesser included offense of the forcible sexual penetration offense (§ 289, subd. (a)(1)(A)) charged in count 3; and simple assault, a lesser included offense of the assault to commit rape offense (§ 220, subd. (a)(1)) charged in count 4. In a separate proceeding, Brown admitted three prior prison term enhancements (§ 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subd. (a)(1)).
All statutory references are to the Penal Code.
In count 3, the jury also rendered guilty verdicts on the lesser included offenses of sexual battery with restraint, sexual battery without restraint (§ 243.4, subd. (e)(1)), and assault. At Brown's sentencing hearing, after realizing the jury erred by returning multiple convictions on count 3, the court struck all the convictions in that count except Brown's conviction for attempted sexual penetration.
On June 12, 2017, the court sentenced Brown to an aggregate 11-year prison term, a doubled upper term of eight years on Brown's sexual battery by restraint conviction, three one-year prior prison term enhancements, a stayed two-year term on his attempted forcible sexual penetration conviction, and a stayed term of 180 days on each of his assault convictions in counts 1 and 4.
On appeal, Brown contends his assault convictions in counts 1 and 4 must be reversed because assault is a lesser included offense of the sexual battery and attempted forcible sexual penetration offenses he was convicted of in counts 2 and 3. We find merit to this contention and reverse Brown's two assault convictions. In all other respects, we affirm.
FACTS
On December 2, 2016, D.A. was staying at the Holiday Lodge in Hanford. Shortly after 6:30 a.m., as she sat in the middle of an exterior staircase at the hotel texting on her cell phone, Brown approached her and asked what she was doing. After exchanging a few words, Brown left. However, as D.A. got up and was about to walk down the stairs, Brown walked up to her quickly, pushed her down on her back with his right hand and grabbed her pants with his left hand. Brown then put his left hand on her waist and held her down while he put his right hand down her pants, but over her underwear. D.A. resisted by pushing her body with her feet up the stairs and pushing on his hands as hard as she could to prevent him from penetrating her vagina. D.A. then asked Brown what was wrong with him and told him to get off her. Brown, who was now on top of her, replied, "I want this[,] I want it. I want this." D.A. screamed for help as she continued pushing down as hard as she could on Brown's hands. After a few minutes, Brown grabbed D.A.'s shirt and pants, swung her around and threw her to the ground. He again got on top of her, but when a car drove into the parking lot, Brown got off and ran away.
D.A. sat on the third step from the top of the staircase.
At trial, Kings County Sheriff's Deputy Francisco Perez testified that when he interviewed D.A., she stated that during the assault Brown penetrated her vagina once.
DISCUSSION
Brown contends that because simple assault is a lesser included offense of sexual battery by restraint and attempted forcible sexual penetration and the prosecution used the same facts to prove the four charged offenses, his convictions for assault in counts 1 and 4 must be vacated. We agree and modify the judgment accordingly.
Respondent contends that Brown's simple assault conviction in count 3 should be reversed because that offense is a lesser included offense of sexual battery with restraint. However, as noted ante, in count 3 the court struck all his convictions, including his simple assault conviction, except his conviction for attempted forcible sexual penetration. --------
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. 'In California, a single act or course of conduct by a defendant can lead to convictions "of any number of the offenses charged." [Citations.] Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same 'act or omission.' When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.
"A judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' [Citation.] '[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.' " (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227, italics added.)
During closing arguments, the prosecutor argued Brown committed: (1) the attempted rape charged in count 1 when he "pushed her down and restrained her with one of his hands ... while shoving his other hand inside her pants[;]" (2) the sexual battery by restraint charged in count 2 when he "restrained, held her down, pushed her down" and touched an intimate part of D.A.; and (3) the assault with intent to commit rape charged in count 4 when he "pushed her down ... got on top of her, restrained her," and shoved his hand down her pants. Additionally, it is clear from the evidence that the jury convicted Brown in count 3 of attempted forcible sexual penetration based on the same conduct of Brown pushing D.A. down and restraining her with one arm as he attempted to penetrate her. Thus, it is also clear that all of Brown's convictions were based on the same acts and/or course of conduct.
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Simple assault is a lesser included offense of sexual battery with restraint. (People v. Carapeli (1988) 201 Cal.App.3d 589, 595.) Further, it is clear from the above definition of assault that simple assault is also a lesser included offense of attempted forcible sexual penetration. Therefore, because Brown was convicted of sexual battery by restraint, attempted forcible sexual penetration, and simple assault based on the same acts and/or course of conduct, his convictions for simple assault in counts 1 and 4 cannot stand. (Id. at pp. 594-595 [defendant's conviction of greater offense of sexual battery through restraint in one count precluded conviction of simple assault as a lesser included offense in another count].)
DISPOSITION
Brown's convictions for simple assault in counts 1 and 4 are reversed. The trial court is directed to correct its paperwork accordingly and to notify the appropriate authorities. In all other respects, the judgment is affirmed.