Filed 7/24/20
                  CERTIFIED FOR PARTIAL PUBLICATION*

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FIRST APPELLATE DISTRICT

                                  DIVISION ONE


 THE PEOPLE,
           Plaintiff and Respondent,
                                            A157466
 v.
 CLIFF EDWARD COLLINS,                      (Solano County
                                            Super. Ct. No. FCR324735)
           Defendant and Appellant.


       Following a jury trial, defendant was convicted of three counts of lewd
act upon a child under the age of 14 and multiple counts of sexual assault
involving a minor. On an issue of first impression, defendant contends
attempted aggravated sexual assault upon a child under the age of 14 and
seven or more years younger than the perpetrator (hereafter attempted
aggravated sexual assault) is not a crime. Defendant further contends, and
the Attorney General concedes, that he was convicted of three counts of
violating Penal Code former1 section 288a, subdivision (c)(2)(C), but the
abstract of judgment incorrectly identifies the offenses as “288(c)(2)(C).” We
conclude attempted aggravated sexual assault is a crime. We order the



       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
       *

opinion is certified for publication with the exception of part II.B.
       1Former section 288a was renumbered section 287, effective January 1,
2019. There were no substantive changes to subdivision (c)(2)(C). We will
refer to former section 288a herein as section 288a.
abstract of judgment shall be corrected to reflect defendant was convicted of
three counts of violating section 288a, subdivision (c)(2)(C).
             I. FACTUAL AND PROCEDURAL BACKGROUND
      Because the underlying facts are not relevant to the issue on appeal, we
briefly summarize them, focusing on the two incidents of attempted
aggravated sexual assault.
       T.W. had three children who lived with her, including a daughter,
T.S., who was born in October 1997. T.W. met defendant in January 2010,
and nine months later defendant and T.W. were married. While T.S., her
family, and defendant lived in a residence on Beverly Drive, defendant
committed acts of attempted aggravated sexual assault.
      After defendant moved in, the first incident of attempted aggravated
sexual assault occurred when defendant performed what T.S. described as a
“doggie style” act. He bent T.S. over the dining room table, pulled down her
pants, put his penis between the cheeks of her buttocks, and began
“humping” her. Defendant’s penis did not touch her vagina, and he did not
ejaculate. Subsequently, defendant came to T.S.’s room at about 5:00 a.m.,
after her mother had left for work. When he entered, T.S. woke up.
Defendant told T.S. to get ready. He grabbed at her blanket and pajamas.
She said “no” silently because she did not want to wake her brother and
sister. Unable to remove T.S.’s pajamas, defendant became angry and struck
her with a fist about five times on her stomach and arms. Approximately 10
minutes later, defendant gave up and went downstairs.
      Because defendant was bigger and T.S. trusted his judgment, she
eventually gave up fighting back. Thereafter, defendant would enter her
room in the early morning, and then they would go to his bed. There,
defendant and T.S. would pull down their pants and engage in the “doggie



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style” act. Defendant’s penis did not touch T.S.’s anus or vagina. Unsure how
many times they engaged in “doggie style” sex while they lived on Beverly
Drive, T.S. estimated it happened “more than five times.”
      As to other acts of sexual assault, when T.S. was 13 years old, her
family and defendant moved to Cortland Circle. The “doggie style” sex
without genital contact continued, but in addition, defendant began
performing oral sex on T.S. Defendant also began having sexual intercourse
with T.S.
      In March 2013, when T.S. was 15 years old, her family, including
defendant, moved to the El Dorado residence. Within a week of the move,
defendant resumed having sex with T.S. By that time, it was all oral sex and
regular intercourse.
      In June 2015, defendant moved out. The last time they had sexual
relations was approximately a month earlier.
      Defendant was charged in an amended information with lewd act upon
a child under the age of 14 (Pen. Code,2 § 288, subd. (a); counts 1–3), assault
with intent to commit rape (§ 220; count 4), attempted aggravated sexual
assault of a child (§§ 664/269, subd. (a)(1); counts 5–6), aggravated sexual
assault of a child (§ 269, subd. (a)(1); count 7), forcible rape of a minor 14
years of age or older (§ 261, subd. (a)(2); counts 8–10, 12, 14), and forcible oral
copulation upon a minor 14 years of age or older (§ 288a, subd. (c)(2)(C);
counts 11, 13, 15).
      The jury found defendant guilty of all charges except assault with
intent to commit rape, count 4, for which he was instead convicted of the
lesser included offense of simple assault in violation of section 240.



      2   All statutory references are to the Penal Code.


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        The court sentenced defendant to a total prison term of 87 years
8 months.
                                II. DISCUSSION
A. Attempted Aggravated Sexual Assault Is a Crime
        Section 269, subdivision (a)(1) makes it a crime for any person to rape a
child under 14 years of age and seven or more years younger than the
perpetrator.3 As relevant to this appeal, defendant was convicted as charged
in counts 5 and 6 of attempted aggravated sexual assault.
        Defendant claims attempted aggravated sexual assault is not a crime.
As we shall explain, we conclude, as a matter of first impression, that there is
such a crime, and defendant properly was convicted of that offense in this
case.
        We first turn to the law of criminal attempt. Under California law,
“[a]n attempt to commit a crime is itself a crime and [is] subject to
punishment that bears some relation to the completed offense.” (1 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Elements, § 56, pp. 341–342.)
Section 664 provides, “[e]very person who attempts to commit any crime but
fails or is prevented or intercepted in its perpetration” is punishable
ordinarily by imprisonment for one-half of the term of imprisonment that
would be imposed upon conviction of the completed offense. Moreover, as set
forth in section 21a, “[a]n attempt to commit a crime consists of two elements:
a specific intent to commit the crime, and a direct but ineffectual act done
toward its commission.” Our Supreme Court clarified in People v. Toledo
(2001) 26 Cal.4th 221 (Toledo), a case in which it held that attempted


       A defendant may also be convicted of aggravated sexual assault by
        3

committing rape or sexual penetration in concert, sodomy, oral copulation,
and sexual penetration with a foreign object. (§ 269, subd. (a)(2), (3), (4) &
(5).)


                                         4
criminal threat is a crime, “ ‘One of the purposes of the criminal law is to
protect society from those who intend to injure it. When it is established that
the defendant intended to commit a specific crime and that in carrying out
this intention he committed an act that caused harm or sufficient danger of
harm, it is immaterial that for some collateral reason he could not complete
the intended crime.’ [Citation.] When a defendant acts with the requisite
specific intent, that is, with the intent to engage in conduct and/or bring
about the consequences proscribed by the attempted crime [citation], and
performs an act that ‘go[es] beyond mere preparation . . . and . . . show[s] that
the perpetrator is putting his or her plan into action’ [citation], the defendant
may be convicted of criminal attempt.” (Id. at p. 230.)
      Based on sections 664 and 21a, it follows that there is a crime of
attempted aggravated sexual assault as defined through the interplay of
section 269, subdivision (a)(1) and the statutory provisions relating to
attempts. As established by section 664, “[e]very person who attempts to
commit any crime” (italics added) is subject to punishment as set forth in that
provision. Thus, this language “on its face . . . includes those who attempt to
commit the crime” of attempted aggravated sexual assault. (Toledo, supra,
26 Cal.4th at p. 230.)
      Under the provisions of section 21a, a defendant properly may be found
guilty of attempted aggravated sexual assault “whenever, acting with the
specific intent to commit the offense of [aggravated sexual assault], the
defendant performs an act that goes beyond mere preparation and indicates
that he or she is putting a plan into action.” (Toledo, supra, 26 Cal.4th at
p. 230.) Here, substantial evidence was presented that defendant did just
that. The jury could have found that when defendant placed his penis
between T.S.’s buttocks without it touching her vagina, he both intended to



                                        5
rape her and performed an act that went beyond mere preparation. Such an
intent and act constitutes attempted aggravated sexual assault.
      While the plain language of sections 269, subdivision (a)(1) and 664
appears to support the existence of the crime of attempted aggravated sexual
assault, defendant contends the reasoning in In re James M. (1973) 9 Cal.3d
517 (James M.) supports his claim that the crime of attempted aggravated
sexual assault should not be recognized. In James M., the Supreme Court
concluded attempt to commit an assault with a deadly weapon on a peace
officer is not recognizable and punishable in the State of California. Years
later, our Supreme Court in Toledo thoroughly discussed the James M.
ruling: “In In re James M., we held that there is no crime of attempted
assault, reasoning that recognition of such a crime would constitute an
improper judicial expansion of the crime of assault. In reaching this
conclusion, the court in James M. emphasized that the crime of assault is
itself statutorily defined in section 240 as an ‘unlawful attempt, coupled with
a present ability[,] to commit a violent injury on the person of another’ (italics
added), and that numerous legal commentators and many courts had noted
the anomaly of recognizing as a separate crime an attempt to commit an
attempt. [Citation.] Although the court in James M. acknowledged that an
‘attempted attempt’ was not as an abstract matter a ‘logical absurdity’
[citation], we nonetheless concluded that the crime of assault represented a
legislative judgment as to how far removed from the infliction of a battery
criminal liability should be imposed. We held that it improperly would defeat
the Legislature’s intent and effectively redefine the limits established by the
assault statute to recognize a crime of attempted assault.” (Toledo, supra,
26 Cal.4th at pp. 231–232.)




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      The James M. principles were subsequently followed in People v. Duens
(1976) 64 Cal.App.3d 310 (Duens), which held attempted assault with intent
to commit rape is not a crime. As the Duens court explained, “assault with an
intent to commit rape (Pen. Code, § 220) involves an attempt to the same
extent as does the offense of an assault with a deadly weapon upon the
person of a police officer (Pen. Code, § 245, subd. (b)).” (Id. at p. 314.)
      The reasoning of James M. and Duens, however, is inapplicable to the
instant case because the language of section 269 does not create an assault as
that term was used in James M. and Duens. As relevant here, any person
who commits a rape upon a child under 14 years of age and seven or more
years younger than the person violates section 269, aggravated sexual
assault. Section 240 provides: “An assault is an unlawful attempt, coupled
with a present ability, to commit a violent injury on the person of another.”
However, other than the use of the word “assault” in section 269, the acts set
out by that statute bear no resemblance to the act set out in section 240.
      Importantly, the primary difference between rape and aggravated
sexual assault is the age of the victim and the age difference between the
victim and the perpetrator. Attempted rape is recognized in this state as a
crime. In describing the elements of attempted rape, the Supreme Court in
People v. Clark (2011) 52 Cal.4th 856 stated, “The crime of attempted rape
has two elements: (1) the specific intent to commit the crime of rape and (2) a
direct, although ineffectual, act toward its commission.” (Id. at p. 948, italics
added.) If attempted rape is a crime, it logically follows that attempted
aggravated sexual assault is a crime since the only difference between the
two is the age of the victim and age difference with the perpetrator. All the
elements of rape otherwise apply. In short, in convicting defendant of




                                         7
attempted aggravated sexual assault, the jury necessarily had to find that
defendant attempted to rape T.S., not that he attempted to assault her.
      As we discussed above, defendant could be found to have committed the
crime of attempted aggravated assault only if he acted with the specific
intent to rape T.S. Here, defendant acted with such purpose but on at least
two occasions resolved not to complete the complete crime of rape. Imposing
criminal liability upon defendant for attempted aggravated sexual assault
will not undermine the purpose of the statute to punish those who rape
minors under the age of 14 and are seven or more years older.4
B. The Abstract of Judgment Should Be Amended
      Defendant was charged in counts 11, 13, and 15 with violating
section 288a, subdivision (c)(2)(C). However, both the verdict forms and the
abstract of judgment omit the “a” and list the offense as “288(c)(2)(C).” This
appears to be a simple clerical error confirmed not just by the offense charged
in the information but by the fact that there is no subdivision (c)(2)(C) in
section 288. Accordingly, the abstract of judgment must be amended to

      4  For the first time in his reply brief, defendant argues that while he
agrees “respondent’s interpretation of the statutory scheme is plausible[,] . . .
it is not the only reasonable interpretation.” Because there is no “existing
case law” establishing the crimes of attempted assault or attempted
aggravated sexual assault, and “by expressly identifying the crime of
aggravated sexual assault of a child within Penal Code section 269,”
defendant claims “the statute should be interpreted to preclude an attempt.”
The failure to raise this argument in his opening brief forfeits defendant’s
ability to make the argument in reply because the Attorney General has no
opportunity to respond. (People v. Rangel (2016) 62 Cal.4th 1192, 1218–
1219.) And even if this argument had not been waived, it has no merit. Like
aggravated sexual assault, the Penal Code also identifies the completed
crimes of rape, sodomy, and oral copulation, but no case law has ever held
that these crimes cannot be charged and proved as attempts. For the reasons
stated in this opinion, we believe there is only one reasonable interpretation
of section 269—that is, attempted aggravated sexual assault is a crime.


                                        8
properly reflect that defendant was convicted of and sentenced for violations
of section 288a, subdivision (c)(2)(C).
                              III. DISPOSITION
      The judgment is affirmed. The trial court is directed to correct the
abstract of judgment to indicate defendant was convicted on counts 11, 13,
and 15 of a violation of section 288a, subdivision (c)(2)(C).




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                                     ____________________________
                                     Margulies, J.




We concur:


_____________________________
Humes, P. J.



_____________________________
Banke, J.




A157466
People v. Collins



                                10
Trial Court: Solano County Superior Court

Trial Judge: E. Bradley Nelson

Counsel:

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General,
Catherine A. Rivlin and Bruce M. Slavin, Deputy Attorneys General for
Plaintiff and Respondent.




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