People v. SotoPeople v. Soto
SIMS, Acting P.J.
The People have appealed1 from orders of the trial court that sustained the motions of the defendants Soto and West, under
Following oral argument in this case, the Attorney General advised the court that the defendant Soto had been convicted by verdict of a jury of kidnaping for ransom in violation of
We question, without so ruling, that the defendant Soto can be subjected to prosecution for a more serious offense as the price of taking a successful appeal. (See People v. Henderson (1963) 60 Cal.2d 482, 495-497 [35 Cal. Rptr. 77, 386 P.2d 677]; and Witkin, Cal. Crimes (1975 supp.) § 202A, pp. 151-153.) Nevеrtheless, in view of the procedural morass which beset the progress of this case we have undertaken to unravel it for the edification of those concerned. In so doing, although we find error, in the interests of justice we affirm the action of the lower court, thereby rendering it unnecessary to determine the question posed above.
I
A. Pleading
From the record2 it appears that the complaint filed before the magistrate did not contain any allegations to show that the People were seeking the enhanced punishment prescribed by
In the superior court the prosecutor defended his right to allege any matters which were supported by the evidence before the magistrate. (
There is strong support for the view that it is unnecessary to allege facts which would delineate the punishment sought for a violation of
The principle that the allegation of facts constituting aggravating circumstances is unnecessary does not of necessity establish that such allegations, when pleaded, should be stricken. In this particular case we cannot determine whether the magistrate‘s ruling was predicated on the theоry that the prosecutor had failed to allege that he was charging bodily harm, or on the belief that since proof of bodily harm could be made under a general allegation of violation of
(1) If the magistrate intended to exclude the evidence concerning bodily harm as irrеlevant regardless of the state of the pleadings, we feel he erred. Recent cases indicate that it is essential that the accused be given full notice of the charges against him and an opportunity at a preliminary hearing to determine whether there is evidence to support those charges. (See Jones v. Superior Court, supra, 4 Cal.3d 660, 667-668; and Jennings v. Superior Court (1967) 66 Cal.2d 867, 880 [59 Cal. Rptr. 440, 428 P.2d 304].)
Due process of law may require no more thаn notice of the all embracing charge against the defendant. Nevertheless in the light of the foregoing precedents we deem it an abuse of discretion to strike as surplusage allegations which would specifically place the defendant on notice that the prosecution is seeking enhanced punishment. (See People v. Superior Court (Lozano), supra, 69 Cal. App.3d 57, 65; and People v. Superior Court (Vasquez), supra, 69 Cal. App.3d 14, 18-21.)
B. Proof
(3) On the merits it appears that the trial court erred insofar as its ruling purported to find that there was no evidence to sustain the aggravated charge. The ambivalent ruling purported to permit the prosecution to proceed to attempt to prove bodily harm under the
The evidence here is of questionable, but, we cannot say, of entirely inadequate sufficiency. The victim suffered some bodily injury because of physical restraints in the handcuffing of her hands and ankles, and also some soreness in the area of her vagina from the battery related below. (See part II.)
Earlier cases define bodily harm as “‘any touching of the person of another against his will and with physical force in an intentional, hostile and aggravated manner, or projecting of such force against his person.‘” (People v. Tanner (1935) 3 Cal.2d 279, 297 [44 P.2d 324]; accord, People v. Chessman (1951) 38 Cal.2d 166, 185 [238 P.2d 1001] [disapproved on other grounds in People v. Daniels (1969) 71 Cal.2d 1119, 1139 (80 Cal. Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677)]; People v. Brown (1947) 29 Cal.2d 555, 559-560 [176 P.2d 929]; and People v. Britton, supra, 6 Cal.2d 1, 3-4.) In People v. Jackson (1955) 44 Cal.2d 511 [282 P.2d 898], the court analyzed the purpose of the enhanced punishment prescribed when the victim of the kidnaping suffered bodily harm. It concluded that the purpose of the clause was to deter a kidnaper from inflicting injuries on his victim. Nevertheless it recognized that the clause should not apply to trivial and unsubstantial injuries of а sort necessarily incidental to the seizure, carrying away and detention which generally accompany a forcible kidnaping. (44 Cal.2d at pp. 515-517; see also People v. Daniels (1969) 71 Cal.2d 1119, 1133 [80 Cal. Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677]; and People v. Isitt (1976) 55 Cal. App.3d 23, 29 [127 Cal. Rptr. 279].)
On the other hand it is clear that a forced sexual assault constituting forcible rape evidences the type of great bodily injury which enhances the punishment provided for robbery under the provisions of former section 213 of the Penal Code. (People v. Cardenas (1975) 48 Cal. App.3d 203, 207 [121 Cal. Rptr. 426].) The rulings in People v. Chessman, supra,
In this case the injuries received as a result of the confinement imposed by the defendants jointly appear to fall within the type of trivial and unsubstantial injuries which generally aсcompany a kidnaping. On the other hand the injuries, if any, suffered by the victim from the assault and battery by the defendant Soto transcend the former rule. There was sufficient evidence at the preliminary hearing, despite the magistrate‘s ruling which erroneously cut off further examination, to show probable cause that the victim received some injuries not directly related to the kidnaping itself. Whether they constituted additional bodily harm under the statute was a factual question for resolution at the trial. (See People v. Superior Court (Lozano), supra, 69 Cal. App.3d 57, 65.)
The foregoing error is subject to the constitutional rule that there must be a miscarriage of justice before a reversal will be ordered. (
II
(4a) In the second count of the information the defendant Soto was charged with assault with intent to commit rape in violation of
The following incident occurred while the victim was held a captive. The night follоwing the abduction the two defendants stopped their van on a side road and two sleeping bags were spread out in the van by defendant West. The three went back in the van. The victim occupied one sleeping bag, with one arm handcuffed to the latch of a trunk or footlocker in which she earlier had been concealed. Defendant West occupied the other sleeping bag with her head at the victim‘s feet.
Sometime latеr in the night Soto complained that he was cold and proceeded to get into the victim‘s sleeping bag. At the time, the girl was dressed in her school uniform which consisted of brown pants, a white blouse and a blue and white flowered jacket. Soto tried to kiss her, but
The victim testified that as a result of the experience she had some soreness in her vaginal area. The morning after the incident Soto apologized to her. He told her that he had not realized it would bother her so much because the other girl he had kidnaped did not mind being rapеd.
Both parties agree that the requisites of the offense charged are correctly set forth in People v. Puckett (1975) 44 Cal. App.3d 607 [118 Cal. Rptr. 884], as follows: (5) “To support a conviction for assault with intent to commit rape, the prosecution must prove the assault and an intent on the part of defendant to use whatever force is required to complete the sexual act against the will of the victim.” (44 Cal. App.3d at p. 613; see also People v. Greene (1973) 34 Cal. App.3d 622, 637, fn. 3, 648, 651, fn. 7, 652, fn. 8 [110 Cal. Rptr. 160] and text accompanying those fns.; People v. Cortez (1970) 13 Cal. App.3d 317, 326-327 [91 Cal. Rptr. 660]; People v. Clifton, supra, 248 Cal. App.2d 126, 130-131; People v. Green (1960) 180 Cal. App.2d 537, 542-543 [4 Cal. Rptr. 304]; and People v. Mullen (1941) 45 Cal. App.2d 297, 299-300 [114 P.2d 11] [disapproved in part in People v. Hood (1962) 199 Cal. App.2d 44, 47 (18 Cal. Rptr. 351)].)
The cases recognize a distinction between acts indicating an intent to use force to complete the sexual act against the will of the victim, and facts which merely show sexual motivation and an intent to seduce. (See People v. Puckett, supra, 44 Cal. App.3d at pp. 613-614; People v. Greene, supra, 34 Cal. App.3d at pp. 651-652; People v. Cortez, supra, 13 Cal. App.3d at p. 326; and People v. Mullen, supra, 45 Cal. App.2d at pp. 299-300.) Nevertheless if there is evidence of the former intent and acts attendant to the execution of that intent, the abandonment of that intent
(4b) Although the actions of defеndant Soto in this case are consistent with but a simple assault or battery attendant to an attempt to seduce, a review of the precedents collated in People v. Greene, supra (34 Cal. App.3d at p. 652, fn. 8), reflects that the evidence produced warranted a strong suspicion of the intent to have sexual intercourse by the use of force which was subsequently abandoned. In People v. Peckham (1965) 232 Cal. App.2d 163 [42 Cal. Rptr. 673], the court noted: “Appellant‘s statement that he wanted the victim and that he had come to rape her in broad daylight were sufficient to establish his intent to rape.” (232 Cal. App.2d at p. 168.) In People v. Bard (1968) 70 Cal.2d 3 [73 Cal. Rptr. 547, 447 P.2d 939], the court stated: “By climbing into the victim‘s bed, thrusting his hand beneath her underwear, and fondling her private parts, defendant assaulted her [citations]; and there would appear to be no reason why a potential rapist must exceed this degree of unwarranted physical contact before it can be said he intended to take his victim against her will.” (70 Cal.2d at p. 6; see also People v. Nye (1951) 38 Cal.2d 34, 37 [237 P.2d 1] [disapproved on other grounds in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882 (123 Cal. Rptr. 119, 538 P.2d 247)]; and People v. Elder (1969) 274 Cal. App.2d 381, 398-401 [79 Cal. Rptr. 466].)
The trial court erred in dismissing the second count. Nevertheless here again for the reasons set forth with respect to the ruling on the first count, we do not believe a reversal is warranted because there has been no miscarriage of justice. It is not reasonably probable that the defendant in the future could or would be convicted of a second offense in addition to that of which he has already been found guilty.
The orders are affirmed.
Elkington, J., and Lazarus, J.,* concurred.
Notes
At the argument on the defendants’ motions the attorney for the defendant Soto announced, without contradiction: “I discussed this case with [a deputy district attorney] in the Municipal Court, who made a decision not to file a bodily harm clause, and I talked to him about it. [¶] And since he didn‘t file it, I didn‘t think that it was proper to go into it. [¶] And then they turn around and file it here, and that is my position here and therefore I think we are getting double-ended here. [¶] And if he wants to plead it and intends to prove it, he wants to get life without possibility of parole, usually capital punishment, if he wants that serious penalty, then we are entitled to a hearing before this Court on this transcript as to whether or not he has got enough to charge this, and that is why we are before this Court.” The court also observed: “The pleadings down there didn‘t say anything about bodily injury right there.”