THE PEOPLE v. REMBERTO MENCOS RAMIREZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. REMBERTO MENCOS RAMIREZ, Defendant and Appellant.

B217851

Decided: November 23, 2010

Vanessa Place, under appointment by the Court of Appeal for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant Remberto Mencos Ramirez appeals his convictions for kidnapping, assault with intent to commit sexual penetration, stalking, and assault.   He contends the verdict on the assault with intent to commit sexual penetration counts was prejudicially inconsistent, and his sentence on two of the assault with intent to commit sexual penetration counts must be stayed.   We affirm defendant's convictions for kidnapping, stalking, and assault with a deadly weapon, but reverse his convictions for assault with intent to commit sexual penetration.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As a result of the stalking and sexual assault of a woman he dated, defendant was charged in count 1 with infliction of corporal injury on a cohabitant (Pen.Code,1 § 273.5, subd. (a));  in count 2 with kidnapping (§ 207, subd. (a)) with an allegation that defendant personally used a deadly and dangerous weapon in the commission of the offense (§ 12022, subd. (b)(1));  in counts 3, 4, and 5 with sexual penetration by a foreign object (§ 289, subd. (a)(1)), and in count 6 with stalking (§ 646.9, subd. (a)).  During trial, count 1 was dismissed and Count 7 was added by amended information to charge defendant with one count of assault (§ 245, subd. (a)).

A. Prosecution Case

The victim Ana met defendant through her sister, who worked at the same car dealership as defendant.   In March 2008, defendant began dating Ana;  they dated for three months.   After about three weeks, defendant became possessive, controlling and suspicious.   He began checking the calls on Ana's cell phone in spite of her protests, and prohibited her from speaking to any of her male friends.   Defendant would make her look down while they were walking through the park, and told her that she was “his woman.”   When a friend of defendant got into the backseat of defendant's car, Ana turned and said “hello” to defendant's friend.   Defendant got angry, and asked Ana, “ ‘why are you smiling so much at him, bitch?’ ”   Defendant told Ana that when his brother discovered that his wife was cheating on him, he made her sit on a hot plate used to cook tortillas, and threatened to do the same to Ana if she were unfaithful to him.

Ana wanted to break up with defendant, but was afraid to do so.   In May 2008, she went to his house.   Ana was wearing shorts and a tank top shirt, which made defendant angry.   He told her he did not like her showing her legs.   When Ana responded that she could wear what she wished, defendant said she was his woman, and picked up his belt off the bed and swung the buckle end at her.   Ana turned, and the buckle hit her in the back.   Defendant hit her again with the buckle and kicked her in the calf.   Ana fell into a closet and cried for about an hour;  defendant apologized.   She went home, but did not tell her mother what happened.

Several days later, Ana told defendant over the phone she wanted to break up with him.   Defendant became very upset, told her she was crazy, and he would kill her if she saw anyone else.   Defendant began to stalk Ana, parking in front of her house and workplace, and following her in his car.   He called her repeatedly, and told her he was watching her.

Ana began to date Jose Vera, and after they had dinner on June 26, 2008, she returned home.   At Ana's request, Vera followed her in his car, but did not stop after she pulled into her driveway.   As Ana was getting something out of her trunk, defendant appeared behind her and said, “ ‘You bitch, where the hell were you?’ ”   Defendant grabbed her hair and held a screwdriver to her throat.   Ana pleaded with defendant not to kill her, and because her mother and children were inside the house, asked defendant to take her somewhere else to kill her.   Defendant held the screwdriver to her throat and put her in the car.   Ana could not get out because there was no handle on the car door.   Defendant drove around the Pacoima area for three hours, calling her a whore and poking her with the screwdriver.

Defendant drove to an alley behind his house.   He grabbed the screwdriver, put it against her neck and asked her who she was “fucking.”   He told her he was going to kill her and that she had a choice about how she wanted to die.   Defendant spit on her, called her a “dirty whore,” and tried to pull her legs apart.   He pulled her underwear to one side and digitally penetrated her three times.   As he was doing this, defendant told her he wanted to smell her to see who she was “fucking,” asked who she was “fucking,” and after smelling his finger, said she was “clean.”   Ana told him she was not “fucking” anyone.   Defendant took out his penis and touched her breasts.

To calm him down, Ana told him she loved him.   Defendant got on top of her, and she tried to vomit, telling him she was going to be sick.   Defendant continued to grope and lick her, but defendant let her open the door and get out of the car.   Ana pretended to faint and lay down.   Defendant helped her up and told her to stop acting stupid.   After defendant told her he wanted to take her inside his house, Ana began to feign convulsions, let spit dribble out of her mouth, and said she needed to take medicine.   Defendant again told her to stop acting stupid, said she was going to be okay, and he knew she was not “fucking” anybody.   Defendant took Ana home after about 15 minutes.   He told her that he would wait for her at his house in the afternoon, and if he found out she was “fucking” someone, he would kill her.

Ana got home about 4:30 a.m. She told her mother what had happened, but did not call the police because she was ashamed.   The next day at work, she told her employer and her best friend.   They advised her to get a restraining order, but because she was ashamed, Ana did not include all the facts about the sexual assault in the restraining order application.   The court told her defendant would be served the following Tuesday.2

Defendant continued to call Ana at work, but she would hang up on him.   He waited outside her home and workplace.   Sometime around July 2, 2008, defendant called Ana. She put him on the speakerphone and recorded the conversation.   She asked why he had kidnapped her, put the screwdriver on her neck, and hurt her, and defendant said it was because he was crazy and he loved her, and he was not well.

On July 4, she went dancing with Vera. They took Vera's car, with Ana driving, to get tacos and parked near Ana's sister's house to eat them.   Defendant drove up, and Ana locked the doors on Vera's car.   Defendant parked his car between Vera's car and Ana's car, got out, and began pounding on the car windows.   Defendant shouted for Ana to “get the fuck out of the car.”   Defendant hit the front window and windshield of Vera's car, and kicked it.   Ana started the car, but could not drive away because defendant was hitting the front of the car with a metal object.   Ana was able to drive away, but about five minutes later defendant found them.   Ana continued to drive, and was able to lose defendant.   She then called the police.

When police arrived about 10 or 15 minutes later, Ana told them defendant was her ex-boyfriend, and had been following her.   Ana's mother called and said defendant was at her house.   The police went to Ana's house, and when they got there, the police had defendant;  Ana told them about the restraining order.   The police released defendant because he had not been served with the restraining order.   Ana went to stay at a motel with Vera. The next morning, they went to pick up Ana's car.   The car's lights, front bumper, and handles were gone, and the back bumper was hanging off.   Ana called 911, and while she was waiting for the police, defendant's brother Oscar and friend Abigail arrived.   Oscar wanted to talk about the car.   Ana told him to get away and that she was on the phone with the police.

Defendant later called Ana from jail and offered to pay for the damage to the car.   After he had been arrested, a friend of defendant's named Armando called Ana and asked her to drop the charges in exchange for money.   Defendant's friend Don Victor also asked Ana to drop the changes in exchange for money.

B. Defense Case

Officer David Hunt interviewed Ana on July 5, 2008 to investigate a possible violation of the restraining order.   Ana told him that on June 26, 2008 defendant had groped her and tried to pry her legs apart.   Ana did not tell him that defendant had digitally penetrated her, or taken his penis out.   Ana told Officer Hunt she had not reported the kidnapping to police because she was afraid.

The jury convicted defendant of kidnapping and found true the personal weapon use allegation to be true (count 2);  convicted him of assault with intent to commit sexual penetration as a lesser included offense of sexual penetration by force (counts 3, 4, and 5);  stalking (count 6);  and the simple assault as a lesser included of assault with a deadly weapon (count 7).   The trial court sentenced defendant to an aggregate term of 15 years and eight months, as follows:  On count 2, the upper term of eight years plus one year for the personal use of a weapon;  on count 3, a consecutive six-year term on the assault to commit sexual penetration, with concurrent six-year terms for defendants convictions on counts 4 and 5;  on count 6, a consecutive term of eight months, and on count 7, a concurrent six-month jail term.

DISCUSSION

I. INCONSISTENT VERDICTS

Defendant contends that his convictions on counts 3, 4 and 5 of assault with intent to commit sexual penetration must be reversed because they are the product of inconsistent verdicts.   He argues that the jury found him not guilty of sexual penetration by force (§ 289, subd. (a)(1)), not guilty of attempted sexual penetration by force (§§ 664, 289, subd. (a)(1)), but guilty of assault with intent to commit sexual penetration (§ 220), and in so doing, the jury convicted him of a greater offense while finding him not guilty of two lesser includeds;  furthermore, the error was prejudicial because one of the lesser includeds (attempted sexual penetration) was a lesser included of the other (intent to commit sexual offense).   We conclude that under the facts of this case, defendant's verdict on counts 3, 4 and 5 was inconsistent because the jury's verdict had the effect of acquitting him and finding him guilty of the identical crime.

A. Factual Background

The jury was instructed on counts 3, 4 and 5 with sexual penetration by force with a foreign object (§ 289, subds.(a)(1) & (2)),3 and as lesser included offenses on those counts attempted sexual penetration by force with a foreign object (§§ 664, 289, subds.(a)(1) & (2)), assault with intent to commit a sex offense (§ 220).4

After the jury returned its verdict finding him not guilty of sexual penetration with a foreign object, not guilty of the lesser included of attempted penetration for force with a foreign object, but guilty of the lesser included of assault with intent to commit sexual penetration as a lesser included, defendant moved for a new trial, contending the verdicts were inconsistent.   Relying on People v. Davis (1988) 202 Cal.App.3d 1009 (Davis ), defendant argued that the court erred in instructing that the two lesser includeds were of equal stature.   Instead, assault with intent to commit a sexual offense (§ 220) necessarily included an attempt to commit such a crime, thereby making attempted sexual penetration by force with a foreign object (§§ 664, 289, subd. (a)) also a lesser included to the section 220 offense.   The resulting verdict was inconsistent because the jury convicted defendant of the greater section 220 offenses, while finding him not guilty of the lesser included section 289 attempted sexual penetration by a foreign object offense.

The trial court noted that defendant was not prejudiced, stating “if the jury convicted defendant of the assault, they would have simply left the attempted penetration by force verdict unsigned, just like they left the assault verdict unsigned, because assault was a lesser-included offense to another lesser-included offense.   Here the jury found the defendant guilty of the 220 charge and not guilty of the attempted sexual penetration, lesser included offense.   So isn't the net result the same?   In other words, the only charge the defendant has been convicted of is the 220 charge.   The result is, in effect, the same in either scenario.   So what is the prejudice?”

Defendant contended that if the jury had been properly instructed on the three levels of the offenses (the primary offense, the lesser included offense, and the lesser included of the lesser included), and had come back with a guilty verdict on the 220 and not guilty of the lowest level of the lesser includeds, the jury's intent would have been clear to find him guilty at the middle level.   However, here, the jury's intent was not clear because no differentiation was made between the two lesser includeds;  it found the defendant not guilty of a lower crime and not guilty of a greater crime they did not know was a greater offense.   The court noted that the jury rendered a verdict on the middle offense, and its intent was clear.

Defendant argued there is a “dramatic difference between an attempt 289 and a 220;  and that the prejudice would be that with the jury not knowing that one is a lesser to the other, not being able to set the severity of the offense-that ․ perhaps if they knew that the attempt was a lower degree of felony than the 220, that the verdict would have been different.”

The court found that although the lesser included offenses were not charged as separate counts and arguably section 954 would not apply, under People v. Avila (2006) 38 Cal.4th 491 (Avila ), the verdicts could stand even though inconsistent and the facts were squarely under People v. Davis, supra, 202 Cal.App.3d 1009.   Further, the court found no prejudice because even if it had instructed the jury in the manner defendant suggested-with a tiered system of lesser includeds-”the jury would have left the verdict form for attempted sexual penetration by force unsigned.   Inasmuch as the jury found defendant not guilty of the attempted charge, the result is the same:  the defendant is guilty of only one offense on counts 3, 4 and 5:  namely, the penal code section 220 offense.”   The court found no benefit to granting a new trial on what it deemed to be a technical error, and that substantial evidence supported defendant's guilty verdict on the section 220 violation.

B. Discussion

A verdict need not be legally consistent, and as a general rule, inherently inconsistent verdicts are allowed to stand.  (Avila, supra, 38 Cal.4th at p. 600.)  “The jury's prerogative to render a legally inconsistent verdict is unquestioned by any authority.   Jury unanimity, not consistency of theory, is the touchstone of a valid verdict.”  (Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 1134;  People v. Milan (1973) 9 Cal.3d 185, 195.)   Section 954 provides that an acquittal of one count shall not be deemed to be an acquittal of any other count.  “Therefore, a conviction on one count which appears to be inconsistent with a verdict of acquittal on another count affords no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.”  (People v. Davis (1988) 202 Cal.App.3d 1009, 1016.)   As noted in United States v. Powell (1984) 469 U.S. 57 (Powell ), upon which Avila relied, if the defendant is given the benefit of acquittal on one count on which he was acquitted, “it is neither irrational nor illogical to require [him] to accept the burden of conviction on the count[ ] on which the jury convicted.”  (Id. at p. 69.)  “It is possible that the jury arrived at an inconsistent conclusion through ‘mistake, compromise, or lenity.’ ”   (Avila, supra, 38 Cal.4th at p. 600.)   Therefore, “a verdict of conviction on one count which appears inconsistent with a verdict of acquittal on another count ‘ ․ shall afford no basis for a reversal where the evidence is sufficient to support the conclusion that the defendant is guilty of the offense of which he stands convicted.’ ”  (People v. Hamilton (1978) 80 Cal.App.3d 124, 130.)

In Davis, the jury found the defendant guilty of second degree murder, while acquitting him of first degree murder, voluntary manslaughter, and involuntary manslaughter.  (Id. at p. 1014.)   In Davis, the defendant argued that his conviction must be reversed because he was convicted of a greater crime, but acquitted of a lesser crime.  Davis rejected the argument because the jury had signed the manslaughter verdicts only out of confusion, and it was clear the jury intended to find defendant guilty of murder.   Although the case did not involve inconsistent verdicts on different counts, “when the jury is given four different crimes with which it may find defendant guilty or not guilty under one count of homicide, the case is logically indistinguishable from a case in which a greater offense and a lesser included offense are charged in separate counts.” 5  (Id. at pp.   1016-1017.)   Powell disposed of the lesser-included acquittal issue by noting the argument “simply misunderstands the nature of the inconsistent verdict problem” because it assumes that the acquittal on the lesser included offense was the jury's proper verdict.  (Id. at p. 68.)

Here, rather than being a problem of lesser includeds leading to a inconsistent verdict, which would be permissible under Avila, defendant's acquittal for both attempted sexual penetration by force and sexual penetration by force (§ 664, 289, subd. (a)(1)) and his conviction for assault to commit sexual penetration (§ 220) results in both an acquittal and a conviction on identical crime elements based upon the facts of this case.   Thus, we do know that defendant's “ox has been gored.”   An assault with intent to commit a violation of section 289 is the elements equivalent of an attempted violation of section 289 because both, in this case, involved an assault.   The assault 6 for purposes of the section 220 violation was the equivalent of the attempt for purposes of the section 289 violation;  both involved as their end result sexual penetration.   As a result, defendant was both acquitted and convicted of crimes having the same elements of proof, a result that is not consistent with due process.  (See Hamilton, supra, 80 Cal.App.3d at p. 130;  People v. Guerrero (1943) 22 Cal.2d 183, 189.)  Hamilton observed there was a “limited judicial exception” to the rule permitting inconsistent verdicts “where all of the essential elements of the crime of which the defendant was acquitted are identical to some or all of the essential elements of the crime of which he was convicted, and proof of the crime of which the defendant was acquitted is necessary to sustain a conviction of the crime of which the defendant was found guilty.” 7  (80 Cal.App.3d at p. 130.)

DISPOSITION

The judgment of the superior court is reversed with respect to defendant's conviction on counts 3, 4 and 5;  in all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All statutory references are to Penal Code unless indicated otherwise..  FN1. All statutory references are to Penal Code unless indicated otherwise.

FN2. Apparently, defendant was not served with the restraining order at that time..  FN2. Apparently, defendant was not served with the restraining order at that time.

FN3. Section 289 punishes “an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” (§ 289, subd. (a)(1)(A)) and “an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.” (§ 289, subd. (a)(2).)Section 289, subdivision (k)(1) defines sexual penetration as, “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”   Section 289, subdivision (k)(2) states “ ‘Foreign object, substance, instrument, or device’ ” shall include any part of the body, except a sexual organ.”.  FN3. Section 289 punishes “an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person” (§ 289, subd. (a)(1)(A)) and “an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat.” (§ 289, subd. (a)(2).)Section 289, subdivision (k)(1) defines sexual penetration as, “the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.”   Section 289, subdivision (k)(2) states “ ‘Foreign object, substance, instrument, or device’ ” shall include any part of the body, except a sexual organ.”

FN4. Section 220 punishes assaults “with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289.” (§ 220, subd. (a)(1).)The jury was also instructed as a lesser included on these offenses with simple battery (§§ 242, 243, subd. (a))..  FN4. Section 220 punishes assaults “with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288, or 289.” (§ 220, subd. (a)(1).)The jury was also instructed as a lesser included on these offenses with simple battery (§§ 242, 243, subd. (a)).

FN5. An uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser (the “elements test”), or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the “accusatory pleading test”).  (People v. Wolcott (1983) 34 Cal.3d 92, 98.)   To determine whether an offense is a lesser included, one of the two tests must be met.  (People v. Lopez (1998) 19 Cal.4th 282, 288.).  FN5. An uncharged crime is included in a greater charged offense if either (1) the greater offense cannot be committed without committing the lesser (the “elements test”), or (2) the accusatory pleading actually alleges all of the elements of the lesser offense (the “accusatory pleading test”).  (People v. Wolcott (1983) 34 Cal.3d 92, 98.)   To determine whether an offense is a lesser included, one of the two tests must be met.  (People v. Lopez (1998) 19 Cal.4th 282, 288.)

FN6. Section 240 provides, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  (Emphasis added.).  FN6. Section 240 provides, “An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”  (Emphasis added.)

FN7. We conclude that defendant's conviction must be reversed because of the inconsistent verdict, and therefore need not consider his other arguments..  FN7. We conclude that defendant's conviction must be reversed because of the inconsistent verdict, and therefore need not consider his other arguments.

MALLANO, P. J. ROTHSCHILD, J.