PEOPLE v. HOLT

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Pasadero Peter HOLT, Defendant and Appellant.

No. F016260.

Decided: November 20, 1992

Raymond L. Girard, San Luis Obispo, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Asst. Atty. Gen., Edgar A. Kerry and Jane Olmos, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

Appellant, Pasadero Peter Holt, pleaded guilty to 18 felony counts and 5 enhancement allegations.   He contends he was impermissibly sentenced on one count to a full-term consecutive sentence pursuant to Penal Code section 667.6, subdivision (d).1  He also contends the court erred in imposing the upper term on several counts.   Finally, appellant contends he pleaded guilty to a crime that does not exist, requiring reversal of that count.   We affirm.

FACTS

Between January 1990 and January 1991, appellant assaulted 13 women in Fresno.   In all but two of the assaults, he actually committed sexual offenses on the victims;  in the other two assaults, he fled when the victims started screaming.   During the preliminary hearing, appellant agreed to a plea bargain and pleaded guilty to 18 of the 46 counts in the complaint.  (§ 859a.)   We summarize the offenses and sentences as follows:

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Appellant was sentenced to a total term of 90 years, 4 months.   Facts pertinent to particular arguments will be set out in the discussion that follows.

DISCUSSION

I.

 Appellant contends the full-term consecutive sentence on count 8, imposed pursuant to section 667.6, subdivision (d) (hereafter subdivision (d)), is improper because he committed more than one violent sex offense against the same victim at the same time.  (The other offense against the same victim, count 12, was sentenced as full term consecutive under section 667.6, subdivision (c), and appellant does not challenge that sentence.)   Appellant argues:  “Because the evidence shows that the offenses charged in counts 8 and 12 were committed on the same ‘occasion,’ it was error to sentence appellant on count 8 under the full and separate term scheme of ․ subdivision (d), and the judgment should therefore be reversed and the case remanded for resentencing.”

Counts 8 and 12 arose from an assault upon Treva H.   Appellant abducted the victim as she was walking her dog on Bullard Avenue in Fresno.   He put a shirt over the victim's head and dragged her behind a building.   He ordered her to disrobe and lie down.   He squatted over the victim's face.   While appellant inserted his fingers into the victim's anus, he ordered her to penetrate his anus with her tongue.   He then unsuccessfully tried to sodomize the victim.   Next, he uncovered the victim's face and forced her to orally copulate him twice.   Finally appellant masturbated until he ejaculated on the victim.   Of the five counts charged as a result of this episode, appellant admitted counts 8 and 12.   Count 8 charged that appellant forcibly penetrated the genital and anal openings of the victim.  (§ 289, subd. (a).)  Count 12 charged that he forcibly caused the victim to orally copulate him.  (§ 288a, subd. (c).)

Subdivision (d) provides in relevant part:  “A full, separate, and consecutive term shall be served for each violation of [a list of violent sex crimes] if the crimes involve separate victims or involve the same victim on separate occasions.”   Violation of section 289 is listed in subdivision (d) as one of the applicable violent sex crimes.

 Appellant argues at length that counts 8 and 12 were not separate crimes for purposes of subdivision (d).   However, he addresses the wrong issue:  he addresses the factual relationship between one count sentenced pursuant to subdivision (d) (count 8) and one count not sentenced pursuant to that subdivision (count 12).   The factual relationship between subdivision (d) crimes and nonsubdivision (d) crimes is irrelevant to the sentencing determination.

The relevant inquiry is whether count 8 and each of the other subdivision (d) counts (counts 3, 14, 18, 27, 30, 34, and 44) involved different victims or the same victim on different occasions.  (People v. Fleming (1983) 140 Cal.App.3d 540, 545–546, 189 Cal.Rptr. 619, disapproved on another point in People v. Craft (1986) 41 Cal.3d 554, 562, fn. 4, 224 Cal.Rptr. 626, 715 P.2d 585.)   Each of the subdivision (d) counts involved a different victim than any other count sentenced under subdivision (d).   Consequently, each full-term consecutive sentence was required by subdivision (d).

In People v. Fleming, supra, 140 Cal.App.3d at pages 545–546, 189 Cal.Rptr. 619, the defendant committed a series of sex crimes on a single victim on three separate occasions.   The trial court sentenced defendant to seven full-term consecutive sentences, reflecting the total number of violent sex crimes committed.   The Court of Appeal reversed, holding that each separate occasion was to receive a full-term consecutive sentence pursuant to subdivision (d), but only one such sentence per occasion.  “Consecutive terms for one offense from each ‘separate occasion’ were mandated by subdivision (d).”  (Id. at p. 546, 189 Cal.Rptr. 619;  see also People v. Huber (1986) 181 Cal.App.3d 601, 631–632, 227 Cal.Rptr. 113.)

In other words, the subdivision (d) counts must stand in the required relationship to each other, and must be sentenced separately.  (See People v. Ottombrino (1982) 127 Cal.App.3d 574, 588, fn. 4, 179 Cal.Rptr. 676.)   It does not matter if other offenses, whether violent sex crimes or not, are committed on the same occasion as the subdivision (d) crime.   The subdivision (d) offenses are sentenced separately, and remaining crimes are sentenced pursuant to section 1170.1, subdivision (a) or 667.6, subdivision (c), as appropriate.  (See People v. Price (1984) 151 Cal.App.3d 803, 817, 199 Cal.Rptr. 99.)   The trial court imposed sentence correctly on count 8.

II.

Appellant also claims the court used elements of the crimes as factors in aggravation to impose upper terms on some counts.   In particular, he argues the court's conclusion that counts 1, 3, 8, 14, 18, 34, and 44 were particularly “vicious or callous” (see Cal.Rules of Court, rule 421(a)(1)) was based solely on the forcible nature of the offenses.   Appellant asserts, “An examination of the facts involved in each of the counts in appellant's case fails to disclose a use of force or fear, or a manner of committing the acts, which exhibits viciousness and callousness beyond that necessary to the perpetration of the offenses.”   To the contrary, we conclude that for each of the counts on which the court imposed the upper term, excessive cruelty and viciousness are evident.

 In committing each of the crimes in counts 3, 8, 14, 18, 34 and 44, appellant used a shirt to blindfold each victim as the crimes were committed.   This action increased the victims' terror and helplessness.   Furthermore, appellant's psychological expert witness indicated appellant intentionally used the blindfolds to enhance his degradation of the victims.

 As to count 1, appellant terminated the assault at a relatively early stage because of the victim's resistance.   Nevertheless, appellant used excessive viciousness and callousness to accomplish the crime.   The victim of count 1 was working as a janitor at a Christian school when appellant confronted her.   Appellant gained physical control of the victim by holding her at gunpoint and physically blocking her exit from the restroom in which he held her.   Appellant ordered the victim to disrobe.   After initially beginning to comply with appellant's demands, the victim began refusing to obey appellant's orders, repeatedly shouting, “My God will save me.”   Appellant told the victim she was going to meet her God sooner than she thought if she did not comply.   This clearly was a “threat of great bodily harm ․ disclosing a high degree of ․ viciousness, or callousness” as described by California Rules of Court, rule 421(a)(1).   The fact the threat did not accomplish its objective is immaterial.

Appellant's contention is not aided by his reliance on People v. Hawk (1979) 91 Cal.App.3d 938, 941, 154 Cal.Rptr. 773, People v. Harvey (1984) 163 Cal.App.3d 90, 116, 208 Cal.Rptr. 910, and similar cases which merely hold that aggravating factors must be based on a determination that the crimes were committed in a more outrageous manner than is required by the bare elements of the offense.   The crimes upon which upper terms were imposed in this case clearly meet that requirement.

III.

 Finally, appellant argues in his reply brief that he pleaded guilty to a crime that does not exist, and so his conviction on count 38 should be reversed.   Count 38 is alleged in the complaint as follows:  “VIOLATION OF SECTION 220 OF THE PENAL CODE, a felony.   The said defendant, on or about September 24, 1990, did willfully and unlawfully assault GRACE Z[ ], with the intent to commit ki[d]nap, in violation of Penal Code Section 207.”   Appellant pleaded guilty when the magistrate asked, “What is your plea to Count 38, violation of Section 220 ․ where you willfully and unlawfully assaulted Grace Z[ ] with the intent to kidnap in violation of Penal Code Section 207?”

Section 220 provides:  “Every person who assaults another with intent to commit mayhem, rape, sodomy, oral copulation, or any violation of Section 264.1, 288 or 289 is punishable by imprisonment in the state prison for two, four, or six years.”

It is apparent from reviewing the complaint as a whole and the facts contained in the record that the prosecutor meant to allege that count 38 involved assault with intent to rape, not kidnap.   The facts involving Grace Z. are virtually indistinguishable from those involving Rochelle P.   In each instance, appellant came up behind the victim and struck her with his fist several times.   Each time, the victim ran from appellant, and he fled from the scene.   Counts 15 and 16 alleged, respectively, assault with intent to rape (§ 220) and attempted kidnap of Rochelle (§§ 664/207, subd. (a)).  Appellant admitted count 15, and count 16 was dismissed pursuant to the plea bargain.   Count 38 alleged assault “with the intent to commit ki[d]nap” Grace, while count 39 alleged attempted kidnap of Grace.   Appellant admitted both counts.   He was sentenced on count 38 and the sentence on the attempted kidnap was stayed pursuant to section 654.

Appellant did not demur or otherwise challenge the wording of count 38.   Accordingly, he has waived any objection to that count.  (See People v. Howington (1991) 233 Cal.App.3d 1052, 1058, 284 Cal.Rptr. 883 [violation of Health & Saf.Code, § 11352, was alleged as sale of “rock cocaine,” not “cocaine” or “cocaine base” as described by statute;  waived by failure to demur];  People v. Carbonie (1975) 48 Cal.App.3d 679, 691, 121 Cal.Rptr. 831.)   Had appellant demurred to this count, it readily could have been amended to allege a correct intent, since the record factually supports his guilt under section 220 of committing an assault with intent to rape against Grace.

Reliance by appellant on Keeler v. Superior Court (1970) 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617 and People v. Duens (1976) 64 Cal.App.3d 310, 134 Cal.Rptr. 341 is unavailing.   Neither case involved inadvertent errors in the description of the crime.   Rather, both cases involved an intentional decision by the prosecutor to expand the relevant statute to cover the conduct engaged in by the defendant.   In Keeler, the defendant killed a viable fetus, and that is what the information charged.   The issue was whether “human being” then used in section 187 could be interpreted to include such fetus.   The court held it could not.  (Keeler v. Superior Court, supra, 2 Cal.3d at pp. 636–639, 87 Cal.Rptr. 481, 470 P.2d 617.)   In Duens, the information alleged a count of “attempted assault” with a certain intent.   The court held that the assault statute involved there did not contemplate a crime of “attempted assault,” since assault itself was an attempted battery.  (People v. Duens, supra, 64 Cal.App.3d at p. 314, 134 Cal.Rptr. 341.)

In neither Keeler nor Duens was the error merely in the wording of the charge.   Rather, in each case no version of the alleged conduct constituted the crime charged.   In the present case, the record amply demonstrates that appellant committed assault with intent to rape, a crime that could have been properly described in the complaint had appellant objected in a timely manner.   In the absence of such objection, the issue is waived.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code.

FN2. The following is a grouping by description of offense:  attempted kidnapping (§§ 664/207;  count 39);  kidnap (§ 207, subd. (a);  count 4);  robbery (§ 211, counts 22 and 42);  assault with intent to commit a designated sex crime (§ 220;  counts 1, 15, 38);  false imprisonment (§ 236;  count 21);  sexual battery (§ 243.4, subd. (a);  count 41);  forcible rape (§ 261, subd. (2);  count 44);  forcible sodomy (§ 286, subd. (c);  count 34);  forcible lewd and lascivious act with child under 14 (§ 288, subd. (b);  count 14);  forcible oral copulation (§ 288a, subd. (c);  counts 3, 12, 18, 27);  forcible penetration with a foreign object (§ 289, subd. (a);  counts 8 and 30)..  FN2. The following is a grouping by description of offense:  attempted kidnapping (§§ 664/207;  count 39);  kidnap (§ 207, subd. (a);  count 4);  robbery (§ 211, counts 22 and 42);  assault with intent to commit a designated sex crime (§ 220;  counts 1, 15, 38);  false imprisonment (§ 236;  count 21);  sexual battery (§ 243.4, subd. (a);  count 41);  forcible rape (§ 261, subd. (2);  count 44);  forcible sodomy (§ 286, subd. (c);  count 34);  forcible lewd and lascivious act with child under 14 (§ 288, subd. (b);  count 14);  forcible oral copulation (§ 288a, subd. (c);  counts 3, 12, 18, 27);  forcible penetration with a foreign object (§ 289, subd. (a);  counts 8 and 30).

VARTABEDIAN, Associate Justice.

STONE (Wm. A.), Acting P.J., and ARDAIZ, J., concur.