P. v. Fowler

Filed 6/16/08 P. v. Fowler 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Gary Austin, Judge.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

An amended information was filed on February 7, 2007, alleging William Lee Fowler, appellant, committed attempted murder (Pen. Code,  664 & 187, subd. (a), count one),^[1]assault with a deadly weapon ( 245, subd. (a)(1), count two), forcible rape ( 261, subd. (a)(2), count three), and false imprisonment by violence or menace ( 236, count four). Enhancements were also alleged for personal use of a deadly weapon ( 12022, subd. (b)(1)) and personal infliction of great bodily injury ( 12022.7, subd. (a)).^[2] On February 23, 2007, the jury found Fowler guilty of all allegations.

On March 23, 2007, the trial court sentenced Fowler to prison for the midterm of seven years for attempted murder, a consecutive midterm of six years for forcible rape, a consecutive term of three years for the personal infliction of great bodily injury enhancement, and a consecutive term of one year for the personal use of a deadly weapon. The court imposed concurrent terms of three years for assault with a deadly weapon and two years for false imprisonment by violence or menace. Fowlers total prison term is 17 years. The court imposed a restitution fine of $2,391 and victim restitution of $1,009. The court awarded applicable custody credits.

On appeal, Fowler contends the trial court violated section 654 in sentencing him to concurrent sentences for false imprisonment and rape. Fowler further argues, and respondent concedes, that the abstract of judgment incorrectly states that his sentence on count four for false imprisonment was the midterm of four years rather than the midterm of two years imposed by the trial court.

FACTS

The victim, C., was 52 at the time of trial and disabled. C. takes medications for pain and depression, but took no medication the day she testified so she would have a clear mind. C. was single, her husband had passed away. Three or four weeks before the incident leading to criminal allegations, Fowler approached C. when she was talking to a neighbor. This first interaction was about two minutes long. A half hour to an hour later, Fowler appeared at C.s door. She invited him in for coffee. Fowler stayed between 45 minutes and an hour.

A week later, Fowler returned and asked to use C.s cell phone. C. does not have a land line. Fowler asked C. if she was willing to rent a room. They also talked about health care. A few days later, Fowler called C. and told her he purchased a cell phone like hers and wanted her to show him how to activate it. Fowler offered to give C. money for her to purchase air time for him. Fowler called C. a few more times to ask her if his phone was activated.

Fowler appeared at C.s door on September 10, 2005 with another man who could provide home health care. The sun was setting or had just set. C. could not recall the exact hour, but the buses were still running. Although the other man did not talk much, he kept using C.s cell phone. The other man stayed in C.s apartment about an hour and left before the buses stopped while C. was in the bathroom.

After it was 9:00 or 10:00 p.m., C. asked Fowler to leave. Until that time, Fowler was respectful to C. Fowler did not leave, insisting he would get stopped if he left the apartment. Fowler begged to stay the night. At first, C. would not agree to let Fowler stay. After an hour or more of conversation, Fowler began using street language and called C. a racial epithet.

C. eventually agreed to let Fowler stay the night. Fowler had been yelling and would not leave. She was worried neighbors would call the police. C. felt she had no choice. She could not call the police because Fowler had her cell phone. When C. asked Fowler for the phone, he would not give it back to her. Fowler told C. he would not let her call anyone. C. agreed to let Fowler stay if he slept on the couch and left by 6:00 a.m.

C. went to her bedroom in the back of the apartment, locked the door and moved a heavy sewing machine cabinet against the door. C. left her clothes and shoes on and rested on the bed with her lights turned on. C. kept hoping a neighbor would call the police. At or after sunrise, Fowler started knocking on C.s bedroom door. C.s apartment is on the second story.

Fowler went from knocking on the door to kicking and banging it. He yelled at C. to open the door. Fowler again called C. a racial epithet. Fowler sounded mean and angry. Fowler said he had to get something out of the room. It seemed to C. the conversation lasted hours. C. pled with Fowler to go. Fowler became angrier, threatening to kick down the door.

Fowler again said he wanted to get something from the room. C. asked what he wanted and offered to get it for him. C. knew Fowler had nothing in the room. C. estimated Fowlers attempt to enter her room lasted between 45 minutes and an hour and a half. C. asked Fowler if he would promise to leave if she let him get what he wanted from her room. Fowler replied he would leave if she let him retrieve what he wanted. C. pushed away the sewing machine and Fowler forced his way into the room.

Once Fowler was in the room, C. found herself on the bed. Fowler was on top of her with pillows on her face. Fowler was yelling at C. because she was trying to scream. Fowler kept pushing the pillows harder and harder so C. could not breathe. Fowler told C. not to move and started to unzip his pants. C. tried to move. She got off the bed, but Fowler would hold her back by holding her arms. Fowler then raped C.

C. was crying and said, please, no, not not that. Fowler told her to shut up or he would smother her again. C. testified that Fowler was inside her a long time. Afraid she would be smothered again, C. tried not to scream. C. decided to pretend she liked what Fowler was doing. C. told Fowler he was good and that she was not mad at him. She told Fowler she would not tell if he promised to go home. C. pretended to have an orgasm to get Fowler to stop. She estimated the rape lasted 15 to 25 minutes.

When Fowler stopped, he started to stand up. C. ran down the hall. She still had her shoes on. C. ran to the front door and got out of her apartment. C. went to a neighbor and asked to use the phone. She called a friend rather than the police. The friend urged C. to call the police. C. confronted Fowler outside and told him to leave the property because she called the police. Fowler called her a crazy old lady. C. demanded her phone back. Fowler refused to return it. C. returned to her apartment and locked the exterior door.

At 10:00 or 11:00 p.m. that evening, Fowler returned to C.s door and demanded she open it. C.s husband had been a heroin addict. C. was confused, traumatized, and upset. C. found a tiny piece of heroin in her husbands effects and took it. After yelling for 30 to 45 minutes, Fowler told C. to just give him the charger for the phone and he would go. Fowler left.

C. initially laughed because Fowler said he was coming back with enough ammo to blow the whole place sky high. C. still did not have a phone. She drifted asleep on the couch. C. was asleep when she heard Fowler say, ah, and use a racial epithet. Fowler was in her apartment on top of her. Fowler began using a pillow because C. was screaming. Fowler threatened to kill her if she screamed. Fowler accused C. of calling the police. She denied the allegation.

Fowler kept using the pillow. He told C. to shut up. C. began blacking out. She realized Fowler was stabbing her. C. regained consciousness in the hospital and had to undergo surgery. She lost a kidney.

SECTION 654

Appellant contends the concurrent sentence for false imprisonment on count four is impermissible double punishment under section 654 because it was accomplished as an indivisible course of conduct to achieve the rape alleged in count three. Respondent argues that the false imprisonment occurred earlier in time when the victim barricaded herself in her room. Appellant replies that this theory is being tendered by the prosecution for the first time on appeal. We agree and will order appellants sentence on count four to be stayed.

Section 654 provides that a defendant may not be punished multiple times for a single act. The act that invokes the statute constitutes a continuous course of conduct comprising an indivisible transaction. The divisibility of a course of conduct depends upon the intent and objective of the defendant. If the evidence shows that a defendant entertained multiple criminal objectives which were independent of, and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each criminal objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)

If section 654 requires that a sentence be stayed, then concurrent terms pursuant to section 669 may not be imposed. (In re Adams (1975) 14 Cal.3d 629, 636; People v. Hernandez (2005) 134 Cal.App.4th 1232, 1239.) Where a kidnapping is committed with the intent to commit a sexual assault, both offenses are incident to one criminal objective and multiple punishment is prohibited. (People v. Failla (1966) 64 Cal.2d 560, 570.) The same legal principle applies to sexual assault and false imprisonment. (People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820-821.)

The respondent argues that the victim was essentially a prisoner in her own bedroom all evening, long before the rape occurred. From the evidence adduced at trial, it was theoretically possible for the jury to have found false imprisonment either while the victim was barricaded in her room, or during the rape. A proposed unanimity instruction was not given to the jury. There is no error in failing to give the unanimity instruction where the prosecutor makes a formal election as to which act constitutes the violation of law during argument to the jury. (People v. Diaz (1987) 195 Cal.App.3d 1375, 1381-1383.) The prosecutor here made such an election, unequivocally arguing twice that the false imprisonment occurred during the rape.

The only legal and factual basis for false imprisonment presented to the jury was that it occurred during the rape. The prosecutors formal election made the false imprisonment during the rape the act which constituted the violation of section 236.^[3] At that time, appellant had a single criminal objective in committing both offenses during an indivisible course of conduct. Accordingly, we will remand for the trial court to stay appellants sentence on count four.

CLERICAL ERROR

At sentencing, the trial court imposed the midterm of two years on count four, the false imprisonment allegation.^[4] The clerks minute order accurately reflects this sentence. The abstract of judgment, however, indicates that appellant was sentenced to a midterm of four years on count four. The parties agree the entry in the abstract of judgment is clerical error.

The abstract of judgment and the clerks minute order must reflect the sentence the court has orally imposed. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The abstract of judgment or minute order is not the trial courts judgment. It does not control if it is different from the trial courts oral judgment and cannot add to or modify the judgment it purports to summarize. Courts, including appellate courts, may correct clerical errors at any time. (Id. at p. 185.) We find that the abstract of judgment contained a clerical error as noted above. Accordingly, we will remand for the trial court to correct the abstract of judgment.

DISPOSITION

The trial courts imposition of a concurrent sentence on count four is vacated. The case is remanded for the court to correct the abstract of judgment to reflect a sentence of two years on count four and to stay its sentence on count four pursuant to section 654. The court shall send the amended abstract of judgment to the appropriate authorities. The judgment is otherwise affirmed.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Cornell, Acting P.J., Gomes, J., and Kane, J.

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

^[2] The original information was filed on March 15, 2006. A mistrial was declared on November 29, 2006, after Fowlers first jury trial.

^[3] At sentencing, the trial court found from the testimony of the victim and the findings of the jury, that because the victim was locked in her room section 654 did not apply. The barricade theory, however, was not argued to the jury and the prosecutor formally elected to time the false imprisonment with the rape.

^[4] False imprisonment can be sentenced under section 237, subdivision (a) as a misdemeanor or by imprisonment in state prison. Under section 18, punishment for a felony not otherwise prescribed is one year four months, two years, or three years. Thus, the midterm sentence for a violation of section 236 is two years.