Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN230168 K. Michael Kirkman, Judge.
IRION, J.
A jury convicted Daniel Hernandez Diaz of assault with intent to commit rape (Pen. Code, § 220, subd. (a) (count 1)), attempted forcible rape (§§ 261, subd. (a)(2), 664 (count 2)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(1) (count 3)). Thereafter, Diaz waived a jury trial on the priors charged in the amended information and admitted a prison prior (§§ 667.5, subd. (b), 668), a violent felony conviction (§ 667.5, subd. (a)), a prior serious felony conviction (§§ 667, subd. (a)(1), 668 & 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b) (i), 1170.12). The trial court sentenced Diaz to a total prison term of 24 years.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal Diaz challenges his sentence, contending: (1) in violation of section 654, he was punished twice for the same act, for which he was convicted of assault with intent to commit rape and assault by means likely to produce great bodily injury; and (2) the trial court erred by imposing a full-term consecutive sentence under section 667.6, subdivision (c) for his conviction of assault by means likely to produce great bodily injury because that offense does not qualify as a "sexual offense" under section 667.6, subdivision (e). We determine Diaz's first contention to be without merit. Although we agree with Diaz's second contention, we determine the error to be harmless. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 28, 2007, after leaving a bar alone and in an intoxicated state, the victim, Melissa A., walked to a friend's truck in a parking lot. Diaz followed Melissa and, as she got into the truck, pushed her across the truck's center console and began choking her. Melissa pushed and kicked Diaz, who kept his grip on her throat so tight that she vomited. After Melissa indicated that she wouldn't fight, Diaz "let up" his grip "a little bit." Melissa shimmied over the truck's console to get into the back seat, but Diaz continued to choke Melissa and then removed her shorts. Diaz lay on top of Melissa and attempted to rape her in the back seat of the truck. He continued to choke her, and punched her in the eye (blackening it and lacerating the skin) and in the chest and mouth. Diaz threatened to kill Melissa. Melissa believed Diaz penetrated her vagina. Diaz was still trying to rape Melissa when she managed to escape through the back passenger side door of the truck.
Witnesses saw Diaz run away, but police apprehended him nearby. Melissa identified Diaz as the perpetrator. DNA material found on his penis, blood stains on his shirt and other physical evidence tied Diaz to Melissa and the truck.
An amended information charged Diaz with assault with intent to commit rape (count 1), attempted forcible rape (count 2), assault by means likely to produce great bodily injury (count 3) and making a criminal threat (count 4), and alleged he had various priors.
At trial, Diaz testified in his own defense, stating Melissa had initiated sexual activity with him, but then "went crazy" and used an ethnic slur toward him when they were about to have sex, which made him angry and possibly caused him to hit her before she left the car. Diaz acknowledged responsibility for Melissa's injuries.
A jury acquitted Diaz of making a criminal threat (count 4), but convicted him of all other charges. Diaz waived his right to a jury trial on the charged priors, and then admitted each of the priors.
At the sentencing hearing, the trial court imposed an upper term of six years on Diaz's conviction for assault with intent to commit rape (count 1), and doubled the term under the "Three Strikes" law. The court stayed sentence under section 654 on Diaz's attempted rape conviction (count 2). The trial court then made various findings with respect to imposing sentence for Diaz's conviction for assault by means likely to produce great bodily injury (count 3). First, it determined that the count 3 offense was not "indistinguishable" from that in count 1, the assault with intent to commit rape, and that it was a separate offense "done to facilitate the primary offense in this case." Having made those findings, the court then imposed a full consecutive three year middle term on the count 3 conviction, and doubled it under the Three Strikes law. The trial court stated this sentence was "consistent with [People v. Hicks (1993) 6 Cal.4th 784 (Hicks)]" and imposed "pursuant to [section] 667.6[, subdivision ](c)." In selecting the middle term of three years, the trial court took "into account that the [section] 245 was done to facilitate the greater offense, the more aggravated offense, that this happened within, indeed, a relatively close period of time, [and] that this did all encompass a single occasion involving the same victim." The court imposed additional terms in connection with the admitted priors, for a total prison term of 24 years.
On appeal, Diaz asserts the trial court erred in sentencing him (1) on both counts 1 and 3, thereby imposing double punishment for the same act in violation of section 654, and (2) under section 667.6, subdivision (c), on his conviction for assault by means likely to produce great bodily injury, which is not an enumerated sex offense subject to that statute. We discuss each in turn.
DISCUSSION
I
Section 654 Does Not Bar the Imposition of Multiple Sentences on Diaz's Convictions for Assault with Intent to Commit Rape and Assault by Means Likely to Produce Great Bodily Injury
Diaz contends the trial court erred by imposing multiple sentences on his convictions for assault with intent to commit rape and assault by means likely to produce great bodily injury, which he contends were based on the same assaultive conduct and therefore were subject to the prohibition against double punishment under section 654. The trial court found the two convictions were based on separate acts and were subject to separate sentences under section 667.6, subdivision (c), which created an exception to section 654 as established in Hicks, supra, 6 Cal.4th 784. We first review the applicable law and standard of review, which we then apply to determine whether the trial court's findings are supported by substantial evidence and are legally sufficient to justify the imposition of sentences on both convictions.
A. Applicable Law
Under section 654, a court may sentence a defendant for only one offense based on the "same act or omission," even where that act or omission results in multiple convictions. (§ 654, subd. (a).) As interpreted by the California Supreme Court, section 654's proscription against double punishment for multiple violations of the Penal Code based on the " 'same act or omission' " includes multiple violations committed in an " 'indivisible' " or " 'single transaction.' " (People v. Siko (1988) 45 Cal.3d 820, 822 (Siko), citing People v.Beamon (1973) 8 Cal.3d 625, 636-639 [§ 654 bans punishment for more than one conviction based on an act, omission or indivisible course of conduct in which the accused had one principal objective to which any other objectives were incidental].)
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Hicks addressed the issue of whether the enactment of section 667.6's discretionary sentencing scheme, which permits imposition of full-term consecutive sentences for certain sex offenses, created an exception to section 654's prohibition against multiple sentences for multiple offenses within an "indivisible" course of conduct or "single transaction." (Hicks, supra, 6 Cal.4th at pp. 793-796.) In Hicks, the defendant was convicted of burglary of a bakery, committed to facilitate sexual assaults upon a bakery employee. (See Hicks, supra, 6 Cal.4th at pp. 793-796.) Both crimes were part of an indivisible, single transaction, and, in the absence of section 667.6, subdivision (c), imposition of multiple sentences for the two acts would have been prohibited under section 654. (Hicks, at p. 789.) However, the Hicks court examined the language of section 667.6, subdivision (c), and found "the Legislature intended to create an exception to section 654 that would allow multiple punishment for separate criminal acts committed during an indivisible course of conduct," where those criminal acts included one of the statutorily enumerated sex offenses. (Hicks,at pp. 793, 789, quoting People v. Harrison (1989) 48 Cal.3d 321, 335 (the Hicks exception).) Because the exception was intended to permit enhanced punishment of certain sexual offenders who commit multiple offenses, the California Supreme Court in Hicks determined it was appropriate for the burglary, an additional criminal act that "aggravated the crime," to result in increased punishment. (Hicks, supra, 6 Cal.4th at pp. 796 ["Such increased penalties are appropriate, because a defendant who commits 'a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.' "].)
Section 667.6, subdivision (c) provides in part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." The sex offenses to which the exception set forth in Hicks applies are enumerated in section 667.6, subdivision (e).
At the time Hicks was decided, the exception authorized consecutive full-term sentences for enumerated sexual offenses " 'whether or not the crimes were committed during a single transaction.' " (Hicks, supra, 6 Cal.4th at p. 791, citing § 667.6, subd. (c).) The statute was amended in 2006 to read "a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion." (§ 667.6, subd. (c), italics added.) Although the amendment replaces the language that Hicks interpreted, neither party argues the amendment affects the continuing validity of Hicks's holding or its application to this case.
Thus, under Hicks, a trial court may sentence a defendant convicted of an enumerated sex offense and another crime to full-term consecutive sentences under section 667.6, subdivision (c), even where both crimes were committed for a common objective, provided the convictions constitute "separate criminal acts." (Hicks, supra, 6 Cal.4th at p. 793; People v. Jackson (1995) 32 Cal.App.4th 411, 418 [noting Hicks does not authorize the imposition of multiple punishment for the same act]; Siko, supra, 45 Cal.3d at p. 826 [§ 667.6, subd. (c) does not repeal § 654's prohibition on multiple punishment for a single act or omission].)
Whether section 654 applies in a given case is a factual question for the trial court, and its findings must be upheld on appeal if there is any substantial evidence to support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.) In conducting our appellate review, we view the evidence in the light most favorable to the trial court's findings, and presume the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.)
We next apply these principles to determine whether substantial evidence supports the trial court's factual findings that Diaz's convictions for assault with intent to rape and assault by means likely to produce great bodily injury were based on separate criminal acts, and thus qualify for multiple punishment under section 667.6, subdivision (c), as interpreted by Hicks.
B. The Trial Court's Findings of Separate Acts Are Supported by Substantial Evidence
In sentencing Diaz, the trial court expressly found that the acts that formed the basis for Diaz's convictions of assault with intent to commit rape and assault by means likely to produce great bodily injury were not "indistinguishable" — i.e., they were, in fact, based on separate acts — and that Diaz committed the assault by means likely to produce great bodily injury "to facilitate" the assault with intent to commit rape. By staying sentence on count 2, the trial court implicitly found that Diaz's convictions for attempted rape (count 2) and assault with intent to commit rape (count 1) were based on the same act. We are bound to uphold these findings if supported by substantial evidence, viewed in the light most favorable to the respondent. (People v. Jones, supra, 103 Cal.App.4th at p. 1143; People v. Nelson (1989) 211 Cal.App.3d 634, 638 [upholding an implied finding, inherent in the judgment, where it was supported by the evidence].)
Substantial evidence supports the trial court's finding that separate criminal acts formed the basis for Diaz's convictions of assault with intent to rape and assault by means likely to produce great bodily injury. The crime of assault with intent to commit rape is complete when the perpetrator intends to rape the victim and intends to use force to overcome a victim's resistance. (People v. Green (1960) 180 Cal.App.2d 537, 542-543 [crime of assault with intent to rape is committed if defendant intends to use force to overcome a victim's resistance to sexual intercourse]; see §§ 220, subd. (a), 240.) The offense of assault by means likely to produce great bodily injury, on the other hand, requires a use of force that is not required for the assault with intent to commit rape. (People v. Aguilar (1997) 16 Cal.4th 1023, 1038 [assault by means likely to produce great bodily injury requires "force likely to produce great bodily injury," whether by hands or weapon].)
Melissa's testimony showed Diaz used force against her when he shoved her across the truck's seat, strangling her as she tried to get away, and used his grip on her to take off her shorts. After Melissa indicated she "wouldn't fight," Diaz let up a little bit, and Melissa shimmied over the truck's console to get into the back seat. Diaz then attempted to rape Melissa, and choked her, punched her in the face and chest, and threatened to kill her. Diaz was still trying to rape Melissa when she managed to escape through the back passenger side door of the truck. Medical testimony established that Diaz punched Melissa in the eye with such force that he blackened and broke the skin around the eye. The evidence supports the trial court's findings that Diaz assaulted Melissa by means likely to produce great bodily injury in addition to, and in order to facilitate, his attempted rape. While the two acts were interconnected and performed for a common purpose, they are distinguishable, as the court found.
We next consider whether the trial court properly sentenced Diaz on the two convictions under Hicks and section 667.6, subdivision (c).
C. The Trial Court Properly Imposed Multiple Sentences for Diaz's Convictions on Counts 1 and 3
As we conclude above, substantial evidence supports the trial court's finding that Diaz committed two separate criminal acts, one of which formed the basis for his conviction of assault with intent to commit rape (count 1), which is a statutorily enumerated sex offense for which "full, separate, and consecutive" terms may be imposed under section 667.6, subdivision (c). (See §§ 220, subd. (a), 667.6, subds. (c), (e)(1) & (9).) The trial court also found that Diaz's act that formed the basis for his conviction of assault by means likely to produce great bodily injury, was done to facilitate the crime of assault with intent to rape. Therefore, the trial court properly could apply the Hicks exception to section 654 and impose full-term consecutive sentences for both the enumerated sex offense and the non-enumerated sex offense convictions. (Hicks, supra, 6 Cal.4th at pp. 796-797 [burglary committed to facilitate sexual assaults was properly subject to separate sentence].) Here, as in Hicks, Diaz's commission of the separate offense (assault by means likely to result in great bodily injury) not only facilitated but aggravated the sexual assault, making increased punishment appropriate. (Ibid.) We therefore conclude that the trial court properly imposed sentences for Diaz's convictions on both counts 1 and 3.
Diaz argues the trial court misread Hicks to provide a blanket exception to the prohibition against double punishment when sentencing under section 667.6, subdivision (c). We disagree. The trial court expressly found that the acts underlying counts 1 and 3 were separate acts, and imposed sentence in accordance with section 667.6, subdivision (c), as interpreted by Hicks.
Relying on Siko, supra, 45 Cal.3d 820, 825-826, Diaz also contends that the conduct of his trial showed counts 1 and 3 were based on the same acts of assault, and "[n]either the trial judge nor the attorneys ever suggested" otherwise. Again, we disagree. In Siko, the defendant was tried and convicted for rape and sodomy, as well as for lewd conduct with a child. The lewd conduct charge was based on the same acts of penetration as the rape and sodomy charges. The court held that section 654 barred sentencing on Siko's lewd conduct conviction, reasoning that although the defendant was convicted of three crimes, he only committed two criminal acts. (Siko, supra, 45 Cal.3d at p. 823.) In Siko, the charging instrument had based the lewd conduct charge on the rape and sodomy penetrations, the case had been tried on that theory, and the jury's verdicts expressly stated that basis for his convictions. (Siko, at pp. 825-826.)
Diaz cites the prosecutor's closing argument comment that the crimes were " 'one assault.' " The record shows, however, that the prosecutor referred to "one assault" only in rebuttal to the defense's argument that the jury should acquit Diaz of the "sex charges" based on the defense argument that Melissa initiated the contact with Diaz.
Unlike Siko, the trial court here expressly found separate criminal acts underlying counts 1 and 3. The record shows the trial was conducted in accordance with the theory that the acts that formed the basis for the two charges were separate. The jury instructions delineated the differences between the two criminal acts, and contained a unanimity instruction that pertained only to the assault by means likely to produce great bodily injury charge, but not to the charge for assault with intent to commit rape. Further, Diaz himself advanced different defenses for each act, testifying and arguing that Melissa initiated sexual activity, but "had a change of heart," and admitting responsibility for the injuries that he contended resulted from simple assault, showing he understood the crimes charged in counts 1 and 3 were based on different criminal acts. Thus, in this case, the trial court found Diaz's convictions were based on different acts, and its findings are not only supported by the evidence, but are consistent with the jury instructions and the conduct of the trial.
The jury instructions properly reflected the differences in the elements of the two crimes, including the fact that specific intent was required for assault with intent to commit rape, but not for assault by means likely to produce great bodily injury. (See People v. Felix (2009) 172 Cal.App.4th 1618, 1628 [intent to do an act that will injure any reasonably foreseeable person sufficient for assault].) In addition, at the prosecutor's request, the trial court instructed the jury that it must unanimously agree on which act Diaz committed in committing assault with force likely to cause great bodily injury. The prosecution argued both the choking and the blow to Melissa's eye were acts of force likely to cause great bodily injury.
Finally, Diaz essentially invites us to find, contrary to the trial court's express findings, that counts 1 and 3 were not based on separate acts but were one continuous assault. However, the trial court expressly found two separate criminal acts underlying Diaz's three convictions, and we may not reweigh the evidence or disturb the trial court's findings, which are supported by substantial evidence. (People v. Jones, supra, 103 Cal.App.4th at p. 1143.) We have reviewed and considered the authorities upon which Diaz relies, but find them inapposite in light of both the trial court's findings Diaz committed separate criminal acts and our determination that the trial court properly applied the Hicks exception in this case.
By staying sentence on count 2, the trial court implicitly found Diaz's conviction for attempted rape and assault with intent to rape were based on the same act, which was separate from the act underlying his conviction for assault by means likely to produce great bodily injury.
See, e.g., People v. Chacon (1995) 37 Cal.App.4th 52, 65 (§ 654 precluded dual punishment for kidnapping and assault); People v. Robbins (1989) 209 Cal.App.3d 261, 266 (finding individual blows constituted one prolonged assault); People v. Jefferson (1954) 123 Cal.App.2d 219, 221 (two attacks with knife were not separate offenses); People v. Mitchell (1940) 40 Cal.App.2d 204, 211 (multiple blows constituted one assault).
Both parties briefed the issue whether Diaz had multiple or common objectives. However, we need not reach this issue, as Hicks instructs that even if a defendant is deemed to have committed separate acts with a common objective, section 667.6, subdivision (c), if applicable, permits the trial court to sentence on both crimes without violating section 654. (Hicks, supra, 6 Cal.4th at p. 793.)
II
The Trial Court's Error in Sentencing Diaz's Conviction on Count 3 Under Section 667.6, Subdivision (c) Was Harmless
As an alternative to his principal appellate claim, Diaz contends the trial court erred in imposing a full-term consecutive sentence for assault by means likely to produce great bodily injury (count 3) under section 667.6, subdivision (c), because the offense is not an statutorily enumerated sex offense under subdivision (e). Diaz argues that the trial court should have sentenced Diaz on count 3 as a subordinate term under section 1170.1, at one-third the middle term, and therefore seeks a reduction in the sentence imposed on count 3 from six years to two years. (§ 1170.1.) We agree there was sentencing error, but disagree that Diaz's sentence must be reduced.
Although Diaz did not object on this basis in the trial court, under well-established principles of waiver or forfeiture, a defendant is not required to have objected where his or her claim is that a sentence was unauthorized. (People v. Scott (1994) 9 Cal.4th 331, 353.)
The trial court erred in designating section 667.6, subdivision (c) as the basis for the sentence on count 3, because that section does not apply to the offense of assault by means likely to produce great bodily injury. (See § 667.6, subd. (e) [§ 245 is not an offense to which § 667.6, subd. (c) applies].) However, as we will explain, the trial court indicated its intent to exercise its discretionary authority to sentence under section 667.6, subdivision (c) and the Hicks exception, and impose full-term consecutive sentences on both of Diaz's convictions. The trial court properly could have sentenced Diaz to the same full consecutive terms by stating it was designating count 1, assault with intent to rape, a statutorily enumerated offense under section 667.6, subdivision (e), as the qualifying offense for the purpose of section 667.6, subdivision (c). We therefore conclude the trial court's error was harmless.
The Attorney General argues that the full consecutive sentence on count 3 was authorized by section 667.6, subdivision (c), relying on People v. Pelayo (1999) 69 Cal.App.4th 115 (Pelayo), and People v. Jones (1988) 46 Cal.3d 585. However, neither of these cases authorizes the imposition of a sentence under section 667.6, subdivision (c) for a conviction on an offense not enumerated in section 667.6, subdivision (e). (People v. Jones, supra, 46 Cal.3d at p. 591 [trial court had sentenced sex offense under § 667.6, subd. (c)]; Pelayo,at p. 124 [trial court sentencing multiple sex offenses under § 667.6, subd. (d) erred by making both nonviolent sex offenses subordinate counts and thereby effectively merging one of the § 667.6 offenses into a § 1170.1 term].)
Section 1170.1 sets forth the procedure for sentencing a defendant with multiple felony convictions to consecutive terms under California's determinate sentencing law. Under section 1170.1, the trial court designates as the "principal term" "the greatest term of imprisonment imposed by the court for any of the crimes," and that sentence is imposed at full strength. (§ 1170.1, subd. (a).) Then the court may impose consecutive sentences for additional convictions at one-third of the middle term for each felony conviction; these are deemed "subordinate terms." (Ibid.)
However, there is an exception to this sentencing procedure when, as occurred in this case, one of the convictions is for a sex offense enumerated in section 667.6, subdivision (e), and is therefore subject to sentencing under section 667.6, subdivision (c). In such cases, the trial court is not required to designate the enumerated sex offense as the principal term even though it may bear the longest potential term. (People v. Belmontes (1983) 34 Cal.3d 335, 346; Pelayo, supra, 69 Cal.App.4th at p. 124.) Rather, the trial court may exercise its discretion to designate the felony that is not an enumerated sex offense as the principal term under section 1170.1, and impose a full consecutive term for the enumerated sex offense pursuant to section 667.6, subdivision (c). "The computations under sections 1170.1 and 667.6, subdivision (c) are to be done separately; the total of the section 667.6 computation would then be added to the section 1170.1 total." (Belmontes,at p. 346.)
Here, Diaz was convicted of assault by means likely to produce great bodily injury as well as assault with intent to commit rape, which is an enumerated sex offense under section 667.6, subdivision (e). The transcript of the sentencing hearing shows the trial court intended to sentence both convictions to full consecutive terms, utilizing the alternative sentencing scheme for sex crimes under section 667.6, subdivision (c). The trial court had discretion to impose a full consecutive term for both count 1, under section 667.6, subdivision (c), and count 3, the assault by means likely to produce great bodily injury, as the default principal term under section 1170.1. (People v. Jones, supra, 46 Cal.3d at p. 598, fn. 7 [where defendant stands convicted on an enumerated sex offense and a non-enumerated sex offense, utilizing § 667.6, subd. (c) enables sentencing court to impose full consecutive term for non-sex offense]; People v.Andrus (1990) 226 Cal.App.3d 73, 78-79 [upholding sentencing of two terms under §§ 667.6, subd. (c) & 1170.1, respectively, for child molestation and kidnapping — committed for the purpose of committing the sex offense].)
Thus the trial court properly could have imposed full-term consecutive sentences on counts 1 and 3. However, the trial court erred by designating section 667.6, subdivision (c) as the basis for imposing sentence on Diaz's conviction on count 3, for assault by means likely to produce great bodily injury, rather than on count 1, assault with intent to rape. This designation error does not affect the length or consecutive nature of either term, because the trial court intended to impose, and could properly have imposed, the same full consecutive terms for each crime by sentencing count 1 under section 667.6, subdivision (c). Therefore, the trial court's erroneous designation of section 667.6, subdivision (c) as the basis for sentencing Diaz on count 3 was harmless error.
"Authority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment." (In re Ricky H. (1981) 30 Cal.3d 176, 191; see In re Sandel (1966) 64 Cal.2d 412, 418 [where trial court erroneously imposed concurrent terms, appellate court corrected error by deeming terms to be consecutive as required].) We exercise our authority to correct the error, with no change in sentence length or terms, but to deem the full-term consecutive sentence on the conviction for assault with intent to commit rape (count 1) to have been imposed under section 667.6, subdivision (c), and the full-term consecutive sentence on the conviction for assault by means likely to produce great bodily injury (count 3) to have been imposed under section 1170.1, subdivision (a).
DISPOSITION
The trial court is directed to modify the sentencing order to reflect that the full consecutive term imposed on Diaz's conviction for assault with intent to commit rape (count 1) is deemed to have been imposed under section 667.6, subdivision (c), and the full consecutive term imposed on Diaz's conviction for assault by means likely to produce great bodily injury (count 3) is deemed to have been imposed under section 1170.1, subdivision (a). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the modified basis for the sentence and to forward copies of the amended abstract to the Department of Corrections.
WE CONCUR: BENKE, Acting P. J.McINTYRE, J.