PEOPLE v. WRIGHT

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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Ronald Reed WRIGHT, Defendant and Appellant.

Crim. B006179.

Decided: December 20, 1985

Frank O. Bell, Jr., State Public Defender, and Ralph H. Goldsen, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John R. Gorey and Joan Comparet, Deputy Attys. Gen., for plaintiff and respondent.

By jury trial appellant was found guilty of forcible rape and forcible oral copulation against Arlene F. and of the attempted murder of Susan S.   By nonjury trial the court found that appellant was previously convicted of residential burglary within the meaning of Penal Code section 667, subdivision (a).   Appellant was sentenced to a term of 23 years in the state prison.

COUNTS I AND II

On the morning of September 16, 1982, Arlene F. (Miss F.) was walking on the beach in Santa Monica when appellant approached her and struck up a conversation.   When Miss F. mentioned that she was desperately looking for housing at the beach, appellant pointed to a nearby abandoned house and said, “[T]here's one right there.”   Together they entered that house and then one next door.

Once inside the second house, appellant grabbed Miss F. from behind, his hand over her mouth, and pulled her to the floor.   She tried to get up and he hit her in the face.   Appellant turned her over on her back, straddled her chest and held her arms down.   She pleaded, “Don't do this” or “[y]ou don't have to do this” but appellant said, “I have to do this because I am a schizophrenic.”

Appellant was unbuttoning Miss F.'s clothes, when she began urinating from fear.   He permitted her to use the bathroom.   In the bathroom, she looked for a possible escape, but there was none, as there was no door on the bathroom and appellant was standing right there.   When she came out of the bathroom, appellant said, “It was a good thing you didn't try to get away.”   She tried to run but he grabbed her leg and threw her down and said, “Don't do that again.”

Appellant then orally copulated and raped Miss F.   Before ejaculating he stopped the intercourse and said, “Now I have done it.   I will go to jail.”

Miss F. began redressing and thought to herself that she must act “very cool” to get out of the situation alive.   She accompanied appellant back to the Santa Monica pier where he gave her a false name and talked about going to a rape crisis center.   Appellant left.

Miss F. went home and showered.   Several hours later her ex-husband came by and when she told him of her experience he persuaded her to go to a rape crisis center and call the police.   She participated in the preparation of a composite sketch of the suspect and positively identified appellant at trial and at the preliminary hearing.

COUNTS III AND IV

With respect to victim Susan S. (Miss S.), appellant was charged alternatively in counts III and IV with attempted murder or assault by means of force likely to produce great bodily injury.   The jury found him guilty of attempted murder.

Appellant used a similar method of operation against Miss S.   On October 13, 1982, she was at the unemployment office in Santa Monica.   Appellant struck up a conversation with her and learned that she was looking for housekeeping work.   He said he was in the construction business, was fixing up a house, and would hire her.   He said, “You are in luck.   It is just right across the street ․,” and took her in the back door of a boarded-up house.

Miss S. was looking at the rooms when appellant grabbed her from behind and threw her down.   He started choking her, his fingernails in her throat.   He said she reminded him of a girl on drugs who had shot him, and he pulled up his shirt and showed a mark on his side.

Appellant choked her for a couple of minutes, grinning and saying that he wanted to kill her.   Miss S. struggled to get up or kick appellant off but each time he pressed harder on her throat.   Miss S. could not breathe and she lost consciousness.

When Miss S. regained consciousness, appellant was still in the same position on top of her.   He started shaking his head, released his hands, and moved slowly off.   Miss S. kicked him in the groin, ran out of the house, and fled to a nearby department store where she summoned the police.   She positively identified appellant at the preliminary hearing and at trial.

Appellant did not testify on his behalf.   The only defense witnesses were police officers called to testify about various inconsistent details in the victims' first statements to police.

Appellant raises numerous contentions, relating to admission and exclusion of evidence, instructions, and sentencing.

EXCLUSION OF EVIDENCE

Appellant contends the court committed prejudicial error in restricting appellant's cross-examination of the investigating police officer with respect to a so-called sexual assault evidence kit, i.e., the medical testing of vaginal samples taken of Miss F. when she went to the rape crisis center at Santa Monica Hospital.   There is no merit to the contention.

At the hospital a Dr. Hollingshead took samples from Miss F.'s vagina and turned them over to someone to give to law enforcement authorities for analysis by the sheriff's laboratory.   Appellant called the investigating police officer as a witness.   Officer Brucker specialized in sexual assault cases.   When appellant's counsel started to examine the officer about the nature of sexual assault evidence, the prosecutor objected on the grounds that (1) such questions would more appropriately be directed to the lab technician who performed tests on Miss F.'s vaginal samples and (2) the lack of positive results in this case would be irrelevant since the victim had testified that appellant did not ejaculate and that she had showered and waited several hours before going to the rape crisis center.   The court sustained the objection.

 Appellant now argues that he should have been permitted further latitude in questioning the officer.   He contends that the lack of positive results could have been probative that no penetration occurred, since it is conceivable that preseminal fluid could have been discharged even without ejaculation.   We find no error, and certainly no prejudice to appellant.

 Since Officer Brucker was not the lab technician who analyzed the sample, she had no personal knowledge of the results and therefore such testimony was properly excluded.   In any event, notwithstanding the court's ruling, defense counsel succeeded in eliciting Officer Brucker's testimony that a sexual assault evidence kit was submitted to the sheriff's crime lab, and he actually argued to the jury that inferences unfavorable to the prosecution should be drawn from the prosecution's failure to introduce that evidence.   Defense counsel thus succeeded in obtaining about as much mileage as possible from this issue, which in any event was extremely weak in light of the victim's testimony that no ejaculation occurred and that she showered first and delayed in going to the rape crisis center.   There is no reasonable probability the verdict would have been more favorable to appellant had the court overruled the objection.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

REFUSAL TO APPEAR IN LINE–UP

On the night before his preliminary hearing, appellant was scheduled to appear in a line-up.   Appellant refused to participate in the line-up, even after being advised that the fact of his refusal could be used as evidence against him at trial.

At trial the fact of appellant's refusal was properly admitted into evidence.  (People v. Williams (1977) 68 Cal.App.3d 36, 45, 137 Cal.Rptr. 70.)   In addition the prosecutor commented upon the fact and the jury was instructed that it could be considered a circumstance tending to show consciousness of guilt.

 Appellant contends that these matters should have been excluded on the ground that if the line-up had actually been conducted it would have been in violation of appellant's right to counsel at a line-up, and that commenting upon appellant's refusal would thereby “impose a burden” upon appellant's “exercise” of a constitutional right.   There is no merit to this contention because the proposed line-up would not have violated appellant's right to counsel.

 A defendant's right to counsel at critical stages of a criminal prosecution prohibits conducting a post arraignment line-up “without notice to and in the absence of the accused's appointed counsel.”  (United States v. Wade (1967) 388 U.S. 218, 219–220, 87 S.Ct. 1926, 18 L.Ed.2d 1149;  see People v. Bustamante (1981) 30 Cal.3d 88, 101–102, 177 Cal.Rptr. 576, 634 P.2d 927;  People v. Fowler (1969) 1 Cal.3d 335, 342, 82 Cal.Rptr. 363, 461 P.2d 643.)   The record in this case shows, however, that the police were aware appellant had been arraigned and a public defender appointed to represent him, and that the police notified the public defender five days in advance of the actual line-up.   When no counsel appeared at the appointed time, the police waited for another hour and a half before dismissing the line-up on appellant's refusal to participate in it.   Moreover, when appellant refused to participate in the line-up he made no mention that it had anything to do with the presence or absence of his attorney.   The police had no information that appellant's attorney desired to be present.  (Cf. People v. Keim (1970) 8 Cal.App.3d 776, 780–781, 87 Cal.Rptr. 597.)   In light of ample notice to counsel and counsel's failure to appear within a reasonable time, and in the absence of any indication that counsel desired to appear or reasonably required a postponement of the line-up, proceeding with the line-up would not have violated appellant's right to counsel.  (United States v. Wade, supra, 388 U.S. at pp. 219–220, 87 S.Ct. at pp. 1928–1929;  People v. Bustamante, supra, 30 Cal.3d at pp. 101–102, 177 Cal.Rptr. 576, 634 P.2d 927.) 1

INSTRUCTION ON MISTAKEN BELIEF IN CONSENT

 Appellant contends the trial court should have instructed sua sponte that a defense to the rape and oral copulation charges is the defendant's reasonable and good faith mistaken belief that the victim consented.  (See CALJIC Nos. 10.23, 10.40.1.)   Appellant did not testify or offer a defense witness in support of such defense, nor did he request such an instruction.   We hold the trial court committed no error in failing to give such an instruction on its own motion.

 In each of the cases cited by appellant, the defendant offered his own testimony as to belief in the victim's consent to his sexual conduct 2 or the testimony of a third-party observer.3  Appellant presented no such evidence here.   We assume that in a proper case a victim's testimony alone might conceivably be so equivocal as to raise an issue of the defendant's possible mistaken belief as to consent, but this is not such a case.   There is no duty to give such an instruction if there is no substantial evidence, i.e., no evidence from which a jury could reasonably conclude, that the defendant reasonably and in good faith mistakenly believed in the victim's consent.  (People v. Hampton, supra, 118 Cal.App.3d at p. 330, 173 Cal.Rptr. 268 [as to codefendant Pinchback];  People v. Gonzalez (1983) 141 Cal.App.3d 786, 793, 190 Cal.Rptr. 554.   See People v. Flannel (1979) 25 Cal.3d 668, 684–685 & fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)

 Miss F. testified that she often talked to strangers she met on the beach, that she engaged in a prolonged conversation with appellant and found him interesting or at least felt sorry for him.   When she first entered the abandoned houses with him, he seemed friendly and helpful and she was not afraid of him.   The context of their prior conversation was entirely nonsexual, and no inference reasonably could be drawn that by engaging in such conversation Miss F. led appellant to think she would consent to having sex with him.   Appellant's crimes were initiated when he grabbed her from behind and threw her to the floor.   Similarly, the victim's conduct after the crimes were over has no bearing on appellant's belief at the time the crimes were committed.4  The question is whether there was any substantial evidence that at the time of the crimes appellant had any reasonable basis for believing the victim consented.   There was none.

The victim's testimony is replete with evidence of the forcible nature of appellant's acts.   He grabbed her from behind and threw her to the floor.   He straddled her chest, held her arms down, and to her pleas of “[p]lease don't do this,” he stated, “I must do this because I am a schizophrenic.”   He hit her in the face when she tried to get up.   When she came out of the bathroom, he said, “It was a good thing you didn't try to get away.”   When she tried to run he grabbed her leg and told her “[d]on't do that again.”

 Appellant cites the victim's testimony that, in fear for her life, she “adopted [a] plan” to “forestall and reason with him.”   She may have told appellant, “We don't have to do this here, we could go somewhere else” or “[d]on't you have a place that we could go to.”   But appellant said, “No, right here.”   This does not indicate consent, on the contrary, it indicates present unwillingness.   There was no substantial evidence supporting an instruction on reasonable and good faith mistaken belief as to consent.  (People v. Hampton, supra, 118 Cal.App.3d 324, 328, 173 Cal.Rptr. 268;  People v. Gonzalez, supra, 141 Cal.App.3d 786, 793, 190 Cal.Rptr. 554.)

INSTRUCTION ON ATTEMPTED MURDER

Appellant correctly contends that the court made an error in its instructions to the jury on attempted murder.   However, the error was not prejudicial to appellant and does not require reversal of the judgment.

The court instructed as to count III, attempted murder, that conviction on count III required the concurrence of an act and a specific intent, and that the specific intent required is included in the definition of the crime charged.   Referring to attempted murder as “an attempt to kill,” the court defined an attempt as a specific intent to commit the crime and a direct but ineffectual act done toward its commission.   The court then gave a definition of murder, defining “malice aforethought” in the language of CALJIC No. 8.11 (1981 Revision), that malice “may be either express or implied.  [¶] [Malice is express when there is manifested an intention unlawfully to kill a human being.]  [¶] [Malice is implied [when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, anti-social purpose and with a wanton disregard for human life.]”

 The court erred in including the definition of implied malice in the latter instruction.   Attempted murder requires a specific intent to kill, and in an attempted murder case the court should define murder only in terms of express malice and should not instruct on implied malice.  (People v. Murtishaw (1981) 29 Cal.3d 733, 764–765, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Collie (1981) 30 Cal.3d 43, 61–62, 177 Cal.Rptr. 458, 634 P.2d 534;  People v. Santascoy (1984) 153 Cal.App.3d 909, 918, 200 Cal.Rptr. 709.)

 However, this error is not reversible, because the circumstances of this case render it extremely unlikely that the jury was misled by the instructional error, and there is no reasonable probability that a result more favorable to appellant would have occurred had the implied malice instruction been omitted.  (People v. Murtishaw, supra, 29 Cal.3d at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446;  People v. Santascoy, supra, 153 Cal.App.3d at pp. 918–919, 200 Cal.Rptr. 709;  People v. Bottger (1983) 142 Cal.App.3d 974, 982–983, 191 Cal.Rptr. 408.)

In this case appellant was charged in two alternative counts with respect to his attack on Miss S.   In count III he was charged with attempted murder;  in count IV he was charged with assault by means of force likely to produce great bodily injury.   The jury was instructed these charges were made in the alternative and that if the jury found him guilty of one it should find him not guilty of the other.   Miss S. testified that as appellant was choking her he said he wanted to kill her.   The prosecutor told the jury that in order to find attempted murder the jury must find intent to kill.5  Reminding the jury of appellant's threat, the prosecutor told the jury its choice was between whether appellant attempted to murder her “or did he only employ upon her a force likely to produce great bodily injury, which is the fourth count.”   Defense counsel similarly argued to the jury that attempted murder required a specific intent and that in order to convict of attempted murder “[y]ou have to conclude, then, she was entirely accurate and reflected to you, this person told me he was going to kill me.”   In this context the jury found appellant guilty of attempted murder and not guilty of assault by means of force likely to produce great bodily injury.   The choice having been clearly posed by the pleadings, instructions, and argument in the case, the jury found the more aggravated of the two charges in accordance with the version of the evidence supporting intent to kill.

Thus, although an error was contained in the instructions, the prosecutor never relied on a theory of implied malice, instead expressly arguing that unless the jury found intent to kill the jury should acquit on count III.   Defense counsel's approach was the same.   In this respect this case is very much like People v. Bottger, supra, 142 Cal.App.3d at pages 982–983 and footnote 2, 191 Cal.Rptr. 408, where Murtishaw error was held harmless because of the manner in which the intent issue was presented to the jurors in argument.  (See also People v. Wright (1985) 39 Cal.3d 576, 589, 217 Cal.Rptr. 212, 703 P.2d 1106.)

We find no merit to appellant's suggestion that Murtishaw error should be deemed reversible per se.   Here the court defined attempted murder as an attempt to kill, indicated that attempted murder requires a specific intent, and correctly gave that portion of CALJIC No. 8.11 referring to express malice.   In Murtishaw itself, the Supreme Court regarded the problem to be that the instructions, taken as a whole, were contradictory.  (People v. Murtishaw, supra, 29 Cal.3d at p. 763, 175 Cal.Rptr. 738, 631 P.2d 446.)   In holding that the error nevertheless was nonprejudicial in the circumstances of that case, the Supreme Court expressly applied “the test of prejudice established in People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]—whether it is reasonably probable that a result more favorable to defendant would have been reached in the absence of the error․”  (People v. Murtishaw, supra, at p. 765, 175 Cal.Rptr. 738, 631 P.2d 446.)   In its subsequent decisions involving Murtishaw error, the Supreme Court has never repudiated the Watson standard for determining the prejudicial effect.  (People v. Collie, supra, 30 Cal.3d at p. 62, 177 Cal.Rptr. 458, 634 P.2d 534;  People v. Johnson (1981) 30 Cal.3d 444, 448–449, 179 Cal.Rptr. 209, 637 P.2d 676;  People v. Ramos (1982) 30 Cal.3d 553, 583–584, 180 Cal.Rptr. 266, 639 P.2d 908;  People v. Guerra (1985) 40 Cal.3d 377, 386–387, 220 Cal.Rptr. 374, 708 P.2d 1252.   See also People v. Santascoy, supra, 153 Cal.App.3d at pp. 918–919, 200 Cal.Rptr. 709;  People v. Bottger, supra, 142 Cal.App.3d at page 983, 191 Cal.Rptr. 408.)   The unique manner in which the issue was presented to the jury in this case distinguishes it from those in which the Supreme Court reversed because it had no way of telling the theory on which the jury relied.  (People v. Collie, supra;  People v. Guerra, supra.)

We are aware that in People v. Acero (1984) 161 Cal.App.3d 217, 229, 208 Cal.Rptr. 565, the court suggested that Murtishaw error should be considered reversible per se.   That statement was dictum, since under the facts of that case reversal was required even under the Watson standard (id., at pp. 225–226, 229, 208 Cal.Rptr. 565) and for other errors as well (id., at pp. 216–226, 208 Cal.Rptr. 565).   In light of California Constitution article VI, section 13, and of the Supreme Court's express adoption of a Watson standard in Murtishaw, which the court has not repudiated in subsequent cases, including one decided after Acero (People v. Guerra, supra ), we are not inclined to expand the category of errors which must be treated as reversible per se.

PRIOR CONVICTION

By amendment to the information the prosecution alleged that appellant had previously been convicted of a serious felony, residential burglary, within the meaning of Penal Code section 667, subdivision (a).   Appellant denied the prior, and this allegation was tried separately by the court, appellant waiving trial by jury.   The court found the prior true and that the prior was a residential burglary.   As a result, appellant's sentence was enhanced by five years.  (Pen.Code, § 667, subds. (a), (d), § 1192.7, subd. (c)(18).)

Appellant contends the trial court erroneously found the prior to be a residential burglary, and that several procedural errors were committed in the trial and sentence on the prior.   None of these contentions has merit.

 The prior was proved by the trial court's taking judicial notice, at the request of the prosecutor, of the superior court file in appellant's prior case, Los Angeles Superior Court No. A083759.   That file, of which we likewise take judicial notice (Evid.Code, § 459), showed that the information had specifically alleged that appellant “did willfully and unlawfully enter the house and building occupied by Sylvia Deleon with the intent to commit larceny,” that he had pleaded “guilty as charged” and had received a second degree burglary sentence of one year and four months in the state prison.

Such a record properly establishes that the prior burglary was residential, and is consistent with the rule of People v. Jackson (1985) 37 Cal.3d 826, 836, 210 Cal.Rptr. 623, 694 P.2d 736, that the prosecution may not go behind the record of a second degree burglary conviction to establish a fact which was not then an element of the crime.   In People v. Longinetti (1985) 164 Cal.App.3d 704, 706, 210 Cal.Rptr. 729 (review den. May 23, 1985), the court held that where the information in the prior case alleged the burglary was of a residence and the judgment recited that the defendant had pleaded guilty “as charged in the information,” the residential character of the burglary was properly based on the record of the prior judgment without going behind the judgment or relitigating.  (People v. Longinetti, supra, 164 Cal.App.3d at p. 706, 210 Cal.Rptr. 729.)

 Here, in asking the trial court to take judicial notice of the prior case file, the prosecutor specifically referred to the “copy of the plea” in the file.   The file contains the reporter's transcript of the guilty plea proceedings of April 21, 1982, showing that appellant pleaded “guilty as charged.”   The guilty plea constitutes the conviction, and the plea is required to be taken down in shorthand by the official reporter and entered in the minutes.  (People v. Goldstein (1867) 32 Cal. 432, 433;  Pen.Code, § 1017.)   The transcript of the plea is thus a part of the record of conviction, and reference to it does not constitute going behind the judgment or relitigating.  (People v. Longinetti, supra.)   The prior burglary was properly found to have been a residential burglary.

 There is likewise no merit to the procedural issues raised by appellant.   First, he contends that the record does not show he knowingly and intelligently waived a jury trial on the prior.   On the contrary, appellant was expressly asked, “Do you personally waive jury determination of the prior and want to have it submitted to the court without having the jury pass upon it?” to which he replied, “Yes.”   He apparently contends this jury waiver was defective because he was not first advised that he had a right to jury trial on the prior.   However, as appellant concedes, he obviously knew what a jury trial was, since the prior was separately tried by the court after the jury had rendered its verdict on the main charges.   The question posed to appellant asking whether he was willing to waive a jury trial clearly implied that he had the right to one.  (People v. Sanchez (1972) 24 Cal.App.3d 664, 673, 101 Cal.Rptr. 193.)

 Next appellant contends the introduction into evidence of the record of the prior case was like a “submission on the transcript” which should have been accompanied by express waivers of the whole panoply of trial rights mentioned in Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605, 119 Cal.Rptr. 302, 531 P.2d 1086.   The analogy to the submission on the transcript cases is wholly inapt.   In those cases a defendant gives up his rights to a full trial of the evidence against him;  the prosecution could not try him on the transcript of the preliminary hearing unless the defendant knowingly and intelligently agreed to give up his right to a live trial.   In determining the nature of a prior conviction, however, the only permissible evidence under People v. Jackson, supra, 37 Cal.3d 826, 210 Cal.Rptr. 623, 694 P.2d 736, is the record of the prior conviction, for Jackson does not allow going behind the judgment or relitigating the facts of the prior offense.   Introduction into evidence of the record of the prior judgment is in no way dependent upon the defendant's consent and does not involve waiver of rights the defendant would otherwise have.

 Finally, appellant contends that the five-year enhancement for the prior should be stricken because the trial court did not timely impose it.   When the court originally sentenced appellant on June 19, 1984, the court inadvertently failed to mention the prior.   Very soon thereafter the court realized its mistake, contacted counsel, and at another hearing on June 25, 1984, completed the sentence by imposing the five-year enhancement for the prior.

Citing In re Candelario (1970) 3 Cal.3d 702, 706, 91 Cal.Rptr. 497, 477 P.2d 729, appellant contends that by its silence on June 19 the court effectively struck the prior conviction and was without power to correct the judicial oversight later.

 There is no merit to this contention because only by exercising its power of dismissal under Penal Code section 1385 can a trial court avoid imposing the enhancement required by Penal Code section 667.  (People v. Fritz (1985) 40 Cal.3d 227, 230–231, 219 Cal.Rptr. 460, 707 P.2d 833.)   Such a dismissal order would require a statement of reasons entered in the minutes as to why it would be in furtherance of justice to strike the prior.   This cannot be accomplished sub silentio by inadvertently failing to mention the prior, and the rationale of Candelario does not apply.  (People v. Hunt (1977) 19 Cal.3d 888, 897, 140 Cal.Rptr. 651, 568 P.2d 376;  People v. Chagolla (1983) 144 Cal.App.3d 422, 434, 193 Cal.Rptr. 711;  People v. Williams (1980) 103 Cal.App.3d 507, 519, 163 Cal.Rptr. 169;  People v. Williams (1980) 103 Cal.App.3d 507, 519, 163 Cal.Rptr. 169;  People v. Allen (1978) 76 Cal.App.3d 748, 752, 143 Cal.Rptr. 164.)

REASONS FOR SENTENCE CHOICES

Finally, appellant contends that even if the judgment of conviction and finding of prior conviction are affirmed, the matter should be remanded for resentencing because the trial court did not adequately state its reasons for its sentence choices.

The trial court sentenced appellant to a total term of 23 years as follows:  An upper term of nine years for attempted murder, followed by a fully consecutive (Pen.Code, § 667.6, subd. (c)) term of six years for forcible rape, followed by a fully consecutive (Pen.Code, § 667.6, subd. (c)) term of three years for forcible oral copulation, followed by a consecutive five-year enhancement for the prior conviction of residential burglary (Pen.Code, § 667, subd. (a)).

As appellant contends, this sentence reflects at least three distinct sentence choices:  (1) an upper term on the base count;  (2) consecutive sentencing;  and (3) fully consecutive sentencing pursuant to Penal Code section 667.6, subdivision (c), rather than one-third the midterm pursuant to Penal Code section 1170.1.

The trial court gave the following reasons for its sentence choices.  “1. The crime involved violence, disclosed a high degree of cruelty and viciousness on the part of the defendant;  [¶] 2. Crime charged against victim one indicate a premeditation;  [¶] 3. The defendant served a prior sentence term;  [¶] 4. The defendant was on parole when he committed the crime;  ․”

At the time the court added the five-year enhancement for the residential burglary, defense counsel argued that this would constitute an impermissible dual use of facts (Cal. Rules of Court, rule 441) since the prior was mentioned as a factor in support of the main sentence.   The prosecutor argued there was no dual use because the several factors involving the prior were distinct:  (1) the prior felony conviction itself was sufficient to invoke the five-year enhancement under Penal Code section 667, subdivision (a), which does not contain a requirement of a prior prison term;  (2) it was the prior prison term that was specifically mentioned in support of the main sentence.6  The trial court agreed.

 The ideal procedure would have been for the court to state separately the reasons for each sentence choice.  (See People v. Belmontes (1983) 34 Cal.3d 335, 348, 193 Cal.Rptr. 882, 667 P.2d 686.)   However, under all the circumstances the reasons for the court's sentence choices adequately appear in the record and it is unnecessary to remand the matter for resentencing.

As pointed out by the prosecutor, there were three separate and distinct factors relating to appellant's prior serious felony conviction alone.   That is, the fact of the conviction is distinct from the serving of a prior prison term for it (People v. Sanchez (1982) 131 Cal.App.3d 718, 736–737, 182 Cal.Rptr. 671;  People v. Hurley (1983) 144 Cal.App.3d 706, 708–713, 192 Cal.Rptr. 805) and so also is the fact that the instant crimes were committed while appellant was on parole, in breach of that special custodial status (People v. Jerome (1984) 160 Cal.App.3d 1087, 1098, 207 Cal.Rptr. 199;  People v. Hurley, supra, 144 Cal.App.3d at p. 713, 192 Cal.Rptr. 805).

Also, the first “reason” mentioned by the court in support of the main sentencing choices was actually two reasons:  The violence involved in choking Miss S. with his fingernails and the high degree of cruelty and viciousness involved in appellant's reason for that attack, that she reminded him of a girl who had shot him.

The court also mentioned appellant had used the same method of operation against another girl in 1981.   That girl was looking for a place to rent.   Appellant told her he knew of a place.   She thought she was going to see an apartment to rent when appellant grabbed her from behind and attempted to have sex with her.   He was convicted on a guilty plea to battery in that case.

Thus, appellant's contention that there were only two valid factors supporting at least three sentence choices is without merit.   The aggravating factors were numerous and they fully support the trial court's sentence choices.   It would be a useless exercise to remand the matter for the trial court to separately state its reasons, as there is no reasonable probability the outcome would be more favorable to appellant.  (People v. Dreas (1984) 153 Cal.App.3d 623, 636–637, 200 Cal.Rptr. 586;  People v. Hurley, supra, 144 Cal.App.3d at pp. 713–714, 192 Cal.Rptr. 805.)

The judgment is affirmed.

FOOTNOTES

1.   In any event the reference to appellant's refusal to appear in the line-up beyond reasonable doubt did not contribute to the verdict.  (Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   Both the instruction and the prosecutor's argument stressed that it was only one factor to be considered.   The prosecutor argued the point only in connection with other evidence that between the time appellant refused to participate in the line-up and appellant's preliminary hearing the next day, appellant changed his haircut and facial hair.   The latter evidence, independently admissible and having nothing to do with appellant's right to counsel, tended to show consciousness of guilt, the same point for which appellant's refusal to participate in the line-up was admitted.

2.   People v. Mayberry (1975) 15 Cal.3d 143, 156, 125 Cal.Rptr. 745, 542 P.2d 1337;  People v. Hampton (1981) 118 Cal.App.3d 324, 328, 173 Cal.Rptr. 268;  People v. Rivera (1984) 157 Cal.App.3d 736, 740, 203 Cal.Rptr. 842.

3.   People v. Anderson (1983) 144 Cal.App.3d 55, 62, 192 Cal.Rptr. 409.

4.   After appellant orally copulated and raped Miss F., he stopped, said, “Now I have done it.   I will go to jail,” and cried that his life was over.   Miss F. calculated that she had to be “very cool” to go out of this alive, so while appellant was crying she told him, “It's okay” and “let's go talk about it” or “[l]et's go have a cup of coffee.”   She hoped she could reach somewhere with appellant where she could get help and appellant would be caught.   They met two men when they came out of the abandoned house, but the men seemed too old and weak to catch appellant, so when the men asked what they were doing Miss F. remained silent while appellant said they were just looking at the house.   She went with appellant to the Santa Monica pier where he talked about going to a rape crisis center and gave her a name, which turned out to be false, and a phone number.   Appellant left;  Miss F. went in a restaurant;  all she could think about was going home and taking a bath.   She went home and showered, and told her ex-husband about the incident when he came by her house several hours later.

5.   “․ That specific state of mind in attempted murder is an intent to kill.   You can't have an intent to injure severely and come back with a finding of attempted murder.   Because he has to have, in his mind, at the time he commits that course of conduct, choking her, the intent to kill.  [¶] If you, as a juror, don't feel that he harbored that state of mind, when he embarked upon the intent to kill, then you have no attempted murder.”

6.   The fact that appellant committed the instant crimes while on parole from the previous sentence is yet another distinct factor.  (See Cal. Rules of Court, rule 421(b)(4).)

ASHBY, Associate Justice.

FEINERMAN, P.J., and EAGLESON, J., concur.