People v. Diaz-Camacho CA2/5

Filed 8/24/21 P. v. Diaz-Camacho CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B302273
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA472600)
v.
MIGUEL DIAZ-CAMACHO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig Richman, Judge. Affirmed in part,
reversed in part, and vacated in part.
Daniel G. Koryn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan-
Pithey, Senior Assistant Attorney General, Noah P. Hill and
Steven E. Mercer, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant Miguel Diaz-
Camacho of assault with intent to commit rape (Pen. Code, § 220,
subd. (a)(2)1) and attempted forcible rape (§§ 664/261, subd.
(a)(2)). As to each offense, the jury found true the allegation that
defendant’s victim was between 14 and 17 years of age. The trial
court sentenced defendant to seven years in state prison for the
assault with intent to commit rape conviction and four years six
months for the attempted forcible rape conviction which the court
stayed pursuant to section 654, imposed assessments and fines,
and ordered defendant to take an AIDS test.
On appeal, defendant contends we must reverse his
attempted forcible rape conviction because it was a lesser
included offense of his assault with intent to commit rape
conviction, the trial court erred in imposing assessments and
fines without a hearing on his ability to pay them, and the court
erred in ordering him to take an AIDS test because he was not
convicted of an offense that subjected him to testing. We affirm
the imposition of defendant’s assessments and fines, but reverse
his conviction for attempted forcible rape and vacate the order for
an AIDS test.
1 All further statutory references are to the Penal Code
unless otherwise noted.
2
II. BACKGROUND2
On October 18, 2018, 15-year-old Joanna C. spent the
evening with a friend at a restaurant. Joanna lived with her
parents and was supposed to be home at 6:00 p.m. At around
10:00 or 11:00 p.m., Joanna called her friend Ervin Camacho and
asked him for a ride home.
Camacho met Joanna at Normandie Park. He arrived with
defendant, his cousin, who was driving a truck. Defendant and
Camacho were drunk. Camacho and Joanna got in the backseat.
Defendant drove to Camacho’s house so Camacho could get his
car keys.
When Camacho got out, he asked Joanna to get out also but
she said she would wait at the truck. While Camacho was inside
his house, Joanna asked defendant, “[C]an you please take me
home[?] I’m running really late.” She believed Camacho was in
no condition to drive. Defendant agreed.
Joanna gave defendant directions to her home, but he did
not follow them. Instead, defendant drove to a dark street and
parked the truck. While they were parked, Camacho called
Joanna and asked where she was. Defendant got out of the
truck, opened Joanna’s door, and asked her for her phone.
Joanna believed defendant was going to tell Camacho where they
were so she gave him her phone.
2 Except as needed for context, we limit our recitation of facts
to those relevant to the single substantive issue on appeal—
whether defendant’s conviction for attempted forcible rape was a
lesser included offense of his conviction for assault with intent to
commit rape.
3
After defendant spoke with Camacho for two minutes,
Joanna got out of the truck and grabbed her phone from
defendant and spoke to Camacho. Camacho said that defendant
was really drunk and she should run and get away.
Joanna started to walk away. Defendant became angry
and looked “tough,” as though he wanted to hurt her. He asked
her why she was “‘getting away.’” When he approached her as if
he was going to grab her, she ran. Defendant chased Joanna for
two or three minutes before she tired and stopped. When she
stopped, defendant pushed her from behind, causing her to fall to
her knees.
Defendant got on top of Joanna and turned her over. He
pulled down her leggings and underwear to about the middle of
her thighs. Joanna felt defendant’s leg against her left inner
thigh. Defendant grabbed both of her hands so she could not
defend herself. Joanna stated, “He was taking out his pants,
trying to rape me.” Joanna picked up some dirt and tried to put
it in defendant’s eyes.
Defendant unfastened his belt and pulled down his pants
and underwear to about mid-thigh. Defendant’s exposed penis
was about four to five inches away from Joanna’s vagina. Joanna
defended herself, hitting defendant and scratching his face.
Defendant’s attack ended when a couple in a nearby car
interceded.
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III. DISCUSSION
A. Lesser Included Offense
Defendant contends we must reverse his conviction for
attempted forcible rape because it was a lesser included offense of
his conviction for assault with intent to commit rape. We agree.
“In general, a person may be convicted of, although not
punished for, more than one crime arising out of the same act or
course of conduct. ‘In California, a single act or course of conduct
by a defendant can lead to convictions ‘of any number of the
offenses charged.’ (§ 954, italics added; People v. Ortega (1998) 19
Cal.4th 686, 692 . . . .)’ (People v. Montoya (2004) 33 Cal.4th
1031, 1034 . . . .) Section 954 generally permits multiple
conviction.” (People v. Reed (2006) 38 Cal.4th 1224, 1226–1227.)
“A judicially created exception to the general rule
permitting multiple conviction ‘prohibits multiple convictions
based on necessarily included offenses.’ (People v. Montoya,
supra, 33 Cal.4th at p. 1034.) ‘[I]f a crime cannot be committed
without also necessarily committing a lesser offense, the latter is
a lesser included offense within the former.’ (People v. Lopez
(1998) 19 Cal.4th 282, 288 . . . .)” (People v. Reed, supra, 38
Cal.4th at p. 1227.) Attempted rape is a lesser included offense of
assault with intent to commit rape. (People v. Ghent (1987) 43
Cal.3d 739, 757; People v. Rupp (1953) 41 Cal.2d 371, 382; People
v. Martinez (1985) 171 Cal.App.3d 727, 734 [“a person who
commits an assault with intent to commit rape necessarily also
always commits an attempted rape”].)
“The doctrine of included offenses is applicable only when
the same act is relied upon for more than one conviction.” (People
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v. Greer (1947) 30 Cal.2d 589, 600, overruled on another ground
by People v. Fields (1996) 13 Cal.4th 289, 308, fn. 6.) “If offenses
are necessarily included, the question whether the acts are the
same is a question for the jury, unless as a matter of law the acts
are not divisible. [Citation.] The divisibility of acts in cases
involving sex offenses is not easily susceptible of exact definition.
The cases show no uniformity in this field, and there are many
instances of artificial distinctions.” (Ibid.) In deciding whether a
defendant’s conduct involves the same or separate acts, courts
should not allow “the doctrine that no person shall be convicted of
both an included and a greater offense [to] . . . be subverted by a
technical fragmentation of acts having no realistic basis in
common experience.” (Id. at p. 601.)
The Attorney General concedes that a defendant may not
be convicted of both assault with intent to commit rape and
attempted rape based on the same conduct, but argues that
defendant’s convictions were based on separate acts. According
to the Attorney General, defendant’s assault with intent to
commit rape was based on defendant’s conduct before he
attempted to achieve penetration, that is, his pursuit of Joanna
and knocking her to the ground. Defendant committed attempted
forcible rape, the Attorney General argues, when he “turned her
body around to face him, placed his hand on her mouth to muffle
her screams, and forcibly grabbed her wrists. Next, [he] (1) got
on top of Joanna; (2) pulled her leggings down; (3) pulled her
underwear down; (3) [sic] unfastened his belt; (4) pulled his pants
down, and (5) pushed his penis within 4 or 5 inches from
Joanna’s vagina.” We disagree with the Attorney General’s
artificial division of defendant’s acts based on the facts of this
case.
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The evidence showed that defendant engaged in a
continuous course of conduct aimed at raping Joanna through
sexual penetration. When Joanna ran from defendant, he chased
her, knocked her to the ground, turned her over to face him,
restrained her, partially removed her clothes, and attempted to
penetrate her vagina with his penis. There is no evidence that
defendant’s chasing Joanna and knocking her to the ground were
anything other than necessary parts of his ultimate goal of
achieving penetration. The Attorney General’s enumeration of
and attempt to divide defendant’s conduct into separate acts
amount to the type of “technical fragmentation of acts having no
realistic basis in common experience” that our Supreme Court
cautioned against in People v. Greer, supra, 30 Cal.2d at page
601. Indeed, and as the trial court found when staying
defendant’s sentence on the attempted forcible rape conviction,
“the attempted rape acts were included in the assault with the
intent to commit rape.” Accordingly, we reverse defendant’s
attempted forcible rape conviction because it was a lesser
included offense of his conviction for assault with intent to
commit rape.
B. Ability to Pay Hearing
Defendant contends the trial court violated his state and
federal constitutional rights to due process when it imposed
assessments and fines3 without holding a hearing on his ability
3 As to defendant’s assault with intent to commit rape
conviction, the court imposed a $40 court operations assessment
(§ 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov.
Code, § 70373), a $300 restitution fine (§ 1202.4, subd. (b)), and a
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to pay them. He argues that if he forfeited his claim by failing to
object in the trial court, then he received ineffective assistance of
counsel.
In People v. Dueñas (2019) 30 Cal.App.5th 1157, the court
held, “[D]ue process of law requires the trial court to conduct an
ability to pay hearing and ascertain a defendant’s present ability
to pay before it imposes court facilities and court operations
assessments under . . . section 1465.8 and Government Code
section 70373.” (Id. at p. 1164.) It further held that the
execution of a restitution fine under section 1202.4 “must be
stayed unless and until the trial court holds an ability to pay
hearing and concludes that the defendant has the present ability
to pay the restitution fine.” (Ibid.)
“Ordinarily, a criminal defendant who does not challenge
an assertedly erroneous ruling of the trial court in that court has
forfeited his or her right to raise the claim on appeal.” (In re
Sheena K. (2007) 40 Cal.4th 875, 880.) This forfeiture doctrine
applies where a defendant fails to object to the imposition of fines
and fees at sentencing. (See, e.g., People v. Aguilar (2015) 60
Cal.4th 862, 864; People v. Avila (2009) 46 Cal.4th 680, 729.)
Defendant failed to object at his sentencing hearing to the trial
court’s imposition of the assessments and fines without a hearing
to determine his ability to pay. Accordingly, he has forfeited this
issue.
Citing Strickland v. Washington (1984) 466 U.S. 668, 694,
defendant contends that if we hold he forfeited his challenge to
the trial court’s imposition of the assessments and fines without
an ability to pay hearing, then trial counsel provided ineffective
$300 sex offender fine (§ 290.3, subd. (a)). The court also imposed
and stayed a $300 parole revocation restitution fine. (§ 1202.45.)
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assistance by failing to object in the trial court. To establish
ineffective assistance of counsel, “the defendant must first show
counsel’s performance was deficient, in that it fell below an
objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different. . . . On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason
and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding. [Citations.]” (People v. Mai (2013) 57 Cal.4th 986,
1009.)
The record is silent as to trial counsel’s reasons, if any, for
failing to object to the trial court’s imposition of the assessments
and fines without a hearing to determine defendant’s ability to
pay. There is, however, at least one satisfactory explanation of
trial counsel’s failure to request an ability to pay hearing.
Defendant was sentenced to seven years in state prison. Trial
counsel could have concluded that defendant’s period of
incarceration and prison wages would enable him to pay his $670
in assessments and fines. (People v. Castellano (2019) 33
Cal.App.5th 485, 490 [relevant factors regarding ability to pay
“may include, but are not limited to, potential prison pay during
the period of incarceration to be served by the defendant” (fn.
omitted)]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035
[“[w]ages in California prisons currently range from $12 to $56 a
9
month”].) Under these circumstances, defendant cannot prevail
on his appellate claim of ineffective assistance of counsel. (People
v. Mai, supra, 57 Cal.4th at p. 1009.)
C. AIDS Testing
Defendant contends the trial court erred in ordering him to
submit to an AIDS test. The Attorney General agrees, as do we.
Section 1202.1, subdivision (e) requires AIDS testing for
persons convicted of certain enumerated sexual offenses.4
4 Under section 1202.1, subdivision (e), the following sexual
offenses qualify for AIDS testing:
“(1) Rape in violation of Section 261 or 264.1.
“(2) Unlawful intercourse with a person under 18 years of
age in violation of Section 261.5 or 266c.
“(3) Rape of a spouse in violation of Section 262 or 264.1.
“(4) Sodomy in violation of Section 266c or 286.
“(5) Oral copulation in violation of Section 266c or 287, or
former Section 288a.
“(6)
“(A) Any of the following offenses if the court finds
that there is probable cause to believe that blood, semen, or any
other bodily fluid capable of transmitting HIV has been
transferred from the defendant to the victim:
“(i) Sexual penetration in violation of Section
264.1, 266c, or 289.
“(ii) Aggravated sexual assault of a child in
violation of Section 269.
“(iii) Lewd or lascivious conduct with a child in
violation of Section 288.
“(iv) Continuous sexual abuse of a child in
violation of Section 288.5.
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Assault with intent to commit rape (§ 220, subd. (a)(2)) is not
among the sexual offenses that require AIDS testing.5
Accordingly, the trial court erred and we vacate the order
requiring defendant to submit to an AIDS test.
“(v) The attempt to commit any offense
described in clauses (i) to (iv), inclusive.”
5 Although we reversed defendant’s attempted forcible rape
(§§ 664/261, subd. (a)(2)) conviction, we note that it also is not a
sexual offense that requires AIDS testing. (§1202.1, subd. (e).)
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IV. DISPOSITION
Defendant’s conviction and sentence, including any
assessments and fines, for attempted forcible rape are reversed.
The trial court’s order that defendant take an AIDS test is
vacated. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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