People v. Ratcliffe

• Decision Date: 21 October 1981
• Docket Number: Cr. 21744
• Citation: 177 Cal.Rptr. 627,124 Cal.App.3d 808
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Eddie RATCLIFFE, Defendant and Appellant.

Page 627

177 Cal.Rptr. 627

124 Cal.App.3d 808

PEOPLE of the State of California, Plaintiff and Respondent, v. Ronald Eddie RATCLIFFE, Defendant and Appellant.

Cr. 21744.

Court of Appeal, First District, Division 3, California.

Oct. 21, 1981.

As Modified Nov. 9, 1981.

Hearing Denied, Dec. 23, 1981.

Rehearing Denied Nov. 20, 1981.

Coleman Bresee, Bresee & Bresee, San Mateo, (Court-appointed) for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. DeHart, Laurence K. Sullivan, Deputy Attys., Gen., San Francisco, for plaintiff and respondent.

WHITE, Presiding Justice.

Procedural History

On May 19, 1978, a jury found defendant and appellant Ronald Ratcliffe guilty of kidnapping (Pen.Code, § 207), oral copulation by force (Pen.Code, § 288a, subd. (c)) forcible rape (Pen.Code, § 261, subd. (2)) and false imprisonment (Pen.Code, §§ 236-237). The jury also found that appellant used a dangerous weapon (a knife) in the commission of the false imprisonment charge within the meaning of Penal Code section 12022, subdivision (b). On June 16, 1978, the Honorable Richard W. Rhodes sentenced appellant to a term of imprisonment of seven and one-third years: five years on the rape charge (the upper base term); one and one-third years on the kidnapping charge; and one year on the oral copulation charge. A concurrent term of one year was also imposed on the false imprisonment charge. This court, in People v. Ratcliffe (November 6, 1979) 1 Crim. 18566, (unpub. opn.), authored by Scott, J., affirmed the judgment. ¹

On April 16, 1980, appellant filed a petition for writ of habeas corpus in the Santa Clara County Superior Court contending (1) the trial judge failed to state his reasons for imposing consecutive rather than concurrent terms; and (2) the imposition of sentence on the kidnapping and false imprisonment charge was violative of the prohibition against multiple punishment contained in Penal Code section 654. On May 30, 1980, the Honorable Peter G. Stone, Judge of the Santa Clara County Superior Court, granted appellant's petition insofar as it claimed an impropriety in the imposition of consecutive sentences and directed that appellant be returned to the Santa Clara County Superior Court for resentencing.

On August 1, 1980, appellant appeared before the Honorable Richard W. Rhodes for resentencing. Judge Rhodes found that Penal Code section 654 was not applicable "to these four charges" and sentenced appellant to a term identical to the previously imposed sentence except that the concurrent term on the false imprisonment charge was three years.

Appellant has appealed from the sentence imposed on August 1, 1980, ² and contends on appeal that (1) the imposition of consecutive sentences for kidnapping, rape and oral copulation violated the multiple punishment prohibition of Penal Code section 654; (2) the imposition of a sentence for false imprisonment violated the multiple punishment prohibition of Penal Code section 654; (3) the court erred in using the same facts to impose an aggravated term and consecutive sentences; and (4) the inclusion of erroneous and irrelevant material in the probation report used at appellant's sentencing hearing was prejudicial and constituted a denial of due process of the law. We find that appellant was erroneously convicted of false imprisonment, a lesser included offense of kidnapping. We affirm the remaining judgments of conviction, but remand for resentencing without the dual use of facts for imposition of aggravated and consecutive sentences.

Facts

The bulk of the People's case was established through the testimony of Ms. Dillard, ³ the complaining witness. At this point a brief summary of that testimony evidencing appellant's shockingly flagrant felonious conduct will suffice. The jury's verdicts necessarily imply that they determined that appellant in the order designated (1) forcibly kidnapped Dillard (from her apartment via automobile to his own); (2) therein after physically threatening her with a baseball bat, he demanded her money; (3) her screams for help unanswered, he then required her to strip naked, tied her to a bed, terrorized and assaulted her with a knife blade, and then raped her; (4) before releasing her bonds, he forced her to orally copulate; and (5) after he untied her, appellant forced her to drink clorox and to swallow some pills. Fortunately, Dillard escaped by jumping or falling out a window two stories high. The "incident" lasted the better part of six hours and included the perpetration of humiliating, degrading and depraved sexual indignities upon Dillard that we summarily discuss hereinbelow. In light of the above perspective, we now discuss appellant's contentions of alleged sentencing errors.

Multiple Punishment

Appellant contends that the imposition of consecutive terms for kidnapping, rape and oral copulation and a concurrent term for false imprisonment was violative of the prohibition against multiple punishment contained in Penal Code section 654. ⁴ Appellant argues that he cannot be punished for rape and oral copulation and also kidnapping and false imprisonment because the objective of the kidnapping and false imprisonment was to commit the sexual acts.

Penal Code section 654 is applicable where multiple convictions are based on a single act or omission. Penal Code section 654 provides in part: "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; "

The single act or omission is not the only test that is employed to determine the applicability of section 654. (People v. Beamon, supra, 8 Cal.3d 625, 637, 105 Cal.Rptr. 681, 504 P.2d 905.) "The proscription against double punishment in section 654 is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute within the meaning of section 654. The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." (People v. Bauer (1969) 1 Cal.3d 368, 376, 82 Cal.Rptr. 357, 461 P.2d 637, cert. den. 400 U.S. 927, 91 S.Ct. 190, 27 L.Ed.2d 187.) "On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct." (People v. Perez (1979) 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63.)

Appellant states "There is absolutely no evidence to support the conclusion that the kidnapping in the instant case had any 'independent purpose' or was anything more than being 'merely incidental' to the 'principle (sic) objective' of the extended period of sexual gratification, which also included the use of a camera and tape recorder which were located in appellant's apartment." Appellant further asserts that the "sentence for false imprisonment enhanced by the (use) allegation suffers the same disability as the sentence for kidnapping."

The determination of whether the acts of which a defendant has been convicted constitute an indivisible course of conduct is generally a factual determination made by the trial court on the basis of the findings concerning the defendant's intent and objective in committing the acts. ⁵ If the determination is a factual one, it will not be upset on appeal unless unsupported by the evidence presented at trial. (People v. Murphy (1980) 111 Cal.App.3d 207, 213, 168 Cal.Rptr. 423; People v. Lee (1980) 110 Cal.App.3d 774, 786, 168 Cal.Rptr. 231.) However, when there is no dispute as to the facts, the applicability of Penal Code section 654 is a question of law. (People v. Perez, supra, 23 Cal.3d 545, 552, fn. 5, 153 Cal.Rptr. 40, 591 P.2d 63.) The lower court found after rather lengthy arguments by defense counsel and the prosecutor that Penal Code section "654 does not apply to these four charges." The lower court did not state the basis for its determination. In order for us to decide whether the lower court correctly determined that section 654 is not applicable to this case, it is necessary to look at the type of intent or objective which will support a finding that the crimes of which a defendant has been convicted constitute an indivisible course of conduct. We will first consider whether appellant can be punished for kidnapping and also rape and oral copulation. ⁶

"Just as it is the criminal 'act or omission' to which section 654 refers, it is the criminal 'intent and objective' that we established as the test in Neal (Neal v. State of California (1960) 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839). (Citations.) In Neal we found to be crucial not the defendant's possible intent and objective to acquire money, to gain revenge or to ignite gasoline, but only his intent and objective to commit murder." (In re Hayes (1969) 70 Cal.2d 604, 610, 75 Cal.Rptr. 790, 451 P.2d 430, emphasis in original; see also In re Adams (1975) 14 Cal.3d 629, 634-635, 122 Cal.Rptr. 73, 536 P.2d 473.) Therefore, a defendant cannot successfully assert that Penal Code section 654 is applicable to a series of separate thefts on the ground that his sole intent and objective was a desire for wealth. (People v. Perez, supra, 23 Cal.3d 545, 552, 153 Cal.Rptr. 40, 591 P.2d 63; People v. James (1977) 19 Cal.3d 99, 119-120, 137 Cal.Rptr. 447, 561 P.2d 1135.) Nor is section 654 applicable in the instant case on the ground that appellant's sole intent and objective in committing the crimes of which he was convicted was to seek...