Filed 10/24/17 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
| THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR ZAZUETA GONZALEZ,
Defendant and Appellant.
|
G053026
(Super. Ct. No. 15WF0594)
O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.
Richard de la Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Introduction
Defendant Hector Zazueta Gonzalez contends the offense of assault with the intent to commit sodomy is a lesser included offense of sodomy of an intoxicated person, and of sodomy of an unconscious person. Under either the elements test or the accusatory pleading test, we conclude it is not a lesser included offense. Assault with the intent to commit sodomy is a specific intent crime that is not necessarily committed when the general intent crimes of sodomy are committed. Therefore, defendant could properly be convicted of all three crimes. We affirm.
Statement of Facts and Procedural History
Defendant does not challenge the sufficiency of the evidence. In light of the limited nature of the issues raised on appeal, we will provide only an abbreviated statement of the facts. E.E. (the victim) began drinking beer around 10:00 p.m. on December 20, 2014, at a family barbeque. Around midnight, the victim, as well as some others, went to another apartment in the same complex and continued drinking beer; the victim was “pretty buzzed.” Defendant joined the group with which the victim was drinking. In the early morning hours of December 21, the group moved to the apartment where the victim lived with his brother, and began drinking hard alcohol. The victim could not remember anything after they started drinking hard alcohol until he woke up while being questioned by the police several hours later.
Around 6:30 or 6:45 a.m., the victim grabbed a liquor bottle, said defendant wanted to continue drinking, and took the bottle to his bedroom upstairs. The victim appeared to be very intoxicated and had to hold the handrail as he walked up the stairs because he was so unsteady.
About 45 minutes later, the victim’s brother heard creaking noises coming from upstairs, and went to investigate. The door to the victim’s bedroom was blocked by a weight bench. When the victim’s brother forced open the door, he saw defendant and the victim on the victim’s bed. Defendant was naked and awake; the victim was unconscious, and his pants were around his knees.
When the police arrived at about 8:10 a.m., the victim was lying unconscious on his back. The officers tried to get the victim on his feet, but he could not stand up. He remained unresponsive and smelled strongly of alcohol. About 12:00 p.m., during a medical examination, the victim had a “flat affect . . . slurred speech . . . [and] was kind of groggy like sleepy, eyes closed.” A blood test revealed that the victim’s blood alcohol content at 7:45 a.m. would have been .21 or .22 percent. Alprazolam, marketed under the name Xanax, was also found in the victim’s system; he admitted having ingested Xanax about 5:00 p.m. the previous afternoon. This central nervous system depressant would increase the depressive effect of alcohol in the system.
Defendant was awake when the police officers arrived. He dressed himself and spoke with the police for about 30 minutes, before he passed out and had to be awakened. After waking up, defendant had no trouble standing or walking. A blood test revealed that defendant would have had a blood alcohol content of .23 or .24 percent at 7:45 a.m.
The jury found defendant guilty of assault with the intent to commit sodomy (Pen. Code, §§ 220, subd. (a)(1), 286, subds. (f), (i)), sodomy of an intoxicated person (id., § 286, subd. (i)), and sodomy of an unconscious person (id., § 286, subd. (f)). (All further statutory references are to the Penal Code.) In a bifurcated bench trial, the court found true allegations that defendant had committed two prior strike offenses, and had suffered convictions for two prior serious felonies. (§ 667, subd. (a)(1).) The trial court sentenced defendant to 35 years to life.[1]
Discussion
Defendant argues assault with the intent to commit sodomy is a lesser included offense of sodomy, meaning he could not be convicted of assault with the intent to commit sodomy as well as sodomy of an intoxicated or unconscious person.[2]
“While section 654 prohibits multiple punishment, it is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct. [Citations.] However, a ‘judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]’ [Citation.] [¶] When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. [Citations.] If neither offense is necessarily included in the other, the defendant may be convicted of both, ‘even though under section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.’” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
“‘Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.’” (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5.)
“The elements test is satisfied if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, such that all legal elements of the lesser offense are also elements of the greater. [Citation.] In other words, ‘“f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.”’ [Citations.] Under the accusatory pleading test, a lesser offense is included within the greater charged offense if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense.” ([i]People v. Bailey (2012) 54 Cal.4th 740, 748.)
To prove a defendant guilty of assault with intent to commit a specified offense, the prosecution must prove the defendant (1) willfully and (2) knowingly (3) performed an act that by its nature would directly and probably result in the application of force to another person, (4) with the present ability to apply force, and (5) with the intent to commit the specified offense. (See § 220, subd. (a);[3] see also CALCRIM No. 890.)
To prove a defendant guilty of sodomy of an intoxicated person, the prosecution must prove (1) the defendant committed an act of sodomy with another person, (2) the effect of an intoxicating substance prevented that other person from resisting, and (3) the defendant knew or should have known the other person was prevented from resisting due to the effect of the intoxicating substance. (See § 286, subd. (i);[4] see also CALCRIM No. 1032; People v. Avila (2000) 80 Cal.App.4th 791, 802-803.) The elements of sodomy of an unconscious person are essentially the same, with the inability to resist caused by being unconscious of the nature of the act. (See § 286, subd. (f);[5] see also CALCRIM. No. 1033; People v. Howard (1981) 117 Cal.App.3d 53, 55.)
The key difference between the crimes involved in this case is in the element of intent. Sodomy of an intoxicated or unconscious person is a general intent crime. (See People v. Warner (2006) 39 Cal.4th 548, 557 [sodomy is a general intent crime]; People v. Braslaw (2015) 233 Cal.App.4th 1239, 1248 [rape of an intoxicated person is a general intent crime].) A violation of section 220, however, is a specific intent crime and “requires not only the specific intent to commit the underlying sexual act, but a specific intent to commit that act without the consent of the victim.” (People v. Dillon (2009) 174 Cal.App.4th 1367, 1378.) Under the elements test, therefore, assault with intent to commit sodomy is not a lesser included offense of sodomy of an intoxicated or unconscious person.
Turning to the accusatory pleading test, the information alleged that in violating section 220, subdivision (a)(1), defendant “did unlawfully assault John Doe with the intent to commit rape, sodomy, oral copulation, and a violation of Penal Code section 264.1, section 288, and section 289.” The information alleged that in violating section 286, subdivision (i), defendant “did unlawfully commit an act of sodomy upon John Doe, who was prevented from resisting by an intoxicating substance, an anesthetic substance, and a controlled substance, and the defendant knew and reasonably should have known of John Doe’s condition.” The information alleged that in violating section 286, subdivision (f), defendant “did unlawfully commit an act of sodomy upon John Doe, who was at the time unconscious of the nature of the act and incapable of resisting, and the defendant knew of John Doe’s condition.”
The facts actually alleged in the two sodomy charges do not include all the elements of the allegedly lesser offense of assault with intent to commit sodomy. As with the elements test, under the accusatory pleading test the information alleged that in violating section 220, subdivision (a), defendant had the intent to commit sodomy which is lacking from the allegations regarding the sodomy charges. The claim of assault with the intent to commit sodomy is therefore not a lesser included offense of sodomy.
Defendant argues the crime of assault with the intent to commit sodomy is the same as attempted sodomy, and because one cannot be convicted for attempting to commit a crime and for committing that same crime, his conviction for assault with intent to commit sodomy must be reversed. In People v. Braslaw, supra, 233 Cal.App.4th at page 1252, the court held that “attempted rape of an intoxicated person is not a lesser included offense of rape of an intoxicated person.” The court based its holding on the different mental states required for the two different crimes, noting that while rape of an intoxicated person is a general intent crime, attempted rape requires proof of the specific intent to commit the crime of rape. (Id. at pp. 1248-1251.) Braslaw relied heavily on People v. Bailey, supra, 54 Cal.4th 740, in which the California Supreme Court held that “the general principle that attempt is a lesser included offense of any completed crime . . . is not applicable here, where the attempted offense includes a particularized intent that goes beyond what is required by the completed offense.” (Id. at p. 753.)[6]
Defendant cites People v. Holt (1997) 15 Cal.4th 619, 674, for the proposition that “assault with intent to commit rape is a form of attempted rape.” In addition to being convicted of first degree murder with the special circumstance that the murder took place during the commission or attempted commission of robbery, rape, sodomy, and burglary, the defendant had been convicted of first degree robbery, rape, sodomy, and first degree burglary. (Id. at pp. 638-639.) The defendant argued on appeal that the trial court erred by failing to instruct the jury with lesser included offenses of rape by force or fear, including assault with intent to commit rape, and lesser included offenses of sodomy, including assault with intent to commit sodomy. (Id. at p. 673.) The California Supreme Court rejected that argument because (1) the defendant had objected to any instructions defining attempt, and (2) there was no evidence that the offenses committed were less than the offenses charged. (Id. at pp. 673-674.) The case did not present an issue of whether assault with intent to commit sodomy is a lesser included offense of sodomy of an intoxicated or unconscious person.
In light of our holding, we need not address the Attorney General’s arguments that defendant’s appeal is barred by the invited error doctrine or by defendant’s alleged failure to raise a timely objection to his sentence.
Disposition
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
[1] The court imposed an indeterminate sentence of 25 years to life on the charge of sodomy of an intoxicated person. The court sentenced defendant to indeterminate terms of 25 years to life on the other two charges, but stayed imposition of sentence pursuant to section 654. The court also imposed a determinate five‑year term for each of the prior strike offenses.
[2] The jury was instructed that (1) simple assault was a lesser included offense of assault with intent to commit sodomy; (2) attempted sodomy of an intoxicated person, battery, and simple assault were lesser included offenses of sodomy of an intoxicated person; and (3) attempted sodomy of an unconscious person, battery, and simple assault were lesser included offenses of sodomy of an unconscious person.
[3] “[A]ny person who assaults another with intent to commit . . . sodomy . . . shall be punished by imprisonment in the state prison for two, four, or six years.” (§ 220, subd. (a)(1).)
[4] “Any person who commits an act of sodomy, where the victim is prevented from resisting by an intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for three, six, or eight years.” (§ 286, subd. (i).)
[5] “Any person who commits an act of sodomy, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for three, six, or eight years.” (§ 286, subd. (f).)
[6] The cases cited by defendant for the general principle that an attempt to commit a crime is a lesser included offense of the committed crime are therefore not on point. (See In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.)
