PEOPLE v. HARMON

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Phil Leslie HARMON, Defendant and Appellant.

Cr. 9663.

Decided: January 23, 1979

Kanter, Williams, Merin & Dickstein, Howard L. Dickstein, Sacramento, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Charles P. Just and Nancy L. Sweet, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from an order of commitment as a mentally disordered sex offender, challenging the validity of certain enhancements to his sentence. His contentions arise out of the following offenses:

Count Two: On June 17, 1977, defendant entered Swanson's Cleaners with a white paper bag over his right hand, simulating possession of a weapon. He pointed the bag at Mary B., an employee, and told her it was a holdup. She gave him currency and he fled.

Count Four: On June 22, 1977, defendant entered Taylor's Cleaners and robbed employee Kimbra T. in the same manner as in count two. After taking the money, defendant took Kimbra to the back of the store and raped her.

Count Six: On July 15, 1977, defendant entered Swanson's Cleaners and robbed employee Dolores C. in the same manner as in count two.

Count Seven: On July 20, 1977, defendant entered Model Cleaners and robbed Marcy G. in the same manner as in count two. He then ordered her to disrobe partially, pulling a hand weapon halfway out of the bag to threaten her further. After some compliance she refused to go further and defendant fled.

Count Nine: On August 2, 1977, defendant entered Swanson's Cleaners and robbed Liz C. in the same manner as in count two. Again he removed the gun from the bag. She responded by throwing the money at him, and when he bent down to retrieve it she began to strike him with a cardboard roller. He fled with part of the money.

Counts Ten and Eleven: On August 19, 1977, defendant entered Payless Cleaners and robbed Wanda D. in the same manner as in count two. He then took her to the back of the store, where after pulling the gun halfway out of the bag as a threat, he raped and otherwise sexually molested her.

Defendant pleaded guilty to five counts of robbery under Penal Code section 211 (counts 2, 6, 7, 9, and 10) and two counts of rape under Penal Code section 261 (counts 4 and 11). Other charges were dismissed.

After the guilty pleas were accepted, evidence was presented regarding enhancements, at the conclusion of which the court made the following findings:

Count Four: (Rape) “defendant was armed and used a gun ․”

Count Seven: (Robbery) “defendant was armed.”

Count Nine: (Robbery) “defendant was armed and did use a gun.”

Count Ten: (Robbery) “defendant was armed, did use a gun, and there was great bodily injury.”

Count Eleven: (Rape) “defendant was armed and did use a gun.”

Proceedings were thereafter suspended, and defendant was committed as a mentally disordered sex offender “for an indeterminate period as required by law” as to counts two and four, which were committed prior to July 1, 1977 (the effective date of the new Determinate Sentencing Act), and for an aggregate of thirteen years eight months as to the remaining counts, running consecutively.

I

Although the issue is not raised by the briefs, we note that count four alleged only that defendant was “… armed with a firearm … within the meaning of Penal Code Section 12022.” (Emphasis added.) Accordingly, the court's additional finding that defendant used a firearm in the commission of count four must be stricken. (People v. Henderson (1972) 26 Cal.App.3d 232, 238, 102 Cal.Rptr. 670; People v. Najera (1972) 8 Cal.3d 504, 509, fn. 4, 105 Cal.Rptr. 345, 503 P.2d 1353.)

II

Defendant's contentions on appeal relate solely to the enhancements in connection with counts 10 and 11, the robbery and rape of Wanda D.

A

Defendant first attacks the court's finding that he inflicted great bodily injury (Pen.Code, § 12022.7) upon Wanda D. He relies primarily upon the Supreme Court's recent decision in People v. Caudillo (1978) 21 Cal.3d 562, 146 Cal.Rptr. 859, 580 P.2d 274, which in a forcible rape context held that rape in and of itself does not constitute great bodily injury within the meaning of section 12022.7. The court in Caudillo noted that the victim therein had no visible injury, laceration or hematoma of the sexual organs or anus (21 Cal.3d at p. 588, 146 Cal.Rptr. 859, 580 P.2d 274), and did not assert that she suffered any pain from the sexual assaults (21 Cal.3d at p. 588, 146 Cal.Rptr. 859, 580 P.2d 274). Essentially, the Caudillo court held that “substantial or significant physical injury” means an injury “‘in addition to that which must be present in every case of rape”’ (21 Cal.3d at p. 585, 146, Cal.Rptr. at p. 872, 580 P.2d at p. 287, or “substantially beyond that necessarily present in the commission of [the] rape” (emphasis in original, 21 Cal.3d at p. 587, 146 Cal.Rptr. at p. 874, 580 P.2d at p. 289). The court emphasized the lack of severe or protracted injuries and of protracted impairment of function of any portion of the victim's body; the injuries to the victim there were characterized as “transitory and short-lived bodily distress” (21 Cal.3d at p. 588, 146 Cal.Rptr. at p. 875, 580 P.2d at p. 290).

By contrast, the victim here was a virgin, 19 years of age. A physician who examined her after the attack testified that the area surrounding the vagina was roughened and reddened, that the hymenal ring was partially torn, and that there was a half-inch laceration on one side of the entrance to the vagina, a half-inch hematoma on the other. The doctor stated that the latter two injuries were not the normal consequence of first-time intercourse, but rather the result of a “traumatic” and “violent” stretching of the hymenal ring. The victim testified that she suffered extreme pain from the attack, and that it was as painful as being burned but “… more of a ripping kind of feeling … like the skin itself was ripping.” Moreover, she was still suffering pain three months after the attack, at the time of the hearing on the enhancements. She stated that the pain was intense enough that she was to see a doctor about it after the hearing.

Thus there were significant and substantial physical injuries to the victim beyond the injury necessarily involved in the act of rape; these injuries support the great bodily injury finding of count 10, provided they were suffered “in the commission” (Pen.Code, § 12022.7) of the robbery.

B

Defendant next contends that the victim's injuries did not occur “in the commission” of the robbery because the robbery was completed prior to the sexual attack. He testified at the hearing that he conceived the intent to rape the victim after the robbery was completed.

Defendant cites People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, for the proposition that “The divisibility of a course of conduct depends on the intent and objective of the actor …,” and argues therefrom that the injury suffered by the victim was not in the course of the robbery. The People counter with People v. Carroll (1970) 1 Cal.3d 581, 83 Cal.Rptr. 176, 463 P.2d 400, in which the court stated (at p. 585, 83 Cal.Rptr. at p. 178, 463 P.2d at p. 402): “In addition, it is settled that the crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber's escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety. [Citations omitted.] In the present case, defendant had not won a place of temporary safety at the time he shot Gulsvig, as a result of which the robbery of Gulsvig had not been completed, and the shooting occurred ‘in the course of commission of the robbery’ of Gulsvig.” (Emphasis added, see also People v. Milan (1973) 9 Cal.3d 185, 195, 107 Cal.Rptr. 68, 507 P.2d 956.)

Defendant's position is well taken. Even though he had not yet technically reached “a place of temporary safety” when the injuries were inflicted, realistically and for section 12022.7 purposes, the robbery had come to an end with the victim unharmed. The remaining act of flight was not such as to subject the victim to further danger of injury, and indeed could have been accomplished by the simple act of departure from the store.1 At that point, additional independent crimes were undertaken against the victim, including forcible rape; and it was this felony which brought about the injuries. To borrow a phrase from tort law, the “proximate cause” of the great bodily injury was the rape, not the robbery; the injury was inflicted “in the commission” of the former, not the latter.

The great bodily injury could have been charged in connection with the rape count (count 11). Unfortunately for the People it was not, and is thus lost to them (see last sentence of section 12022.7). There is insufficient evidence to support it in connection with the robbery count (count 10).

III

A

Defendant contends that his sentences on both count 10 and count 11 subject him to double punishment in violation of Penal Code section 654. We disagree.

In People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 662, 558 P.2d 552, 560, the court summarized the subject as follows: “Section 654 does not preclude multiple convictions but only multiple punishments for a single act or indivisible course of conduct. (See People v. Beamon (1973) 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905.) ‘The proscription against double punishment … is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute ․ The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.’ (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 362, 461 P.2d 637, 642 [37 A.L.R.3d 1398].) In People v. Beamon, supra, 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905, we stated that section 654 is applicable to ‘limit punishment for multiple convictions arising out of either an act or omission or a course of conduct deemed to be indivisible in time in those instances wherein the accused entertained a principal objective to which other objectives, if any, were merely incidental.’ (Id., at p. 639, 105 Cal.Rptr. 681, at p. 690, 504 P.2d 905, at p. 914, italics added.)”

Thus if defendant entertained multiple criminal objectives independent of and not merely incidental to each other, he can be punished separately for multiple violations committed in pursuit thereof, even though such objectives shared common acts or were parts of an otherwise indivisible course of conduct. (People v. Beamon, supra, 8 Cal.3d at p. 639, 105 Cal.Rptr. 681, 504 P.2d 905.)

The evidence easily supports the conclusion that defendant entertained multiple criminal objectives. He entered the store with the intent to rob, and did so. His own testimony indicates that the thought of rape occurred to him only after the robbery. The intent and objective in the sexual attack were not the same as in the initial crime of robbery. (People v. Beaumaster (1971) 17 Cal.App.3d 996, 1008-1009, 95 Cal.Rptr. 360.) The course of conduct was thus “divisible,” and defendant was properly sentenced on both counts 10 and 11.

B

Defendant further contends that his convictions for the robbery and rape of Wanda D. cannot both be enhanced for being armed and for using a firearm under Penal Code section 12022.5, since these two crimes were committed on a single occasion.

The Attorney General concedes that prior to July 1, 1977, enhanced punishment pursuant to Penal Code section 12022.5 could be applied only once to all of the crimes committed on a “single occasion.” (People v. Miller, supra, 18 Cal.3d at p. 887, 135 Cal.Rptr. 654, 558 P.2d 552; In re Culbreth (1976) 17 Cal.3d 330, 334, 130 Cal.Rptr. 719, 551 P.2d 23.) But he argues that this principle was changed by the new Determinate Sentence Act, which provides in Penal Code section 1170.1, subdivision (a): “(a) Except as provided in subdivision (b) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts and whether by judgment rendered by the same judge or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Sections 12022, 12022.5, 12022.6, or 12022.7. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5, but shall include one-third of any enhancement imposed pursuant to Section 12022, 12022.5, or 12022.7 when the consecutive offense is listed in subdivision (c) of Section 667.5. In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years.” (Emphasis added.)

Nothing in this section speaks to a “single occasion” concept. Although the statute requires some analytical study, its terms are not unclear, at least as to this case. Both counts 10 and 11 can and must be enhanced, but subject to proper calculation as required by section 1170.1, subdivision (a). This is made apparent by section 1170.1, subdivision (d), which states: “When two or more enhancements under Sections 12022, 12022.5, and 12022.7 may be imposed for any single offense, only the greatest enhancement shall apply ․” (Emphasis added.) By clear implication, enhancement must be added separately to separate offenses, even though committed on a single occasion.

In accordance with section 1170.1, subdivision (a), the correct and accurate calculation of the total time of imprisonment under counts six, seven, nine, ten (all four robbery), and eleven (rape),2 sentenced consecutively, is as follows:

(1) The principal term is four years (the middle term was imposed) under count eleven (rape is three, four, and five years (Pen.Code, § 264) while robbery is two, three, and four years (Pen.Code, § 213), hence rape is the “greatest term … for any of the crimes”) plus two years for the enhancement under section 12022.5, a total principal term of six years.

(2) Add one year (one-third of three, the middle term for robbery) under count six.

(3) Add one year under count seven (same as count six).

(4) Add one and two-thirds years under count nine. Count nine is robbery, middle term of three years, enhanced by two years for use of a firearm under section 12022.5, total five years. The enhancement is expressed directly by section 1170.1 because robbery with use of a deadly weapon is listed in section 667.5, subdivision (c)(8). One-third of the five years is one and two-thirds years.

(5) Add one and two-thirds years under count ten by the same method as in count nine (excluding the § 12022.7 enhancement in accordance with our holding).

These terms aggregate to 11 1/313 years.

The order committing defendant as a mentally disordered sex offender is modified by (1) striking the use finding (§ 12022.5) from count four, and (2) striking the great bodily injury finding (§ 12022.7) from count ten. The case is remanded to the trial court with directions to recompute and impose the post-July 1, 1977 term of commitment in accordance with the method employed herein. In all other respects, the judgment is affirmed.

FOOTNOTES

1.  That this could easily have been accomplished is shown by the very fact that defendant had plenty of time to take the victim into the back room and sexually attack her.

2.  It will be remembered that the sentence on counts two and four was pursuant to the pre-July 1, 1977 Indeterminate Sentencing Law.

PARAS, Acting Presiding Justice.

EVANS and REYNOSO, JJ., concur.