Opinion
C083615
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. JORDAN CARDELL HUDSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F01257)
On three separate occasions, defendant Jordan Cardell Hudson sexually accosted women he did not know after he encountered them walking alone on public streets in Sacramento. For attacking one of the victims, a jury convicted him of assault with intent to commit rape and assault with intent to commit forcible oral copulation. The trial court rejected defendant's claim that one sentence had to be stayed under Penal Code section 654 because both convictions stemmed from a single assault. The court sentenced him to an aggregate term of 21 years in state prison.
Further undesignated statutory references are to the Penal Code.
Defendant's sole contention on appeal is that section 654 bars multiple punishment for attempted unlawful sexual acts committed during a single assault. He therefore argues that the consecutive six-year term for his assault with intent to commit forcible oral copulation conviction must be stayed. Based on our independent review, we conclude the evidence shows defendant committed a single act—the assault on victim J.V.—with multiple intents. Because section 654 bars multiple punishments for a single act, even when the criminal act appropriately supports multiple convictions, the trial court erred in refusing to stay the sentence for assault with intent to commit forcible oral copulation. We shall order the trial court to prepare an amended abstract of judgment staying the sentence on count two. As so modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Although defendant was convicted of sexual offenses against three different women, only the assault on one of his victims is relevant to the issue defendant raises on appeal. We therefore focus on that assault, while briefly describing the assaults on the other two victims.
During trial, the prosecutor introduced three prior instances under Evidence Code section 1108 where defendant followed women walking alone whom he did not know and either touched them in a sexually inappropriate manner or made sexually explicit statements to them. We do not recount that evidence here.
On the morning of February 3, 2014, J.V. left her house to walk to the gym. She passed defendant along the way.
Defendant asked her if she would stop to talk to him. She said "no" and continued walking. A short while later, J.V. noticed defendant running towards her in the street. Defendant said, "I like the way you play with your booty hole." J.V. may have cussed in response and kept walking on the sidewalk.
Defendant then grabbed J.V. by the waist from behind. She tried to peel his hands off her. As they struggled, they fell to the ground on the front lawn of a nearby house. The yard had a small brick retaining wall. J.V.'s back was on the grass, but her legs dangled over the short retaining wall. Defendant was on top of her.
Defendant tried to pull J.V.'s pants down while she continued to fight him. She held onto her pants with her left hand, and she hit defendant twice in the face with her right hand. He eventually succeeded in pulling her pants down so that her buttocks and vagina were partially exposed. She continued to struggle to pull her pants up, and yelled twice for defendant to "stop." Defendant responded, "No, I don't even care."
Defendant then picked J.V. up and slammed her to the nearby sidewalk. At this point, defendant was able to pull J.V.'s pants to her knees, fully exposing her vagina and buttocks. He dragged her along the sidewalk and began fiddling with the drawstring on his pants. Defendant pulled J.V.'s neck towards his groin area in an attempt to force her to orally copulate him. J.V. could smell defendant's penis, which was a few inches from her face. She did not see defendant's penis, however, because she had turned her head away.
J.V. told defendant "no," and continued to pulled her head away. Defendant then said, "I don't even care," and ran away. Defendant did not succeed in putting his penis in either J.V.'s vagina or her mouth. J.V. described the incident as "very fast."
After defendant left, J.V. pulled her pants up. She called her boyfriend and her sisters to tell them about the attack. Although they looked for defendant in the area, they could not find him. Later that day, J.V. reported the attack to police.
Approximately two weeks later, on February 20, 2014, defendant assaulted M.C. while she walked home alone from school. Defendant passed her while riding a bike and said "Hey." While standing in the street, defendant grabbed her legs from behind and threw her down. He unbuttoned his pants and tried to put his penis in her mouth. M.C. was able to yell for help and fight defendant off; he gave up the attack and ran away. M.C. reported the assault to police.
Later that same day, A.M. was walking home alone in the dark when defendant approached her on a bike. He commented about her butt, and grabbed her buttocks. She pushed him away and quickly walked to a nearby apartment complex while calling her sister. Defendant followed. A.M.'s sister came outside and confronted defendant, and defendant took off. He was apprehended by police later that night.
An October 2016 amended information charged defendant with assaulting J.V. with the intent to commit rape (§§ 220, 261, subd. (a)(2)—count one), assaulting J.V. with the intent to commit forcible oral copulation (§§ 220, 288a, subd. (c)(2)—count two), assaulting M.C. with the intent to commit forcible oral copulation (§§ 220, 288a, subd. (c)(2)—count three), and committing a lewd and lascivious act on A.M., a child over 15 years old and more than 10 years younger than defendant (§ 288, subd. (c)(1)—count four).
The jury found defendant guilty of all charges. The court sentenced defendant to an aggregate term of 21 years in state prison, consisting of the upper term of three years for the lewd and lascivious act conviction in count four, and to consecutive terms of six years each for the three assault convictions in counts one through three. Defendant timely appealed.
DISCUSSION
Defendant contends that his sentence on count two for assault with intent to commit forcible oral copulation must be stayed pursuant to section 654 because his attempt to rape J.V. and his attempt to force J.V. to orally copulate him were done as part of a single, brief assault. The trial court, he argues, did not make any factual findings entitled to deference, but instead applied an erroneous legal standard regarding defendant's intent and objective to conclude defendant harbored two separate intents when he committed the single assault. We agree section 654 mandates that the sentence on defendant's conviction for assault with intent to commit forcible oral copulation be stayed because defendant committed a single assault on J.V., even if he harbored more than one intent during the brief assault.
Section 654, subdivision (a) provides, in pertinent 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. . . ." The statute does not prohibit multiple convictions for the same conduct, only multiple punishment. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.) "In such a case, the proper procedure is to stay execution of sentence on one of the offenses." (Ibid.)
Our Supreme Court has clarified that "[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an 'act or omission' may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective." (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) We first consider whether the different crimes were completed by a " 'single physical act.' " (Ibid.) "If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e, a course of conduct—do we then consider whether that course of conduct reflects a single 'intent and objective' or multiple intents and objectives." (Ibid.)
If a single physical act served as the basis for convicting a defendant of two separate crimes, it is irrelevant whether he harbored multiple intents and objectives for purposes of section 654. (Corpening, supra, 2 Cal.5th at p. 316; People v. Louie (2012) 203 Cal.App.4th 388, 397 ["A single criminal act, even if committed incident to multiple objectives, may be punished only once."].) "Our case law has found multiple criminal objectives to be a predicate for multiple punishment only in circumstances that involve, or arguably involve, multiple acts. The rule does not apply where . . . the multiple convictions at issue were indisputably based upon a single act." (People v. Mesa (2012) 54 Cal.4th 191, 199.)
In Corpening, for example, the Supreme Court explained that a court does not reach step two of the section 654 analysis if a single physical act served as the basis for convicting the defendant of two separate crimes. (Corpening, supra, 2 Cal.5th at p. 316.) There, the defendant's robbery and carjacking convictions were based on the single act of forcefully taking the victim's van that contained rare coins. (Id. at pp. 313-315.) Because a single act was the actus reus of both crimes, the defendant could not be punished twice. (Id. at p. 316.) The Supreme Court thus stayed the defendant's one-year sentence for his robbery conviction under section 654. (Id. at pp. 316-317.)
"At step one [of the section 654 analysis], courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act." (Corpening, supra, 2 Cal.5th at p. 312.) "When those facts are undisputed . . . the application of section 654 raises a question of law we review de novo." (Ibid.; see People v. Harrison (1989) 48 Cal.3d 321, 335 ["the applicability of [section 654] to conceded facts is a question of law"] (Harrison); accord, People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5 (Perez).) Because the facts in this case are undisputed—the parties agree that defendant briefly attacked the sole victim on a single occasion—we consider de novo whether defendant's conduct on that date constitutes a single physical act.
Making such a determination is no simple task. As the Supreme Court in Corpening recognized, courts often have difficulty in determining whether multiple convictions are indeed based on a single physical act. (Corpening, supra, 2 Cal.5th at p. 312; see People v. Jones (2012) 54 Cal.4th 350, 358 [acknowledging "that what is a single physical act might not always be easy to ascertain"].) "Neither the text nor structure of section 654 resolves when exactly a single act begins or ends . . . ." (Corpening, supra, at p. 312.) And, "virtually any given physical action may, in principle, be divided into multiple subsets that each fit the colloquial definition of an 'act.' " (Ibid.) Thus, to answer the "single physical act" question, the Supreme Court enunciated the following test: "Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses." (Id. at p. 313.)
In this case, the trial court found section 654 did not apply to both of the counts relating to J.V. (counts one and two) because the evidence showed defendant had multiple criminal objectives. The jury, the court found, reasonably could have determined that "defendant not only assaulted [J.V.] with the intent to commit rape by pulling her pants down, evincing an intent to enter her vagina, but also that he then assaulted her with the additional intent to commit oral copulation." Given the court's comments, it appears the court found two separate assaults, each with a different objective. Based on our independent review (Corpening, supra, 2 Cal.5th at p. 312), we conclude otherwise.
Defendant's brief assault of J.V. on February 3 served as the basis for his convictions for assault with intent to commit rape and assault with intent to commit forcible oral copulation. The assault was the actus reus of both offenses. That defendant may have harbored multiple intents—the intent to rape and the intent to commit forcible oral copulation—is irrelevant.
The People's attempt to break defendant's single assault on J.V. into component parts is not persuasive. The Supreme Court in Corpening rejected a similar argument when finding that the defendant could not be punished twice for robbery and carjacking because the forceful taking of the victim's van was the actus reus of both crimes. (Corpening, supra, 2 Cal.5th at p. 315.) It mattered not that the act could be broken down into constituent parts. (Ibid.)
Here, the evidence showed defendant continually assaulted J.V. for a very short period of time at the same location before running off. He did not put his penis in either her vagina or her mouth. J.V. testified that defendant grabbed her from behind and they fell onto the grass during a struggle. While on top of her, defendant tried to pull her pants down, which she fought to keep up. Defendant picked her up and threw her onto the nearby sidewalk. They continued to struggle over her pants. While J.V. was on the sidewalk, defendant successfully pulled her pants down to her knees. Defendant then grabbed her neck and pulled her head towards his groin while he tried to undo the drawstring of his pants.
J.V. described the entire attack as "very fast." She testified that from the time defendant tackled her on the grass to the time he flung her onto the sidewalk it was about one minute.
The assault was a single physical act for a brief moment at a single location against a single victim for purposes of section 654 because the act simultaneously accomplished the actus reus requirement for both the assault with intent to commit rape and assault with intent to commit forcible orally copulation. It does not matter that this act—the single assault—can be broken down into constituent parts such as when J.V. was on the grass with defendant on top of her or when she was on the nearby sidewalk with defendant standing next to her. (Corpening, supra, 2 Cal.5th at p. 316 ["Where the same physical act accomplishes the actus reus requirement for more than one crime, that single act cannot give rise to multiple punishment."].)
The prosecutor's motion to amend the information by interlineation during trial further confirms our conclusion that the assault was a single act even though defendant may have had multiple objectives during the brief assault. Prior to J.V.'s testimony, count one of the information alleged in relevant part: "On or about February 3, 2014, . . . defendant did willfully and unlawfully assault [J.V.], with the intent to commit Rape, prior to body slamming her on concrete, in violation of Penal Code Section 261[, subdivision] (a)(2)," while count two alleged that "On or about February 3, 2014, . . . defendant did unlawfully assault [J.V.], with the intent to commit forcible oral copulation, after slamming her on the concrete, in violation of Penal Code Section 288a[, subdivision] (c)(2)." After J.V. testified, however, the prosecutor moved to amend the information to delete the phrase "prior to body slamming her on concrete" in count one. The prosecutor explained: "What I'm saying is that the testimony she gave is that he was attempting—he was assaulting her with the intent to rape her, both when she was on the grass with her legs hanging over the barrier and also after slamming her on the ground and continuing to pull her pants down, and, in fact, did pull her pants down when she was on the ground. That's why I'm asking to remove the phrase because the testimony was continuing conduct from grass to ground." The court granted the motion, and amended the information accordingly. Thus, the single assault, according to the charging document, completed the actus reus for both crimes.
The fact that defendant did not successfully rape or force J.V. to orally copulate him during the assault, moreover, distinguishes this case from Harrison, supra, 48 Cal.3d at pages 325 to 326 and 338, where the defendant was convicted and punished for committing three acts of vaginal penetration in quick succession while he beat her, and Perez, supra, 23 Cal.3d at pages 548 to 549, where the defendant grabbed the victim and over the course of an hour orally copulated her, committed sodomy on her, forced her to orally copulate him, had vaginal intercourse with her, forced her to orally copulate him again, and then again had vaginal intercourse with her. Each sex act in those cases was a separate offense whereas here defendant did not successfully complete either of the sex acts that were his objective; he merely completed the "very fast" assault. (Harrison, supra, at p. 338 ["there is no legal or logical bar to separate punishment where, as here, each of defendant's 'repenetrations' was clearly volitional, criminal and occasioned by separate acts of force"]; Perez, supra, at pp. 550, 553-554 [each sex offense was a separate and distinct act for which defendant could be separately punished].)
We conclude section 654 requires defendant's six-year sentence for assault with intent to commit forcible oral copulation, which was based on the same act as his assault with intent to rape sentence, to be stayed.
DISPOSITION
The consecutive six-year sentence on count two for assault with intent to commit forcible oral copulation is stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting that the sentence on count two is stayed, and is directed to send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment as modified is affirmed.
BUTZ, Acting P. J. I concur: RENNER, J. Hoch, J., dissenting.
I respectfully dissent. I would affirm the trial court's determination that Penal Code section 654 does not entitle defendant Jordan Cardell Hudson to a stay of his sentence for assault with intent to commit forcible oral copulation on the victim. (§§ 220/288a, subd. (c)(2).) As I explain below, the trial court's ruling is supported by evidence in the record establishing defendant committed two assaults: the assault with intent to commit forcible oral copulation was committed after he gave up on his attempt to rape the victim. (§§ 220/261, subd. (a)(2).)
Undesignated statutory references are to the Penal Code. --------
Section 654, subdivision (a), provides in pertinent part that "[a]n 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." As the California Supreme Court has explained, " 'In California, a single act or course of conduct by a defendant can lead to convictions 'of any number of the offenses charged.' (§ 954, italics added; People v. Ortega (1998) 19 Cal.4th 686, 692.)' (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) 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." (People v. Correa (2012) 54 Cal.4th 331, 337, italics changed.)
In a nutshell, section 654 "intended to ensure that defendant is punished 'commensurate with his [or her] culpability' ([People v.] Perez [(1979)] 23 Cal.3d [545,] 551), its protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' " (People v. Harrison (1989) 48 Cal.3d 321, 335, quoting People v. Beamon (1973) 8 Cal.3d 625, 639 (Beamon).) However, it is "clear that a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment." (Beamon, at p. 639, fn. 11.) "This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken." (People v. Gaio (2000) 81 Cal.App.4th 919, 935.)
In reviewing a challenge to a sentence on grounds of section 654, this court follows the well settled rule that "[t]he question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657; People v. McGuire (1993) 14 Cal.App.4th 687, 698; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) 'We must "view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" [Citation.]' (People v. McGuire, supra, 14 Cal.App.4th at p. 698.)" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313, original brackets.) When the facts are undisputed, however, the applicability of section 654 constitutes a question of law. (People v. Corpening (2016) 2 Cal.5th 307, 312.)
Here, the trial court expressly found defendant engaged in two sexual assaults that were committed one after the other against the victim. The trial court stated on the record: "In this case, the evidence showed multiple criminal objectives. There was sufficient evidence from which the jury could find that the defendant not only assaulted [the victim] with the intent to commit rape by pulling her pants down, evincing his intent to enter her vagina, but also that he then assaulted her with the additional intent to commit oral copulation. [¶] There was evidence he pulled her head toward his exposed penis, so close, in fact, while she didn't see the penis because she had averted her eyes, she smelled it. From such evidence the jury could easily find he harbored multiple criminal objectives and that both offenses were committed, and, in fact, the verdicts revealed their finding." (Italics added.)
Substantial evidence supports the trial court's factual finding of two separate sexual assaults. In particular, the victim testified defendant attempted to rape her with an attack consisting of getting on top of her and pulling down her pants in a furtive effort to rape her. The victim fought back and defendant satisfied all the elements of rape, except for the penetration because he was unable to pull his pants off.
Importantly, for purposes of section 654, defendant gave up on trying to rape the victim. She testified: "[O]nce he realized that [rape] was not going to truly work, that was the other option for him [forced oral copulation]." Although defendant attempts to undermine this testimony as being the victim's attempt to testify to a legal element of the offense of assault to commit rape, this testimony is instead typical and admissible evidence of intent to commit a sexual assault. In People v. Balcom (1994) 7 Cal.4th 414, at pages 422-423, the California Supreme Court relied on the fact that "[t]he victim testified that defendant placed a gun to her head and forced her to engage in sexual intercourse" to hold that "the victim's testimony that defendant placed a gun to her head, if believed, constitutes compelling evidence of defendant's intent . . . ." (Italics added.) Combined with evidence defendant in this case got off of the victim, threw her on the ground, then dragged her along the sidewalk before pulling her neck toward his penis, the victim's testimony of defendant's intent provides substantial evidence he abandoned his plan to rape her before engaging in a new attempt to have her forcibly orally copulate him.
In short, the assaults occurred at times that were separated by defendant's giving up on trying to rape the victim, in different locations after defendant dragged the victim along the sidewalk, and with different intents after defendant intended a rape and then formed the intent for forcible oral copulation. Consequently, section 654 does not apply to stay punishment of the second assault against the victim.
The fact that defendant's convictions are for assaults rather than completed rape or forcible oral copulation does not render his crimes against the victim a singular event. The California Supreme Court has held that " ' "[t]he essential element of [assault with intent to commit rape] is the intent to commit the act against the will of the complainant. The offense is complete if at any moment during the assault the accused intends to use whatever force may be required.' " (People v. Maury (2003) 30 Cal.4th 342, 399-400, People v. Davis (1995) 10 Cal.4th 463, 509, italics added.) Here, this means the assault to commit rape was complete the moment defendant pushed himself on top of the victim. Between that moment and the moment he intended the forcible oral copulation, he gave up. As a consequence, his assaults were two complete, separate crimes.
The separate and subsequent nature of the offenses in this case distinguish them from the situation presented in People v. Corpening (2016) 2 Cal.5th 307 (Corpening), in which the defendant engaged in the single act of taking a van containing valuable coins. (Id. at p. 309.) As the Corpening court noted, "Because our Penal Code is so expansive, the same conduct can violate more than one criminal statute." (Id. at p. 309.) Thus, the same indivisible act of taking a van containing valuable coins was punishable as carjacking and robbery. (Ibid.) In contrast to Corpening, the sexual assaults committed by defendant in this case were divisible.
Defendant in this case could have simply walked away after giving up on the assault to commit rape whereas the defendant in Corpening, supra, 2 Cal.5th 307 could not have committed the carjacking of the van without also committing the robbery of the coins within the van. Were section 654 applied to the assaults against the victim, defendant would be sentenced as if he had left the victim alone after trying to rape her even though he engaged in the additional and separate wrongful conduct of dragging her along the sidewalk and then forcing her head toward his penis. It is defendant's separate and subsequent assaultive behavior that precludes the stay under section 654.
For these reasons, I would affirm.
HOCH J.