P. v. Carbajal











Filed 3/24/17 P. v. Carbajal CA5








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO XAVIER CARBAJAL, JR.,

Defendant and Appellant.


F071474

(Super. Ct. No. 14CR-00743)


OPINION




APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.
Lindsay Sweet, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Defendant Francisco Xavier Carbajal, Jr.,[1] was charged with assault with intent to commit rape (Pen. Code, § 220, subd. (a)(1) [count 1]),[2] willful infliction of corporal injury upon a spouse (§ 273.5, subd. (a) [count 2]), and possession of a firearm by a felon (§ 29800, subd. (a)(1) [count 3]). In connection with counts 1 and 2, the information alleged he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
Defendant pled guilty to count 2. Later, the jury convicted him of the lesser included offense of attempted rape on count 1, found him guilty as charged on count 3, and found the special allegations true. Defendant received an aggregate sentence of eight years eight months: a principal term of four years on count 1 plus four years for infliction of great bodily injury; and a consecutive subordinate term of eight months on count 3. Execution of punishment on count 2 was stayed pursuant to section 654.
On appeal, defendant makes several contentions. First, the trial court erroneously instructed the jury that attempted rape is a lesser included offense of assault with intent to commit rape. Second, the evidence was insufficient to prove attempted rape. Third, the evidence was insufficient to prove the infliction of great bodily injury with respect to count 1. Fourth, the abstract of judgment incorrectly displays a conviction for assault with intent to commit rape and 142 days of presentence credit.
We conclude the court properly instructed the jury that attempted rape is a lesser included offense of assault with intent to commit rape, substantial evidence supported the attempted rape conviction, and substantial evidence supported the great bodily injury enhancement. We agree with defendant, however, that the abstract of judgment must be corrected.
STATEMENT OF FACTS
I. Prosecution’s case-in-chief.
Defendant married S. in 2008.[3] They have one daughter. At the time of the incident, the three lived in Atwater at the residence of defendant’s mother Darrelle Carbajal.[4] Several months before the incident, S. suffered a stroke. As a result, she had difficulty speaking, limped, and was unable to use her right hand or lift her right arm.
On the morning of December 3, 2014, the couple took their daughter to school. Upon returning home, defendant wanted to have sex. S. declined. Although defendant was insistent, S. repeatedly rebuffed his advances, “let[ting] him know that [they] really didn’t have that kind of relationship anymore.” Angered by the rejection, defendant forced S. into her bedroom. He pushed her onto the bed, removed their respective pants, and tried to engage in intercourse. Meanwhile, S. struggled to fight back. When she started to cry, defendant said, “Those are fake tears.” S. screamed for Darrelle, who was also at home. Darrelle knocked on the bedroom door and asked S., “Do you want me to come in?” S. responded, “Yes.” Darrelle entered the bedroom, saw defendant on top of S., and told him to get off. Nonetheless, defendant continued his attempt to have sex. According to S., when Darrelle threatened to call the police, defendant remarked, “If you’re going to call the police, I’m going to give you a reason to call the police.”[5] He then punched S.’s face multiple times before leaving. At no point during the incident did defendant penetrate S.
Levi Crain, a reserve police officer for the City of Atwater, arrived at the residence at approximately 1:30 p.m. He made contact with S. and noted “[s]he had severe swelling in her face, there was [sic] multiple lacerations that were bleeding, her eyes were shut, and she couldn’t talk” due to a swollen jaw. A subsequent search of the home uncovered a .22-caliber rifle in a closet.
S. was transported to the hospital, where she was interviewed by Detective Matthew Vierra. According to Vierra, S. “had obvious signs of swelling to her entire face as well as dried blood in her nose and her eyes appeared to be swollen shut.” In addition, he “had to get almost within a foot of her mouth in order to actually understand what she was saying.” S. stayed in the hospital overnight and was prescribed pain medication. Three months later, she “still ha[d] the black eyes, . . . [she] still ha[d] a cut on [her] forehead, and [her] face [wa]s still a little swollen on both sides.”
In a December 3, 2014, police interview, defendant admitted he tried to have sex with S., who did not consent and “was actively resisting.” He “became enraged and struck [S.] approximately 12 times with a closed fist with both hands” when Darrelle threatened to call the police. Defendant also admitted he said, “If I’m going to go to jail, it’s going to be for something I did or I deserve.” He stated the rifle belonged to S., who had inherited it from her deceased brother.
II. Defense’s case-in-chief.
At various times on the morning of December 3, 2014, defendant hugged and kissed S. and rubbed her shoulders. He followed her into her bedroom, where he “proceeded to pull her pants down and push her or lead her onto the bed . . . .” After defendant got on top of her, S. said, “No.” Defendant asked, “Why?” S. replied, “I don’t want to.” Defendant stopped his advances. Subsequently, Darrelle entered the room “without knowing what’s going on” and shouted, “Get off[!]” She “asked [S.] if she wanted . . . the police to be called and [S.] said yes . . . .” Defendant “felt betrayed by both of them” because he “didn’t feel . . . [he] had done anything to deserve that . . . .” He “became enraged and . . . struck [S.]” “maybe a dozen times.” Defendant left the residence to pick up his daughter from school. Upon his arrival, he was arrested by law enforcement.
Defendant conceded he was previously convicted of receiving stolen property, possessing a controlled substance in jail, and neglecting or endangering a child. He asserted the rifle was an heirloom of which S. took custody as the administrator of her brother’s estate. Defendant never fired the weapon or purchased ammunition for it.
DISCUSSION

I. The trial court properly instructed the jury that attempted rape is a lesser included offense of assault with intent to commit rape.
“A claim of instructional error is reviewed de novo.” (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 759, citing People v. Guiuan (1998) 18 Cal.4th 558, 569-570; see People v. Posey (2004) 32 Cal.4th 193, 218 [“The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law . . . .”].)
Following the close of evidence, and outside the presence of the jury, the trial court advised the parties it would instruct that attempted rape is a lesser included offense of assault with intent to commit rape. Defendant did not object to the instruction on attempted rape.[6] Thereafter, the trial court instructed the jury, inter alia, on the crime of assault with intent to commit rape (count 1) and on the lesser included offense of attempted rape. In doing so, it defined the crime of rape. Defendant does not now assert the content of these instructions was in error. Instead, defendant argues the trial court erred when it instructed the jury on attempted rape because, he asserts, attempted rape—whether a violation of section 261, subdivision (a)(2) (rape of a person not the spouse of the perpetrator) or section 262 (rape of a person who is the spouse of the perpetrator)—is not a lesser included offense to assault with intent to commit rape. He reasons that attempted rape requires proof of the marital relationship, or lack of relationship, between he and the victim; assault with intent to commit rape does not.
First, the assumption upon which defendant’s argument is based is that the elements of the crime of rape for assault with intent to commit rape differ from the elements of the crime of rape for attempted rape. Defendant cites no authority to support that assumption, and the assumption is incorrect. The definition of rape is the same whether the crime is attempted rape or assault with intent to commit rape, and the trial court instructed the jury accordingly.
The trial court defined the crime of rape for the jury using CALCRIM No. 1000, in relevant part, as follows: “The defendant had sexual intercourse with a woman, the woman did not consent to the intercourse, and defendant accomplished intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or someone else . . . . [¶] . . . [¶] . . . Evidence that the defendant and the woman were married is not enough by itself to constitute consent. Intercourse is accomplished by force if a person uses enough physical force to overcome the woman’s will . . . . [¶] . . . [¶] The crime of attempted rape is a lesser included offense to the crime charged in [c]ount 1, assault with intent to commit rape. To prove the defendant is guilty of this crime, the People must prove that the defendant took a direct but ineffective step toward committing rape and the defendant intended to rape.”
As for the crime charged in count 1 (§ 220, subd. (a)(1)), the trial court instructed the jury using CALCRIM No. 890, in relevant part, as follows: “To prove that a defendant is guilty of this crime, the People must prove that one, the defendant did an act that by its nature would directly and probably result in the application of force to a person[;] [t]wo, the defendant did that act willfully[;] [t]hree, when the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by nature would directly and probably result in the application of force to someone[;] [f]our, when the defendant acted, he had the present ability to apply force to a person[;] [a]nd five, when the defendant acted, he intended to commit rape. [¶] . . . [¶] To decide whether the defendant intended to commit rape, please refer to the instruction[] which defines the crime of rape.”
The trial court also instructed the jury on the lesser included crime of attempted rape using CALCRIM No. 460. It told the jury, in relevant part: “The crime of attempted rape is a lesser included offense to the crime charged in [c]ount 1, assault with intent to commit rape. To prove the defendant is guilty of this crime, the People must prove that the defendant took a direct but ineffective step toward committing rape and the defendant intended to rape. [¶] . . . [¶] To decide whether the defendant intended to rape, please refer to the separate instruction that I gave you on that crime previously.”
The definition of rape for the charged crime and for the lesser included crime was the same.
Second, attempted rape is a lesser included offense of assault with intent to commit rape. “The crime of attempted rape has two elements: (1) the specific intent to commit the crime of rape and (2) a direct, although ineffectual, act toward its commission.” (People v. Clark (2011) 52 Cal.4th 856, 948; accord, People v. Miranda (2011) 199 Cal.App.4th 1403, 1418.) “It is not necessary that there be a ‘present ability’ to complete the crime . . . .” (People v. Grant (1951) 105 Cal.App.2d 347, 356.) By contrast, the crime of assault with intent to commit rape “requires proof that an assault was committed, and that at some time during the assault it was the intention of the defendant to have sexual intercourse with his victim by force.” (People v. Clifton (1967) 248 Cal.App.2d 126, 129.) “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “ ‘[A]n assault with intent to commit rape is merely an aggravated form of an attempted rape, the latter differing from the former only in that an assault need not be shown. [Citation.] “An ‘assault’ with intent to commit a crime necessarily embraces an ‘attempt’ to commit said crime . . . .” [Citation.]’ ” (People v. Ghent (1987) 43 Cal.3d 739, 757; accord, People v. Pierce (2002) 104 Cal.App.4th 893, 898.)
The trial court did not error when it instructed the jury on attempted rape.
II. Substantial evidence supported defendant’s attempted rape conviction.
“To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible[,] and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955 (Tripp).) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “We need not be convinced of the defendant’s guilt beyond a reasonable doubt; we merely ask whether ‘ “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.]” (Tripp, supra, at p. 955, italics omitted.)
“Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it.” (People v. Redmond, supra, 71 Cal.2d at p. 755.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 632.)
“This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citations.]” (Tripp, supra, 151 Cal.App.4th at p. 955.)
As noted earlier, the crime of attempted rape requires (1) the specific intent to commit rape; and (2) a direct, although ineffectual, act toward its commission. (People v. Clark, supra, 52 Cal.4th at p. 948.) “A defendant’s specific intent to commit rape may be inferred from the facts and circumstances shown by the evidence.” (Ibid.) “As for the requisite act, the evidence must establish that the defendant’s activities went ‘beyond mere preparation’ and that they show the defendant was ‘putting his or her plan into action.’ [Citation.]” (Ibid.; see, e.g., People v. Marshall (1997) 15 Cal.4th 1, 39 [“For example, an attempted forcible rape would occur if a defendant pointed a gun at a woman and ordered her to submit to sexual intercourse, but the woman managed to escape without having been touched.”].)
The record, viewed in the light most favorable to the prosecution, demonstrates defendant forced S. into her bedroom to engage in sexual intercourse even though she repeatedly expressed her unwillingness to do so. Defendant shoved her onto the bed, removed her pants, got on top of her, and tried to insert his penis. S. resisted notwithstanding her physical impairments and even shed tears, but defendant did not relent. S. called out to Darrelle, who entered the room and ordered her son to get off. Once again, defendant did not relent. A rational trier of fact could find the elements of attempted rape were established beyond a reasonable doubt.
Defendant points out the title of CALCRIM No. 1000 and the verdict form for count 1 both cited section 261, subdivision (a)(2)[7] instead of section 262, subdivision (a)(1).[8], [9] He thereby argues he could not be convicted of attempted rape because the evidence was insufficient to prove S. was not his spouse as per section 261. We reject this assertion. In the context of a criminal attempt conviction, “[o]ther than forming the requisite criminal intent, a defendant need not commit an element of the underlying offense.” (People v. Medina (2007) 41 Cal.4th 685, 694; accord, People v. Herman (2002) 97 Cal.App.4th 1369, 1385; People v. Jones (1999) 75 Cal.App.4th 616, 627.)[10], [11]
III. Substantial evidence supported the great bodily injury enhancement.
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 59-60; see ante, at pp. 8-9.)
Defendant argues “[t]here was no evidence at trial that [he] inflicted great bodily injury, or any injury, on [S.] ‘in the commission of’ the attempted rape offense.” Instead, he claims the evidence established he “inflicted all of the injuries . . . only during commission of the subsequent offense of corporal injury to a spouse . . . .” We disagree.
“Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years.” (§ 12022.7, subd. (e).) The phrase “great bodily injury” means “a significant or substantial physical injury.” (Id., subd. (f); see People v. Washington (2012) 210 Cal.App.4th 1042, 1047 [“An examination of California case law reveals that some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of ‘great bodily injury.’ ”].) The phrase “in the commission of,” which is found in other enhancement statutes (see, e.g., §§ 12022, 12022.3, 12022.5, 12022.53), “has been given an expansive, not a tailored meaning” (People v. Frausto (2009) 180 Cal.App.4th 890, 900). “Temporal niceties are not determinative” (id. at p. 902); thus, an infliction of great bodily injury “before, during, or after the felonious act may be sufficient if it can fairly be said that i[t] was a part of a continuous transaction” (ibid.).
As discussed previously, substantial evidence supported the attempted rape conviction. (See ante, at p. 9.) Furthermore, the record—viewed in the light most favorable to the prosecution—demonstrates defendant was still attempting to rape S. on her bed when Darrelle threatened to phone the police. Defendant, who remained on top of S. (see People v. Jones (2001) 25 Cal.4th 98, 109 [commission of a sexual offense continues as long as the assailant maintains control over the victim]), became incensed, announced his intention to comport himself in a manner that would warrant a 911 call, and struck S.’s face more than 10 times. As a result, S. sustained severe facial swelling, lacerations, and bruising around the eyes. A rational trier of fact could find—beyond a reasonable doubt—defendant inflicted great bodily injury in the commission of the attempted rape.
IV. The abstract of judgment should be corrected.
Although the jury convicted defendant of the lesser included offense of attempted rape on count 1, the abstract of judgment mistakenly indicates he violated section 220, subdivision (a). This error should be corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts have inherent power to correct clerical errors in abstracts of judgment].)
Finally, defendant contends he is entitled to 156 days of presentence credit rather than 142 days. The Attorney General does not object. We accept this concession.
DISPOSITION
The abstract of judgment shall be amended to show (1) in connection with count 1, defendant violated Penal Code sections 262, subdivision (a)(1) and 664; and (2) defendant is entitled to 156 days of presentence credit. The trial court is directed to prepare this corrected abstract of judgment and transmit copies thereof to the appropriate authorities. In all other respects, the judgment is affirmed.

_____________________
DETJEN, J.
WE CONCUR:


_____________________
GOMES, Acting P.J.


_____________________
PEÑA, J.



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[1] We note defendant’s first name is listed as “Frank” throughout the record and in the abstract of judgment. However, it appears from defendant’s signature and other reliable documentation that defendant’s true first name is “Francisco.”

[2] Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.

[3] For purposes of protective nondisclosure, we refer to the victim by her first initial.

[4] To avoid confusion, we refer to Darrelle Carbajal by her first name. No disrespect is intended.

[5] According to Darrelle, defendant said, “If the police are going to come, I’ll give a reason for them to come.”

[6] The Attorney General contends defendant forfeited his claim of instructional error on appeal because he did not raise an objection below. Whether defendant did or did not forfeit the claim, we conclude there was no error.

[7] Section 261, subdivision (a)(2) reads:

“Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] . . . [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (Italics added.)

[8] Section 262, subdivision (a)(1) reads:

“Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse . . . [¶] . . . [w]here it is accomplished against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” (Italics added.)

[9] The jury’s verdict form read: “We the jury in the above-entitled case find the defendant . . . GUILTY of a violation of Section 664/261(a)(2) . . . , Attempted Rape, a felony, having occurred on or about December 3, 2014.”

[10] Whether a defendant and victim’s marital status remains an element is in doubt. (See People v. Hillard (1989) 212 Cal.App.3d 780, 784 [“It is evident that the Legislature added . . . section 262 for the sole purpose of eliminating the marital exemption for forcible spousal rape, and not to define a new and separate offense, apart from rape by a stranger, of spousal rape.”].)

[11] In addition, we are not overly concerned with the citations to section 261 in the abovementioned documents. First, while the title of CALCRIM No. 1000—in both the standard instruction and the modified version issued in the instant case—does not expressly refer to section 262, it nonetheless specifies the instruction applies to either “Rape or Spousal Rape by Force, Fear, or Threats . . . .” (Italics added.) (See Judicial Council of Cal., Crim. Jury Instns. (2016) Authority to CALCRIM No. 1000, p. 710; id., Commentary to CALCRIM No. 1000, p. 711 [annotations contain several citations to § 262].) Second, although the citation to section 261 in the verdict form is technically incorrect, this clerical error does not render the verdict uncertain and may be disregarded. (See, e.g., People v. Reddick (1959) 176 Cal.App.2d 806, 820 [verdict cited wrong penal statute].)