Opinion
C082530
12-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSE EDUARDO RUIZ-RODRIGUEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62138042)
A jury convicted defendant Jose Eduardo Ruiz-Rodriguez of attempted kidnapping, assault with intent to commit rape, felony false imprisonment, and assault. The trial court sentenced defendant to 10 years 10 months in prison, which included six years on the count two conviction for assault with intent to commit rape and a consecutive four years on the count one conviction for attempted kidnapping.
Defendant now contends the consecutive four-year sentence on the count one conviction for attempted kidnapping violates Penal Code section 654, because the attempted kidnapping was part of the same act or course of conduct as the assault with intent to commit rape. Finding no merit in the contention, we will affirm the judgment.
Undesignated statutory references are to the Penal Code. --------
BACKGROUND
After looking through a dumpster, the victim turned and saw defendant. Defendant said to the victim, "Do you like money? I like what I see." The victim said no and walked away. Defendant followed her. She continued to tell him to leave her alone, but he refused and smacked her buttocks three times. He said he had money and a car. She crossed the street and he followed. She again told him to leave her alone.
At one point she thought he had left until she heard him running up to her. As she turned to see him approach, he grabbed her around her stomach, picked her up, and threw her to the ground. He grabbed her and dragged her under a bridge where they were out of sight of the road. The victim yelled, kicked herself free, and ran away yelling "fire." But defendant chased her through an underpass, choked her to the point of blacking out, and tried to drag her to a secluded alley, although the victim resisted by clinging to a pole. The victim was rescued when a passing jogger saw defendant trying to pull her from the pole and chased defendant away.
The jury found defendant guilty of attempted kidnapping (§§ 664/207 -- counts one and four), assault with intent to commit rape (§ 220/261 -- count two), felony false imprisonment (§ 236 -- counts three and six), and misdemeanor assault (§ 240 -- count five). At sentencing, defense counsel argued section 654 prohibited separate punishments on the convictions for attempted kidnapping and assault with intent to commit rape. The trial court disagreed, noting that section 667.6 permits full, separate, and consecutive terms for certain enumerated offenses. The trial court imposed consecutive upper terms for attempted kidnapping and assault with intent to commit rape.
DISCUSSION
Defendant contends the consecutive four-year sentence on the count one conviction for attempted kidnapping violates section 654, because the attempted kidnapping was part of the same act or course of conduct as the assault with intent to commit rape.
As the trial court noted, section 667.6, subdivision (c) permits the imposition of full, separate, and consecutive terms for certain enumerated offenses, including assault with intent to commit rape, "if the crimes involve the same victim on the same occasion." In People v. Hicks (1993) 6 Cal.4th 784, 792 (Hicks), section 667.6 was construed to provide a partial exception to section 654, permitting multiple punishment if the convictions arise from an indivisible course of conduct. (Id. at p. 787.) Hicks relied on then-existing language in subdivision (c) of section 667.6 allowing separate terms " 'whether or not the crimes were committed during a single transaction.' " (Hicks, supra, 6 Cal.4th at p. 793; former § 667.6, subd. (c), added by Stats. 1993, ch. 127, § 1.) But in 2006, Proposition 83 removed "whether or not the crimes were committed during a single transaction" and replaced that phrase with "if the crimes involve the same victim on the same occasion." (Stats. 2006, ch. 337, § 32.)
Defendant argues that because the language interpreted in Hicks, supra, 6 Cal.4th 784 is no longer part of section 667.6, subdivision (c), Hicks no longer controls. But the current statutory language is on point in this case, authorizing separate terms where, as here, the crimes involved the same victim on the same occasion.
Nevertheless, defendant argues multiple punishments are proscribed by section 654 in this case because the count one and count two convictions arose from the same act. He claims the assault with intent to commit rape was necessarily subsumed within the attempted kidnapping count. We disagree. Defendant's act of grabbing the victim and throwing her to the ground was sufficient to complete the assault, whereas the attempted kidnapping involved his conduct in pulling her under the bridge. The record shows that the assault with intent to commit rape and the attempted kidnapping did not arise from the same act. (See People v. Corpening (2016) 2 Cal.5th 307, 313 ["Whether a defendant will be found to have committed a single physical act for purposes of section 654 depends on whether some action the defendant is charged with having taken separately completes the actus reus for each of the relevant criminal offenses"].)
DISPOSITION
The judgment is affirmed.
/s/_________
MAURO, Acting P. J. We concur: /s/_________
MURRAY, J. /s/_________
DUARTE, J.