Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA355076 Beverly Reid O’Connell, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
Defendant appeals his conviction for one count of continuous sexual abuse of a person under age 14 (Pen. Code, § 288.5), three counts of lewd and lascivious acts upon a person under age 14 (Pen. Code, § 288, subd. (a)), and three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), with true findings that the victim was under the age of 28 at the time the information was filed, and was under the age of 18 when defendant committed the crimes. Defendant contends the trial court erred in failing to instruct on the lesser included offense of attempted rape; the victim’s pretext telephone call to him violated his Fifth Amendment right to remain silent; and the imposition of a criminal conviction assessment under Government Code section 70373 violated the ex post facto clause of the federal constitution. We conclude that the trial court erred in failing to instruct on the lesser included offense of attempted rape, but that based on defendant’s admission, the jury would have necessarily convicted him of attempted rape. We modify defendant’s sentence accordingly and affirm the judgment as modified.
All statutory references herein are to the Penal Code unless otherwise noted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant and his former wife Laura had four children. The victim, N.R., was the eldest, born in 1991. The other three children were boys. Laura worked outside the home to support the family, and defendant was often home alone with the children.
In May 1996, when N.R. was five years old, she had an injury that required defendant to clean her vaginal area. After the injury healed, defendant continued to touch her vagina, and began to touch her chest and buttocks. He would touch her when her mother was gone and her brothers were outside, and the touching continued when she was six and seven years old.
The family moved when N.R. was seven. At that time, defendant began to put his penis between her legs and would masturbate. He showed her pornographic videos. When N.R. was between nine and 14 years old, defendant forced her to orally copulate him. She would push him away and close her legs, and sometimes defendant would not force himself on her. Defendant would force her to masturbate him almost every day. He did not force her to orally copulate him very often because she refused so much; she recalled at trial that it only happened about 10 times. When defendant was molesting her, she almost always cried. Afterwards, defendant would say he was sorry, and he would make her hit him with an electrical cord.
When she was 14 or 15, defendant was no longer at home as often because he started using drugs. When she was in tenth grade, her mother asked defendant to move out. Defendant sometimes picked her up at school, and he would find a place to park. They had intercourse in the vehicle on three occasions. She would try to keep him from penetrating her by moving away. She would bleed after he penetrated her. Defendant used a condom most of the time.
N.R. told police she had intercourse ten times with defendant.
Defendant told her not to tell anyone what happened. She did not say anything because it was embarrassing to her, and she did not think her family would believe her. Several times defendant smoked crack in front of her, and told her he would not take her home if she did not try it.
Defendant stopped forcing her to have sex when she was 16. When she was 17, she got a tattoo without her mother’s permission. She got in an argument with her mother, and N.R. began to cry heavily. Her mother asked what was wrong, and on condition that she not tell anyone, N.R. told her what defendant had been doing. Eventually N.R. spoke to the police.
The police asked her for her help in the investigation. She agreed to call defendant on the phone with the understanding it would be recorded and that she would try to get him to admit what he had done. She made two phone calls to defendant; during the second conversation, defendant indicated he was aware it was being taped. Defendant did not admit or deny that he molested her, although he said that he “was also raped when [he] was little and [he has] never said anything.”
Two police detectives interviewed defendant after his arrest. Defendant admitted that he tried to molest N.R. and he touched N.R. on her body and breasts, but denied he touched her vagina. He denied having sex with her. He claimed that if N.R. asked him to stop trying to touch her, he would do so. He asserted he only penetrated her with his finger, and did not put his penis in her vagina. In his interview, the police asked, “you did try to penetrate her but you stopped?” to which defendant responded, “yes.” Defendant also admitted his penis touched her vagina and that N.R. would close her legs and he would “put it in there” but would not “penetrate her at all.”
Defendant was charged with continuous sexual abuse of a person under age 14 (Pen. Code, § 288.5, count 2), lewd and lascivious acts upon a person under age 14 (Pen. Code, § 288, subd. (a), counts 1, 3, 4), and forcible rape (Pen. Code, § 261, subd. (a)(2), counts 5, 6, 7). On counts 1 and 2, the information alleged the victim was under the age of 18 when defendant committed the offense, and under the age of 28 when the information was filed.
The jury convicted defendant of all charged offenses, and found the special factual allegations true. The court sentenced defendant to 42 years, consisting of eight years on count 1, a consecutive 12 year term on count 2, consecutive six-year terms on counts 5, 6, and 7, and consecutive two-year terms consisting of one-third the midterm of six years on counts 3 and 4.
DISCUSSION
I. INSTRUCTION ON LESSER INCLUDED OFFENSE OF ATTEMPTED RAPE.
Defendant contends the trial court erred in failing to instruct on all legal theories presented by the evidence when it did not instruct on the lesser included offense of attempted rape on counts 5, 6 and 7 because there were two versions of the facts supporting the rape charges, and the jury was confused concerning the elements of rape. He argues that his version of the facts only supported a conviction for attempted rape based on a lack of penetration. He contends the jury’s only option with the instructions as given was to convict him of rape or acquit him, and thus the error was prejudicial. The People acknowledge that if we find prejudicial instructional error, we may reduce defendant’s conviction on counts 5, 6 and 7 to attempted rape unless the People file a petition for rehearing expressing a desire to retry the case. (People v. Kelly (1992) 1 Cal.4th 495, 528.)
During deliberations, the jury asked “does touching of the penis to the female vagina/genitalias constitute penetration as defined on [page] 11 of jury instructions under sexual intercourse?” The court responded, “[p]enetration of the external genital organ is required, however slight. Penetration of the vagina is not required.”
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Avila (2009) 46 Cal.4th 680, 704–705.) Evidence is substantial for this purpose if it would cause a reasonable jury to conclude that the defendant committed the lesser but not the greater offense. (Breverman, supra, 19 Cal.4th at p. 162.) “In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury.” (Ibid.) We apply a de novo standard of review to the trial court’s failure to instruct on an assertedly lesser included offense. (People v. Licas (2007) 41 Cal.4th 362, 366.)
An uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser (the “elements test”), or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the “accusatory pleading test”). (People v. Wolcott (1983) 34 Cal.3d 92, 98.) To determine whether an offense is a lesser included, one of the two tests must be met. (People v. Lopez (1998) 19 Cal.4th 282, 288.) Attempted rape is a lesser included offense of rape, and consists of the specific intent to commit rape, and an ineffectual direct act done towards its commission. (People v. Atkins (2001) 25 Cal.4th 76, 88; People v. Carpenter (1997) 15 Cal.4th 312, 387.) Error in failing to give lesser included instructions where required is reviewed under the People v. Watson (1956) 46 Cal.2d 818, 836 standard of harmless error. (Breverman, supra, 19 Cal.4th at p. 165.)
Rape is defined in section 261, subdivision (a)(2), as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator” “against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” Although penetration is a necessary element of rape, vaginal penetration is not required. Penetration, however slight, “‘of the [victim’s] external genital organs is sufficient to constitute sexual penetration and to complete the crime of rape even if the rapist does not thereafter succeed in penetrating into the vagina.’” (People v. Quintana (2001) 89 Cal.App.4th 1362, 1366, quoting People v. Karsai (1982) 131 Cal.App.3d 224, 232 [penetration of external genital organs such as labia majora and labia minora sufficient].) People v. Quintana, supra, 89 Cal.App.4th 1362 at pp. 1368, 1371 stated that “‘sexual penetration’” refers to contact with any external female genitalia “inside the exterior of the labia majora.”
Here, the trial court erred in failing to instruct on the lesser included offense of attempted rape. Defendant vehemently refused to admit penetration, but admitted to other sexual acts that constituted attempted rape—he admitted he put his penis between N.R.’s legs on the three occasions she was in the vehicle with him after he had picked her up at school. Thus, the evidence supported this instruction, and the error in failing to instruct was prejudicial. Here, the jury had no choice but to convict defendant of rape or to acquit him in the absence of the instruction.
The error, however, does not require reversal because the error would not have affected a conviction of the lesser included offense of attempted rape. When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. “[I]f the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed.” (§ 1181, subd. (6); People v. Navarro (2007) 40 Cal.4th 668, 678 [“an appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense”].) “The purpose for allowing an appellate court to modify the judgment to a lesser included offense is to ‘obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime.’” (People v. Matian (1995) 35 Cal.App.4th 480, 487.) “The same rationale also applies under... section 1260 authorizing appellate courts to modify a judgment to reflect a conviction of a lesser, necessarily included offense when the state of the evidence warrants it.” (Matian, at p. 488; § 1260 [“The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed”].)
Appling these principles, defendant admitted to acts constituting attempted rape on the occasions he was in the vehicle with N.R. He admitted he tried to penetrate N.R., but did not actually penetrate her; he would put his penis by her legs and she would close her legs. We therefore modify defendant’s convictions on counts 5, 6 and 7 accordingly, and modify his sentence on those counts to three years on each count, to run consecutively.
II. FIFTH AMENDMENT.
Defendant contends the pretext phone calls violated his Fifth Amendment right to remain silent because N.R. acted as the police’s agent in securing incriminating statements from him. He contends the phone calls circumvented his Miranda rights by using N.R. as an agent of the government. (See Missouri v. Seibert (2004) 542 U.S. 600, 611–612 (Seibert).) He contends counsel was ineffective for failing to object to the admission of the pretext phone calls. We disagree.
Our Supreme Court has held: “Under the familiar requirements of Miranda, ... a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. [Citations.]” (People v. Sims (1993) 5 Cal.4th 405, 440.) “Statements elicited in violation of this rule are generally inadmissible in a criminal trial. [Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 732.)
Miranda advisements are required only when a person is subjected to “custodial interrogation.” (Miranda, supra, 384 U.S. at p. 444.) “Custody” in the Miranda context includes both actual custody and any situation in which a person’s “freedom of action is curtailed to a ‘degree associated with formal arrest.’ [Citation.]” (Berkemer v. McCarty (1984) 468 U.S. 420, 440.)
In contrast, Seibert condemned an interrogation tactic in which a suspect is intentionally interrogated without a Miranda warning in the hope that the suspect will make incriminating statements. If the suspect makes such statements, a Miranda warning is then given and the interrogation continues with the aim of eliciting the same incriminating statements again: “This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda..., the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.” (Seibert, supra, 542 U.S. at p. 604.)
Seibert is distinguishable here on the basis that defendant was not subjected to a custodial interrogation and questioned without Miranda advisements in the hopes that he would reveal incriminating information. Miranda does not apply to the conversations between an inmate and an undercover agent, a situation analogous to the pretextual phone call made here. (Illinois v. Perkins (1990) 496 U.S. 292 [110 S.Ct. 2394, 110 L.Ed.2d 243].) In Illinois v. Perkins, the defendant was in prison when he told a fellow inmate about a murder he had committed. The inmate reported defendant’s confession to authorities, but by that time defendant had been released from prison and was in custody on an unrelated charge. (Id. at p. 294.) Police decided to interrogate him on the murder charge by placing an undercover agent in the cellblock with defendant, and to use the inmate informant to elicit conversation with defendant. (Id. at pp. 294–295.) The Supreme Court held conversations between suspects and undercover agents did not implicate Miranda. “The essential ingredients of a ‘police dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate.... [¶] It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.” (Id. at pp. 296–297.)
For this reason, defendant cannot establish a claim of ineffective assistance of counsel. The right to effective assistance of counsel derives from the Sixth Amendment right to assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684–686 [104 S.Ct. 2052, 80 L.Ed.2d 674]; see also Cal. Const., art. I, § 15.) To demonstrate ineffective assistance, defendant must show (1) counsel’s conduct was deficient when measured against the standards of a reasonably competent attorney, and (2) prejudice resulting from counsel’s performance “‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’” (People v. Mayfield, supra, 14 Cal.4th at p. 784.) Our review of counsel’s performance is deferential, and strategic choices made after a thorough investigation of the law and facts are “‘virtually unchallengeable.’” (In re Cudjo (1999) 20 Cal.4th 673, 692.) Prejudice is shown “‘when there is a “reasonable probability that, but for counsel’s... errors, the result of the proceeding would have been different.”’” (In re Harris (1993) 5 Cal.4th 813, 832–833.) Here, counsel was not ineffective for failing to interpose an objection to evidence that would most certainly have been overruled as baseless under the relevant legal principles.
III. IMPOSITION OF FINE PURSUANT TO GOVERNMENT CODE SECTION 70373.
Defendant contends the trial court violated the ex post facto clause of the federal constitution when it imposed a fine of $180 pursuant to Government Code section 70373, which was enacted in 2008 and became effective January 1, 2009. He argues that the statute has a punitive purpose and cannot be imposed retroactively. (See, e.g., Beazell v. Ohio (1925) 269 U.S. 167, 169–170; People v. Rivera (1998) 65 Cal.App.4th 705, 708–709 [defining test for whether fee violates ex post facto clause]; People v. High (2004) 119 Cal.App.4th 1192, 1198–1199 [Government Code section 70372 may not be imposed retroactively].)
The information charged crimes committed between 1996 and 2007.
Effective January 1, 2009, Government Code section 70373 requires an assessment of $30 on every conviction for a criminal offense. The ex post facto clause applies to those laws imposing penalties. (Trop v. Dulles (1958) 356 U.S. 86, 95–96.) On that ground, in People v. Castillo (2010) 182 Cal.App.4th 1410, the court rejected an ex post facto challenge to Government Code section 70373. Castillo reasoned that the assessment was not punitive because it was adopted as a component of the effort to address the budget shortfall; it is not denominated a “‘fine;’ the amount per conviction is small; and the amount is not dependent upon the seriousness of the offense.” (Id. at p. 1413; see also People v. Davis (2010) 185 Cal.App.4th 998, 1000.) As further explained in People v. Brooks (2009) 175 Cal.App.4th Supp. 1, 4, “Enacted as part of Senate Bill No. 1407 (2007–2008 Reg. Sess.), the criminal conviction assessment is but one component of a broader legislative scheme in which filing fees in civil, family, and probate cases were also raised.”
Government Code section 70373, subdivision (a) provides in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463 of the Penal Code, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony and in the amount of thirty-five dollars ($35) for each infraction.” (§ 70373, subd. (a)(1); Stats. 2008, ch. 311, § 6.5.)
DISPOSITION
Defendant’s conviction and sentence for rape on counts 5, 6 and 7, is vacated, and the judgment is modified to reflect a conviction for attempted rape on counts 5, 6, and 7. Further, the judgment is modified to reflect a sentence of three years on count 5, three years on count 6, and three years on count 7, such sentences to run consecutively with each other. The judgment is otherwise affirmed. On remand, the superior court clerk is to prepare an amended abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: MALLANO, P. J., CHANEY, J.