Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CF3898 David A. Thompson, Judge. Affirmed in part, reversed in part.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Sills, P.J., Aronson, J., and Ikola, J.
Appellant Jose Acosta Ramirez was convicted of assault with intent to commit a sexual offense during the commission of a first degree burglary, first degree residential burglary, and lewd act upon a child 14 or 15-years old where there is at least a 10-year age difference between the defendant and the victim. Ramirez contends his burglary conviction must be reversed because it is a lesser included offense of assault with intent to commit a sexual offense during the commission of a burglary. Ramirez also contends the concurrent sentence he received for committing a lewd act on a minor should have been stayed pursuant to Penal Code section 654 because during the assault and lewd act he harbored only a single intent, and the assault and lewd act constituted one indivisible act.
All further references are to the Penal Code.
Facts
The 14-year old victim in this case testified that she was asleep when she felt someone touching her leg. At first she thought she was dreaming, but when she woke up, a man she had never seen before was rubbing her leg. Although the man directed the victim not to say anything, the victim told the man to get out of her house or she would scream. The man did not heed the victim’s warning and responded by unbuckling his belt. According to the victim, as the man tried to unbuckle his belt, she screamed. The victim testified that when she screamed, the man covered her mouth with his hand and started to touch her again. According to the victim, the man began to rub the upper part of her chest, but not her breast, and then moved his hand down her body stopping to rub the lower part of her stomach around her “bellybutton” for 30 or 45 seconds. According to the victim, when she screamed a second time, the scream awakened her younger sister who had been sleeping in the same bedroom. It was only when the man had to fend off an attack from the victim’s younger 10-year old sister that he tried to escape, but was prevented by the victim’s father. The police arrived a few minutes later and the man was arrested and identified as Ramirez.
After Ramirez was arrested, he was examined at the hospital where it was determined that his blood alcohol level was.19 percent. In Ramirez’s defense, expert witness Dr. Max Schneider testified that at the time of the offense, Ramirez’s blood alcohol level could have been as high as.22 percent, which would impair a person’s judgment and affect impulse control.
The jury convicted Ramirez of assault with intent to commit a sexual offense during the commission of a first degree burglary in count 1 (§ 220, subd. (b)), first degree residential burglary in count 2 (§§ 459, 460, subd. (a)), and committing a lewd act upon a 14 or 15-year old child with at least a 10-year age difference between the defendant and the victim in count 3 (§ 288, subd. (c)(1)). The jury also found it to be true that Ramirez committed the assault and the lewd act by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim. The trial court denied Ramirez’s request to strike his prior convictions and in a bifurcated court trial, the trial court found all four alleged burglary priors to be true. As a result, Ramirez was sentenced under the Three Strikes law in section 1170.12, subd. (b), (c)(2) to 25-years to life for the assault in count 1, stayed a term of 25-years to life for the burglary offense alleged in count 2 pending successful completion of the sentence in count 1, and a concurrent term of 25-years to life for the lewd act in count 3.
In his first contention, Ramirez argues his conviction for first degree burglary must be reversed because it is a statutorily lesser included offense of assault with intent to commit a sex offense during the commission of a first degree burglary.
Discussion
Subdivision (a) of Penal Code section 220 provides in relevant part that “[e]xcept as provided in subdivision (b), any person who assaults another with intent to commit... rape... or any violation of Section... 288... shall be punished by imprisonment in the state prison for two, four, or six years.” Subdivision (b) explains that any person who commits this same offense during the commission of a first degree burglary “shall be punished by imprisonment in the state prison for life with the possibility of parole.”
Citing People v. Reed (2006) 38 Cal.4th 1224 (Reed) for its holding that a defendant may not be convicted of multiple charged crimes if one is necessarily included in the other, Ramirez contends that because all the elements of a first degree burglary are included in a conviction of section 220, subdivision (b), he cannot be convicted of both assault with intent to commit rape during the commission of a first degree burglary, and also a separate count of first degree burglary based on the same facts.
When determining whether an offense is necessarily included in another offense, Reed states, “[u]nder the [statutory] 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.” (People v. Reed, supra, 38 Cal.4th at p. 1227.) In this case, assault with the intent to commit a sexual offense during the commission of a first degree burglary cannot be committed without also committing the first degree burglary and as such, first degree burglary is a necessarily included offense to subdivision (b) of section 220.
The attorney general acknowledges the holding in Reed and does not dispute the fact that section 220, subdivision (b) includes all the statutory elements of first degree burglary. However, the attorney general reasons that because subdivision (b) of section 220 does not define an offense, “but instead, is a special sentencing circumstance” which increases the punishment of the predicate offense of assault with intent to commit rape, it therefore cannot include a lesser offense of burglary. The attorney general explains, “[a]s the California Supreme Court has explained, enhancements may not be considered when applying the multiple conviction rule to charged offenses[ ] (People v. Izaguirre (2007) 42 Cal.4th 126, 134 [ ]) [and] [t]he same can be said with the section 220, subdivision (b) circumstance because it, like an enhancement, does not define an offense, but instead increases the punishment for the underlying substantive crime set forth in subdivision (a), which is assault with intent to commit a specified sex offense.”
The Supreme Court however makes a distinction between an enhancement and an alternate penalty as it explained in People v. Brookfield (2009) 47 Cal.4th 583, and its companion case People v. Jones (2009) 47 Cal.4th 566. In both cases the defendants were charged with a number of offenses including shooting at an inhabited dwelling, punishable by imprisonment for 3, 5, or 7 years pursuant to section 246. The defendants were also convicted of committing the same offense for the benefit of a criminal street gang, punishable by a life term under section 186.22, subdivision (b)(4). Brookfield explains, the “life term does not... constitute a sentence enhancement, because it is not imposed in addition to the sentence for the underlying crime...; rather, it is an alternate penalty for that offense.” (Brookfield, at p.___.) “‘Unlike an enhancement, which provides for an additional term of imprisonment, [a penalty provision] sets forth an alternate penalty for the underlying felony itself, when the jury has determined that the defendant has satisfied the conditions specified in the statute.’ [Citation.]” (Jones, at p.___.)
When “the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.” (People v. Moran (1970) 1 Cal.3d 755, 763.) As such, Ramirez’s conviction for burglary must be reversed.
Ramirez also contends that pursuant to section 654, the trial court erred by imposing a concurrent term for his conviction of a lewd act in count 3 instead of staying the term because he harbored only a single intent and objective when he committed the assault and lewd act.
Subdivision (a) of section 288, states that [a]ny person who willfully and lewdly commits any lewd or lascivious act,... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison....”
Section 654, subdivision (a) provides in relevant 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.” Ramirez argues that according to the facts in this case, his conduct consisting of the assault and the lewd act represent a continuous course of conduct during which he harbored only a single intent and therefore section 654 precludes punishment for both offenses. We disagree.
Although the trial court stated the reason it imposed concurrent terms for counts 1, 2, and 3 was because “the crimes were committed simultaneously at the same location; the criminal activity was not interrupted or separated or separated by time; and the crimes overlap[,]” Ramirez cites In re Hayes (1969)70 Cal.2d 604 and acknowledges that “[t]he test for determining whether section 654 prohibits multiple punishment... [is] ‘[w]hether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor....’” (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
Even though the offenses in this case were closely connected in time and part of the same criminal venture, section 654 does not preclude separate punishment for Ramirez’s remaining convictions for assault with intent to commit a sexual offense and committing a lewd act upon a child. Ramirez’s conduct amounting to the assault, demonstrated an intent to rape or commit a lewd act upon the victim and was complete when he started unbuckling his belt. When the victim screamed, Ramirez stopped unbuckling his belt. Substantial evidence supports the conclusion that Ramirez harbored a different intent when he gave up on his belt, covered the victim’s mouth, and committed a new sexual offense by rubbing the victim’s upper chest and lower stomach area with the intent or purpose of arousing himself or the victim. Each offense was separate and distinct and not incidental to the means by which each offense was accomplished. As such, we conclude that section 654 does not preclude punishment for the assault in count 1 and the subsequent lewd act upon a child in count 3. Accordingly, the concurrent 25-year to life sentence in count 3 is affirmed.
Last, the attorney general agrees the sentencing minute order should be corrected to reflect that Ramirez did not plead guilty to count 3 and was in fact convicted by a jury of committing a lewd act upon a child in count 3.
Disposition
For the reasons stated above, Ramirez’s conviction for burglary in count 2 is reversed. In all other respects, the judgment is affirmed. The trial court is directed to dismiss the burglary offense in count 2 and to prepare an amended abstract of judgment which indicates the burglary offense in count 2 is dismissed. The trial court is also directed to correct the minute order of the sentencing hearing on July 18, 2008 so that it reflects that Ramirez was convicted by a jury on count 3, and forward a certified copy of the abstract of judgment to the Department of Corrections and Rehabilitation.