People v. White

• Decision Date: 06 January 1987
• Citation: 188 Cal.App.3d 1128,233 Cal.Rptr. 772
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rayford Arthur WHITE, Defendant and Appellant. Crim. 14801.

Page 772

233 Cal.Rptr. 772

188 Cal.App.3d 1128

The PEOPLE, Plaintiff and Respondent, v. Rayford Arthur WHITE, Defendant and Appellant.

Crim. 14801.

Court of Appeal, Third District, California.

Jan. 6, 1987.

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, Cynthia A. Thomas, Deputy State Public Defender, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Anthony L. Dicce and Maureen A. Daly, Deputy Attys. Gen., for plaintiff and respondent.

SPARKS, Associate Justice.

As the appropriate measure of the defendant's culpability in a brutal sexual attack, the jury found the defendant guilty of a melange of crimes and enhancements contained in thirteen counts in the information, acquitting him on only one count of attempted sodomy. ¹ Following the verdict, bifurcated allegations of prior convictions (§§ 667; 667.5, subd. (b)) and of the defendant's status as a habitual criminal who inflicts great bodily injury (§ 667.7) were tried to the court, which sustained them all.

The court selected the oral copulation in Count N as the base term, finding the nature of the crime to deserve the upper term of eight years (rule 421, subd. (a)(1), Cal.Rules of Court [hereafter rules] ) and adding a total of five years for the deadly weapon and kidnapping enhancements on the count found true by the jury. The court next selected the oral copulation in Count J, again choosing the upper term on the basis of the nature of the crime, choosing a consecutive sentence because it was a separate act of violence (rule 425(a)(2)), and choosing a fully consecutive sentence (§ 667.6, subd. (c)) because of the victim's vulnerability. (Rules 425(b); 421(a)(3).) The court also imposed two years for the deadly weapon enhancement found true by the jury on this count. The court added two five-year enhancements for prior serious felonies of attempted robbery (§§ 664/211) in 1966 and kidnapping for purposes of robbery (former § 209 [Stats.1951, c. 1749, § 1, p. 4167] ) in 1972. ² As a separate and consecutive sentence, the court imposed a life sentence in state prison with no possibility of parole before 20 years, based on the use of force likely to produce great bodily injury in Count B and the prior convictions for attempted robbery and kidnapping. ³ Finally, the court selected middle-term concurrent sentences for the remaining convictions, then stayed imposition of sentence on all those convictions and their enhancements and stayed the enhancements for the remaining priors as well. A remaining count, which had been severed before trial, was dismissed on motion of the People.

On appeal, the defendant raises several sentencing issues, requiring the preceding extensive recitation but fortuitously rendering superfluous any detailed recitation of the facts surrounding the defendant's repulsive course of conduct. We find merit in several of his contentions; in light of the painstaking care with which the trial court valiantly strove to tailor an appropriate sentence from the alternatives presented by this miasma of offenses, we shall remand for the trial court to reexercise its discretion in accordance with the views expressed in this opinion.

FACTS

Briefly summarized, the jury based its verdicts on the events of the night of October 18, 1984. The victim, Mary V., resided in an apartment on Broadway in Sacramento. She was awakened that night by pounding on her front door. Recognizing the defendant from a prior unpleasant encounter, she immediately tried to phone the police. The defendant burst through the door, slapped the receiver out of the victim's hand with such force that the phone flew two feet up in the air and broke when it hit the floor, and wrapped his right arm around her neck. He beat her head back and forth, threatening to kill her if she did not come with him. He then dragged her by her neck outside her apartment. Warning her that he would kill her if she did not cooperate, the defendant displayed a portion of a knife in his left pocket with his free hand, then dragged her to a dark area about fifty yards behind her building where he committed a number of the sex crimes of which he was convicted. Frustrated by his inability to achieve an erection or orgasm, he pulled the victim along by her arm and threw her down in the mud in a second location in the apartment complex some 150 to 200 yards away. He threatened to kill her if he did not "come." He now committed the remainder of the sex crimes of which he was convicted. Finally, with the victim silently praying to God for the defendant to ejaculate while she was orally copulating him, the defendant at last did so.

I

We begin with the sentencing error of greatest import for the defendant. He contends that the trial court erroneously found that he was an habitual offender under section 667.7. In relevant part, section 667.7 provides: "Any person convicted of a felony in which such person ... personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for the crime of ... kidnapping for ransom, extortion, or robbery; robbery involving the use of force or a deadly weapon; ... assault with a deadly weapon; assault with a force likely to produce great bodily injury; ... or any felony punishable by death or life imprisonment with or without the possibility of parole is a habitual offender and shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 20 years, or the term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 ... of Title 7 of Part 2, ... whichever is greatest...."

Defendant's prior convictions pled in the information and proven to the trial court were the 1966 attempted robbery conviction, the 1972 kidnapping conviction which--as noted in footnote 2, ante--was reduced on appeal from kidnapping for robbery to simple kidnapping, the 1979 conviction under section 245, and a 1982 conviction for receiving stolen property. (§ 496.) Only the section 245 conviction satisfies the requirements of section 667.7.

As the Attorney General graciously concedes, the modification of the kidnapping charge to one for simple kidnapping under former section 207 (see Stats.1905, ch. 493, § 1, p. 653) eliminated the element of intending ransom, extortion, or robbery included in the enumerated felony in section 667.7. Moreover, simple kidnapping was not punishable by death or life imprisonment in 1972, which would be necessary to satisfy the residual felony clause of section 667.7. (See Stats.1923, ch. 238, § 1, p. 486.) Thus, the 1972 conviction for kidnapping is no longer within the ambit of section 667.7. The 1982 conviction for receiving stolen property is not among the enumerated felonies, and is not punishable by life imprisonment or death. Nor will the 1966 conviction for attempted robbery satisfy the statute, for attempted robbery is not the same crime as robbery (People v. Arguero (1931) 113 Cal.App. 424, 426, 298 P. 520; see People v. Burns (1902) 138 Cal. 159, 160, 69 P. 16, 70 P. 1087), and the Legislature did not include attempts among the felonies in section 667.7 (as it did, for example, in section 1192.7, subd. (c)(25), or section 12022). Therefore, despite a probation report which reveals a history of violent offenses against women dating back twenty years, the defendant is not a habitual criminal within the meaning of section 667.7 and the consecutive life sentence must be stricken. ⁴

II

Defendant next contends that the trial court improperly sentenced him to a full consecutive term under section 667.6, subdivision (c) for the oral copulation conviction. Citing People v. Foley (1985) 170 Cal.App.3d 1039, 216 Cal.Rptr. 865, he argues that the jury did not make the requisite factual findings to support the consecutive sentence under that section. In Foley this court was confronted with a discrepancy between language in section 286, subdivision (c), which made criminal any "act of sodomy with another person ... when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury," and the language of the section 667.6, subdivision (c), as it then read, which permitted full consecutive sentences "for each violation of ... committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace or threat of great bodily harm whether or not the crimes were committed during a single transaction." (See Stats.1979, c. 944, § 10, p. 3258; emphasis added.) We determined that the effect of this discrepancy was to impose a requirement in any conviction for sodomy under section 286 or for oral copulation under section 288a ⁵ of a specific jury finding of the greater quantum of bodily harm contemplated by section 667.6, subdivision (c), before fully consecutive sentences could be imposed for the conviction. (Foley, supra, 170 Cal.App.3d at pp. 1050-1058, 216 Cal.Rptr. 865.) We reached an identical conclusion in People v. Riffey (1985) 171 Cal.App.3d 419, 425, 217 Cal.Rptr. 319.

Here, in a fashion comparable to that in Foley, the information charged the crime in the language of the statute and not the enhancement. Thus it was alleged that the act of oral copulation was accomplished "by means of force, violence, duress, menace and by instilling fear of immediate and unlawful bodily injury" upon the victim and the jury was so instructed. But the jury was not instructed that it had to make a special finding that the oral copulation had also been committed by "threat of great bodily harm." (§ 667.6, subd. (c).) Since defendant's violation of section 288a, subdivision (c), occurred at a time when this discrepancy was still in existence, he argues it was error for the trial court to impose a fully...