People v. Dobson

• Citation: 205 Cal.App.3d 496,252 Cal.Rptr. 423
• Decision Date: 27 October 1988
• Docket Number: No. D004919,D004919
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Edwin DOBSON, Defendant and Appellant.

Page 423

252 Cal.Rptr. 423

205 Cal.App.3d 496

The PEOPLE, Plaintiff and Respondent, v. Michael Edwin DOBSON, Defendant and Appellant.

No. D004919.

Court of Appeal, Fourth District, Division 1, California.

Oct. 27, 1988.

Review Denied Jan. 26, 1989. ^*

Howard C. Cohen, San Diego, under appointment by the Court of Appeal, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Frederick R. Millar, Jr. and John W. Carney, Supervising Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

A jury convicted Michael Edwin Dobson of attempted voluntary manslaughter (Pen.Code, §§ 664/192) ¹ forcible oral copulation ( § 288a subd. (c)), and rape, ( § 261(2)) finding that in the commission of each offense Dobson inflicted great bodily injury ( §§ 12022.7 and 12022.8) and used a deadly weapon ( §§ 12022, subd. (b) and 12022.3, subd. (a)). The court sentenced Dobson to prison for thirty-seven and one-half years: the upper term of five and one-half years for attempted manslaughter with the great bodily injury enhancement ( § 12022.7) stayed and consecutive upper term eight year sentences for the rape and forcible oral copulation, each enhanced by five years for inflicting great bodily injury ( § 12022.8) and three years for using a deadly weapon ( § 12022.3, subd. (a)). Dobson appeals contending sentencing errors require resentencing. We partially agree. As we shall explain we conclude the court erred in enhancing the sex offenses because Dobson's infliction of great bodily injury and use of a deadly weapon occurred solely in his attempt to kill the victim and not in the commission of his earlier sex offenses. We reject the remainder of his arguments, but remand for resentencing.

FACTS

On the evening of February 4, 1984, Bobbie C. was driving on highway 5 south of San Clemente. Another driver, Dobson, drew her attention to an unfastened tailgate on the pick-up she was driving. Bobbie Dobson conceded the commission of the sex offenses. His testimony was directed primarily to refuting the element of malice in the attempted murder count. Acknowledging Bobbie C.'s right to hit him, he said, "I just lost my temper because I have never liked women to hit me. When people hit me, I always hit them back." He recalled striking her repeatedly but had no recollection of using any implement to hit her. He did not remember choking or kicking her, even though the facts clearly established Dobson viciously beat his victim with a six inch rock and one of her boots. Dobson also presented evidence he was fatigued and his mental state affected because of overwork and drug use. Bobbie C. was hospitalized and treated for multiple facial, skull, rib and finger fractures.

C. pulled her car over to the side of the road. Dobson also stopped. He entered her car and dragged her into some bushes. Threatening to kill her if she resisted, Dobson then forced her to orally copulate him and raped her. Dobson then said he had to kill her because she could identify him. Dobson beat her severely, repeatedly asking why she did not die.

DISCUSSION

I

Dobson argues the court erred when it imposed great bodily injury and weapons use enhancements to the sex offenses contending those enhancements occurred solely during his later attempt to kill the victim. Alternatively he says the court erred in failing to apply section 654 to the attempted manslaughter sentence since his attempt to kill the victim was to avoid detection for the sex offenses thereby requiring a stayed sentence. These arguments require a further discussion of the facts forming the basis for the court's determination that it could impose consecutive sentences for each offense:

Before the court sentenced Dobson it said:

"... [Dobson's] first objective was--or involved sexual satisfaction in a violent way. This was accomplished by means of the rape and the forcible oral copulation. When that was finished, I believe he formed a different and separate objective and intent, and that was the objective to kill because he was afraid that the victim would identify him. His intents and objectives were different, I believe, in these two instances.... [p] When the defendant had finished raping the victim, he got back up, he looked at her, and said, 'Now I have to kill you, bitch, because you can identify me.' It was at this point that the defendant put both his hands on the victim's throat and began to strangle her. While continuing to strangle the victim, the defendant yelled at her, 'You're going to die, bitch; you might as well give up, you're going to die and no one can hear you; you have to die.' When he was unable to strangle her manually, he continued and tried to strangle her with a belt. The belt broke before he could successfully strangle her. This appeared to anger Mr. Dobson even more and he continued to yell at the victim that she had to die, 'Why aren't you dying?' [p] The victim at this point or after some further abuse, said that she was dying and that he should leave her and that she promised to die and the defendant then said, 'You can identify me, I can't leave you because you're still moving.' [p] I go into the details of this because I want the Court of Appeal to understand why I've concluded that we are dealing with multiple criminal objectives and that the objectives are different."

The court's finding that Dobson had separate "intents and objectives" is amply supported by the evidence. Dobson's assertion that the court second-guessed the jury and sentenced him as though he had been guilty of attempted murder is meritless. The jury's finding that Dobson was guilty of attempted manslaughter and not attempted murder was predicated on its determination of his diminished mental condition rather than because it disbelieved the victim. (See People v. Poddar (1974) 10 Cal.3d 750, 757, 111 Cal.Rptr. 910, 518 P.2d 342.) Consequently the court's imposition of consecutive sentences for each Section 654 provides in part:

offense was lawful. The enhancements, however, present a different question.

"An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one ..."

Although the cases are not in total agreement (compare People v. Moringlane (1982) 127 Cal.App.3d 811, 817-819, 179 Cal.Rptr. 726 with People v. Boerner (1981) 120 Cal.App.3d 506, 511, 174 Cal.Rptr. 629) it is now well-accepted that section 654 applies to enhancements. (People v. Almeda (1988) 197 Cal.App.3d 1200, 1204, 243 Cal.Rptr. 337, fn. 3; People v. Barker (1986) 182 Cal.App.3d 921, 941, 227 Cal.Rptr. 578; People v. Dominick (1986) 182 Cal.App.3d 1174, 1209-1210, 227 Cal.Rptr. 849; People v. McElrath (1985) 175 Cal.App.3d 178, 192, 220 Cal.Rptr. 698; People v. Carter (1983) 144 Cal.App.3d 534, 543, 193 Cal.Rptr. 193; People v. Turner (1983) 145 Cal.App.3d 658, 683, 193 Cal.Rptr. 614, fn. 7; People v. Moringlane, supra; contra People v. Warinner (1988) 200 Cal.App.3d 1352, 247 Cal.Rptr. 197; see also discussion at 8 CJER Journal, Felony Sentencing, June 1987, § 97, 245-108, 109.) Section 654 proscribes double punishment for multiple violations of the Penal Code based on the "same act or occurrence" (People v. Siko (1988) 45 Cal.3d 820, 821, 248 Cal.Rptr. 110, 755 P.2d 294) regardless if those violations are defined as offenses or enhancements (People v. Hopkins (1985) 167 Cal.App.3d 110, 117, 212 Cal.Rptr. 888).

The sentencing court here was obviously aware of the application of section 654 to enhancements because it stayed the enhancements on the voluntary manslaughter. The reason the court could attach the great bodily injury and weapons use enhancement to each sex offense is that neither the Culbreth rule (In re Culbreth (1976) 17 Cal.3d 330, 130 Cal.Rptr. 719, 551 P.2d 23) nor section 654 prohibits the imposition of multiple enhancements for weapons use under section 12022.3 (People v. Blevins (1984) 158 Cal.App.3d 64, 68, 204 Cal.Rptr. 124; see generally People v. Ramirez (1987) 189 Cal.App.3d 603, 627-630, 236 Cal.Rptr. 404) or great bodily injury under section 12022.8 (People v. McElrath, supra, 175 Cal.App.3d 178, 188, 220 Cal.Rptr. 698). Thus Dobson's concern is not really with whether the enhancements for great bodily injury and weapons use can be imposed, but rather whether those enhancements can be imposed more than once by attaching them to the sex offenses.

According to the court's analysis of the facts, Dobson completed his sex offenses on Bobbie C. before he attempted to kill her. We must conclude from the court's statements and its stay of the enhancements on the attempted manslaughter count that the conduct constituting the enhancements occurred during Dobson's efforts to kill the victim and not during the sex offenses. Even though Dobson dragged Bobbie C. into the bushes and hit her before sexually assaulting her the court impliedly found that this conduct committed without weapons did not constitute the infliction of great bodily injury under either sections 12022.7 or 12022.8. Because Dobson was no longer committing acts defined as offenses in section 288a, subdivision (c) or section 261(2) the enhancements for inflicting great bodily injury and weapons use were unrelated to the sex offenses and accordingly there was no factual basis to attach the enhancements to those offenses.

The People's response to this factual argument is that the law does not always view the completion of a criminal offense as that moment in time when the physical conduct constituting the offense has ended. For example the appellate court in People v. Johnson (1980) 104 Cal.App.3d 598, 164 Cal.Rptr. 69 explained that the defendant's infliction of great bodily injury on a witness during the defendant's attempt to escape were acts occurring in the commission of the crime of receiving stolen property because like...