Filed 1/15/20 P. v. Bova CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE STEVEN BOVA,

Defendant and Appellant.

D075769

(Super. Ct. No. SCD277482)

APPEAL from a judgment of the Superior Court of San Diego County, Steven E. Stone, Judge. Affirmed as modified.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Michael Cosgrove, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Andre Steven Bova of assault with intent to commit rape in violation of Penal Code, section 220, subdivision (a)(1). After Bova admitted a serious felony prior conviction (§§ 667, subd., (a)(1) and 668) and a prior strike conviction (§§ 667, subd. (b)-(i) and 1170.12) the court sentenced him to prison for 17 years. As part of the sentence, the court imposed various fines, fees, and assessments, including a $60 criminal conviction assessment. (Gov. Code, § 70373.)

Bova raises two issues on appeal. First, he contends the trial court prejudicially erred by failing to sua sponte instruct the jury on simple assault as a lesser included offense of assault with the intent to commit rape. Next, he contends the court erred in imposing a $60 criminal conviction assessment because the statute authorizes only one $30 fee per conviction.

We conclude the court had no obligation to offer the instruction sua sponte, and the jury instructions were correct as given. We accept the People’s concession regarding the reduction of the criminal conviction assessment. Accordingly, we modify the judgment to reduce the amount of the criminal conviction assessment and otherwise affirm the judgment.

FACTUAL BACKGROUND

A.

Prosecution Evidence

Just before midnight on May 26, 2018, Jane Doe was at her apartment getting ready to go dancing downtown with her friend. She went outside to get shoes from her car, which was parked close to her apartment. She did not find any shoes in the back seat. She decided to move her car to a parking spot closer to her apartment. After she backed her car into her new parking spot, she walked to the trunk and ducked inside to look for a pair of shoes.

As she pulled her head up, someone threw her to the ground from behind. As she was thrown down, her car keys flew from her hand, and her earrings were ripped off. The man who blindsided her ripped her dress strap, exposing her breast. He then grabbed her exposed breast and said, “Let it happen, Bitch. Shut the fuck up, Bitch.” Jane Doe remained on the ground as the man repeatedly punched her in the head. She attempted to yell for help, but the man covered her mouth with his hand. The man then reached under her dress and put his hand on top of Jane Doe’s underwear over her vagina. Her mouth remained covered until the man’s fingers went inside her mouth and she bit down. She then continued to scream and yell for help over the loud sounds from the nearby freeway. As she screamed, the man repeatedly punched her head and said, “Let it happen, Bitch. Shut the fuck up. Do you want to die?” Jane Doe hit the man and he jumped up from the ground and ran off.

Jane Doe, too, jumped up from the ground, grabbed her dress, and ran back home. When she got inside, she was distraught and crying, covered in dirt and blood. Her dress was ripped, and her breast was still exposed. She told her roommate that a man tried to rape her. Jane Doe’s roommate called the police.

Approximately four minutes after the phone call, a police helicopter in the area video recorded an unidentifiable person running into a nearby canyon from the direction of the apartment complex where the assault occurred. That person seemed to be pulling up his pants.

Police officers arrived approximately six minutes after the phone call. The officers witnessed a distraught and injured Jane Doe. Jane Doe gave her statement to the officers. Officers found Jane Doe’s key ring with her hair entangled in it and her two gold hoop earrings in the dirt. They also found near Jane Doe’s vehicle a Target bag containing a black zip up sweatshirt, among other items. A DNA sample was taken from the sweatshirt.

Several other officers began to look for suspects in the canyon where the person viewed from the helicopter had entered. They located two potential suspects for identification by Jane Doe. Because it was dark during the attack, Jane Doe was not able to clearly see the man who attacked her but was able to feel his hair and hear his voice. She did not identify either suspect as her attacker. Jane Doe went to the hospital for a SART exam. Her injuries included bruises and abrasions to her entire body, redness and bruising to her lips and right ear, a swollen head, ripped out hair, and swollen vocal cords. The forensic nurse collected Jane Doe’s dress and underwear as evidence and took several DNA swabs.

After the SART exam, officers took Jane Doe to identify another suspect they contacted in the canyon. Jane Doe identified that man, Thomas H., as the person who attacked her. Officers arrested Thomas H. and noted his hands were dirty but had no visible bite marks. Officers also collected a DNA reference swab from him.

The results of the DNA analysis either excluded Thomas H. as a DNA contributor or found his DNA to be inconclusive as to all of the DNA swab analyses. The state DNA database identified Andre Bova as a potential DNA contributor from Jane Doe’s dress strap and the sweatshirt found at the scene.

On July 5, 2018, police arrested Bova in the canyon near the apartment complex and collected a DNA reference swab. There was either strong or moderate support of inclusion as a DNA contributor to the DNA found on Jane Doe’s dress strap, underwear, and hands, and to the jacket in the Target bag.

B.

Defense Evidence

Bova testified on his own behalf at trial. At the time of the assault, he and his wife were sleeping in tents in the canyon near Jane Doe’s apartment complex. At approximately 8:30 p.m. on May 27, 2018, he and his wife went to Walmart to shop for food and charge her phone. After 30 to 45 minutes, Bova and his wife ran into Thomas H. as he was walking up from the homeless encampment in the canyon.

Thomas H. asked Bova if Bova had a jacket or hoodie that Thomas H. could wear. Bova took off the jacket he was wearing and gave it to Thomas H. Bova and his wife returned to the encampment.

After his wife fell asleep, Bova left the encampment with a friend and drove around to various places. Later, Bova and his friend returned to the Walmart shopping center, where he ran into another friend and started talking with her. While talking with this friend, Bova saw a helicopter flying above with its spotlight on. He then jogged back to his encampment because he thought something had happened to his wife. When she was not there, he took his bike and went back to the shopping center to look for her. There, he saw Thomas H. charging a phone. At this point, it was after midnight. Bova observed Thomas H. sweating profusely; Thomas H. was no longer wearing the jacket Bova had given him earlier.

Appellant denied assaulting Jane Doe and said he had never seen her prior to her testifying at the preliminary hearing.

DISCUSSION

I.

LESSER INCLUDED OFFENSE

Bova contends that the trial court erred in failing to instruct on simple assault as a lesser included offense (LIO) of assault with intent to commit rape because the evidence supported other possible sexual intents, such as oral copulation or digital penetration. Defendant suggests the omission violated his federal constitutional rights to due process, a jury trial, a fair trial, and fundamental fairness under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution and their California counterparts, requiring reversal. We disagree. The trial court was not required to instruct on simple assault because there was no substantial evidence supporting it. (See People v. Cole (2004) 33 Cal.4th 1158, 1218 (Cole).)

A.

Additional Relevant Background

At the close of evidence, the court discussed jury instructions with counsel. With respect to the issue of including a jury instruction on the lesser included offense of simple assault, the following exchange occurred between the court and counsel:

“THE COURT: I believe simple assault is a lesser included offense. However, I will tell you by way of indicated, I don’t see that there is any evidence that the offense was less than that as charged in this case. [¶] Here to me the issue is whether it’s the defendant who committed this or not, so it’s an identity issue. And if, in fact, it was the defendant, I think the other elements, I don’t think they—they really haven’t been contested, it’s simply that it was not the defendant. Am I right on that?

“[DEFENSE COUNSEL]: Right. I mean I think the LIO would probably be appropriate in a case where there wasn’t such a strong indication of what the intent was during the course of what happened.

“THE COURT: I agree with you. [¶] Do the People have anything on that?

“[THE PEOPLE]: No, Your Honor. I don’t think there’s substantial evidence for which the jury could find anything but the charged offense, especially given the defense.

“THE COURT: And the Defense agrees with that?

“[DEFENSE COUNSEL]: Not that iteration, but I agree with not giving the LIO.

“THE COURT: You’re not requesting it?

“[DEFENSE COUNSEL]: No.

“THE COURT: Thank you. Let me just make the record complete. Again, I find that there is no evidence that the offense was less than that charged. I further find that there is not substantial enough—that the evidence is not substantial enough to warrant consideration and the evidence does not raise a question as to whether all of the elements of the charged offense are present. I think it’s straightforward on what the parties’ positions are on this case, and so I will not be giving the instruction on the lesser included offense of simple assault. [¶] I’ll also note that neither party is requesting me to do so. Anything else for the record on that, Counsel?

“[THE PEOPLE]: No, Your Honor.

“[DEFENSE COUNSEL]: No, Your Honor.”

B.

Legal Principles

” ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) In reviewing a claim that the evidence supports the giving of instructions on such lesser included offenses, we apply the independent, or de novo, standard of review. (Cole, supra, 33 Cal.4th at p. 1218.)

“A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ‘ “that is, evidence that a reasonable jury could find persuasive” ‘ [citation], which, if accepted, ‘ “would absolve [the] defendant from guilt of the greater offense” [citation] but not the lesser’ [citations].” (Cole, supra, 33 Cal.4th at p. 1218.) Because substantial evidence is required, “the existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense.” (Breverman, supra, 19 Cal.4th at p. 162.) Conversely, if there is no substantial evidence to support the lesser included offense instruction, the trial court has no duty to instruct on it. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.)

In other words, a trial court may refuse to instruct on a lesser included offense if there is no substantial evidence to support the instruction and the defendant, if guilty at all, is guilty of the greater offense. (People v. Daniels (1991) 52 Cal.3d 815, 868; People v. Leach (1985) 41 Cal.3d 92, 106.) Accordingly, a trial court errs in omitting an instruction on the lesser included offense of simple assault only if substantial evidence exists to support a finding that the offense was not committed with the intent to commit rape. Due process does not require otherwise. (See Hopper v. Evans (1982) 456 U.S. 605, 611.)

Count 1 charged defendant with assault with the intent to commit rape. A violation of section 220, subdivision (a) is complete if, at any moment during the assault, the accused intended to commit a specified sex offense. (CALCRIM No. 890; People v. Meichtry (1951) 37 Cal.2d 385, 388-389; People v. Trotter (1984) 160 Cal.App.3d 1217, 1223.) Rape was the specified sex offense at issue in this case. Rape involves an act of sexual intercourse, and sexual intercourse is defined as “any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]” (CALCRIM No. 1000; see § 261, subd. (a).) An assault is an “unlawful attempt, coupled with present ability, to commit a violent injury” on another person. (§ 240.) Simple assault is a lesser included offense of assault with intent to commit rape. (People v. Elam (2001) 91 Cal.App.4th 298, 308.)

C.

No Substantial Evidence Supported Simple Assault Jury Instruction

The issue before us is whether a sua sponte instruction on the lesser included offense of simple assault was required. We conclude substantial evidence did not support such an instruction.

Bova contends the trial court should have instructed on simple assault because, while there was evidence of intent to commit some sexual act, the evidence was not clear he intended to rape Jane Doe. The problem is that neither side presented substantial evidence to support that assertion. Bova presented no evidence as to any sexual intent; rather, he testified that he did not commit any crime at all. The prosecutor also presented no substantial evidence supporting a finding that Bova was guilty only of simple assault. Stated otherwise, “there was no reason why the jury would have rejected the prosecution’s evidence that defendant committed [assault with intent to commit rape].” (People v. Friend (2009) 47 Cal.4th 1, 51-52.) ” ‘ “[I]f there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given.” ‘ ” (Id. at p. 52.)

Contrary to Bova’s assertion on appeal, the prosecutor presented strong evidence of his intent to rape Jane Doe. Specifically, Bova’s intent was evidenced by him blindsiding Jane Doe and throwing her to the ground, ripping off her dress strap to access her more easily, fondling her exposed breast, and placing his hand on top of her underwear over her vagina. To subdue her such that he could complete the rape, Bova hit her in the head multiple times, held his hand over her mouth to silence her screams, and threatened her by repeating, “Let it happen, Bitch. Shut the fuck up. Do you want to die?” These demands to “let it happen” as he attempted to subdue her further evidenced his specific intent to have sexual intercourse with Jane Doe. As one court has observed, “the phrase ‘do it’ is frequently employed as a euphemism for other terms connoting an act of sexual intercourse.” (People v. Craig (1994) 25 Cal.App.4th 1593, 1600.) In the present situation, the phrase “let it happen” is indistinguishable from “do it.” His use of the term “it” as connoting sexual intercourse is further supported by the evidence of someone running from the direction of the scene while pulling his pants up around the same time the assault occurred.

Moreover, Bova’s lack of success does not show lack of intent. Instead of obeying Bova’s demands to “let it happen,” Jane Doe testified that she struggled with him the entire time he held her on the ground, resulting in significant physical injuries. There was no evidence that he stopped because he was satisfied. Rather, her testimony that Bova jumped up and ran away only after she bit him, fought back, and screamed at the top of her lungs shows that he tried but failed to subdue her such that he could complete the rape. Even if he abandoned this goal, that is all that is required. (See People v. Maury (2003) 30 Cal.4th 342, 399-400 [offense of assault with intent to commit rape is complete if at any moment during the assault the accused intends to use whatever force may be required; the abandonment of that intent before consummation of the act will not erase the felonious nature of the assault].) Further, after she was able to get away, Jane Doe told her roommate that someone tried to rape her, which she inferred from Bova’s actions. Thus, Jane Doe’s testimony strongly suggested that, at least at some point during this incident, he intended to rape her.

Even more, both the trial court and counsel acknowledged the strength of the evidence supporting a conviction for assault with the intent to commit rape. At trial, Bova’s counsel stated, “I mean I think the [lesser included offense] would probably be appropriate in a case where there wasn’t such a strong indication of what the intent was during the course of what happened.” In declining to request a jury instruction, defense counsel observed that the evidence was so strongly supportive of intent to commit rape that the inclusion of a lesser included offense was not appropriate. Defense counsel agreed with the court that the elements of intent to commit rape were not contested. Thus, the defense theory at trial was that Bova did not commit the offense, not that he committed a simple assault. The trial court, too, determined that “there is no evidence that the offense was less than that charged,” and correctly declined to give the lesser included offense instruction.

Having considered the entire record, we find there was no substantial evidence Bova was guilty only of simple assault. If the jurors believed defendant, they would have acquitted defendant; they would not have convicted him of a lesser offense.

Even if we concluded there was error in failing to instruct on simple assault, we would reject Bova’s instructional error argument on the ground that such error did not result in prejudice. ” ‘[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.’ [Citation.] Under the state standard, ‘such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.’ [Citations.] ‘The Supreme Court has emphasized “that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” ‘ ” (People v. Campbell (2015) 233 Cal.App.4th 148, 165.) Under this standard, “[t]here is a reasonable probability of a more favorable result . . . when there exists ‘at least such an equal balance of reasonable probabilities as to leave the court in serious doubt as to whether the error affected the result.’ ” (People v. Mower (2002) 28 Cal.4th 457, 484, quoting People v. Watson (1956) 46 Cal.2d 818, 837.) The reviewing court may consider the relative strengths and weaknesses of the evidence supporting the greater and lesser instructions. (Breverman, supra, 19 Cal.4th at pp. 177-178.)

Given the record in this case, it is not reasonably probable that a jury would have found Bova did not, at some point during the assault, intend to sexually penetrate Jane Doe. Therefore, the trial court’s error, if any, to fail to instruct on simple assault was harmless.

II.

CRIMINAL CONVICTION ASSESSMENT

Bova contends the trial court erred by imposing a $60 conviction assessment fee under Government Code section 70373, subdivision (a)(1) at his sentencing hearing. He argues the court should have charged him only $30 for his one conviction. The People agree with Bova, and so do we.

Government Code section 70373, subdivision (a)(1) requires a court to impose a $30 criminal conviction assessment for every felony conviction. Courts have interpreted these assessments as applying to each count of which a defendant is convicted. (People v. Sencion (2012) 211 Cal.App.4th 480, 483-484.)

Because the jury convicted Bova of one count, the court was required to impose a criminal conviction assessment of only $30. (See, e.g., People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) As the court imposed an assessment exceeding this amount, we modify the judgment to reduce the assessment to the statutorily authorized amounts. (People v. Smith (2001) 24 Cal.4th 849, 854 [appellate court may correct an unauthorized sentence without remand].)

DISPOSITION

The judgment is modified to reduce the amount of the criminal conviction assessment pursuant to Government Code section 70373, subdivision (a)(1) to $30. The superior court is directed to prepare an amended abstract of judgment reflecting the modification and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

AARON, J.

DATO, J.