Filed 6/17/16 P. v. Ramirez CA5


                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070736
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. SC057756A)
                   v.

TRINIDAD GARCIA RAMIREZ,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Kern County. Michael G. Bush,
Judge.
         Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Craig S.
Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Kane, Acting P.J., Detjen, J. and Smith, J.
       Defendant Trinidad Garcia Ramirez contends the trial court erred in denying his
petition for resentencing under Proposition 36, the Three Strikes Reform Act of 2012
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(Pen. Code, § 1170.126). We reverse and remand for further proceedings.
                              PROCEDURAL SUMMARY
       On June 24 1994, defendant was convicted by jury trial of felony driving under the
influence (Veh. Code, § 23152). The jury found true allegations that he had suffered
two prior convictions within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). Those two prior strike convictions were assault with intent to
commit rape (§ 220) on August 4, 1969, and robbery (§ 211) on October 29, 1985. The
trial court sentenced him to 25 years to life in prison.
       About 20 years later, on October 7, 2014, defendant filed a petition for
resentencing pursuant to Proposition 36 (§ 1170.126). He listed his two prior strike
convictions, including his conviction for assault with the intent to commit rape. In its
opposing papers, the prosecution argued:

               “The defense will likely argue that the People will have to prove
       force or fear in addition to the conviction. However, this is not true
       because the elements for assault with intent to commit rape already involve
       willfully applying force to a person. (See CALCRIM 890.) Moreover, the
       elements for rape include force or fear. (See CALCRIM 1000.) By
       definition, rape is having non-consensual intercourse with another person
       by means of force or fear. An assault to commit rape could not be
       committed without those features. If those features were lacking, it would
       not be a rape. Thus, the conviction alone is sufficient to prove that force
       and/or fear occurred in the case. Therefore, since the petitioner was
       convicted of this sexually violent offense, he is not eligible for resentencing
       pursuant to Penal Code section 1170.126.”
       On December 19, 2014, at the hearing on the motion, the following occurred:

              “THE COURT: … This is a Prop[osition] 36 petition for
       resentencing. The People filed an ineligibility objection based on a prior
       back in 1969.

1      All statutory references are to the Penal Code unless otherwise noted.


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             “[DEFENSE COUNSEL]: This is another [section] 220, your
       Honor.

              “THE COURT: Right. [Defense counsel]?

              “[DEFENSE COUNSEL]: Your Honor, again, all of the elements of
       Welfare & Institutions Code [section] 6600[, subdivision (b)] must be met
       in order for the client to be ineligible for having a sexually violent prior.

              “THE COURT: [Prosecutor]?

              “[PROSECUTOR]: Your Honor, the elements of the offense show[]
       force or fear and it was a sexual offense so we would ask the Court to deny
       it.

               “THE COURT: I will find that based upon his prior conviction, I
       will find him ineligible on the petition for Prop[osition] 36.”
       On December 26, 2014, defendant filed a notice of appeal.
                                      DISCUSSION
I.     Proposition 36
       In November 2012, California voters approved Proposition 36, the Three Strikes
Reform Act of 2012, which amended sections 667 and 1170. Prior to that, the former
Three Strikes law mandated that a defendant who had been convicted of two or more
prior serious or violent felonies would be subject to a sentence of 25 years to life upon
conviction of a new felony. Proposition 36 amended the Three Strikes law so that a
defendant with two or more prior serious or violent felonies is subject to a sentence of
25 years to life upon conviction of a new felony only if that new felony is serious or
violent (or if certain exceptions apply); otherwise he is sentenced as a second strike
offender. (See People v. Osuna (2014) 225 Cal.App.4th 1020, 1026 (Osuna).)
       Proposition 36 also added section 1170.126, which allows eligible inmates who
are currently serving 25-year-to-life sentences under the former Three Strikes law to
petition the court for resentencing. An inmate is eligible to petition if his sentence would
not have been a 25-year-to-life sentence had he been sentenced under the reformed Three
Strikes law. (§ 1170.126, subds. (a), (b); Teal v. Superior Court (2014) 60 Cal.4th 595,

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598.) But even an inmate who is eligible to petition may not be eligible for resentencing
due to certain exceptions. Under section 1170.126, subdivision (e)(3), for example, an
inmate is not eligible for resentencing if he has a prior conviction for any offense
appearing in section 667, subdivision (e)(2)(C)(iv), or section 1170.12,
subdivision (c)(2)(C)(iv). Those offenses include a “‘sexually violent offense’ as defined
by subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (§§ 667,
subd. (e)(2)(C)(iv)(I), 1170.12, subd. (c)(2)(C)(iv)(I).) Welfare and Institutions Code
section 6600, subdivision (b), defines a “‘[s]exually violent offense’” as meaning “the
following acts when committed by force, violence, duress, menace, fear of immediate and
unlawful bodily injury on the victim or another person, or threatening to retaliate in the
future against the victim or any other person …: any felony violation of Section … 220
of the Penal Code, committed with the intent to commit a violation of Section 261, 262,
264.1, 286, 288, 288a, or 289 of the Penal Code.”
       The trial court is charged with determining whether a petitioner is eligible for
resentencing. (§ 1170.126, subd. (f).) “[A] trial court need only find the existence of a
disqualifying factor by a preponderance of the evidence.” (Osuna, supra,
225 Cal.App.4th at p. 1040.) As the trial court’s eligibility determination is factual in
nature, we review that determination for substantial evidence. (People v. Hicks (2014)
231 Cal.App.4th 275, 286; People v. Bradford (2014) 227 Cal.App.4th 1322, 1331
(Bradford).)
       In this case, the trial court found that defendant’s section 220 prior conviction for
assault with the intent to commit rape was a disqualifying prior. Thus, it concluded
defendant was ineligible for resentencing and denied his petition.
       On appeal, defendant contends there was no evidence he used force in committing
the assault with intent to commit rape, and thus it did not constitute a sexually violent
offense under Welfare and Institutions Code section 6600, subdivision (b). He stresses
that the only fact before the trial court regarding the prior conviction was the appellate

                                              4
opinion’s statement that he pled guilty to the charge in 1969. He now argues that assault
with the intent to commit rape does not necessarily establish his use of force or fear
during the assault.
       The People respond that assault with the intent to commit rape necessarily
includes force, violence, duress, menace, or fear of immediate bodily injury because
assault with the intent to commit rape “is necessarily an unwanted violent act upon a
victim.”
       Although we recognize that assault with the intent to commit rape does in fact
usually include “force, violence, duress, menace, fear of immediate and unlawful bodily
injury on the victim or another person, or threatening to retaliate in the future against the
victim or any other person” (Welf. & Inst. Code, § 6600, subd. (b)), we do not agree that
it necessarily does. “[A]ssault is an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240.) This is in contrast to battery,
which does require contact with the victim. (§ 242.) “An assault is an incipient or
inchoate battery; a battery is a consummated assault. ‘An assault is a necessary element
of battery, and it is impossible to commit battery without assaulting the victim.’ ”
(People v. Colantuono (1994) 7 Cal.4th 206, 216-217.) “[U]pon proof of a willful act
that by its nature will directly and immediately cause ‘ “the least touching,” ’ ‘it is
immaterial whether or not the defendant intended to violate the law or knew that his
conduct was unlawful. The intent to cause any particular injury [citation], to severely
injure another, or to injure in the sense of inflicting bodily harm is not necessary.’
[Citation.] The pivotal question is whether the defendant intended to commit an act
likely to result in such physical force, not whether he or she intended a specific harm.
[Citation.] Because the nature of the assaultive conduct itself contemplates physical
force or ‘injury,’ a general intent to attempt to commit the violence is sufficient to
establish the crime.” (Id. at p. 218, fns. omitted.)



                                              5
       Assault with the intent to commit rape “requires proof that an assault was
committed, and that at some time during the assault it was the intention of the defendant
to have sexual intercourse with his victim by force.” (People v. Clifton (1967)
248 Cal.App.2d 126, 129.) “If the defendant intends to have sexual intercourse with his
victim and to use force to overcome her resistance, the crime of assault with intent to
commit rape is committed.” (People v. Green (1960) 180 Cal.App.2d 537, 542-543;
People v. Maury (2003) 30 Cal.4th 342, 399-400 [assault with the intent to rape “ ‘ “is
complete if at any moment during the assault the accused intends to use whatever force
may be required” ’ ” to commit the rape].)
       Thus, assault with the intent to commit rape requires the intention to use force, not
the actual use of force, and a conviction of assault with the intent to commit rape does not
establish that the defendant actually used force during the assault. We also observe that
CALCRIM No. 890, cited by the prosecution to support its conclusion that assault with
the intent to commit rape necessarily includes the use of force, does not suggest that the
use of force is an element of the crime. Instead, it lists “an act that by its nature would
directly and probably result in the application of force to a person” and the defendant’s
“present ability to apply force to a person,” and notes that “[t]he People are not required
                                                          2
to prove that the defendant actually touched someone.” (Italics added.)


2      CALCRIM No. 890 provides:
       “The defendant is charged [in Count __ ] with assault with intent to commit [rape]
[in violation of … section 220].
       “To prove that the defendant is guilty of this crime, the People must prove that:
        “1. The defendant did an act that by its nature would directly and probably result
in the application of force to a person;
       “2. The defendant did that act willfully;
        “3. When the defendant acted, (he/she) was aware of facts that would lead a
reasonable person to realize that (his/her) act by its nature would directly and probably
result in the application of force to someone;


                                              6
       We conclude the mere fact of conviction for assault with the intent to commit rape
does not prove the use of force in the commission of the crime. The trial court erred in
concluding that defendant’s conviction of that crime necessarily included the use of
force. Because there was no evidence other than the fact of defendant’s conviction, there
was insufficient evidence to support a finding that the section 220 prior violation was
“committed by force, violence, duress, menace, fear of immediate and unlawful bodily
injury on the victim or another person, or threatening to retaliate in the future against the
victim or any other person,” such that it constituted a sexually violent offense within the
meaning of Welfare & Institutions Code section 6600, subdivision (b), and rendered
defendant ineligible for resentencing under Proposition 36.
       We will reverse the trial court’s order and remand for consideration and possible
resentencing under the remaining provisions of section 1170.126, including a

      “4. When the defendant acted, (he/she) had the present ability to apply force to a
person;
       “[AND]
       “5. When the defendant acted, (he/she) intended to commit [rape]; [¶] … [¶]
       “Someone commits an act willfully when he or she does it willingly or on purpose.
       “The terms application of force and apply force mean to touch in a harmful or
offensive manner. The slightest touching can be enough if it is done in a rude or angry
way. Making contact with another person, including through his or her clothing, is
enough. The touching does not have to cause pain or injury of any kind.
       “[The touching can be done indirectly by causing an object [or someone else] to
touch the other person.]
     “[The People are not required to prove that the defendant actually touched
someone.]
       “No one needs to actually have been injured by the defendant’s act. But if
someone was injured, you may consider that fact, along with all the other evidence, in
deciding whether the defendant committed an assault[, and if so, what kind of assault it
was].
       “To decide whether the defendant intended to commit [rape] please refer to
Instruction[s] _____ which define[s] (that/those) crime[s].”


                                              7
determination of whether defendant would pose an unreasonable risk of danger to public
safety such that he should not be resentenced. (See Bradford, supra, 227 Cal.App.4th at
pp. 1341-1343.)
                                     DISPOSITION
       The order concluding defendant was ineligible for resentencing based on his 1969
section 220 prior conviction, and denying the petition for resentencing under
Proposition 36 (§ 1170.126), is reversed. The matter is remanded to the trial court for
consideration of whether to resentence defendant under the remaining provisions of
section 1170.126.




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