People v. Nicholson

• Decision Date: 16 November 1979
• Docket Number: Cr. 18290
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Aaron D. NICHOLSON, Defendant and Appellant.

Page 766

159 Cal.Rptr. 766

98 Cal.App.3d 617

The PEOPLE, Plaintiff and Respondent, v. Aaron D. NICHOLSON, Defendant and Appellant.

Cr. 18290.

Court of Appeal, First District, Division 2, California.

Nov. 16, 1979.

Hearing Denied Jan. 24, 1980.

Howard J. Berman, Berman & Glenn, San Francisco, for defendant and appellant (Under appointment of the Court of Appeal).

Evelle J. Younger, Atty. Gen. of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Ann K. Jensen, Franklin D. Elia, Deputy Attys. Gen. San Francisco, for plaintiff and respondent.

ROUSE, Associate Justice.

On appeal from a judgment of conviction for lewd and lascivious conduct upon the body of a child under the age of 14 years appellant contends that the sentencing court erred in committing him to prison on this count since he already had commenced serving a lesser term on a different count, and that the court also erred in sentencing him on a lesser included offense. Neither claim has merit.

The Evidence

On August 30, 1977, the victim, S., an 11-year-old girl, decided to leave home because of a disagreement with her mother. She went to the home of a 16-to 17-year-old male friend; among those present was appellant, aged 18. When S. informed appellant that she was 13 and that she had run away from home, he said she could stay at his place. She accepted the invitation because she did not want her mother to discover her whereabouts.

Appellant and S. watched television in his home most of the afternoon in the company of his sisters and a friend of theirs. When the others left at about 5 p. m., appellant asked S. whether she "would do something if a friend asked," and she responded that it depended on the question. He led her by the hand to the den where he told her to take off her clothes and to get down on the floor. She stated that she had to go to the bathroom. He accompanied her and threatened to kill her if she tried to close the door.

They went back to the den. S. was crying because of the death threat. Appellant then threatened to hit her in the head with a bottle if she did not shut up. When he threatened her with a hammer she got down on the floor. She lowered her pants; and appellant lowered his, got on top of her, put his penis "just a little" inside her vagina and "was bouncing up and down on (her)" for "five or ten, fifteen minutes." S. cried throughout the incident.

When it was over appellant told S. to dress and to braid his hair, which she did. He took a knife, held it to her neck, and told S. to go back to her friend's house and that if she told anyone what had happened he would kill her. S. thought she was going to get into trouble, so she told no one of the incident for two and one-half weeks. The day after the incident appellant told an acquaintance that he had intercourse with the victim ("knocked that bitch").

Appellant denied threatening or molesting S. in any way; he admitted hitting her when she called him a homosexual.

Double Jeopardy Allegation

Appellant was charged in Count I with lewd and lascivious acts upon the body of a child under the age of 14 years (Pen.Code, § 288), and in Count II with attempted unlawful sexual intercourse (Pen.Code, §§ 664, 261.5). After hearing the above summarized evidence a jury found him guilty of both counts but recommended a county jail sentence as to Count II.

On February 21, 1978, the trial court (Hon. Howard W. Hartley) found that appellant was not a mentally disordered sex offender. He then heard argument on appellant's motion for new trial which was based on the allegation that the court erred when it failed to instruct the jury that the crime charged in Count I was a lesser included offense in Count II. In the alternative appellant moved that the court dismiss Count I.

The court stated that the first count more accurately reflected what had happened than did the second, and said, "I think the Court at this time is going to dismiss Count 2." However, after further discussion the court changed its mind and decided to "suspend judgment" on Count I while "proceed(ing) only on Count 2." After further discussion the court took the matter of sentence on Count II under submission, suspended proceedings, and committed appellant for diagnosis and recommendation pursuant to Penal Code section 1203.03.

Judge Hartley retired while appellant was under this commitment. The matter came before Hon. Gerald E. Ragan on April 25, 1978, at which time counsel on both sides reasserted their positions regarding the proper disposition of the two counts.

On May 3, 1978, after further argument, Judge Ragan rendered his decision. He found that appellant had engaged in one continuous course of conduct involving one victim but two distinct violations the attempted unlawful sexual intercourse, and the violation of section 288. He noted that he was bound by the jury's recommendation of commitment to county jail as to the "statutory rape," but found that he had the power to suspend imposition of sentence on the "lesser charge . . . and sentence on the more serious charge." Accordingly he struck Count II ( §§ 664, 261.5) and sentenced appellant to prison for the middle term of four years on Count I ( § 288).

Appellant's first assignment of error is that Judge Ragan was bound to sentence him to county jail on Count II, because Judge Hartley already had pronounced judgment and sentence on that count. His argument that Judge Ragan's actions placed him in double jeopardy is factually and legally unfounded. Judge Hartley never pronounced judgment on either count. He "suspend(ed) judgment" on Count I, "proceed(ed) only on Count II," and then suspended proceedings pursuant to section 1203.03. The Legislature has specifically provided for such delay of pronouncement of judgment when section 1203.03 is invoked. (Pen.Code, § 1191.) People v. Thomas (1959) 52 Cal.2d 521, 342 P.2d 889, upon which appellant relies, is not in point. It holds that a jail sentence cannot be rescinded and replaced with a prison commitment if defendant already has begun serving the sentence or has been restrained under an imposed sentence. This did not occur in the case at bench. Thus sentencing appellant as to Count I did not constitute a violation of his right against being placed in double jeopardy.

"Lesser Included Offense" Allegation

Appellant contends that it was error for the court to sentence him on Count I because it was a "lesser included offense" of Count II.

Count I of the information charged appellant with violation of section 288 in that he "did wilfully, unlawfully and feloniously and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of S . . . , a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions and sexual desires of the said defendant and the said child." Count II charged appellant with violation of sections 664 and 261.5 in that he "did wilfully, unlawfully and feloniously attempt to accomplish an act of sexual intercourse with a female person, to wit: S . . . , not his wife, who was then and there under the age of eighteen years, to wit: eleven years."

Where an offense cannot be committed without necessarily committing another offense, the latter is "necessarily included" in the former. (People v. Greer (1947) 30 Cal.2d 589, 596, 184 P.2d 512; People v. Jarrett (1970) 6 Cal.App.3d 737, 740, 86 Cal.Rptr. 15.) Applying this test to the case at bench, neither charged crime was necessarily included in the other. "It is obvious that the necessary elements of lewd and lascivious conduct could be stated without stating the necessary elements of statutory rape (now known as unlawful sexual intercourse)." (People v. Greer, supra, 30 Cal.2d at p. 601, 184 P.2d at p. 519.) Conversely, one could attempt to commit unlawful sexual intercourse with a minor over the age of 14 and thereby not violate section 288.

Where a defendant is charged with one or more offenses and from the language of the pleading the commission of one charged offense necessarily includes the commission of another, the latter is a "necessarily included offense," even though its elements are not within the legal elements of the greater offense as defined by statute. (People v. Marshall (1957) 48 Cal.2d 394, 309 P.2d 456; People v. Troyn (1964) 229 Cal.App.2d 181, 185, 39 Cal.Rptr. 924.) Applying this test to the case at bench we again conclude that neither charged crime was necessarily included in the other. From the language of the pleading quoted above it appears that the charged lewd and lascivious act could have been an act other than the charged attempt to commit unlawful sexual intercourse; and appellant could have attempted to commit unlawful sexual intercourse with the victim in a manner that did not involve a violation of section 288.

As to the latter point, although penetration is a required element of the crime of unlawful sexual intercourse, attempted penetration is not an element of the attempt to commit that crime. To constitute an attempt there must be specific intent to commit the crime and a direct ineffectual act done towards its commission which goes further than preparation. Acts short of attempted penetration have been held to suffice. People v. Welch (1972) 8 Cal.3d 106, 118, 104 Cal.Rptr. 217, 501 P.2d 225, and cases cited therein; People v. Thomas (1958)164 Cal.App.2d 571, 574, 331 P.2d 82.) It follows that attempted unlawful sexual intercourse can occur without the commission of a lewd and lascivious act, ¹ and that attempted violation of section 261.5 as pleaded did not necessarily include a violation of section 288. ² Therefore, applying the traditional tests to the facts herein, this case involves no "necessarily included" offense. ³

Nevertheless, it has long been settled that a violation of section 261.5 is literally "included" in section 288, by the very...