Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, Super. Ct. No. VCF141263, James W. Hollman, Judge.
Athena Shudde, 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, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Conrado DeLaRosa Cruz (appellant) was charged with various offenses against four separate victims. Following a jury trial, appellant was convicted of one count of attempted forcible rape (Pen. Code, §§ 664, 261, subd. (a)(2); count 1), two counts of forcible rape (§ 261, subd. (a)(2); counts 2 & 6), one count of attempted forcible sodomy (§§ 664, 286, subd. (c); count 4), three counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 5, 8 & 11), one count of kidnapping to commit rape (§ 209, subd. (b)(1); count 7), one count of simple assault (§ 240; count 9), one count of attempted kidnapping (§§ 664, 207, subd. (a); count 10), and one count of assault with intent to commit rape (§ 220; count 12). The jury found true the following aggravating circumstances: the use of a deadly weapon (§ 12022.3, subd. (a); counts 1 & 4), multiple victims and the use of a deadly weapon (§ 667.61, subds. (a), (b), & (e); count 2), multiple victims, kidnap of the victim and movement which increased the risk of harm to the victim (§ 667.61, subds. (a), (b), (d), & (e); count 6), and use of a deadly weapon (§ 12022, subd. (b)(1); count 10).
This appears to be appellant’s true name although he was charged and convicted as either “Cornado” or “Coronado.”
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to two consecutive 25 years to life sentences plus a total determinate term of 10 years 2 months consecutive and seven years concurrent. The court imposed and stayed terms on four counts.
On appeal, we agree with appellant’s contentions that the trial court erred when it imposed an incorrect sentence for an enhancement and that several corrections need to be made to the abstracts of judgment. We disagree with appellant’s claim that his conviction of kidnapping to commit rape in count 7 was a lesser included offense of forcible rape in count 6. In all other respects, the judgment is affirmed.
FACTS
Appellant attacked four women on different occasions between November 2004 and February 2005. The facts will be discussed only as necessary to appellant’s individual contentions.
DISCUSSION
1. Did the trial court impose an incorrect term?
Appellant was found guilty in count 10 of attempted kidnapping (§§ 664, 207, subd. (a)), and the jury found true that appellant used a deadly weapon during the incident (§ 12022, subd. (b)(1)). At sentencing, the trial court imposed a consecutive 10-month term for the attempted kidnapping conviction, enhanced by one year four months for the weapon use, for a total of two years two months on count 10. Appellant contends, and respondent concedes, that the court imposed an unlawful term on the deadly weapon enhancement.
Section 12022, subdivision (b)(1) provides:
“Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”
The proper term for a section 12022, subdivision (b)(1) enhancement is one year. (§ 1170.1, subd. (a).) Because count 10 was sentenced as a subordinate offense, the proper term for the section 12022, subdivision (b)(1) deadly weapon enhancement was one-third of the one-year term—four months, not one year four months. (§ 1170.1, subd. (a).)
We note, although neither party argues, that the abstract of judgment, form CR-290, incorrectly lists the enhancement attached to count 10 as a section 12022.3, subdivision (a) enhancement and the sentence is designated at one year. We will order form CR-290 corrected to accurately reflect that the count 10 enhancement is for a section 12022, subdivision (b)(1) enhancement and that the proper term is for four months. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate courts may order abstracts of judgment corrected that do not accurately reflect oral judgments of sentencing courts].)
2. Did the trial court err when it stayed rather than struck the sentence on count 7?
In count 6, appellant was convicted of forcible rape of P.N. (§ 261, subd. (a)(2)), with special circumstances, pursuant to the “one strike” law (1) of kidnapping, (2) that the kidnapping substantially increased the risk of harm to the victim, and (3) that there were multiple victims. (§ 667.61, subds. (a), (b), (d) & (e).) In count 7, appellant was convicted of kidnapping to commit rape against P.N. (§ 209, subd. (b)(1).) The trial court imposed a 25 years to life sentence on count 6; it imposed a life term on count 7, but stayed it pursuant to section 654.
Appellant argues that his conviction in count 7 must be reversed because it was a lesser included offense of count 6. He asserts count 7, kidnapping to commit rape, is a lesser included offense of count 6, forcible rape, because count 6 also carries the one strike special circumstance of kidnapping.
A pleading may charge different statements of the same offense, and the defendant may be convicted “of any number of the offenses charged.” (§ 954.) But when the greater offense cannot be committed without necessarily committing the lesser, and the jury finds the defendant guilty of both, the conviction of the lesser offense must be reversed. (People v. Ortega (1998) 19 Cal.4th 686, 692, overruled on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) In Reed, our Supreme Court held that, for purposes of avoiding multiple convictions, the statutory elements test is to be used to determine whether an offense is necessarily included in another. (People v. Reed, supra, at p. 1231.) And, in People v. Sloan (2007) 42 Cal.4th 110, 113-114, decided after briefing here was complete, our Supreme Court concluded that enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses.
In Sloan, as the result of a domestic violence incident, the defendant was convicted of willful infliction of corporal injury on a spouse resulting in a traumatic condition, with a prior conviction for the same offense (§ 273.5, subd. (e)(1)); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); battery with serious bodily injury (§ 243, subd. (d)); and dissuading a witness (§ 136.1, subd. (b)(1)). Enhancement allegations for personal infliction of great bodily injury under circumstances involving domestic violence were found true under the corporal injury and aggravated assault counts. (§ 12022.7, subd. (e).) An allegation that the defendant personally inflicted great bodily injury on a person who was not an accomplice was found true under the battery with serious bodily injury count, making that offense, like the aggravated assault offense, a serious felony within the meaning of section 1192.7, subdivision (c)(8). (People v. Sloan, supra, 42 Cal.4th at pp. 114-115.)
The defendant in Sloan was sentenced to prison for the upper term of five years on the corporal injury to a spouse (count 1), plus four years for the great bodily injury enhancement, and a consecutive term of eight months for dissuading a witness (count 4). The terms imposed for aggravated assault with great bodily injury (count 2) and battery with serious bodily injury (count 3) were stayed pursuant to section 654. (People v. Sloan, supra, 42 Cal.4th at p. 115.)
The Court of Appeal in Sloan affirmed the convictions for corporal injury to a spouse and for dissuading a witness, but vacated the convictions for aggravated assault with great bodily injury and battery with serious bodily injury on grounds that they violated the rule against multiple convictions based on necessarily included offenses, section 654, and federal double jeopardy principles. (People v. Sloan, supra, 42 Cal.4th at p. 115 .)
Both the People and the defendant appealed. The defendant argued that, by willfully inflicting corporal injury resulting in a traumatic condition on his spouse and personally inflicting great bodily injury in connection with that offense, he necessarily committed the charged offenses of assault by means of force likely to produce great bodily injury and battery with serious bodily injury. (People v. Sloan, supra, 42 Cal.4th at p. 117.)
The court in Sloan explained the situation as follows:
“If the conviction of willful infliction of corporal injury on a spouse resulting in a traumatic condition under section 273.5, subdivision (e)(1) (see count [1]) is considered without the great bodily injury enhancement found true under that count, then assault by means of force likely to produce great bodily injury (see count [2]) is not a necessarily included offense, as the statutory elements of the former offense do not require proof of intent to inflict, or the actual infliction of, great bodily injury. Corporal injury resulting in a ‘“traumatic condition”’ can be a wound or external or internal injury, whether minor or serious. (§ 273.5, subd. (c).) In contrast, if the conviction of willful infliction of corporal injury on a spouse is considered together with the great bodily injury enhancement found true under that count, then all of the statutory elements of assault by means of force likely to produce great bodily injury, of which defendant was also charged and convicted, would be met.” (People v. Sloan, supra, 42 Cal.4th at p. 117.)
In other words, “the great bodily injury enhancement found true under count [1] would effectively establish the elements of the charged battery with serious bodily injury (see count [3]), thereby triggering application of the rule against multiple convictions, whereas looking only to the statutory elements of willful infliction of corporal injury on a spouse would not implicate the rule.” (Ibid.)
The court in Sloan reasoned that the defendant’s position would undermine the intent of the Legislature when it separately defined the three offenses of which the defendant was charged and convicted—willful infliction of corporal injury on a spouse causing a traumatic condition, assault by means of force likely to produce great bodily injury, and battery with serious bodily injury—and “‘“[t]o immunize”’ defendant from conviction of [assault by means of force likely to produce a great bodily injury and battery with serious bodily injury simply because a great bodily injury enhancement was found true under the charge of infliction of corporal injury on a spouse] “would be irrational and would frustrate the strong legislative purpose behind [all three] statutes.” [Citation.]’” (People v. Sloan, supra, 42 Cal.4th at p. 119.) The court concluded that, under the statutory or legal elements test, “enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses.” (Id. at p. 114.)
Appellant asserts that the “One Strike law is not … a sentence enhancement.” (People v. Acosta (2002) 29 Cal.4th 105, 118.) Rather, the one strike law “‘sets forth an alternate penalty for the underlying felony itself ….’” (Ibid.) But, it is also true that the one strike law, “like an enhancement, does not define an offense but instead increases the punishment for the underlying substantive crime .…” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1298.) As with an enhancement, the kidnapping special circumstance of section 667.61 increases the punishment based on conduct that is not an element of the charged offense. Following the reasoning of People v. Sloan, and using the statutory elements test, we instead consider whether kidnapping to commit rape (count 7) is a lesser included offense of forcible rape (count 6) without the aggravating circumstances attached.
Forcible rape requires a finding that the defendant had sexual intercourse with the victim, the defendant and the victim were not married, the victim did not consent, and the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury. (§ 261, subd. (a)(2); CALCRIM No. 1000.) Kidnapping to commit rape requires a finding that the defendant intended to commit rape; that the defendant took, held or detained the victim by using force or by instilling a reasonable fear; that, using the force or fear, the defendant moved the victim a substantial distance; that the victim was moved or made to move a distance beyond that merely incidental to the commission of a rape; and that the victim did not consent to the movement. (§ 209, subd. (b)(1); CALCRIM No. 1203.)
Appellant cannot rely on the one strike special circumstance of kidnapping to argue that count 7 is a lesser included offense of count 6. In the absence of the special circumstance, count 7, kidnapping to commit rape, is not a lesser included offense of count 6, forcible rape, and appellant was properly convicted of both offenses. We therefore find that the trial court properly sentenced appellant on counts 6 and 7.
3. Must the abstract of judgment be corrected to conform to the judgment?
Appellant requests that the abstracts of judgment be corrected in two respects in order to accurately reflect the pronounced judgment. We address both claims and order several changes. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
First, appellant was charged in count 4 with attempted forcible sodomy in violation of sections 664 and 286, subdivision (c). The prosecutor so argued and the jury was instructed on attempted forcible sodomy. The verdict form on count 4 designates the crime as that of “attempted forcible sodomy,” but incorrectly states “in violation of Penal Code section 664/261(A)(2).” At sentencing, the trial court did not identify the crime of conviction in count 4, but sentenced appellant to the applicable middle term for attempted forcible sodomy, and ordered the term to run concurrent with the principal term. The abstract of judgment, form CR-290, states that appellant was convicted of a violation of “PC 664/261(a)(2).” Appellant argues, and respondent agrees, that the proper Penal Code section designations on count 4 should be 664 and 286, subdivision (c). We agree and order it so corrected.
Second, appellant was charged and convicted of kidnapping to commit rape in count 7. The abstract of judgment, form CR-292, states that he was convicted of a violation of “PC 290(b)(1).” Appellant argues, and respondent agrees, that the proper Penal Code section designation should be 209, subdivision (b)(1). We agree and order it so corrected.
DISPOSITION
The judgment is modified to change the enhancement term attached to count 10 from one year four months to four months. The court is directed to correct form CR-290 to accurately reflect that the count 10 enhancement is for a section 12022, subdivision (b)(1) enhancement and that the proper term is for four months; that the Penal Code section designations in count 4 are for sections 664 and 286, subdivision (c); and that the “total time excluding county jail term” in item No. 8 reflect 9 years 6 months. The court is directed to correct form CR-292 to accurately reflect that the Penal Code designation in count 7 is section 209, subdivision (b)(1). The court is directed to forward a copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: VARTABEDIAN, Acting P.J., CORNELL, J.