P. v. Atwood

Filed 3/27/06 P. v. Atwood CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Alvin E. Green, Jr., Judge. Affirmed in part, reversed in part, and remanded for resentencing.

I

INTRODUCTION

Defendant Henry Leroy Atwood appeals from a final judgment of conviction and sentence after a trial. Atwood and Damien Williams attacked and sexually molested a 14-year-old girl in the bathroom of a home where the girl was attending a friend's birthday party. Atwood was convicted of rape by a foreign object acting in concert, assault with intent to commit a felony (rape), attempted forcible rape acting in concert, and committing a lewd act on a child under 14 or 15 years of age, the defendant being at least 10 years older than the child. The trial court sentenced Atwood to a total term of 12 years 10 months in state prison.

On appeal, Atwood contends that the trial court erred in sustaining his convictions of attempted forcible rape and assault with intent to commit a felony because, he argues, the former is a lesser included offense of the latter. Atwood also contends that the trial court erred in applying the mandatory provisions of Penal Code section 667.6, subdivision (d)^[1] in sentencing him to a consecutive seven years on count 2, in which he was charged with rape by a foreign object, rather than sentencing him pursuant to the discretionary provisions of subdivision (c) of the same section.^[2] Section 667.6, subdivision (d) requires a court to impose consecutive sentences when a defendant has been convicted of more than one of the sex crimes enumerated in that subdivision.

We conclude that the charge of attempted rape in concert was not a lesser included offense of the charge of assault with intent to commit rape in this case because the two convictions were based on different acts. We further conclude that the trial court erred in applying the mandatory provisions of subdivision (d) of section 667.6. Because the trial court was unaware that it possessed discretion to determine whether to impose a consecutive or concurrent sentence on count 2, rape by a foreign object, the case must be remanded for resentencing.

II

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On July 6, 2002, 14-year-old D.E., her cousin Lisa G., her brothers and another cousin visited the home of Terrence B. to attend a birthday party. Terrence and D.E. were neighbors and had been friends since they were young children. D.E. planned to go swimming at the party, so she wore a bathing suit under a short sleeved shirt and a pair of jeans.

When D.E. arrived at the party, Terrence's family members were there. Other than certain members of Terrence's family, the only other adults at the party were Atwood, "D‑Bo," who was later identified as Damien Williams, and a disc jockey. Although D.E. had seen Atwood and Williams before, she did not know them. Approximately 10 to 20 other guests arrived at the party, ranging in age from 12 to 18 years old. Alcohol was available, but D.E. did not consume any.

D.E. went into a bedroom that looked out onto the backyard of Terrence's home. Willie Carter, a friend of Terrence's family, was in the bedroom watching television. D.E. knew Carter because he lived at Terrence's residence, but she did not know him well. She said hello to Carter and peeked out the back door into the yard. D.E. then went into the bathroom adjoining the bedroom and locked the door. As she was washing her hands, someone knocked on the door and asked where everybody was. D.E. believed it was Carter who was asking. She replied that others were in the theater room. When D.E. unlocked the door and opened it, Atwood was standing there. He entered the bathroom, placed his hand on D.E.'s chest, and pushed her against the wall. Atwood then motioned to Williams to come into the bathroom. One of the two brought a bottle of Smirnoff vodka into the bathroom.

Atwood and Williams began kissing D.E.'s neck. Atwood lifted D.E.'s shirt and her bathing suit top, exposing her breasts. D.E. told the men to stop, between three and ten times, and told them she was "too young for this." She also tried to push them away from her. Ignoring her, both men began kissing and fondling her breasts. She again told them to stop and tried to move their faces and hands away from her. The men were on either side of her. D.E. felt overpowered and said she could not move.

Atwood unbuttoned D.E.'s pants and pulled them down. After kneeling down, he used his tongue and mouth on her vagina. Williams put his finger in D.E.'s vagina, from behind her. This went on for approximately three to five minutes. D.E. elbowed Williams, and he attempted to enter D.E.'s vagina with his penis, but he did not succeed. Atwood got up and told Williams to leave so that he could have D.E. to himself. When Atwood opened the door to let Williams out, D.E. escaped by ducking underneath Atwood's arm. She pulled her pants up and her shirt down as she left the bathroom.

When D.E. saw her cousins she began to cry. People approached her to ask what had happened. D.E. told Lisa, "They messed with me" and "fingered me and they licked on me." She then pointed out Williams and Atwood to Lisa and her other cousin. D.E. felt ill and threw up twice. D.E.'s mother arrived at the house and asked what had happened. Some girls in the area told D.E.'s mother that D.E. had been raped.

D.E., Lisa and D.E.'s mother went to the police station. D.E. told Officer David Wrege what had happened to her. She used the restroom at the police station and was then taken to Children's Hospital where a rape examination was conducted. The examination revealed red marks and a bruise on D.E.'s left wrist, and a fingernail that had torn off. She had pain in her vaginal area, and lacerations above the clitoral hood and below the opening of her vagina. Black fibers were found in her genital area.

Police officers went to Terrence's house to try to identify the suspects, but Terrence's mother refused to identify them. Fingerprints lifted from Smirnoff bottles taken from the home belonged to Atwood and Williams. After identifying Atwood and Williams, officers put together a photographic lineup for each. D.E. identified both Atwood and Williams as her assailants from the photographic lineups. Atwood's DNA was found on D.E.'s right breast, mouth, face and neck. Amylase, a substance found in saliva and other bodily fluids, was also found on D.E.'s breast, mouth and neck. Tests indicated that D.E. had no alcohol or other controlled substances in her blood on the evening of the incident.

Atwood testified at trial that D.E. had initiated the sexual activity, and that she had consented to it, at least initially. According to Atwood, after approximately three minutes of mutual fondling, D.E. stopped and said, "It just don't feel right." He also testified that he did not know she was under the age of 18. He said he had not engaged in oral sex with her, and had not forced her to stay in the bathroom. He also denied that Williams had digitally penetrated her.

B. Procedural background

An information charged Atwood with oral copulation acting in concert (§ 288a, subd.(d))(count 1), rape by foreign object acting in concert (§§ 289, subd. (a)(1), 264.1) (count 2), assault with intent to commit a felony (rape, oral copulation, lewd act with child 14 or 15 years of age, rape by foreign object, § 220) (count 3), attempted forcible rape acting in concert (§§ 261, subd. (a)(2), 264.1, 664) (count 4), and committing a lewd act on a child under 14 or 15 years of age, the defendant being at least 10 years older than the child (§ 288, subd. (c)(1)) (count 5).

A jury found Atwood guilty on counts 2, 3, 4, and 5. As to count 3, the jury found that Atwood committed assault with the intent to commit rape, oral copulation, rape by foreign object, and lewd act on a child. On count 4, the jury found that Atwood aided and abetted his codefendant Damien Williams in the commission of attempted forcible rape. The jury deadlocked on count 1, and the court granted the prosecution's motion to dismiss that count.

The trial court sentenced Atwood to a total term of 12 years 10 months in state prison: the middle term of seven years on count 2; the middle term of four years on count 3; one-third of the middle term, equal to one year two months, on count 4; and one-third of the middle term, equal to eight months, on count 5.

III

DISCUSSION

A. Attempted forcible rape as lesser included offense of assault with intent

to commit a felony

Atwood contends that he has been convicted of both the greater and lesser offenses of assault with intent to commit a felony (rape) and attempted rape. A defendant charged with an offense may not be convicted of both that offense and a lesser included offense. (People v. Moran (1970) 1 Cal.3d 755, 763.) "We employ two alternative tests to determine whether a lesser offense is necessarily included in a greater offense. Under the elements test, we look to see if all the legal elements of the lesser crime are included in the definition of the greater crime, such that the greater cannot be committed without committing the lesser. Under the accusatory pleading test, by contrast, we look not to official definitions, but to whether the accusatory pleading describes the greater offense in language such that the offender, if guilty, must necessarily have also committed the lesser crime. [Citation.]" (People v. Moon (2005) 37 Cal.4th 1, 25-26.)

According to Atwood, the crime of attempted rape is a lesser included offense of the crime of assault with the intent to rape. Specifically, Atwood claims that the same act formed the basis of these two charges--i.e., Atwood's aiding and abetting Williams' attempt to rape D.E. The Attorney General concedes that an assault with intent to commit a certain crime necessarily includes an attempt to commit that same crime. (See People v. Saunders (1991) 232 Cal.App.3d 1592 [attempted oral copulation lesser included offense of assault with intent to commit oral copulation].) The Attorney General also accepts for purposes of argument in this case that an attempted rape is a lesser included offense of assault with intent to commit rape, and that the "in concert" allegation in this case "does not change the analysis, because a person acting 'in concert' with another to commit an attempted rape would still be guilty of assault with intent to commit a felony as an aider and abettor." However, the Attorney General points out that Atwood's assertion that his conviction for attempted rape and assault with intent to commit rape "were based on one act: appellant aiding and abetting Williams' attempt to rape D.E." is not supported by the record. We agree.

Atwood is correct in asserting that his conviction for attempted forcible rape in concert was based on his role in assisting Williams in Williams's attempt to rape D.E. The jury made a special finding on the charge of attempted forcible rape that Atwood "aided and abetted Damien Williams in his commission of attempt [sic] forcible rape." However, Atwood's conviction on count 3 for assault with intent to commit a felony did not include an "in concert" allegation, and there is nothing in the record to indicate that this conviction is based on Atwood's aiding and abetting Williams in his assault of D.E. Rather, the conviction was based on Atwood's personal assault of her.

Apart from any of his acts that aided Williams in Williams's attempt to rape D.E., Atwood cornered D.E. in the bathroom, fondled and kissed her breasts, neck and mouth, against her will, and restrained her while he asked Williams to leave so he could have her to himself. Based on the evidence presented at trial, the jury unanimously agreed that Atwood personally assaulted D.E. with the intent to commit rape, oral copulation, rape by a foreign object, and to commit a lewd act upon a child 14 or 15 years of age. The record supports the conclusion that the conviction on count 3 for assault with intent to commit rape was based on Atwood's own acts, and not on his conduct as an aider or abettor. Because the acts underlying Atwood's conviction on count 3 are separate and distinct from the acts underlying his conviction on count 4, count 4 is not a lesser included offense of count 3. We therefore affirm the trial court's judgment as to count 4, the attempted rape.

B. The trial court was not required to sentence Atwood to a consecutive seven-year

sentence on count 2 pursuant to subdivision (d) of section 667.6, but rather,

had discretion to do so pursuant to subdivision (c) of that section.

Atwood contends that the case should be remanded for resentencing because the trial court improperly sentenced him to a mandatory consecutive term of seven years on count 2 (rape by a foreign object while acting in concert) pursuant to section 667.6, subdivision (d). The Attorney General agrees that the trial court was unaware that it possessed discretion "to impose something other than a consecutive full-strength term" on count 2, and that the case should therefore be remanded for resentencing.

Section 667.6, subdivision (d) provides in part:

"A full, separate, and consecutive term shall be served for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person if the crimes involve separate victims or involve the same victim on separate occasions."

The mandatory consecutive sentencing scheme in subdivision (d) of section 667.6 applies only when a defendant is convicted of more than one of the enumerated sex offenses. (See People v. Jones (1988) 46 Cal.3d 585, 595 (Jones).) In contrast, when a defendant is convicted of only one of the enumerated sex offenses encompassed by section 667.6, subdivision (c)^[3] applies. (Jones, supra, at p. 600 ["We conclude that where a defendant stands convicted of multiple felonies, subdivision (c) vests the sentencing court with discretionary authority to impose a full, consecutive term for any ESO [enumerated sex offense] conviction, even when the defendant stands convicted of only one ESO."].)

Of the crimes enumerated in section 667.6, Atwood was convicted of only one--rape by foreign object, in violation of section 289, subdivision (a)(1) (count 2). The other crimes of which Atwood was convicted, i.e., attempted rape, committing a lewd act in violation of section 288, subdivision (c), and assault with intent to commit a felony in violation of section 220,^[4] are not among those crimes enumerated in section 667.6, subdivision (d). (See also People v. Thomas (1990) 218 Cal.App.3d 1477, 1490 [attempted crimes do not fall within ambit of subdivision (d)].) Thus, only subdivision (c) of section 667.6 was implicated in Atwood's case.

The trial court indicated that it was sentencing Atwood to a mandatory consecutive term of seven years on count 2, pursuant to subdivision (d) of section 667.6. The court sentenced Atwood on the remaining three counts pursuant to section 1170.1. The record does not establish that the trial court was aware that it had the discretion to sentence Atwood to a consecutive seven-year sentence pursuant to subdivision (c) of section 667.6, but that it was not required to do so pursuant to subdivision (d) of that section. Because we do not know how the trial judge would have exercised his discretion had he known he had such discretion with regard to count 2, we vacate the sentence and remand the matter for resentencing.

IV

DISPOSITION

Atwood's convictions are affirmed. The sentence is vacated and the case is remanded for the purpose of resentencing the defendant.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.

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^[1] Unless otherwise indicated, further statutory references are to the Penal Code.

^[2] Atwood initially argued that subdivision (d) of section 667.6 did not apply to him because the trial court had erroneously determined that the crimes were committed on separate occasions, a requirement for triggering the application of subdivision (d). In his reply brief and subsequent supplemental briefing, Atwood modified his argument and now contends that because he was convicted of only one of the crimes enumerated in section 667.6, subdivision (d), and subdivision (d) requires convictions on more than one of the enumerated crimes, the trial court erred in relying upon section 667.6, subdivision (d) to sentence him on count 2. The Attorney General concedes in supplemental briefing that it was error to apply subdivision (d) of section 667.6 to Atwood's sentence in this case.

^[3] Subdivision (c) of section 667.6 provides in pertinent part: "In lieu of the term provided in Section 1170.1, a full, separate, and consecutive term may be imposed for each violation of Section 220, other than an assault with intent to commit mayhem, provided that the person has been convicted previously of violating Section 220 for an offense other than an assault with intent to commit mayhem, paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261, paragraph (1), (4), or (5) of subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, Section 288.5 or subdivision (a) of Section 289, of committing sodomy in violation of subdivision (k) of Section 286, of committing oral copulation in violation of subdivision (k) of Section 288a, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person whether or not the crimes were committed during a single transaction."

^[4] In order for section 667.6, subdivision (d) to apply to a conviction for a violation of section 220, the individual must have been previously convicted of a violation of section 220. There was no allegation that Atwood had previously been convicted of violation of section 220. His first conviction for violating section 220 did not require the mandatory consecutive sentencing pursuant to section 667.6, subdivision (d).