Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCR019610. Edward P. Moffat II, Judge.
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
During the early morning hours of September 15, 2003, appellant Michael Martin McKay entered the residence of the victim, stole money and jewelry from her and forced her to orally copulate him. A five-count information was filed charging him with forcible oral copulation, attempted rape, residential burglary, false imprisonment and making criminal threats. Enhancement allegations that the residence was occupied, that appellant committed the oral copulation during a burglary, that appellant personally used a knife, that he bound the victim and that he used a deadly weapon were alleged in connection with various counts. A prior strike and a prior prison term were alleged.
Appellant entered dual pleas of not guilty and not guilty by reason of inanity. A psychiatric appointment order was filed. Although review of the doctors’ reports was calendared, no review hearing occurred.
Bifurcated jury trial was held. The court instructed the jury sua sponte that assault with intent to commit rape is a lesser included offense to the crime charged in count 2, attempted rape. The jury found appellant not guilty of attempted rape but guilty of assault with intent to commit rape. (Pen. Code, § 220.) The verdict form states that assault with intent to commit rape is a lesser offense of the crime charged in count 2.
Unless otherwise specified, all statutory references are to the Penal Code.
Also, appellant was found guilty of forcible oral copulation, burglary, false imprisonment and making a criminal threat. The jury found the personal use of a knife and deadly weapon enhancement allegations not true but found the rest of the enhancement allegations to be true. The court found the prior strike and prior prison term allegations to be true. (§§ 667, subds. (a), (b), (e); 459; 236; 422; 667, subds. (b)-(i); 667.5.)
Appellant was sentenced to a term of 50 years to life plus 13 years.
Appellant contends the sentence must be vacated and the matter remanded for resolution of the insanity plea. Respondent concedes that the sanity phase proceedings were not conducted and we accept this concession as properly made.
Next, appellant argues that the conviction for assault with intent to commit rape must be reversed because this is not a lesser included offense to the crime of attempted rape; it is an aggravated form of attempted rape. We agree. (People v. Ghent (1987) 43 Cal.3d 739, 757). Constitutional due process protections compel reversal of this conviction because it is an uncharged crime that is greater than the charged offense. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-373.) We reject respondent’s contention that defense counsel impliedly consented to conviction of assault with intent to commit rape. The court sua sponte proposed instruction on this offense as a lesser included offense to the charged attempted rape. Under the circumstances presented in this case, defense counsel’s acceptance of the suggested instruction does not constitute a forfeiture of a known right or constitute consent to conviction of an uncharged offense that is greater than the charged crime.
FACTS
Appellant entered the victim’s house during the early morning hours of September 15, 2003. He took $80 and a pair of earrings. He tied her hands. He asked her if she had a boyfriend. When she answered affirmatively, he told her to pretend this was a fantasy with her boyfriend. He took off her pajama bottoms and panties. She said that she was menstruating. He opened her labia, where he could see a tampon string. He unzipped his pants, put his penis in her mouth and ejaculated.
The parties stipulated that sperm found on the victim’s sheets matched appellant’s DNA.
Appellant admitted to an investigating officer that he entered the victim’s house and took her money and earrings. He stated that she “gave him a blow job.”
Defendant testified that he was under the influence of methamphetamine, cocaine, marijuana and alcohol when he entered the victim’s residence. He entered to steal jewelry, cash or anything else he could sell to buy drugs. He denied attempting to have sexual intercourse with the victim; he did not check to see if she was menstruating. The victim touched him on the stomach and he became aroused. The victim orally copulated him voluntarily.
DISCUSSION
I. The matter must be remanded for sanity phase proceedings.
Appellant entered dual pleas of not guilty and not guilty by reason of insanity on January 27, 2005. A psychiatric appointment order was filed that same day. The doctors’ reports were ordered due on February 18. Review of the psychiatrists’ reports was calendared for February 24.
Henceforth, unless otherwise specified all dates refer to 2005.
On February 24, trial dates were set. Although the phrase “Review of Doctors Report” is contained in the comments portion of the minute order, there is no indication in the record that any sanity related proceedings were conducted on this date. The reporter’s transcript of the brief hearing conducted on this date does not include any reference to the insanity plea or the psychiatrists’ reports.
There is no indication in the record that appellant withdrew the insanity plea or that sanity phase proceedings were conducted.
Appellant contends and respondent concedes that the sentence must be vacated and the matter remanded for sanity phase proceedings. We accept this concession as properly made.
People v. Lyons (1971) 18 Cal.App.3d 760 (Lyons) is on point. There, defendant initially pleaded not guilty; later, he changed his plea to not guilty and not guilty by reason of insanity. A psychiatric appointment order was filed. As a result of some confusion, the insanity plea was not submitted on the reports of the doctors and no disposition was made of this plea. The defendant was tried, found guilty and sentenced. (Id. at p. 780.) The appellate court reversed the judgment and remanded the matter for resolution of the insanity plea. If defendant was found sane, the appellate court directed the superior court to resentence him. If defendant was found not guilty by reason of insanity, the superior court was directed to “take proper steps in the premises.” (Id. at p. 781.) The court explained:
“It is well established that, where an insanity plea is joined with a plea of not guilty, the trial and the verdict are not complete, and the court cannot impose a sentence after a verdict of guilty until and unless the insanity issue is first tried and the defendant found to be sane at the time the offenses were committed. It is irrelevant that the defendant may have failed to object to the entry of judgment before determination of his insanity plea. A sentence before both of such verdicts have been returned is void. [Citations.] It will be necessary, therefore, to remand the case to the trial court for trial of defendant’s plea of not guilty by reason of insanity.” (Lyons, supra, 18 Cal.App.3d at p. 780.)
Following and applying Lyons, we conclude that the sentence is void and the matter must be remanded for sanity phase proceedings and disposition of the insanity plea. To avoid confusion, we specifically mention that the remand does not affect the guilty verdicts on the charged offenses and the findings on the special allegations; retrial of the guilt phase is not necessary. (See, e.g., Lyons, supra, 18 Cal.App.3d at p. 781.)
II. Due process principles require reversal of the assault with intent to commit rape conviction because this crime is a greater offense than the charged attempted rape.
A. Facts
The prosecutor requested that the jury be instructed with CALCRIM No. 890 on assault with intent to commit a sex offense as a lesser included offense to count 1, forcible oral copulation.
During the instructional conference, the prosecutor asked the court why it had included this instruction “as a lesser offense to Count 2 [attempted rape]. I thought it was a lesser offense to Count 1 [forcible oral copulation].”
The court replied, “Maybe it’s more of a lesser included offense[] to Count 2 … [b]ecause Count 1 is … [¶] … [¶] … a completed act. That’s a completed act. You know, I think the rape is -- ”
The prosecutor interrupted, “I agree with you that it should be a lesser but in looking at the CALCRIMs it didn’t include it as a lesser. It included it as a lesser to Count 1. I would like it as a lesser to Count 2.”
The court continued, “I think it’s more of a lesser to Count 2 because … [¶] … [¶] … the Count 1, you know, that’s a completed act. And Count 2, you know, there was no completed, you know, act and all. I think that’s going to be very hard for the jury to decide if it’s an attempted rape. I think it’s more easy for them to come to a conclusion as to whether or not it’s even an[] assault with intent [to] commit a sex offense. I think that makes more sense.”
The prosecutor asked whether the personal weapon use allegation attached to this lesser offense. The court concluded that the allegation would attach to any felony lesser offense.
The prosecutor asked whether the instruction on assault with intent to commit a sex crime would be “give[n] … as a lesser to Count 1 also or just as to Count 2?”
The court replied, “I was inclined just to give it to Count 2. But …[¶] … [¶] … [if] you want to have it lesser included to Count 1 or 2, I have no problem.”
The prosecutor stated, “Well, Your Honor, that’s what the CALCRIMs say.”
The court said, “Okay, let’s just do it.”
Defense counsel spoke for the first time, saying “Fine with me.”
The prosecutor said, “I don’t like it but.”
The court stated, “Okay. We’ll change that [CALCRIM No.] 890 to read a lesser offense to that charged in Count 1. And Count 2, namely, oral -- forcible oral copulation and rape.”
The topic of lesser included offenses to the charged crimes was revisited at a later point in the instructional conference. In relevant part, the court stated, “And then the offense of, again, assault with the intent to commit rape is a lesser offense to the charge of attempted rape in Count 2.”
After setting forth the lesser included offenses for the other counts and going over the verdict forms, the court asked counsel whether they had “further jury instructions or any objections the to ones [sic]?” Defense counsel replied, “No.” The prosecutor answered, “No, Your Honor.”
The jury was instructed with CALCRIM No. 890 on the crime of assault to commit a sex offense as a lesser offense to the charges in count 1 and count 2.
The jury found appellant not guilty of attempted rape as charged in count 2 but guilty of assault to commit rape. The verdict form specifically states assault with intent to commit rape is “a lesser included offense” to the crime of attempted rape.
B. Assault with intent to commit rape is not a lesser included offense to the crime of attempted rape; it is an aggravated form of attempted rape.
Appellant argues that constitutional due process principles require reversal of the assault with intent to commit rape conviction because this crime is not a lesser included offense of the charged attempted rape -- it is an uncharged and greater offense. We agree.
Assault with intent to commit rape is not a lesser included or lesser related offense to the crime of attempted rape. Assault with intent to commit rape is an aggravated form of attempted rape. This crime differs from attempted rape only in that an assault must be shown. (People v. Ghent, supra, 43 Cal.3d at p. 757; In re Jose M. (1994) 21 Cal.App.4th 1470, 1477.)
Assault with intent to commit rape is a lesser included offense to the crime of rape because every rape necessarily includes an assault. (In re Jose M., supra, 21 Cal.App.4th at p. 1477.)
C. Absent consent, appellant cannot constitutionally be convicted of an uncharged crime that is a greater offense than the charged crime.
It is settled law that, absent consent, a defendant may not be convicted of an uncharged offense that is greater than the charged crime. “It is fundamental that ‘When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime….’ [Citation.]” (People v. Lohbauer, supra, 29 Cal.3d at p. 368.) In People v. Reed (2006) 38 Cal.4th 1224, our Supreme Court explained the applicable principle:
“A defendant may be convicted of an uncharged crime if, but only if, the uncharged crime is necessarily included in the charged crime. [Citations.] The reason for this rule is settled. ‘“This reasoning rests upon a constitutional basis: ‘Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.’ [Citation.]”’ [Citation.] The required notice is provided as to any charged offense and any lesser offense that is necessarily committed when the charged offense is committed. [Citation.]” (People v. Reed, supra, 38 Cal.4th at p. 1227.)
Appellant correctly relies on People v. Ramirez (1987) 189 Cal.App.3d 603 (Ramirez) and People v. Haskin (1992) 4 Cal.App.4th 1434 (Haskin) to support his contention that due process principles require reversal of the assault conviction because he was not advised of this specific charge and did not have the opportunity to prepare a defense to this crime.
In Ramirez, defendants were charged with numerous sex offenses. On counts 5 and 6, the jury found that defendant had committed acts of penetration by a foreign object while acting in concert. However, the information did not contain in concert allegations attached to these two counts. The appellate court reduced the convictions to simple penetration. In relevant part, the court explained that “Conviction for an uncharged greater offense not only raises the problem of notice but makes the inference of consent more difficult, as there is no reason why a defendant should acquiesce in substitution of a greater for a lesser offense.” (Ramirez, supra, 189 Cal.App.3d at p. 623.) The court also concluded that defendants did not consent to the uncharged in concert allegations:
“This case presents no active acquiescence in the greater charge [citations], nor benefit from dismissal of a greater charge from which consent may be inferred. [Citations.] The only basis for inferring consent is appellants’ failure to object to verdicts including the in concert allegations. We decline to hold that a consent is established by the absence of objection [citation] especially where, as here, appellant could have no incentive to object and risk amendment of the information to charge the greater offense.” (Ramirez, supra, 189 Cal.App.3d at p. 624.)
In People v. Haskin, supra, 4 Cal.App.4th 1434, defendant admitted, as charged, a one-year enhancement allegation under section 667.5, subdivision (b), for a prior prison term following a burglary conviction. The court observed that the enhancement did not indicate whether the burglary was residential. The People did not move to amend the information. Instead the People asked the court to make such a finding. The court found the conviction was for a residential burglary. Appellant was subsequently sentenced to a five-year consecutive term for this enhancement. The appellant court struck the five-year term and substituted a one-year term. The court reasoned:
“Due process requires that an accused be advised of the specific charges against him so he may adequately prepare his defense and not be taken by surprise by evidence offered at trial. [Citations.] This means that except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. [Citation.] An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense. [Citations.] The same rules apply to enhancement allegations. [Citation.]” (People v. Haskin, supra, 4 Cal.App.4th at p. 1438.)
From Ramirez and Haskin we derive the applicable principle that conviction of an uncharged offense that is greater than the charged crime cannot stand unless appellant consented to substitution of the uncharged offense.
D. The Toro rule does not apply to uncharged greater offenses.
Impliedly conceding that the jury was misinstructed, respondent argues that the Toro rule applies to this case. (People v. Toro (1989) 47 Cal.3d 966 (Toro).) The Toro rule requires a defendant to object to instruction on an uncharged, lesser related offense should he not want the benefit of it. (Id. at p. 973.) In Toro, defendant was found guilty of battery with serious injury as a lesser included offense to the charged crime of attempted murder. In actuality, battery with serious injury is a lesser related offense. The court offered the instruction sua sponte and defense counsel did not object. The Supreme Court determined that defense counsel’s failure to object to instruction on this lesser related offense constituted an implied consent to the jury’s consideration of this crime and a waiver of any objection based on lack of notice. (Id. at pp. 977-978.) Toro explained that instructions on lesser related offenses are not erroneous in any of the usual senses because they are not legally incorrect, misleading or unrelated to the facts of the case. Furthermore, lesser related offense instructions generally are beneficial to defendants. Therefore, failure to object to the instruction bars a subsequent contention based on lack of notice. (Id. at p. 977.)
Without providing any supporting authority, respondent asserts that the Toro rule also applies to uncharged greater offenses and that Toro impliedly overruled Ramirez. We disagree; there is nothing in Toro that supports application of its holding to uncharged greater offenses. Absence of an objection does not raise an inference of content when the offense is greater than the charged crime because the instruction does not provide any conceivable benefit to the defendant and the defendant has no possible incentive to consent to the instruction on the greater charge. A criminal defendant does not gain any advantage from instruction on offenses that are greater than the charged offense. Instruction on a greater offense generally is not part of a reasonably competent defense strategy, for a guilty verdict on an offense that is greater than the charged crime is not a desirable result under any circumstances we can fathom.
Furthermore, in this case the instruction on assault with intent to commit rape and the associated verdict form were objectively erroneous. The jury was incorrectly told that assault with intent to commit rape is a less serious offense than attempted rape. This certainly may have prejudiced appellant. The jury believed it was convicting appellant of a crime less serious than that charged when, in actuality, it was convicting him of a greater offense.
For all these reasons, we decline to expand the Toro rule to include uncharged greater offenses. Rather, we follow and apply the reasoning and result reached in Ramirez -- that mere failure to object does not provide a basis for inferring consent to conviction of an uncharged greater offense. (Ramirez, supra, 189 Cal.App.3d at p. 624.)
E. Appellant did not consent to conviction of an uncharged and greater crime.
Defense counsel agreed to the court’s suggested instruction on the crime of assault with intent to commit rape as a lesser included offense to the charged attempted rape. Under the circumstances presented in this case, defense counsel’s agreement does not constitute express or implied consent to conviction of an uncharged crime that is greater than attempted rape. The record reflects that the trial court sua sponte suggested instruction on assault with intent to commit rape as a lesser included offense to count 2. (The prosecutor only requested instruction on assault with intent to commit a sex crime as a lesser included offense to count 1.) The trial court incorrectly told counsel that assault with intent to commit rape is a lesser included offense to attempted rape. If defense counsel had objected to the suggested instruction on the ground that it was legally incorrect and that assault constitutes a greater crime, he risked amendment of the information to charge this more serious offense. (Ramirez, supra, 189 Cal.App.3d at p. 624.) Additionally, there is no legitimate tactical reason why defense counsel would knowingly agree to his client being convicted of a crime that is greater than the charged offense. Unlike lesser related offenses, appellant gained no tactical advantage or benefit from instruction on greater offenses. For these reasons, we conclude that defense counsel’s acquiescence to instruction on assault with intent to commit rape as a lesser included offense to count 2 cannot be construed as knowing consent to an implied amendment of the information. Similarly, it cannot be construed as consent to conviction of a crime that is greater than the charged attempted rape.
Appellant has not argued that defense counsel was ineffective for agreeing to instruction on assault with intent to commit rape. Were this court to have concluded that defense counsel’s agreement to instruction on this crime constituted consent to implied amendment of the information and conviction of a crime greater than the charged attempted rape, an issue concerning defense counsel’s competency would have arisen.
F. The error requires reversal of the assault with intent to commit rape conviction.
In Ramirez, the appellate court reduced the penetration by foreign object while acting in concert conviction to simple penetration convictions. (Ramirez, supra, 189 Cal.App.3d at p. 624.) In Haskins, supra, 4 Cal.App.4th 1434, the appellate court struck the five-year term and substituted a one-year term in its place. (Haskins, supra, 4 Cal.App.4th at pp. 1441-1442.) Therefore, reduction of the assault conviction to the charged crime of attempted rape initially appears to be the most appropriate remedy for the trial court’s error. Yet, the factual posture of this case is distinguishable from Ramirez and Haskins. Unlike those cases, the jury in the matter before us expressly found appellant not guilty of attempted rape. We cannot reduce the conviction to a crime that the jury has determined that appellant did not commit. Therefore, this court is left with no choice but to reverse the assault conviction on the ground that it was obtained in violation of appellant’s due process rights.
DISPOSITION
The conviction for assault with intent to commit rape is reversed. All other convictions and findings underlying the judgment are affirmed. The sentence is vacated and the cause is remanded for sanity phase proceedings. If appellant withdraws his insanity plea or is found sane, the court will resentence him as provided by law. If appellant is found legally insane, the court will then proceed according to law.
WE CONCUR: Hill, J., Kane, J.