Opinion
F077155
10-07-2019
THE PEOPLE, Plaintiff and Respondent, v. BALTAZAR MONDRAGON, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kathryn L. Althizer, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F16902446)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kathryn L. Althizer, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Franson, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Baltazar Mondragon of forcible oral copulation (Pen. Code, § 288a, subd. (c)(2); count 1), assault with intent to commit rape (§ 220, subd. (a)(1); count 2), attempted forcible rape (§§ 664/261, subd. (a)(2); count 3), attempted forcible oral copulation (§§ 664/288a, subd. (c)(2); count 4), corporal injury to a spouse or cohabitant with prior convictions (§ 273.5, subds. (a) & (f)(1); count 5), dissuading a witness by force or threat (§ 136.1, subd. (c)(1); count 6), and spousal battery (§ 243, subd. (e)(1); count 7), a misdemeanor.
All further statutory references are to the Penal Code. --------
On March 9, 2018, the court sentenced Mondragon to an aggregate prison term of 21 years as follows: the aggravated term of five years on count 5, a consecutive, aggravated term of eight years on count 1, a consecutive, aggravated term of six years on count 2, and consecutive one-year terms (one-third the middle term of three years) on each of his convictions in counts 4 and 6. The court also imposed a concurrent one-year term in county jail on count 7 and a stayed term on count 3.
On appeal, Mondragon contends his conviction for attempted rape in count 3 should be reversed because it is a lesser included offense of his conviction in count 2 for assault with intent to commit rape. We find merit to this contention and reverse Mondragon's conviction on count 3. In all other respects, we affirm.
FACTS
The evidence at trial established that Mondragon and M.P. had been in a relationship for nine years, had previously lived together, and had a daughter together.
On the evening of April 17, 2016, although they were no longer living together, M.P. went dancing with Mondragon. The following morning, after arriving at M.P.'s house at around 3:00 a.m., M.P. changed into a cotton shirt and underwear and lay on a bed in her bedroom. Mondragon entered the room, took off her clothes and his, and attempted to force M.P. to orally copulate him. He then restrained M.P. by placing both hands on her chest as he attempted to rape her, but M.P. was able to prevent him by squirming around. Mondragon began biting M.P. on her neck and inside bottom lip and he punched her in the face with both fists. M.P. screamed, and Mondragon placed a pillow over her face, making it difficult for her to breathe. Eventually, M.P. was able to push Mondragon off the bed, which allowed her to get up from the bed and go to another room. Mondragon did not follow her, and he passed out on the bed.
To support the allegation of prior domestic violence, the prosecutor introduced evidence of several prior incidents during which Mondragon assaulted M.P.
DISCUSSION
Mondragon contends attempted rape is a lesser included offense of assault to commit rape. Therefore, since he was convicted of assault to commit rape in count 2 and attempted rape in count 3, and both convictions were based on the same conduct, his attempted rape conviction must be reversed. Respondent concedes.
"[T]wo tests [are applied] in determining whether an uncharged offense is necessarily included within a charged offense: the 'elements' test and the 'accusatory pleading' test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former." (People v. Reed (2006) 38 Cal.4th 1224, 1227-1228.)
Attempted rape is a lesser included offense of assault with intent to commit rape under the elements test because an " 'assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.] "An 'assault' with intent to commit a crime necessarily embraces an 'attempt' to commit said crime but said 'attempt' does not necessarily include an 'assault.' " ' " (People v. Ramirez (1969) 2 Cal.App.3d 345, 352.) Further, a defendant cannot be convicted of a lesser included offense when the greater and lesser offenses are based on the same conduct. (Ibid.)
During closing arguments, the prosecutor argued that Mondragon committed the assault with intent to commit rape and the attempted rape offenses when he restrained M.P. by placing his hands on her chest while attempting to rape her. Since both convictions were based on the same conduct, we agree with the parties that the attempted rape offense Mondragon was convicted of in count 3 was a lesser included offense of the assault with intent to commit rape offense he was convicted of in count 2.
DISPOSITION
Mondragon's conviction in count 3 for attempted rape is reversed. The trial court is directed to issue an amended abstract of judgment that does not indicate that Mondragon was convicted of this offense and to forward a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.