Filed 1/30/18 P. v. Ruiz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. CARLOS MOLINA RUIZ, Defendant and Appellant.

H044636 (Santa Clara County Super. Ct. No. C1498636)

Defendant Carlos Molina Ruiz was charged in a felony complaint with assault with intent to commit a felony (Pen. Code, § 220, subd. (a)(1); count 1)[1] and sexual battery (§§ 242, 243.4, subd. (a); count 2). The complaint also alleged various sentencing enhancements. Defendant pleaded no contest to both counts and admitted the special allegations. Prior to sentencing, the trial court permitted defendant to withdraw his no contest plea as to count 2 only, and he then pleaded not guilty by reason of insanity to that count. On February 10, 2017, the court found defendant not guilty by reason of insanity to count 2. It sentenced defendant on the count 1 conviction to 25 years to life consecutive to five years, but stayed the sentence pursuant to section 1026.2, subdivision (m). The court committed defendant as to count 2 to the California Department of State Hospitals for a maximum term of 25 years to life consecutive to five years. (See §§ 1026, 1026.5.)

On appeal, defendant contends that the trial court erred by including a five-year consecutive term in setting the maximum term of commitment. He contends that because the current conviction (sexual battery) was not a serious felony, it was improper to impose the five-year enhancement based upon defendant’s having suffered a prior serious felony conviction (§ 667, subd. (a)(1)).

We agree that the court erred in including a five-year consecutive term and will order this aspect of the commitment stricken. As modified, we will affirm the judgment.

I. FACTUAL BACKGROUND[2]

In the early morning of November 30, 2014, San Jose police responded to a reported sexual assault at an office building on Second Street. Responding officers interviewed the victim, Jane Doe, who stated she worked as a janitor and had arrived at the building that morning to clean it. When she put down her cleaning supplies to open the door, she was accosted by defendant who offered to help her. After she declined, defendant pushed Jane Doe through the open doorway, causing her to hit a wall and fall to the floor on her stomach. Defendant got on top of her, kissed her on the neck, and touched her vagina and breasts over her clothing. Jane Doe yelled at defendant, asking him to stop, and defendant pulled up her blouse, attempting to touch her skin to skin. Jane Doe continued to yell at defendant, struck him with a cleaning bottle, and told him that security cameras were recording him. Defendant fled the scene.

Jane Doe later told the police that she believed that defendant had intended to rape her and would have done so had she not resisted. She sustained bruises to her arms as a result of the attack.

“After the defendant fled the office building, he called the police asking for assistance, stating he needed to go to Valley Medical Center for psychiatric medication. When the responding officers made contact with the defendant, he stated he was hearing voices and was paranoid.” Because the officers believed defendant matched the physical description of the assailant from the Second Street office building, they detained him for an in-field lineup. Jane Doe identified defendant in the lineup as her assailant.

Defendant was arrested and advised of his Miranda rights.[3] During the police interview, defendant admitted his involvement in the encounter with Jane Doe. He stated that he had hoped to obtain money in exchange for helping her. “When she declined his help, he admitted to getting aggressive with the victim. He pushed her and does not remember how they got inside the office building. He further admitted being sexually aggressive towards the victim, and recalled touching her and struggling with her, but did not remember specifics.”

II. PROCEDURAL BACKGROUND

Defendant was charged by a two-count felony complaint on December 3, 2014. He was charged in count 1 with assault with intent to commit a felony (§ 220, subd. (a)(1)), based upon the allegation that defendant had assaulted the victim, Jane Doe, with the intent to commit rape, sodomy, oral copulation and/or sexual penetration. Defendant was charged in count 2 with sexual battery (§§ 242, 243.4, subd. (a)), a felony, based upon the allegation that he “touch[ed] (an) intimate part(s), sexual organ” of Jane Doe against her will and for the purpose of sexual arousal, sexual gratification and sexual abuse while Jane Doe was unlawfully restrained by defendant. It was alleged further in the complaint that defendant had four prior strike convictions (§§ 667, subd. (b)–(i), 1170.12), had two prior serious felony convictions (§ 667, subd. (a)), and had been previously convicted of two sex offenses specified in section 667.6, subdivision (a) for which he had served two separate prison terms (§ 667.6, subd. (b)).

On August 17, 2016, defendant pleaded no contest to both counts and admitted all allegations. Thereafter, on February 10, 2017, the court, with the People’s consent, permitted defendant to withdraw his no contest plea to count 2 only. By stipulation of the parties, the complaint was deemed an information and defendant then pleaded not guilty by reason of insanity to that count. The parties stipulated further that the prior no contest plea as to count 1 of the complaint would be deemed valid as to the information. The court then found appellant not guilty by reason of insanity to count 2 pursuant to section 1026.

On the same day, the court struck one of the prior strike offenses pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court granted the People’s motion to strike the prison prior and one of the serious felony prior allegations that defendant had previously admitted. The court imposed a sentence of 25 years to life consecutive to five years for the count 1 conviction but stayed the sentence pursuant to section 1026.2, subdivision (m). The court committed defendant as to count 2 to the California Department of State Hospitals for a maximum term of 25 years to life consecutive to five years. On April 20, 2017, after receiving the recommendation of the California Department of State Hospitals, the court found that defendant had not fully recovered his sanity, and committed him on count 2 to the California Department of Mental Health for placement, care, and treatment with a maximum term of confinement of 25 years to life consecutive to five years.

Defendant filed a timely notice of appeal.

III. DISCUSSION

Defendant contends that the trial court erred in its order committing him as to count 2 to a state hospital with a fixed maximum term of 25 years to life consecutive to five years. He argues that the inclusion of a five-year consecutive term, apparently based upon his having suffered a prior serious felony conviction under section 667, subdivision (a)(1), was error because the current conviction upon which it was based (sexual battery) was not a serious felony. The Attorney General agrees with defendant that the trial court erred in this respect.[4]

When the court commits the defendant to a state hospital based upon a finding that he or she was insane at the time the charged offense was committed and the court does not conclude that he or she has fully recovered, it is required to recite the maximum term of confinement to the facility. (§§ 1026, subd. (e)(2), 1026.5, subd. (a)(1).) The “ ‘maximum term of commitment’ shall mean the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted, including the upper term of the base offense and any additional terms for enhancements and consecutive sentences which could have been imposed less any applicable credits . . . .” (§ 1026.5, subd. (a)(1); see People v. Hernandez (2005) 134 Cal.App.4th 1232, 1237.)

When a defendant is convicted of a serious felony and previously suffered a conviction for a serious or violent felony, the court must impose a five-year enhancement to the sentence. (§ 667, subd. (a)(1); see People v. Ruiz (1999) 69 Cal.App.4th 1085, 1089.) But when the current offense is not a serious felony within the meaning of section 1192.7, subdivision (c), the court may not impose the five-year enhancement. (People v. Taylor (2004) 118 Cal.App.4th 11, 22-23.)

The current offense that was the basis for defendant’s commitment (sexual battery) is not one of the enumerated felonies under section 1192.7, subdivision (c) that constitute serious felonies.[5] And it is clear from the trial court’s comments that it based the five-year enhancement upon section 667, subdivision (a)(1). It was therefore error to include a five-year consecutive term to the maximum commitment of 25 years to life in this case.

IV. DISPOSITION

The five-year enhancement imposed pursuant to Penal Code section 667, subdivision (a)(1) to the commitment to the California Department of State Hospitals is ordered stricken. The judgment shall provide for a maximum term of commitment of 25 years to life. As modified, the judgment is affirmed. The trial court is directed to issue a new abstract of judgment consistent with this disposition.

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