P. v. Cage

Filed 1/18/07  P. v. Cage CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

                        Appeal from a judgment of the Superior Court of Orange County, James  Patrick Marion, Judge.  Affirmed in part, reversed in part, and remanded for resentencing.

                        Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

                        Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and Rhonda Cartwright-Ladendorf, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Charles Dewey Cage appeals from his convictions for assault with a deadly weapon, rape by use of drugs, and assault with intent to commit a sexual offense.  We affirm in part, reverse in part, and remand for resentencing.

Defendant first argues his conviction for assault with a deadly weapon and the related enhancement for causing great bodily injury must be reversed because the deadly weapons used were defendant's bare hands.  The Attorney General concedes that, as a matter of law, one's hands cannot be deadly weapons for purposes of a charge of aggravated assault.  We disagree with the Attorney General's suggestion that the charge be reduced to simple assault.  Simple assault is a lesser included offense of assault with intent to commit rape, of which defendant was also convicted.  Defendant could not have been convicted of both assault with intent to commit rape and its lesser included offense.  We therefore reverse defendant's conviction for assault with a deadly weapon and the great bodily injury enhancement.  We remand the matter for resentencing.

Defendant next argues the trial court abused its discretion in denying his motion for new appointed counsel.  (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).)  We conclude defendant did not establish either inadequate representation or an irreconcilable conflict between him and his attorney.  Therefore, the trial court did not abuse its discretion in denying the motion.

Finally, defendant argues the trial court erred by admitting a statement he made to the police before he was advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).  We conclude the trial court correctly determined defendant was not in custody at the time he responded to a question about what happened to the victim.  The police officer's question sought background information and was not part of a custodial interrogation.  Even if there had been error, it was not prejudicial, given the weight of the evidence against defendant.

Statement of Facts and Procedural History

Because of the limited nature of the issues raised on appeal, we provide an abbreviated statement of the facts of the case.  On January 10, 2005, Jerry Herd was renting a room at the California Suites Inn in Santa Ana.  Defendant and Susan  O. arrived at Herd's room, and went into the bathroom together for about five minutes.  Defendant and Susan then lay down on a blanket on the floor, while Herd lay down on the bed.  Herd described hearing the sound of someone being hit six or seven times, heard defendant say â€