Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CF0247, Thomas M. Goethals, Judge.
Renee Rich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Robert Dean Schram appeals from a judgment after he pled guilty to assault with intent to commit rape, sexual penetration by foreign object by force, forcible oral copulation, forcible rape, and false imprisonment by violence. He raises numerous sentencing issues, none of which have merit. We affirm the judgment.
As Schram pled guilty to the offenses, the facts are taken from the preliminary hearing transcript.
Schram lived in an apartment with his 18-year old daughter, J. S. and her cousin (Cousin) in January 2007. J. S. was dating O. H. at the time. One evening, the four of them went bowling, and Schram and J. S. argued. After Schram dropped off O. H., the three returned home. Very early the next morning, Schram entered J. S.’s bedroom in his underwear, woke up J. S., and apologized for embarrassing her in front of her boyfriend. J. S. told her father to leave so she could go back to sleep. Schram refused so J. S. went downstairs to leave. As Schram followed her downstairs, she told him that she was going to O. H.’s house to sleep. When J. S. tried to leave, Schram grabbed her arm and told her she could not leave. J. S. went to the kitchen to get a glass of water.
In the kitchen, Schram grabbed J. S. from behind and told her that he was going to have her like her boyfriend had her. Schram tore off his underwear and J. S.’s clothes. He knocked her to the ground and sucked her breast. J. S. begged her father to stop, but Schram said he was going to get what he always wanted. J. S. screamed, and when Schram put his hand over her mouth, she bit him and hit him with a candle stick.
Unable to stop Schram, J. S. asked him if they could go upstairs-she hoped to wake up her Cousin. Once upstairs, Schram pinned J. S. to the ground. He put his fingers inside her vagina, licked her vagina, and raped her. She begged him to stop, but he refused telling her he was going to finish. He ejaculated inside her vagina and told her she needed to go to a clinic to get the “morning after pill.” Schram drove J. S. to O. H.’s house as she demanded.
An information charged Schram with assault with intent to commit rape (Pen. Code, § 220, subd. (a)) (count 1), sexual penetration by foreign object by force (§ 289, subd. (a)(1)) (count 2), forcible oral copulation (§ 288a, subd. (c)(2)) (count 3), forcible rape (§ 261, subd. (a)(2)) (count 4), and false imprisonment by violence (§§ 236, 237, subd. (a)) (count 5). The information alleged he was statutorily ineligible for probation pursuant to section 1203.065. As to count 3, the information also alleged he committed a forcible lewd act.
All further statutory references are to the Penal Code.
Before the sentencing hearing, the Orange County Probation Department prepared a “Preplea Report” (the Report). The report explained that after the incident, J. S. told police that when Schram was digitally penetrating her he asked if she was enjoying it. The Report indicates that afterwards, he told the Cousin “‘I raped her, and I enjoyed it. You need to kill me, please.’” The Report also explains that Schram told police that J. S. told him that she had sexual intercourse with O. H. and Schram hoped she would wait until she was married. It adds that Schram told police that when he pushed J. S. onto the bed, he knew he had gone too far “so he decided to just ‘do it.’”
Pursuant to a plea agreement, Schram pled guilty to all counts. The trial court sentenced Schram to a total term of 20 years in prison as follows: the middle term of six years on count 2; a consecutive middle term of six years on count 3; a consecutive middle term of six years on count 4; and a consecutive low term of two years on count 1. The court also sentenced him to a concurrent middle term of two years on count 5.
When sentencing Schram, the trial court stated in relevant part: “And I think that that sentencing scheme does apply to counts 1, 2, 3, and 4, and I’m going to impose full consecutive sentences. [¶]... [¶] On count 1, I do believe that that is an enumerated crime in -- for purposes of [section] 667.6[, subdivision (b)], it’s clear that it is. And [section] 667.6[, subdivision] (e))[, ] subsection (9), [section] 220 is specifically mentioned. So I think I have to give you a full consecutive sentence. [¶] However, there is some specter of a [section] 654 consideration as to that count so I’m going to sentence you to the mitigated term on that, which is two consecutive years.”
DISCUSSION
I. Section 654
Pursuant to section 654, Schram argues the trial court should have stayed the sentences on counts 1 and 5 because they were part of an indivisible course of conduct with a single objective-committing count 4. His contentions lack merit.
In pertinent part section 654 provides, “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.” (§ 654, subd. (a).)
“Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of 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. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
“Under section 654, ‘a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]’ [Citations.]” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) “Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.” (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
Here, the trial court sentenced Schram to a total term of 20 years in prison as follows: the middle term of six years on count 2; a consecutive middle term of six years on count 3; a consecutive middle term of six years on count 4; and a consecutive low term of two years on count 1. The court also sentenced him to a concurrent middle term of two years on count 1 pursuant to section 1170.1. Substantial evidence supports the trial court’s implied findings Schram entertained separate objectives in committing counts 4, and 1 and 5.
“‘Rape is a general intent offense. [Citation.] Forcible rape is defined as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator.... [¶]... [¶] (2) [w]here it is accomplished 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.” [Citation.]’ [Citation.]” (People v. Mejia (2007) 155 Cal.App.4th 86, 99-100.) “‘[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment. [Citation.]’ [Citation.]” (People v. Dominguez (2010) 180 Cal.App.4th 1351, 1360.)
A trial court may rely on facts in the probation report to show defendant harbored multiple intents and objectives. (People v. Racy (2007) 148 Cal.App.4th 1327, 1337.)
With respect to count 5, there was substantial evidence from which the trial court could conclude Schram had multiple or simultaneous objectives, independent of and not merely incidental to each other. The limited evidence before us demonstrates Schram, J. S., O. H., and the Cousin went bowling and Schram and J. S. argued. Early the next morning, Schram entered J. S.’s bedroom to apologize. When he would not leave, J. S. walked downstairs and told her father she was going to O. H.’s house. Schram grabbed J. S. and prevented her from leaving. This was sufficient evidence to reasonably conclude Schram physically imprisoned his daughter because he did not want her to go to O. H.’s house. Schram believed his daughter was having sexual relations with O. H., and he did not want his daughter at her boyfriend’s house. This was substantial evidence Schram violently imprisoned his daughter to prevent her from going to her boyfriend’s house.
People v. Latimer (1993) 5 Cal.4th 1203 (Latimer), People v. Wall (1979) 95 Cal.App.3d 978 (Wall), and People v. Martinez (1980) 109 Cal.App.3d 851 (Martinez), are of no assistance to Schram. In Latimer, supra, 5 Cal.4th at page 1216, the court found the kidnapping was carried out solely to commit the rape. In Wall, supra, 95 Cal.App.3d at page 983, the court concluded defendant committed false imprisonment solely as a means to commit the rape. In Martinez, supra, 109 Cal.App.3d at page 858, the court held the momentary false imprisonment was clearly incidental to the attempted rape. As we explain above, there was sufficient evidence to reasonably conclude Schram imprisoned J. S. for a reason other than rape, i.e., to prevent her from going to her boyfriend’s house to continue their amorous relationship.
The crime of assault with intent to commit rape requires proof that an assailant intends to have sexual intercourse with the victim and to use force to overcome her resistance. (People v. Craig (1994) 25 Cal.App.4th 1593, 1597.) As to count 1, there was substantial evidence from which the trial court could conclude Schram had multiple or simultaneous objectives, independent of and not merely incidental to each other. Downstairs, when J. S. went to the kitchen to get a glass of water, Schram grabbed her from behind and told her that he was going to have her like her boyfriend had her. After Schram tore off his underwear and J. S.’s clothes, he knocked her to the ground and sucked her breast. When J. S. begged her father to stop, Schram said he was going to get what he always wanted. J. S. bit him and fought him off with a candle stick. It was not until later, upstairs in another room that Schram successfully raped his daughter. This evidence was sufficient to reasonably conclude Schram assaulted his daughter in the kitchen with the intent to rape her before she fought him off. This offense was divisible in time and location from the forcible rape that occurred upstairs. Therefore, the court could properly punish Schram for both offenses.
Schram’s reliance on People v. Liakos (1982) 133 Cal.App.3d 721 (Liakos), and People v. Delgado (1973) 32 Cal.App.3d 242 (Delgado), is misplaced. In Liakos, supra, 133 Cal.App.3d at pages 724-725, the assault as the means of committing attempted oral copulation and attempted rape and consequently there was no indivisible course of conduct. In Delgado, supra, 32 Cal.App.3d at pages 246-247, the court concluded section 654 prohibited punishment for assault where it was carried out with the intent and objective to commit forcible rape. As we explain above, there was sufficient evidence for the trial court to reasonably conclude that Schram’s assault with intent to commit rape was temporally distinct from the forcible rape. Therefore, the trial court properly sentenced Schram on counts 4, and 1 and 5.
Overruled on other grounds in People v. Rist (1976) 16 Cal.3d 211, 221.
II. Consecutive Sentences
Schram contends the trial court erroneously imposed full term consecutive sentences on counts 2, 3, and 4 because the record does not reflect the court understood it was required to find each offense was committed on a separate occasion. As we explain below, we conclude the record supports the trial court’s implied findings counts 2, 3, and 4 occurred on separate occasions.
Section 667.6, subdivision (d), provides: “A full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. [¶] In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.”
“As the cases tell us, where, as here, the trial court finds the time and the circumstances were sufficient to afford the defendant with the required opportunity to reflect upon his actions and he thereafter resumed his sexually abusive conduct, that finding will be upheld unless no reasonable trier of fact could have so concluded. [Citations.] Since we agree with the trial court’s assessment, it follows that the sentences will be upheld.” (People v. Plaza (1995) 41 Cal.App.4th 377, 385 (Plaza), fn. omitted.)
Here, in sentencing Schram, the trial court stated that after considering all the moving papers including the prosecution’s sentencing brief and the Report, it believed section 667.6, subdivision (d), applied to counts 2, 3, and 4. Thus, we conclude the trial court made all necessary factual findings to support imposition of the sentence pursuant to section 667.6, subdivision (d). (Jones, supra, 103 Cal.App.4th at p. 1143.)
Based on the record before us, it appears that while in the upstairs bedroom, Schram first put his fingers inside J. S.’s vagina. The Report indicates that after he digitally penetrated her vagina, Schram asked his daughter if she was enjoying it. Schram then licked his daughter’s vagina. Before he raped his daughter, Schram later told police he knew he had gone too far but he decided to just “‘do it.’” This was sufficient evidence for the trial court to conclude Schram had a reasonable opportunity to reflect upon his actions and nevertheless resumed sexually assaulting his daughter. After committing count 2, Schram asked J. S. whether she enjoyed having him digitally penetrate her. He then orally copulated her thereby committing count 3. Although it is unclear exactly when he thought he had gone too far, it is clear Schram was enjoying sexually assaulting his daughter, and he hoped she was enjoying it too. His statements to Cousin and the police support the trial court’s implied finding Schram reflected upon each of his actions and proceeded with each successive offense. As the case law makes clear, no specific time duration or change in physical location is required to establish a separate occasion. (Plaza, supra, 41 Cal.App.4th at p. 385.)
Schram states the Attorney General concedes there is insufficient evidence he committed count 3 on a separate concession. In fact, the Attorney General states it is “less clear” he committed count 3 on a separate occasion than counts 2 and 4. We do not consider this a concession. In any event, we have already explained why his claim fails.
III. Credits
Schram argues he is entitled to one additional day of actual custody credits and one additional day of conduct credits for a total of 903 days instead of a total of 901 days. The Attorney General concedes the error noting the February 2008 included a leap day. We agree. Schram is entitled to 786 days of actual custody credit and 117 days of conduct credit (§ 2933.1) for a total of 903 credits. We direct the clerk of the superior court to prepare an amended abstract of judgment to reflect Schram’s correct credits.
IV. No-Contact Order
Schram complains the trial court erroneously ordered him not to have any contact with his daughter while he was in prison or on parole. The Attorney General concedes the trial court had neither the statutory nor inherent authority to make such an order and agrees the order must be stricken. As it appears the trial court was not authorized to issue such an order, we order it stricken. The superior court clerk is not required to take any action as the abstract of judgment does not include this order.
Although defense counsel objected to the order on jurisdictional grounds, counsel represented it was his understanding Schram did not intend to contact his daughter.
DISPOSITION
The judgment is affirmed as modified. The superior court clerk is directed to issue an amended abstract of judgment which correctly reflects Schram’s credits and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.