P. v. Matteucci

Filed 8/28/06 P. v. Matteucci CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Anthony Matteucci appeals the jury-trial conviction and sentence imposed for misdemeanor battery (as a lesser included offense of forcible oral copulation), false imprisonment (as a lesser included offense of kidnapping with intent to commit oral copulation), dissuading a victim, and three counts of sexual battery. Matteucci contends the trial court erred by failing to give a unanimity instruction on the sexual battery and kidnapping charges, by instructing the jury on lesser included offenses, by failing to remand for sentencing in juvenile court, and by sentencing the wobbler offenses as felonies. Matteucci further contends the conviction for dissuading a witness is not supported by substantial evidence, and the concurrent terms imposed should have been stayed pursuant to Penal Code section 654.[1] The Attorney General concedes the concurrent terms for false imprisonment and sexual battery should be stayed pursuant to section 654. We affirm the sentence and conviction, but remand for the trial court to amend the abstract of judgment to stay the terms imposed on counts two, five and six.

PROCEDURAL BACKGROUND

Matteucci was accused of committing the following crimes on or about July 21, 2003: count one--forcible oral copulation (section 288a, subd. (c)(2)); count two--kidnapping to commit oral copulation (section 209, subd. (b)(1)); count three--dissuading a witness (section 136.1, subd. (b)(1)); counts four through six--sexual battery with unlawful restraint (section 243.4, subd. (a)). Each count alleged Matteucci was a minor who was at least 16 years of age at the time of the offense, and the offense is set forth in Welfare & Institutions Code section 707, subd. (b), pursuant to Welfare & Institutions Code section 707, subd. (d)(1).

Trial testimony began on November 3, 2004. Counsel stipulated Matteucci was seventeen years of age at the time of the incident. Over defense counsel's objection, the trial court gave instructions for lesser included offenses to the charges for forcible oral copulation and kidnapping.

The jury returned its verdicts on November 18, 2004. The jury found Matteucci not guilty on count 1 of forcible oral copulation, but guilty of the lesser included offense of misdemeanor battery, in violation of section 242. The jury found Matteucci not guilty on count 2 of kidnapping with intent to commit oral copulation, but guilty of the lesser included offense of felony false imprisonment, in violation of section 236. The jury also found Matteucci guilty as charged on counts three through six.

On February 4, 2005, the trial court sentenced Matteucci to the midterm of 3 years on count 4 (sexual battery) and midterm of two years on count 3 (dissuading a witness) consecutive to the principal term of count 4. The trial court imposed concurrent terms of two years on count 2 (false imprisonment) and three years on each of counts 5 and 6 (sexual battery). The trial court imposed a sentence of 60 days in county jail with credit for time served on count 1 (misdemeanor battery). In addition, the trial court stayed execution of the sentence and placed Matteucci on supervised probation for a period of four years with one year to be served in county jail.

FACTS

The charges against Matteucci arose from an incident that occurred between him and Melody Doe on the evening of July 21, 2003, after the two had been drinking with a group of high school friends. At trial, they each offered a different version of what happened that night.

The victim, Melody Doe, testified she and Matteucci were two of a group of friends who all attended South San Francisco High School. Melody stated that on July 21, 2003, she was about five feet four inches tall and weighed one hundred and fifteen pounds. She estimated Matteucci was about six feet two or three and about two hundred and fifty pounds. That evening Melody, her best friend Alexandria (Alex), cousin Jenna, and other friends Elliot, Ray, and Nahel met at Elliot's house to celebrate his birthday. They decided to go to the local Jack-in-the-Box for something to eat and were joined there by Matteucci. Melody understood Matteucci and Alex were dating at this time. After, they bought some beer and wine coolers and went to drink them at a favorite spot known as the Wind Harp. Melody drank a 40 ounce bottle of beer over a 30 minute period. The friends socialized for about 45 minutes to an hour at the Wind Harp, by which time Melody stated she was intoxicated. She was slurring her words and not walking straight. The group then drove to McDonalds, where Alex had arranged to meet other friends. After Alex left with her other friends, Matteucci invited Melody to ride with him back to Ray's house.

During the ride back to Ray's house, Matteucci brought up the subject of â€