Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD204773, Richard Whitney, Judge. Affirmed in part and reversed in part.
BENKE, J. NARES, J.
McCONNELL, P. J.
BACKGROUND
The trial court found Ronnie Jones guilty of unpremeditated attempted murder (Pen. Code, §§ 664, 187, subd. (a); count 1), assault with intent to commit rape (§ 220, subd. (a); count 2), assault with a deadly weapon (§ 245, subd. (a)(1); count 3), attempted forcible rape (§§ 664, 261, subd. (a)(2); count 4), attempted forcible sodomy (§§ 664, 286, subd. (c)(2); count 5), and making a criminal threat (§ 422; count 6). As to all counts, the trial court found true allegations Jones inflicted great bodily injury (§ 12022, subd. (a)(7)) and, as to all but count 3, the trial court found true allegations Jones used a deadly weapon (§ 12022, subd. (b)(1)). In addition, Jones admitted having one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction (§ 667, subd. (a)(1)), and four prior prison convictions (§ 667.5, subd. (b)).
Further statutory references are to the Penal Code.
The trial court sentenced Jones to an aggregate term of 32 years and eight months in prison. The sentence consisted of the upper term of nine years for count 1, doubled to 18 years for the prior strike conviction, plus one year for the deadly weapon use enhancement, three years for the great bodily injury enhancement, two years and eight months for count 2, five years for the prior serious felony conviction, and three years for three of the four prior prison convictions. The trial court stayed execution of sentence on counts 3 through 6 under section 654.
DISCUSSION
Jones's sole contention on appeal is that his conviction in count 4 for attempted forcible rape must be reversed because attempted rape is a lesser included offense of his conviction in count 2 of assault with intent to commit rape. We agree.
As this contention presents a purely legal question, we omit a summary of the facts underlying Jones's convictions.
"In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) "However, an exception to this general rule allowing multiple convictions prohibits multiple convictions based on necessarily included offenses." (People v. Medina (2007) 41 Cal.4th 685, 701; accord People v. Ramirez (2009) 45 Cal.4th 980, 984.) The logic behind this exception is that " '[i]f a defendant cannot commit the greater offense without committing the lesser, conviction of the greater is also conviction of the lesser. To permit conviction of both the greater and the lesser offense " ' "would be to convict twice of the lesser." ' " [Citation.] There is no reason to permit two convictions for the lesser offense.' " (People v. Medina, supra, at p. 702.)
To determine whether this exception applies when the greater offense and lesser offense are both charged, courts consider whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense. (Reed, supra, 38 Cal.4th at p. 1227-1228.) If so, the lesser offense is necessarily included in the greater offense and multiple convictions are not permitted. (Ibid.; see also People v. Ramirez, supra, 45 Cal.4th at p. 985; People v. Sloan (2007) 42 Cal.4th 110, 113, 116-117.)
Ordinarily, we would not engage in an extended analysis of whether attempted rape is a lesser included offense of assault with intent to commit rape because the California Supreme Court and this court have previously recognized that it is. (People v. Holt (1997) 15 Cal.4th 619, 674; People v. Ghent (1987) 43 Cal.3d 739, 757; People v. Rupp (1953) 41 Cal.2d 371, 382; People v. Martinez (1985) 171 Cal.App.3d 727, 734.) This recognition flows from the longstanding rule that an assault with an intent to commit a crime necessarily includes an attempt to the commit the crime. (Rupp, supra, 41 Cal.2d at p. 382.)
Notwithstanding and without discussing these authorities, the People contend that, under the statutory elements test, the attempted rape offense is not necessarily included within the assault offense. More particularly, the People point out that section 220, subdivision (a), the code section under which the People charged the assault offense, makes it unlawful for any person to assault another with the intent "to commit mayhem, rape, sodomy, oral copulation, or [other specified sex offenses]." The People reason that, because it is possible to violate this code section by assaulting someone with the intent to commit an offense other than rape, attempted rape is not necessarily included within a violation of this code section. We are not persuaded by the People's reasoning as it misconstrues the statutory elements test.
The statutory elements test requires a comparison of "the legal ingredients of the corpus delicti," or the legal elements, of the greater and lesser offenses. (People v. Lopez (1998) 19 Cal.4th 282, 288; see also People v. Moon (2005) 37 Cal.4th 1, 25; People v. Quintero (2006) 135 Cal.App.4th 1152, 1168.) To violate section 220, subdivision (a), a perpetrator must act with the intent to commit one of the identified crimes. Accordingly, the legal elements of a violation of section 220, subdivision (a), must include identification of the specific crime the perpetrator intended to commit, which in this case was rape.
Once the legal elements of a violation of section 220, subdivision (a), are properly understood, the requisite comparison in this case is not difficult and leads to but one conclusion. The elements of assault with intent to comment rape are a combination of the elements of assault and the elements of attempted rape. (People v. Pierce (2002) 104 Cal.App.4th 893, 898; Ghent v. Woodward (2002) 279 F.3d 1121, 1134, fn.13; see also People v. Dixon (1999) 75 Cal.App.4th 935, 942 ["Assault with intent to commit forcible rape requires an intent to and an unlawful attempt to have sexual intercourse by force, violence or fear of bodily injury, without consent of the victim"].) Consequently, consistent with the Supreme Court's and this court's earlier conclusions, attempted rape is necessarily included within assault with intent to commit rape and Jones' conviction for the attempted rape must be stricken.
DISPOSITION
The judgment is reversed as to count 4, attempted forcible rape, and the matter is remanded to the trial court to strike this count. In all other respects, the judgment is affirmed.
WE CONCUR: BENKE, J. NARES, J.