Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR535423
McGuiness, P.J.
Appellant Jerome Shando Simmons contends his conviction for simple assault must be reversed because it is a lesser included offense of another crime of which he was convicted, attempted oral copulation by force. In the alternative, he argues that multiple punishment for both crimes is barred by Penal Code section 654. He also claims section 654 bars multiple punishment with respect to his convictions for trespassing and attempted oral copulation by force. We modify the judgment to reflect that appellant’s sentence for the assault conviction is stayed. In all other respects, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
Damien Henderson, a casual friend of Jane Doe, brought appellant to Doe’s workplace and introduced him to Jane. Jane did not flirt with appellant, indicate she was interested in dating him, or give him her cell phone number.
Some time later, appellant stopped by Jane’s workplace and told her he wanted to look at her legs. She told him she did not date and did not want to “hang out” with him. Nevertheless, appellant called Jane’s cell phone and sent her text messages.
On another occasion, Henderson called Jane and said that he and appellant were near her condominium and wanted to visit. Jane agreed but told Henderson they could not stay long. While Henderson and appellant were at Jane’s home, appellant told Jane she was “up tight” and “not very nice.”
Jane felt things were “getting weird” when appellant was repeatedly texting her, calling her, showing up at her workplace, and driving by in his van and waving at her. She repeatedly told appellant she was not interested in dating him and asked him to stop calling.
Around April 18, 2008, appellant came to Jane’s workplace and asked her when they were going to “hang out.” Jane remained behind the counter and let him talk. As he was leaving, appellant told Jane she could not treat people the way she did. He seemed upset and angry.
Jane went to bed around midnight on April 20, 2008. Although she locked her bedroom door, the lock was not very secure and “you can... jimmy the door” by inserting something through the space between the door and the doorframe. She was awakened by appellant, who came into her bedroom using a cell phone as a light source. He told her to be quiet after she let out a “short” scream. She started to panic, fearing she was going to die. He repeatedly told her to calm down.
Appellant climbed into Jane’s bed, got under the covers, and leaned toward her. He told her, “You need a good fucking,” and said, “[Y]ou don’t know it yet, but you’re going to fall in love with me and have my babies.” Jane “started trying to be tough” and told him he was holding her hostage. Appellant got out of the bed. He became more hostile and his voice grew louder. He got back in bed with Jane and said, “I can eat you out for two hours.” She told him, “No.” He then “jumped up and got between [her] legs and started licking them.” She tried to cross her legs and used her hands to keep them together, but he forced her legs apart with his hands. He continued to lick her inner thighs and came “pretty close,” but did not touch, her vagina. While appellant was licking her thighs, he told her, “I bet you taste real good.” He asked her, “Why can’t I eat your pussy?”
Jane put her foot to his chest and kicked him, saying he had to leave. She pushed her way to the end of the bed, got up and, pulled on a skirt that was on the floor. She opened the door and told him to go. He got up and closed the door. He said she would call the police. She said she would not. Three or four times she opened the door and told him to leave, and each time he closed it. She told him they were going to awaken her roommates. He then went downstairs and lay down on the couch. After about five minutes, she convinced him to leave through the condominium’s rear sliding glass door. He went outside and sat in a chair. Jane shut the sliding glass door and locked it. About five minutes later, appellant got up and walked out the backyard gate.
Jane told her roommate, Donica, what had happened. Jane’s other roommate, Jennifer, was awakened by her roommates’ voices. Earlier that evening, Jennifer had gone to sleep, only to be awakened by a knocking at her bedroom door. Appellant had opened her door and said he was there to give her a message. He told her, “[Y]our roommate sent me in here to tell you that I was here.” Jennifer was “confused” and sought to clarify to which roommate appellant was referring. She mentioned a name, appellant responded, “yes,” and then he closed the door and left. Jennifer was concerned about the situation but fell back asleep. When she was later awakened by her roommates’ voices, Jennifer went into the hallway and saw that Jane appeared frightened and startled. Jennifer called 911.
After the police arrived, Jane found two condoms and a kitchen knife on the floor of her bedroom. The condoms and knife had not been there when Jane went to bed that night. Jennifer recognized the knife found on Jane’s bedroom floor as the one she had used to eat dinner earlier that evening.
In April 2008, Michelle Guevara was appellant’s girlfriend and lived with him. Near the end of April, appellant was out all night. Approximately one week later, Guevara asked appellant about the night he spent away from home. Appellant told Guevara that he had “done some drugs and got really drunk” and broke into a girl’s house planning to burglarize it. He said he got into the residence through a sliding glass door that was unlocked and that he grabbed a kitchen knife when he went inside. As he was “looking around for stuff to steal,” an occupant came downstairs, turned on the light, and screamed. He ran out of the residence. He told Guevara that he had placed the knife behind the couch at Jane Doe’s residence, although he also told her he had dropped it on the floor.
The Sonoma County District Attorney filed a two-count information charging appellant in count 1 with assault with intent to commit rape, sodomy, or oral copulation during the commission of a burglary (§ 220, subd. (b)), and in count 2 with first degree burglary (§ 459). The information also contained an allegation that appellant had served a prior prison term. (§ 667.5, subd. (b).)
A jury found appellant not guilty of the two crimes charged in the information. However, it found him guilty of attempted forcible oral copulation (§§ 288a, subd. (c)(2), 664) and simple assault (§ 240) as lesser included offenses of count 1, and it found him guilty of trespass (§ 602.5) as a lesser included offense of count 2.
The trial court sentenced appellant to serve a prison sentence of four years, composed of the three-year middle term for attempted forcible oral copulation, plus a consecutive one-year term for the prior prison term enhancement. The court imposed concurrent jail terms of 90 days each for the misdemeanor assault and trespass convictions.
Discussion
I. Appellant was properly Convicted of Both Attempted Oral Copulation by force and simple assault.
Appellant contends he was improperly convicted of both attempted oral copulation by force and simple assault, asserting that assault is a lesser included offense of attempted oral copulation by force. We disagree.
“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” [Citations.]’ [Citation.] Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (Id. at p. 1227.)
California courts apply “two tests 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. [Citation.]” (People v. Reed, supra, 38 Cal.4th at pp. 1227-1228.) In People v. Reed, our Supreme Court concluded that the determination of what constitutes a lesser included offense for purposes of the bar against multiple convictions should be based solely on the statutory elements test, not on the accusatory pleading test. (Id. at p. 1229.) Therefore, in assessing appellant’s claim we consider solely the elements of the two offenses.
“ ‘[O]nly a statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ [Citation.]” (People v. Reed, supra, 38 Cal.4th at p. 1229.)
“An assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another.” (§ 240, italics added.) By contrast, an attempt consists of two elements: “specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a, italics added; People v. Swain (1996) 12 Cal.4th 593, 604.) To be guilty of an attempt a defendant need not have the “present ability” to commit the offense. “An attempt may sometimes be committed even though the means used or the circumstances make it impossible to consummate the crime. [Citation.] But in states like California, which have statutes with the ‘present ability’ limitation [citation], no assault is committed unless that ability exists. [Citations.]” (1 Witkin, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person § 7, p. 643.) “ ‘The original concept of criminal assault developed at an earlier day than the doctrine of criminal attempt in general, and crystallized on a much narrower basis in the sense of a greater degree of proximity.... “The distinction may be thus defined: An assault is an act done toward the commission of a battery; it must precede the battery, but it does so immediately. The next movement would, at least to all appearance, complete the battery.... [A]n act constituting an attempt to commit a felony may be more remote....” ’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 216.)
As the Attorney General points out, it is possible to be guilty of attempted oral copulation by force without committing an assault. For example, a person could declare an intent to orally copulate someone by force and commit an overt act toward that end, such as seeking to enter the home of the intended victim, before being apprehended by the police. In such a case, the defendant has committed a sufficient act, combined with the requisite specific intent, to sustain a conviction for attempted oral copulation by force, but the defendant has not committed a simple assault because there was no present ability to carry out the crime.
Appellant responds that the Attorney General’s hypothetical example is inapplicable to the facts of this case. However, the facts of a particular case, including the allegations contained in the accusatory pleading, are irrelevant in applying the statutory elements test, which governs our consideration of whether a defendant may be convicted of multiple crimes. (People v. Reed, supra, 38 Cal.4th at p. 1229.) Because the statutory elements of the crime of attempted oral copulation by force do not include all the elements of the crime of simple assault—specifically, present ability to commit injury—the latter offense is not a lesser included offense of the former. We therefore reject appellant’s claim he was improperly convicted of both attempted oral copulation by force and simple assault.
II. Section 654 Bars a Concurrent Sentence on the Assault Conviction But not the Trespass Conviction.
Appellant contends the trial court violated section 654 by imposing concurrent county jail terms on his assault and trespass convictions, asserting the court should have instead stayed the sentences associated with those convictions. The Attorney General concedes that the term on the assault conviction must be stayed. We agree and accept the concession. However, the record supports the court’s imposition of a concurrent term on the trespass conviction.
Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. (§ 654; People v. Deloza (1998) 18 Cal.4th 585, 591.) “Whether 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. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d 11, 19.) If, on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, he or she may be punished for each offense even though the crimes “shared common acts or were parts of an otherwise indivisible course of conduct.” (People v. Beamon (1973) 8 Cal.3d 625, 639.)
The Attorney General concedes that the record shows appellant’s sole intent in assaulting Jane Doe was to orally copulate her. Under these circumstances, section 654 bars concurrent sentences on the convictions for attempted forcible oral copulation and assault. (People v. Roberson (1988) 198 Cal.App.3d 860, 872 [concurrent sentence does not satisfy bar against multiple punishment].) The appropriate course of action under section 654 is to stay execution of the term with the lesser penalty. (See In re McGrew (1967) 66 Cal.2d 685, 688-689; People v. Pena (1992) 7 Cal.App.4th 1294, 1312.) Thus, the jail term for the assault conviction must be stayed.
By contrast, section 654 does not bar a concurrent term for the trespass conviction.In contending otherwise, appellant relies upon the principle that when “a defendant unlawfully enters a home for the sole purpose of sexually assaulting a victim within, [the defendant] may not be separately punished both for the burglary and for the sexual crimes. [Citations.]” (People v. Pena, supra, 7 Cal.App.4th at pp. 1311-1312; accord In re McGrew, supra, 66 Cal.2d at p. 688.) Appellant’s argument rests upon the assertion that his sole intent in trespassing was to commit a sex offense.
The record at trial does not support appellant’s assertion. Instead, there was evidence from which the court could find appellant had multiple purposes for entering the home—to commit theft and to sexually assault Jane. Specifically, about a week after committing the offenses, appellant told his girlfriend that he had “done some drugs and got really drunk” and broke into a girl’s house planning to “burglarize[e] it.” He told the girlfriend that he fled the dwelling after a girl screamed upon turning on the lights and coming downstairs, where he was “looking around... for stuff to steal.” When, as here, a defendant enters a building with multiple criminal purposes, such as to commit a theft and to sexually assault a victim, multiple terms are permitted. (See People v. Murphy (1980) 111 Cal.App.3d 207, 213-214.)
Appellant urges that we reject the argument he had multiple criminal purposes for entering Jane Doe’s home. He contends there is no substantial evidence to support a claim he entered the victim’s residence with the intent to commit a theft, pointing out that he did not pick up or move any objects (except the knife) or make any effort to take anything away. He also argues that the circumstances surrounding his statement to his girlfriend weigh in favor of rejecting the statement as a blatant lie. He claims he “made up” a story about entering to commit a burglary because he could not admit to his girlfriend that he sought to engage in a sex act with another woman. He also argues the statement lacks “internal indicia of reliability” because it is inconsistent with Jane Doe’s account of what happened at her condominium.
“Whether a course of criminal conduct violating more than one penal statute is committed with a single criminal intent or with multiple criminal objectives is ordinarily a question of fact for the trial court, whose implied finding of multiple criminal intent will be upheld if supported by substantial evidence. [Citations.]” (People v. Green (1988) 200 Cal.App.3d 539, 543-544.) Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) “ ‘ “[W]e must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ’ [Citations.] [¶] ‘ “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 739.)
Here, it is immaterial that there is no evidence to corroborate appellant’s statement that he entered Jane Doe’s home to commit a theft. Regardless of whether he followed through on one or more of his purposes for trespassing, his statement to his girlfriend constitutes substantial evidence of his criminal intent. Moreover, the fact he was not completely candid with his girlfriend about the encounter with Jane Doe does not warrant disregarding what he told her. Nor should we ignore his statement because of discrepancies with testimony at trial concerning the incident. Appellant may have had multiple purposes for entering Jane Doe’s residence but chose to disclose only one to his girlfriend. Further, if it was his intent to lie to his girlfriend to explain his absence, it makes little sense that he would have chosen to craft a lie that implicated himself in a burglary. There is at least some reason to credit his statement in light of his willing admission of criminal activity, when he could have just as easily offered his girlfriend an innocent explanation for his absence. Under the circumstances, it was not unreasonable for the trial court to find that one of the reasons appellant entered Jane Doe’s home was to commit a theft.
We conclude there is substantial evidence in the record to support the trial court’s implicit finding that appellant had multiple objectives for trespassing into Jane Doe’s residence. Accordingly, the trial court did not err in imposing concurrent terms for trespassing and attempted forcible oral copulation.
Disposition
The judgment is modified to reflect that the sentence for the assault conviction is stayed. The trial court is directed to prepare an amended abstract of judgment in accordance with this disposition and deliver it to the Department of Corrections and Rehabilitation. Except as so modified, the judgment is affirmed.
We concur: Pollak, J. Siggins, J.