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The People v. Stephen Dyser

January 13, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEPHEN DYSER, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F06605) APPEAL from a judgment of the Superior Court of Sacramento County, David W. Abbott, Judge.

The opinion of the court was delivered by: Mauro , J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed as modified.

Defendant Stephen Dyser was convicted of first degree robbery, first degree burglary, assault with intent to commit rape, assault with intent to commit rape during the commission of first degree burglary, assault with a deadly weapon (a knife) or by means of force likely to produce great bodily injury, and false imprisonment. He was sentenced to prison for a determinate term of seven years and a consecutive indeterminate term of seven years to life.

Defendant contends on appeal that (1) his convictions for first degree burglary and assault with intent to commit rape must be dismissed as lesser included offenses of assault with intent to commit rape during the commission of first degree burglary; (2) his convictions for assault with intent to commit rape and assault with intent to commit rape during the commission of first degree burglary are not supported by sufficient evidence of intent to commit rape or sodomy; (3) the trial court abused its discretion and violated defendant's due process rights when it admitted evidence of defendant's prior conviction for lewd touching of a child; (4) his trial counsel rendered ineffective assistance by failing to object when the trial court did not state reasons for imposing consecutive sentences on the convictions for first degree robbery and assault with intent to commit rape during the commission of first degree burglary; and (5) the abstract of judgment must be corrected to reflect a prison sentence of life with the possibility of parole, rather than seven years to life, for assault with intent to commit rape during the commission of first degree burglary.

In the published portion of this opinion, we conclude (1) under the statutory elements test, first degree burglary and assault with intent to commit rape are both lesser included offenses of assault with intent to commit rape during the commission of first degree burglary. And in the unpublished portion of this opinion, we conclude (2) there was sufficient evidence of intent to commit rape because the jury could have inferred such intent from the fact that defendant straddled the victim's hips in her bed, held a knife to her throat, tried to turn her over, and told her he was not playing; (3) the trial court did not abuse its discretion or violate defendant's due process rights when it admitted evidence of defendant's prior conviction for lewd touching of a child, because the prior conviction had a direct connection to the issues in this case and the trial court's finding that the evidence was more probative than prejudicial was not arbitrary, capricious or absurd; (4) trial counsel did not render ineffective assistance in failing to object to consecutive sentences, because it is not reasonably probable that defendant would have fared any better had his trial counsel objected, and thus any deficiency by trial counsel could not have been prejudicial; and (5) the abstract of judgment must be changed to reflect a sentence of life with the possibility of parole.

We will modify the judgment.

BACKGROUND

On August 18, 2009, around 2:00 a.m., the victim arrived home following a night out with a friend. She undressed completely, put on a t-shirt, and climbed into bed while conversing with the friend on her cellular telephone. After talking until almost 3:00 a.m., she fell asleep with a bed sheet draped across her hips.

Around 15 minutes later, the victim woke to a strong smell of cigarettes and found defendant straddling her hips.*fn2 Defendant had his hand and a knife across her throat. The victim was groggy and thought she might be dreaming. When she realized it was not a dream, she asked defendant who he was and what he was doing. She thought he would rape and possibly kill her.

Defendant tried to turn the victim over by pressing the knife blade against her shoulder, but she would not turn. She kept telling him, "no, no. Wait. What are you doing? Please don't do anything." In response, he told her to "shut up, to be quiet and to turn over." Trying to buy time, she told him, "Okay. Okay. Just wait. I have to sneeze." Defendant put the knife blade between her lips and told her to be quiet; then he put the knife blade back to her throat.

The victim took a deep breath and tried unsuccessfully to scream. After taking another deep breath, she screamed as loud as she could. She put her hand underneath the knife blade and tried to relieve its pressure against her throat. Defendant told her he wasn't "playing."

The victim screamed "Help me" and tried to push the knife blade away from her. Defendant jumped off of her. Her right hand had been cut by the knife. She kept screaming as he looked around the room. She moved toward the screen door of her residence hoping that someone would hear her yelling.

Defendant reached down by the victim's bed and repeatedly tried to grab her cell phone. Defendant succeeded on his third attempt. After grabbing the phone, he headed toward the door. The victim kept screaming. Defendant stopped, turned around, and hit the victim on the top of her head with the knife. She went to her stove, grabbed a small sauce pan, and tried to hit him as he fled out the door. She continued to scream until she heard a neighbor say they had telephoned 9-1-1.

The victim's cell phone was the only item missing from her apartment.

A jury convicted defendant of first degree robbery (Pen. Code,*fn3 §§ 211, 212.5, subd. (a); count one), first degree burglary (§§ 459, 460, subd. (a); count two), assault with intent to commit rape (§ 220, former subd. (a), now subd. (a)(1); count three), assault with intent to commit rape during the commission of first degree burglary (§ 220, subd. (b); count four), assault with a deadly weapon (a knife) or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1); count five), and false imprisonment (§ 236; count six). The jury found that defendant used a knife in the commission of counts one, two, three, five, and six.*fn4

On the count one conviction for first degree robbery, the trial court sentenced defendant to prison for a determinate term of seven years (the upper term of six years plus one year for use of a deadly weapon). On the count four conviction for assault with intent to commit rape during the commission of first degree burglary, the trial court sentenced defendant to a consecutive indeterminate term of seven years to life in prison. The trial court also imposed sentences on the remaining counts and enhancements, but stayed them pursuant to section 654.*fn5

DISCUSSION

I

Defendant contends that his convictions for first degree burglary and assault with intent to commit rape are lesser included offenses of assault with intent to commit rape during the commission of first degree burglary. The Attorney General concedes this point only as to first degree burglary, but we agree with defendant as to both first degree burglary and assault with intent to commit rape.

In considering whether defendant may be convicted of multiple charged crimes, we apply the statutory elements test. (People v. Reed (2006) 38 Cal.4th 1224, 1231.) Under that test, a lesser offense is necessarily included in a greater offense if the statutory elements of the greater offense "'include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.'" ...


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