Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF050993
CANTIL-SAKAUYE , J.
A jury convicted defendant Gabriel Vera of two counts of lewd and lascivious conduct with a child less than 14 years of age (Pen. Code, § 288, subd. (a) -- counts 1, 3), one count of lewd and lascivious conduct with a child 14 years of age (§ 288, subd. (c)(1) -- count 5), one count of forcible rape (§ 261, subd. (a)(2) -- count 6), and three counts of attempting to dissuade a witness (§ 136.1, subd. (b)(1) -- counts 2, 4, 8).
Hereafter, undesignated statutory references are to the Penal Code.
The jury hung on count 7, also charging attempting to dissuade a witness (§ 136.1, subd. (b)(1)), and that count was later dismissed. Counts 2 and 4 were later dismissed by the court because their prosecution was prohibited by the statute of limitations, thereby leaving only count 8.
Sentenced to state prison for 16 years, defendant contends: (1) the trial court prejudicially erred by failing to instruct the jury on attempted forcible rape, an offense included in the charge of forcible rape; (2) the evidence was insufficient to support the verdict in count 8, attempted dissuasion of a witness; (3) the trial court misinstructed the jury with regard to count 8; (4) that he was improperly sentenced on count 8; and (5) the trial court violated the principles of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] by imposing sentence under section 1170.15. We shall reject each contention.
FACTS
Vanessa M., who was 17 years old at the time of trial, testified that in 2001 and 2002 she was living with her mother, her two younger brothers, her older sister, and defendant, who was her stepfather.
In June 2001, when Vanessa was 13 years old, she was taking a shower when defendant opened the door and began fondling her breasts and put his finger in her vagina as she tried to get away. She tried to run away. Eventually defendant stopped and begged her not to tell anyone because he would go to jail and the family would not be able to see him anymore. She did not report the incident.
A month later, Vanessa came home from school and fell asleep in her bedroom. She awoke to find her shorts and panties down to her knees and defendant lying beside her, feeling her breasts through her clothing and touching her vagina. Defendant backed away and again asked her not to tell anyone because he would go to jail. She did not tell.
The following summer, when Vanessa was 14 years old, she was with her family, including defendant, swimming at Lake Berryessa. Thinking that she was by herself, Vanessa swam around a small peninsula, but when she looked back she saw that defendant had followed her. She tried to swim back around the peninsula, but defendant grabbed her. Defendant stood on the lake’s bottom, which Vanessa could not reach, and pulled the bottom of her two-piece bathing suit down. Defendant wrapped Vanessa’s legs around him and began pulling her up and down. As defendant pulled her up and down, Vanessa could feel his penis going in and out of her vagina. She screamed for her sister, but defendant told her not to tell her sister what had happened. Later, defendant also told Vanessa not to tell her mother because he would go to jail.
A few days before her 17th birthday, when defendant was no longer living at the home, Vanessa told her boyfriend about the molestations. Vanessa’s boyfriend told her mother what had been happening and the matter was reported to the police.
On September 7, 2004, Deputy Sheriff Ray Jiminez listened in on a pretext telephone call initiated by Vanessa to defendant. Defendant asked why she was calling and she told him that she had been thinking about what he had done to her in the house and at Lake Berryessa. Defendant asked why she had waited so long to say anything, and Vanessa replied that she was considering telling her mother. Defendant asked why she was trying to get him in trouble and if she was recording the conversation. He also told her that if she told the police he would go to jail and be physically attacked. Vanessa asked defendant, “Why did you have sex with me?” and he said they did not have sex because he had not entered her. When Vanessa said that he had entered her, defendant replied that, “sometimes these things do happen.”
During interviews with the police, defendant said that once when Vanessa was showering he went into the bathroom to use the toilet, but he did not touch her. Regarding the Lake Berryessa incident, defendant claimed that waves from passing boats had caused his and Vanessa’s trunks to come down, that she backed into him on purpose, and that his erect penis brushed against her vaginal area but he did not penetrate her. As to the incident in Vanessa’s bedroom, defendant claimed he slipped and fell on top of her and then pushed off of her back to get up.
Vanessa’s sister testified that when the family was at Lake Berryessa, she did not hear Vanessa scream or call out, and that defendant had never touched her (the sister) in a sexual manner.
DISCUSSION
I.
Defendant contends the trial court erred when it failed to instruct the jury, sua sponte, on attempted rape, an included offense in the charge of forcible rape (count 6). We disagree.
The rule regarding the trial court’s duty to instruct on included offenses is well established. “[T]he trial court has a sua sponte duty to instruct the jury on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present and there is evidence that would justify a conviction of such a lesser offense. [Citations.] [N]onetheless, even when the law imposes upon the trial court a sua sponte duty to instruct the jury, as it does with regard to lesser included offenses, that duty is not triggered ‘“when there is no evidence that the offense was less than that charged.” [Citation.]’ [Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1344-1345.)
An attempt to commit rape has two elements: “The specific intent to commit rape and a direct but ineffectual act done toward its commission. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1130.)
Defendant argues there was sufficient evidence to support the giving of an attempted rape instruction because the jury could believe Vanessa’s testimony that defendant tried to rape her but disbelieve that portion of her testimony that he did enter her. A similar argument was rejected in People v. Acevedo (1985) 166 Cal.App.3d 196 (Acevedo).
In Acevedo, the victim testified that she had hired the defendant to teach her to drive. The fourth time out, the defendant drove her to an isolated location, slapped her, and ordered her to remove her clothing; he also threatened to leave her there and to take away her children if she did not comply. Fearful she would be hurt and left isolated, she complied and he raped her twice (Acevedo, supra, 166 Cal.App.3d at p. 199). The defendant testified, claiming that the intercourse was consensual. (Id. at p. 200.) A jury convicted the defendant of two counts of forcible rape. (Ibid.)
On appeal, the defendant contended the trial court erred by failing to instruct the jury on the included offenses of attempted rape and assault with intent to commit rape. He argued that the jury could disbelieve the victim’s testimony that he slapped her and would hurt her, which would negate the element of force required for rape, but still believe her testimony regarding losing her children and being abandoned, which would be sufficient evidence of the included offenses. (Acevedo, supra, 166 Cal.App.3d at pp. 200-201.)
In rejecting the Acevedo defendant’s argument, the court observed, “If we were to adopt [the defendant’s] argument, lesser included offense instructions would be warranted in every criminal prosecution as the jury is always entitled to believe all or part of the prosecution’s evidence. Our Supreme Court recently acknowledged that rejection of prosecution evidence does not warrant instructions on lesser related offenses. (People v. Geiger (1984) 35 Cal.3d 510, 531.) The court stated ‘the first prerequisite to receiving instructions on lesser related offenses must be the existence of some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged.’ We conclude that disbelief of all or part of the prosecution case does not require instruction on lesser included offenses, either.” (Acevedo, supra, 166 Cal.App.3d at p. 201.)
Here, to convict defendant of attempted rape the jury would have to believe Vanessa’s testimony that he tried to rape her, but disbelieve her testimony that he entered her. Like the defendant in Acevedo, aside from an unexplained rejection of a portion of Vanessa’s testimony, defendant herein offers no reason for such an unlikely scenario. Consequently, we too reject the argument.
II.
Defendant’s conviction on count 8, attempting to dissuade a witness from testifying (§ 136.1, subd. (b)(1)), was based on the pretext telephone call from Vanessa to defendant on September 7, 2004, during which defendant tried to persuade Vanessa not to report the molestations. Defendant contends the evidence is insufficient to support the count 8 conviction because by the time of the pretext call Vanessa had already informed the police of the molestations and of defendant’s attempts to keep her from reporting him.
Although defendant’s argument is couched in terms of evidentiary insufficiency, it really is one of impossibility of commission, that is, that the crime had already been completed. No matter how phrased, the argument is not well taken. “When . . . ‘“a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them.”’ [Citations.]” (People v. Reed (1996) 53 Cal.App.4th 389, 396, original italics.) Here, defendant obviously believed that Vanessa had not reported the molestations or his previous attempts to keep her from so reporting. Consequently, defendant’s continuing attempt to keep Vanessa from reporting the incidents constituted substantial evidence supporting his conviction on count 8.
III.
Defendant was charged in the information in count 8 only under subdivision (b)(1) of violating section 136.1. However, in instructing the jury on this count, the court not only included the statutory language of subdivision (b)(1), but also included the statutory language of subdivision (b)(3). Specifically, the court instructed the jury as follows: “The defendant is accused . . . of having violated Penal Code section 136.1(b)(1), dissuading a witness. Every person who knowingly and maliciously prevents or dissuades or attempts to prevent or dissuade any witness or victim from making any report of such victimization to any peace officer, state or local law enforcement officer, probation, parole or correctional officer, any prosecution agency or to any judge, or arresting or causing or seeking the arrest of any person in connection with such victimization is guilty of a violation of Penal Code section 136.1(b)(1) a crime.” (Italics added to show language from subdivision (b)(3).)
Section 136.1, subdivision (b) provides: “Except as provided in subdivision (c), every person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison: (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge. . . . [¶] (3) Arresting or causing or seeking the arrest of any person in connection with that victimization.”
Defendant contends that the trial court’s inclusion of the language from subdivision (b)(3) prejudiced him because he was now charged with an offense with which he was not originally charged. The People claim there was no instructional error because the additional language did not define a new offense but simply set forth a different way of committing the offense as charged. We need not decide who is correct because any error was completely harmless.
Defendant argues that “[o]ne or more jurors could reasonably have concluded based on the erroneous and uncharged section 136.1(b)(3) that [defendant] attempted to prevent or dissuade [Vanessa] from seeking his arrest in connection with the victimization[,]” and therefore count 8 must be reversed. The argument is not persuasive.
Defendant simply misses an important logical step, namely, that law enforcement’s knowledge of the molestations, i.e., Vanessa’s having reported the molestations to them, was a prerequisite to law enforcement’s arresting defendant for the offenses. It is inconceivable that any juror would conclude that defendant was trying only to persuade Vanessa not to have him arrested but not attempting to prevent her from reporting the offenses. Hence, the asserted error was utterly harmless.
IV.
Defendant contends the trial court improperly sentenced him pursuant to section 1170.15 to a consecutive full middle term of two years for his conviction in count 8 because section 1170.15 is, by its terms, not applicable to him. Defendant is incorrect.
Section 1170.15 provides, “[I]f a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony, . . . the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed . . . .” (Italics added.)
Relying upon the italicized language in the above, defendant argues that: “[C]ount eight’s dissuasion did not pertain to [Vanessa] as a victim, witness, or person ‘who was about to’ give material information pertaining to the first felony. She had already given information pertaining to the felonies.” In so arguing, defendant misreads section 1170.15.
The individuals referred to in section 1170.15, namely, victims, witnesses, and potential witnesses, do not belong to the set of “person[s] who [are] about to give material information pertaining to” defendant’s felony offense. Instead, the statute refers to three distinct sets -- (1) “victim[s] of” defendant’s felony offense(s), (2) “witness[es] or potential witness[es] with respect to” defendant’s felony offense(s), and (3) those “person[s] who [are] about to give material information pertaining to” defendant’s felony offense(s). Even assuming that Vanessa did not fall within the third category, she clearly fell within the first two. Consequently, there was no error by the court in applying section 1170.15 to count 8.
Defendant claims that our decision in People v. Evans (2001) 92 Cal.App.4th 664, is “analogous” to the present circumstances. Analogous it is not. In Evans, the trial court applied section 1170.15 to the defendant’s conviction for violation of section 136.1, subdivision (b)(1). However, because the underlying offense to which the section 136.1, subdivision (b)(1) offense was being applied had been found by a jury to be a misdemeanor, rather than a felony, we concluded that section 1170.15 was inapplicable. (People v. Evans, supra, at pp. 669-670.) Since the underlying offense in the present case is a felony, not a misdemeanor, Evans is inapposite.
V.
Defendant contends the trial court violated the principles of Apprendi v. New Jersey, supra, 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington, supra, 542 U.S. 296 [159 L.Ed.2d 403], by imposing a consecutive two-year term on count 8, pursuant to section 1170.15, based upon the trial court’s having found, by a preponderance of the evidence, facts bringing him within that section rather than having such facts determined by a jury under a reasonable doubt standard. Defendant is wrong.
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt.” (Apprendi v. New Jersey, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) In Blakely, the court stated “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Blakely v. Washington, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413], original italics.) Here, as shown below, it was the jury, as reflected by their verdicts, and not the judge which found the facts legally essential to imposing sentence under section 1170.15.
In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held that the Apprendi/Blakely principles did not apply to California’s Determinate Sentencing Law’s imposition of upper terms. (Id. at p. 1254.) However, approximately 18 months after the California Supreme Court issued its opinion in Black, the United States Supreme Court issued its decision in Cunningham v. California (2007) ___ U.S. ___ [l66 L.Ed.2d 856], holding that the Apprendi/Blakely principles do apply to California’s upper term sentencing scheme. (Id. at p. 876.)
A violation of section 136.1, subdivision (b)(1) is punishable by a state prison sentence of 16 months, or two or three years. (§§ 136.1, subd. (b)(1), 18.) Under the determinate sentencing law, consecutive sentencing is generally governed by section 1170.1, subdivision (a), which provides that a subordinate term for a consecutive offense is one-third of the middle term prescribed for the offense.
However, section 1170.15 constitutes an exception to this general rule when the defendant “is convicted of a felony, and of an additional felony that is a violation of Section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony.” (§ 1170.15.) When the conditions of section 1170.15 are met, section 1170.15 sentencing thereunder is mandatory, and defendant does not contend otherwise -- “[T]he subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed . . . .” (§ 1170.15, italics added.)
In imposing the mandatory full midterm subordinate term on count 8, the trial court found that defendant fit the criteria set forth in section 1170.15, stating: “If a person fits the criteria within this code section, that is convicted of a felony and of an additional felony, that is a violation of 136.1, which he was in Count Eight, committed against the victim of or witness or potential witness, with respect to a person who is about to give material information pertaining to the first felony.”
Defendant argues that it was this finding by the court which violated the Apprendi/Blakely principles. The argument fails to take into account the necessary findings made by the jury in rendering its verdicts. Namely, the jury found that defendant committed several sexual felony offenses, all of which were against the same victim, Vanessa. The jury found, based upon Vanessa’s pretext call to defendant, he had attempted to dissuade her from reporting the offenses to law enforcement. Thus, it was the jury, not the court, which made the ultimate findings of fact which, as the court merely pointed out, brought defendant within the mandatory sentencing required by section 1170.15.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE , Acting P.J., BUTZ , J.