Opinion
B300805
06-12-2020
THE PEOPLE, Plaintiff and Respondent, v. TYRONE OWENS, Defendant and Appellant.
Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA474152) APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as modified. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Tyrone Owens guilty of assault with intent to commit rape. On appeal, he contends there was insufficient evidence of his specific intent to rape the victim, and his counsel provided ineffective assistance by failing to ask for a voluntary intoxication instruction. We reject these contentions; however, we modify Owens's sentence to strike enhancements that may no longer be imposed under Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020.
BACKGROUND
I. The attempted rape
On the early morning of January 4, 2019, the victim was at Pershing Square station waiting for a friend. Owens grabbed her from behind and held her in a tight grip. He repeated, "please let me," "let me," and "come on." Owens put his hands on the victim's breasts and grabbed her vagina over her clothes. Owens smashed the victim's body against a wall causing her to hit her head. The victim broke free and begged Owens to leave her alone. Owens held out crumpled money to her, repeating, "please let me," "come on, please." Owens banged her head against the wall again as he tried to touch her body through the thick coat she was wearing. He threw the victim onto the ground, got on top of her, continuing to hit her head against the ground, and touching her breasts over her clothes. He attempted to pry her legs apart with his knee. She flipped onto her stomach during the struggle and knocked out a tooth.
Security guards responding to the victim's screams found the victim with Owens on top of her. Owens told them she was his girlfriend. The victim denied knowing Owens.
According to one security guard, Owens's eyes were kind of red, but the guard did not recall smelling alcohol or marijuana on Owens.
Five years before this incident, Owens was in prison. On one occasion during his incarceration, a female correctional officer escorted Owens to his cell and told him she would return shortly to give him documents. When the officer returned, Owens was naked and masturbating. She told him to stop, but he continued to masturbate, maintaining eye contact as he walked towards her. II. Owens's defense
Owens testified that he and the victim met years before. On the day of the incident, he had just been released from jail, so he and the victim got together and snorted methamphetamine and smoked marijuana. Owens also consumed alcohol. They were at the train station when he realized that some methamphetamine he had wrapped in money was missing. He confronted the victim. She denied having his drugs and money. They struggled, but his sole intent was to get the money back. He did not touch her genitalia. III. Verdict and sentence
A jury found Owens guilty of assault with the intent to commit rape. (Pen. Code, §§ 261, subd. (a), 220, subd. (a)(1).) On May 21, 2019, the trial court sentenced Owens to six years doubled to 12 years based on a prior strike, plus five years (§ 667, subd. (a)(1)), plus three 1-year priors (§ 667.5, subd. (b)) for a total of 20 years in prison.
All further statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I. Sufficiency of the evidence
Owens contends there was insufficient evidence he had the specific intent to rape or to sexually penetrate the victim. We disagree.
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)
Here, Owens contends that, at most, the evidence showed he intended to commit a sexual battery; the evidence was otherwise insufficient to show he intended to penetrate the victim's vagina with his penis or other foreign object. However, "[a]ssault with intent to commit forcible rape requires an intent to and an unlawful attempt to have sexual intercourse by force, violence or fear of bodily injury without" the victim's consent. (People v. Dixon (1999) 75 Cal.App.4th 935, 942.) Specific intent to commit an act may be inferred from circumstances surrounding the act. (People v. Holt (1997) 15 Cal.4th 619, 669.) A defendant's conduct, including the words he says, can evidence his state of mind. (People v. Bradley (1993) 15 Cal.App.4th 1144, 1154.) In Bradley, at page 1150, the defendant forcibly kissed and touched the victim, and then told his accomplice, " 'Don't worry, I will' " when his accomplice said he would not mind getting a " 'piece of that.' " The defendant's words evidenced his intent to rape the victim. Also, in People v. Craig (1994) 25 Cal.App.4th 1593, 1596, the defendant grabbed the victim, pushed her into her car, shoved his hand under her shirt, and touched her breasts over her bra. The victim's husband then pulled the defendant away. This evidence was sufficient to establish the defendant's specific intent to commit rape. (Id. at p. 1604.)
Similarly, Owens grabbed the victim from behind, touched her breasts, grabbed her vagina over her clothes, and shoved her against a wall and then onto the ground with such force the victim's tooth was knocked out. While the victim was on the ground, Owens tried to pry her legs open with his knee. Owens repeatedly said, "please let me," "come on," and held out money to the victim to indicate Owens wanted to have sexual intercourse with the victim. These events occurred in the early morning hours at a deserted train station where the victim was isolated. A trier of fact could reasonably infer based on how Owens chose his victim and his conduct and words that he intended to rape her. II. Instruction on voluntary intoxication
Owens contends his trial counsel provided ineffective assistance by failing to request instruction on voluntary intoxication. However, to establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) We defer to trial counsel's reasonable tactical decisions, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, Owens's trial counsel may have decided not to ask for a voluntary intoxication instruction for two tactical reasons. First, there was insufficient evidence to support the instruction, and second, it was inconsistent with the defense theory of the case.
As to the first reason, a defendant is entitled to instruction on voluntary intoxication when there is substantial evidence the intoxication affected the defendant's actual formation of specific intent. (People v. Roldan (2005) 35 Cal.4th 646, 715.) Evidence that the defendant ingested drugs or alcohol by itself is insufficient to warrant the instruction. (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661.) There must also be evidence of the effect of the defendant's drug consumption on the defendant's state of mind to warrant giving the instruction. (People v. Marshall (1996) 13 Cal.4th 799, 848.) In this case, Owens testified that he smoked marijuana, snorted methamphetamine, and drank alcohol before assaulting the victim. The security guard said that Owens's eyes were red, but the security guard did not smell alcohol on him. Owens told a police officer that he was under the influence. There was, however, no evidence as to what effect, if any, Owens's claimed drug consumption had on his state of mind. In the absence of such evidence, trial counsel could have correctly believed an intoxication instruction was not warranted.
The second reason trial counsel may not have asked for a voluntary intoxication instruction was that it was inconsistent with the defense theory of the case. Owens testified that he and the victim fought over drugs and money. He never touched her in a sexual manner; all he wanted was his property back. Given this defense, a voluntary intoxication instruction would have "implied that defendant committed the sexual misconduct but that he was not criminally liable for his conduct because his intoxication negated the specific intent necessary to convict him." (People v. Olivas (2016) 248 Cal.App.4th 758, 771.) III. One-year priors
Owens admitted that he suffered prior convictions for grand theft (§ 487), possessing a weapon in a penal facility (§ 4502, subd. (a)), and battery against a custodial officer (§ 243, subd. (c)(1)). For each of those prior convictions, the trial court imposed one-year terms, under section 667.5, subdivision (b). Thereafter, Senate Bill No. 136 became effective on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c)(2).) Before that law became effective, "section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years." (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Senate Bill No. 136 amended section 667.5 to limit the enhancement to prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136 applies retroactively to all defendants, such as Owens, whose judgments were not yet final as of the statute's effective date. (See Jennings, at pp. 681-682.)
As Owens's prior offenses were not sexually violent ones within the meaning of Welfare and Institutions Code section 6600, subdivision (b), they must be stricken. Remand for resentencing is unnecessary because the trial court imposed the maximum sentence, stating that Owens had "earned" his sentence and electing not to exercise its discretion to impose a lower term.
DISPOSITION
The judgment is modified to strike the three 1-year enhancements imposed under Penal Code section 667.5, subdivision (b). As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
LAVIN, Acting P. J.
EGERTON, J.