Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08NF2436, Gary S. Paer, Judge.
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, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Ronaldo Celedon Vicente (defendant) was charged by information with first degree residential burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)) (count one), rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)) (count two), and assault with intent to commit a sexual offense during the commission of a first degree burglary (Pen. Code, §§ 220, subd. (b), 460, subd. (a)) (count three). The information alleged, pursuant to Penal Code section 667.5, subdivision (c)(21), that a person other than an accomplice was present during the commission of the residential burglary.
A jury found defendant guilty of first degree burglary, attempted rape of an unconscious person, and assault with the intent to commit rape. The jury also found that defendant unlawfully assaulted the victim with the intent to commit rape, during the commission of a first degree burglary. It further found that another person, who was not defendant’s accomplice, was present during the commission of the burglary.
The court sentenced defendant to state prison for life, with the possibility of parole, on count three. Pursuant to Penal Code section 654, the court stayed the sentence on count one and on the lesser included offense of count two—attempted rape of an unconscious person. Defendant appeals.
Defendant claims that first degree burglary is a statutorily lesser included offense of assault with the intent to commit a sexual offense during the commission of a first degree burglary. We agree and reverse as to count one.
Defendant also asserts it was error to enter judgment against him on count two, because he views the count two offense as a lesser included offense within the count three offense. He makes no other allegations of error with respect to the count two conviction. In a strained argument, defendant explains that he was not convicted, in count three, of assault with intent to commit rape during the commission of a first degree burglary. Rather, he maintains that he was actually convicted of assault with intent to commit rape of an unconscious person, during the commission of a first degree burglary. Therefore, he says, attempted rape of an unconscious person is a lesser included offense, and the conviction for that offense must be reversed. In short, defendant is asking us to rewrite both the charge and the statute upon which it is based. This we cannot do. Defendant was convicted, in count three, of assault with intent to commit rape during the commission of a first degree burglary, and attempted rape of an unconscious person is a lesser related offense, not a lesser included offense. We affirm as to count two.
I
FACTS
One night in July 2008, Caroline V. and her husband Arturo S. went to sleep drunk after partying with others. As usual, they went to sleep on the floor, along with their two young children. When they went to sleep, the bedroom window was open.
At some point, Caroline, who was in a deep sleep, felt someone on top of her. She felt a penis inside of her. Still drunk, she had her eyes closed and, assuming it was her husband, told him to stop.
The youngest child awakened Arturo, who saw defendant on top of Caroline. Defendant’s pants were down around his knees. Arturo got up, defendant got up and pulled up his pants, and Arturo hit defendant. Caroline then awakened, and saw that her panties were no longer on, although she had never taken them off. Caroline left the room screaming and called the police. It was approximately 4:00 a.m.
When the police arrived, they found defendant wearing only a pair of pants and socks. He appeared to be quite drunk. A forensic nurse examiner performed a sexual assault examination on Caroline. During the genital exam she found a tear to the posterior fourchette. However, she did not find any semen or sperm.
Detective Salvador Enriquez recorded an interview of defendant. Defendant said he was very drunk and that he did not know what he was doing at Caroline’s house. However, he said he had gone in through the window and admitted that he did not have permission to enter the house. At times, he said he did not do anything to Caroline and he did not have sex with her. However, at other times he said he could not remember whether he had touched Caroline or had had sex with her.
Ultimately, defendant admitted that he had wanted to have sex with Caroline, had had an erection, and had put his hand on her knee. He admitted having gotten on top of her, taken down her panties, and rubbed her legs. He also admitted that he had unfastened his belt and had been on the verge of pulling his own pants down. However, he said he did not remember if he had actually pulled his pants down or not. Defendant even said that it was possible that he had had sex with Caroline, but that he did not remember doing so. At the same time, he denied having taken his penis out.
II
DISCUSSION
A. Attempted Rape of an Unconscious Person:
(1) General rules
Defendant claims the offense for which he was convicted in count two is a lesser included offense of the offense for which he was convicted in count three. He contends that it was error to convict him of both offenses and that the conviction for count two must be reversed. We disagree, for reasons we shall show.
Although as a general rule, one may be convicted of more than one crime arising out of the same course of conduct, there is an exception to the rule in the case of necessarily included lesser offenses. (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.) “An offense is lesser included to a greater offense if the greater offense cannot be committed without also committing the lesser offense. [Citations.]” (People v. Steele (2000) 83 Cal.App.4th 212, 217.) “In deciding whether multiple conviction is proper, a court should consider... the statutory elements.” (People v. Reed, supra, 38 Cal.4th at p. 1229.) That is to say, “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.” (Id. at p. 1227.) Put another way, “‘[t]o constitute a lesser and necessarily included offense it must be of such a nature that as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’ [Citation.]” (People v. Steele, supra, 83 Cal.App.4th at p. 218.)
This being the case, we consider the charges and the statutes at issue. In count three of the information, defendant was charged as follows: “On or about July 27, 2008, in violation of Section 220 (b) of the Penal Code (assault with intent to commit sexual offense during commission of first degree burglary), a felony, [defendant], during the commission of a first degree burglary..., did unlawfully assault Jane Doe with the intent to commit rape.” (Capitalization omitted.)
Defendant was charged in count two as follows: “On or about July 27, 2008, in violation of Section 261 (a) (4) of the Penal Code (rape of unconscious person), a felony, [the defendant] did unlawfully accomplish an act of sexual intercourse with Jane Doe, ... who was at the time unconscious of the nature of the act, and the defendant knew and reasonably should have known of Jane Doe’s condition.” (Capitalization omitted.)
So, we turn to the wording of the statutes in question. Penal Code section 220, subdivision (b) provides: “Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole.”
Rape of an unconscious person is defined in Penal Code section 261, subdivision (a)(4). That provision states in pertinent part: “Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]... [¶] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, ‘unconscious of the nature of the act’ means incapable of resisting because the victim meets one of the following conditions: [¶] (A) Was unconscious or asleep....” (Pen. Code, § 261, subd. (a)(4).)
As is readily apparent, the statutory elements of rape of an unconscious person require, inter alia, that the victim be unconscious and that the perpetrator be aware of that fact. However, the elements of assault with intent to commit rape during the commission of a first degree burglary (Pen. Code, §§ 220, subd. (b), 460, subd. (a)) do not require either that the victim be unconscious or that the perpetrator be aware of that fact. Consequently, we cannot say that “‘as a matter of law and considered in the abstract the greater crime cannot be committed without necessarily committing the other offense. [Citations.]’ [Citation.]” (People v. Steele, supra, 83 Cal.App.4th at p. 218.)
(2) Characterization of conviction
Interestingly, defendant concedes the point. In his reply brief, he states: “[Defendant] does not dispute that attempted rape of an unconscious person is not a statutorily lesser included offense of assault with intent to commit rape; rather, he contends that attempted rape of an unconscious person is a statutorily lesser included offense of assault with intent to commit rape of an unconscious person.” Despite the clear record on the charges and the conviction, defendant claims that he was not in fact convicted of assault with intent to commit rape during the commission of a first degree burglary, but instead was convicted of assault with the intent to commit rape of an unconscious person. He makes a series of convoluted arguments to support his point.
Defendant says the jury instructions and the verdict forms show he was actually convicted of assault with intent to commit rape of an unconscious person. Turning first to the instructions, we see the jury was instructed that the lesser included offenses of count two, rape of an unconscious woman, were (1) attempted rape of an unconscious woman, (2) simple assault, and (3) battery. The jury was instructed that the lesser included offenses of count three, assault with intent to commit rape, were (1) attempted rape and (2) simple assault. Defendant does not claim that the court erred in giving these instructions.
The jury used a verdict form stating defendant was found guilty of attempted rape of an unconscious person, “a lesser offense included within the offense as charged in COUNT 2 of the Information.” The jury had at its disposal other forms it did not use, including one that could have been used to find defendant guilty of attempted rape of an unconscious person, “a lesser offense included within the offense as charged in COUNT 3 of the Information.” The jury properly did not use the latter form. The court had instructed the jury: “... I can accept a verdict of guilty of a lesser crime only if you have found the defendant not guilty of the corresponding greater crime.” Since the jury found defendant guilty of the greater crime of assault with intent to commit rape as charged in count three, it did not use any of the forms with respect to corresponding lesser included crimes.
Defendant, in an awkward argument, says the wording on the unused verdict form “is a strong indication that the verdict form [that was used] and jury instructions on the section 220 subdivision (b) assault, erroneously refer to the offense as requiring an intent to commit rape, rather than an intent to commit rape of an unconscious person.” There was no error. The verdict form that was used properly referred to the crime charged in count three as assault with intent to commit rape and the jury instructions on the charged crime, consistent with Penal Code section 220, subdivision (b), included no requirement that the victim be unconscious.
Defendant cites no case showing that because the court offered the unused verdict form in question this requires us either to rewrite the charged count three offense as assault with intent to commit rape of an unconscious person or to cast off the statutory elements test and employ a different test to determine whether attempted rape of an unconscious person is a lesser included offense of assault with intent to commit rape. He also makes no argument that the verdict form caused jury confusion that should give rise to a reversal with respect to either the conviction on the lesser included offense of count two or the conviction on count three.
Defendant also raises an argument based on the jury instructions regarding attempted rape. He notes that the jury was given CALCRIM No. 890 pertaining to assault with intent to commit rape, CALCRIM No. 1003 pertaining to rape of an unconscious person, and modified CALCRIM No. 460 pertaining to attempt. The CALCRIM No. 460 instruction omitted the standard introductory language: “[The defendant is charged [in Count ___ ] with attempted ______ <insert target offense>.]” The rest of the standard instruction was given, with the exception of the final sentence, and rape was inserted in every blank for the target offense.
Defendant says that because the jury was not instructed on any type of rape other than rape of an unconscious woman, the jury could only interpret the attempted rape instruction as pertaining to the offense of rape of an unconscious woman. Even were we to accept this argument, it would not be helpful to defendant. The jury found defendant guilty of attempted rape of an unconscious woman, and defendant makes no argument that substantial evidence was lacking to support this conviction.
Finally, defendant claims that the evidence presented and the prosecutor’s closing argument show that defendant was found guilty of assault with intent to commit rape of an unconscious woman. Not so. The evidence showed that the victim happened to be asleep, and the prosecutor remarked upon the fact that because the victim and her family members were asleep, the victim was an easy target. Neither the evidence nor the prosecutor’s remarks changed the charge against defendant, as expressed in count three, or the findings as revealed in the jury verdict form with respect to that count.
Count three did not allege that Caroline V. was unconscious and Penal Code section 220, subdivision (b), on which the charge is based, does not require that the victim be unconscious. Defendant was not found guilty of assault with intent to commit rape of an unconscious woman, so as to make attempted rape of an unconscious woman a lesser included offense thereof. Rather, defendant was found guilty of assault with intent to commit rape (Pen. Code, § 220 subd. (b)) and attempted rape of an unconscious woman is not a lesser included offense thereof.
B. First Degree Burglary:
As we have observed, Penal Code section 220, subdivision (b) provides: “Any person who, in the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, assaults another with intent to commit rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289 shall be punished by imprisonment in the state prison for life with the possibility of parole.”
Considered in the abstract, a violation of Penal Code section 220, subdivision (b) cannot be committed without necessarily committing the offense of first degree burglary. Therefore, first degree burglary is a necessarily included lesser offense of a Penal Code section 220, subdivision (b) violation. (People v. Steele, supra, 83 Cal.App.4th at pp. 217-218.) “Where defendant is convicted of a greater and an included offense, reversal of the conviction for the included offense is required. [Citation.]” (People v. Contreras (1997) 55 Cal.App.4th 760, 765.)
Defendant argues it was error to convict him of both first degree burglary and assault with intent to commit rape during the commission of a first degree burglary. The Attorney General agrees and so do we. The conviction for first degree burglary is reversed. (People v. Contreras, supra, 55 Cal.App.4th at p. 765.)
III
DISPOSITION
The judgment is reversed as to count one. It is affirmed as to count two and in all other respects. The superior court is directed to prepare an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.