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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DANIEL DELEON JOHNSON, Defendant and Appellant.

2d Crim. No. B217476

Decided: February 23, 2011


On May 12, 2008, appellant was told to leave a homeless shelter in Atascadero after a young female said he had grabbed her.   Shortly thereafter, appellant approached A.W. as she was playing with her infant daughter in the front yard of her apartment building.   Appellant made comments that A.W. construed as sexual advances.   A.W. declined and told appellant that she was married, and appellant started to walk away.

After A.W. continued playing with her daughter, appellant ran up to her and hit her.   Appellant pushed A.W. into the adjacent bushes, straddled her, and began tearing off her clothing.   When A.W. screamed, appellant repeatedly punched her in the face and said, “Shut up, bitch.”   A.W. continued screaming and appellant choked her.   Appellant took off A.W.'s hat and tried to stuff it in her mouth as she pleaded for him to stop.

Several neighbors responded to A.W.'s screaming and saw appellant attacking her.   Appellant tried to run away, but a few of the neighbors gave chase and apprehended him.   Atascadero Police Officers Wyatt Kasfeldt and Michelle Schamber responded to the scene and arrested appellant.   When Officer Kasfeldt asked appellant

why he had attacked A.W., appellant responded, “I must have gotten high.   I don't know what you're talking about.”   Later, when Officer Schamber began asking preliminary booking questions, appellant volunteered, “I must have been high and I tried to rape her.”   During an interview the following day, appellant claimed that he did not remember attacking A.W. because he had been under the influence of marijuana.


I.Lesser Included Offense

Appellant was convicted in count 1 of assault with intent to commit rape (§ 220, subd. (a)), and in count 2 of attempted forcible rape (§§ 664/261, subd. (a)(2)).   He contends that the latter conviction must be set aside because attempted rape is a lesser included offense of assault with intent to commit rape.   The People agree.

“[M]ultiple convictions may not be based on necessarily included offenses.   [Citations.]”  (People v. Pearson (1986) 42 Cal.3d 351, 355.)   In determining whether a defendant may be convicted of multiple charged offenses, “a court should consider only the statutory elements.”  (People v. Reed (2006) 38 Cal.4th 1224, 1229.)  “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.”  (Id. at p. 1227.)   Where a defendant has been convicted of both a lesser and a greater offense, the conviction for the lesser offense must be reversed.  (People v. Ortega (1998) 19 Cal.4th 686, 692.)

It is well settled that attempted rape is a lesser included offense of assault with intent to commit rape.  (People v. Holt (1997) 15 Cal.4th 619, 674;  People v. Rupp (1953) 41 Cal.2d 371, 382.)   Because assault with an intent to commit rape necessarily includes an attempt to commit rape, appellant cannot be lawfully convicted of both offenses.   Accordingly, his conviction for attempted forcible rape is reversed.


Section 654

Appellant asserts, and the People concede, that the court was required to stay his GBI assault conviction pursuant to section 654 because the crime was committed as part of a continuous course of conduct incident to a single objective, i.e., the attempted rape of A.W.

Section 654 prohibits punishment for more than one offense arising from the same act or from an indivisible course of conduct.  (People v. Latimer (1993) 5 Cal.4th 1203, 1216.)   Whether a course of conduct is divisible depends on the intent and objective of the actor.  (Id. at p. 1208.)   If all the offenses were incident to one objective, the defendant may only be punished for one offense.  (Ibid.) If the defendant had multiple independent criminal objectives, he may be punished for each offense.   Application of section 654 is a question of fact for the trial court, whose finding will be upheld if supported by substantial evidence.  (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627.)

The court did not state its reasons for imposing a concurrent sentence for the GBI assault conviction.   While we would normally deem the court to have made an implied finding that the GBI assault was committed pursuant to a separate objective (People v. Blake (1998) 68 Cal.App.4th 509, 512), the court made the opposite finding at another point during sentencing when it stated, “[t]his was a single course of conduct.”   Substantial evidence supports that finding.   As the People acknowledge, “[a]ppellant's acts of punching, choking, and shoving A.W.'s hat in her mouth all occurred while he was attempting to disrobe her, and appears to have been a means to complete the rape.”   Moreover, the prosecutor's arguments to the jury with regard to the charges of assault with intent to commit rape, attempted forcible rape, and GBI assault all relied on the same set of facts.   The record is also devoid of any evidence that appellant's acts of violence were gratuitous or beyond what was reasonably necessary to accomplish the rape.  (Compare, e.g., People v. Cleveland (2001) 87 Cal.App.4th 263, 271-272 [substantial evidence supported finding that assault was not incidental to robbery for purposes of section 654 where the defendant beat the victim senseless].)   Because there is no evidence that the GBI assault was committed pursuant to a separate objective, the sentence on that count must be stayed pursuant to section 654.   We shall order the judgment amended accordingly.3


Restitution Fine

The abstract of judgment reflects that appellant was ordered to pay a victim restitution fine of $2,630.   Appellant contends that the abstract should be corrected in this regard to conform to the court's oral pronouncement of a $2,540 fine.   The People counter that while the oral pronouncement of judgment generally controls in these circumstances (People v. Mitchell (2001) 26 Cal.4th 181, 185-186), the record demonstrates that the court misspoke and actually intended to impose the $2,630 fine as stated in the abstract.   We agree with the People.

On March 19, 2009, the prosecution submitted a memorandum requesting that appellant be ordered to pay $2,540 in restitution to the Victim Compensation and Government Claims Board (VCGCB) pursuant to section 1202.4, subdivision (f).  On April 20, 2009, the prosecution filed an updated memorandum increasing the request to $2,630, which represented the amount of benefits that VCGCB had paid to the victim to date.   At the sentencing hearing on April 24, 2009, the court stated:  “The order of restitution that [sic ] indicates certain amounts due [A.W.] $2630 and it's got a total request for restitution [of] $2630 to date.”   In later imposing the restitution fine, however, the court stated:  “It's recommended and I order that [appellant] pay a restitution fine of $2,540 to [VCGCB for] benefits paid to date pursuant to Penal Code section 1202.4(f).”

The court plainly misspoke in referring to the amount of restitution sought in the superseded memorandum.   The court's earlier comments reflect its understanding that the victim had thus far received $2,630 from VCGCB as reimbursement for the losses she had suffered as a result of appellant's crimes.   The court also expressed its intent to impose the “recommended” restitution fine in order to fully compensate the victim for her losses, as required under subdivision (f) of section 1202.4.   Because the court was required to order full restitution and stated its intent to do so, the $2,630 restitution fine reflected in the abstract of judgment is correct notwithstanding the court's oral pronouncement of a $2,540 fine.  (See People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295 [trial court's oral pronouncement of judgment not controlling where the court misspoke in referring to the wrong subdivision of a statute].)




We concur:



Charles S. Crandall, Judge

Superior Court County of San Luis Obispo

Susan Pochter Stone, under appointment by the Court of Appeal;  Daniel Deleon Johnson, in pro. per., for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plaintiff and Respondent.


FN3. In light of our conclusion, we need not address appellant's alternative argument that the sentence for the GBI assault must be stayed due to an ambiguity in the verdicts..  FN3. In light of our conclusion, we need not address appellant's alternative argument that the sentence for the GBI assault must be stayed due to an ambiguity in the verdicts.

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