Opinion
WOODS (Fred), J. We hold that when a defendant challenges a certification that he has regained mental competence (Pen. Code,1 § 1372, subd. (a)(1)) and demands a hearing (§ 1372, subd. (c)), the section 1369, subdivision (f) presumption (“It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent”) applies at that hearing.
Procedural and Factual Background
In May 1984 defendant was charged with attempted murder (§§ 664/187), forcible rape (2 counts, § 261, subd. (2)), forcible oral copulation (§ 288a, subd. (c)), kidnapping (§ 207), burglary (§ 459), and felony assault (2 counts, §§ 245, subd. (a)(1), 245, subd. (a)). A gun use enhancement (§ 12022.5) was alleged as to all counts except a felony assault. Great bodily injury (§ 12022.7) was alleged with respect to the attempted murder, kidnapping, and burglary counts. By amended information it was alleged defendant had been convicted of a 1972 rape in California, a 1977 rape and kidnapping in California, and a 1983 robbery in Mississippi.
In August 1985, the trial court found defendant presently incompetent (§§ 1367,2 1368) and ordered him committed to Patton State Hospital for [1476]evaluation and treatment. Thereafter defendant was transferred to Atascadero State Hospital. On January 7, 1987, the court (Superior Court Judge Eric Younger) was informed that the state hospital medical director had certified that defendant had regained mental competence (§ 1372, subd. (a)(1)3). Defendant’s trial counsel challenged the certification, moved for a formal hearing (§ 1372, subd. (c)4), and requested the appointment of a doctor to examine defendant. The competency hearing began on October 23, 1987. Two psychiatrists, a psychologist, and lay witnesses testified. The trial court (Superior Court Judge Eric Younger) on November 2, 1987, found defendant competent to stand trial.
Defendant, having pleaded not guilty and not guilty by reason of insanity (§ 1016), waived jury. After numerous continuances, the guilt phase began May 18, 1988. On May 26, 1988, the trial court (Superior Court Judge Michael A. Tynan) found defendant guilty of all charges and found true all gun use and great bodily injury allegations.5 Following the sanity phase, the trial court found defendant was sane at the time he committed the charged crimes. The court sentenced defendant to state prison for a term of 49 years.
Since defendant makes no general insufficiency of evidence claim,6 we summarize the evidence. Our perspective favors the judgment. (People v. Barnes (1986) 42 Cal.3d 284, 303-304 [228 Cal.Rptr. 228, 721 P.2d 110].)
During the evening of December 13, 1982, 20-year-old Carol W. (victim) was alone in her Pasadena apartment. Around 8:30 p.m. hearing a knock at her door and expecting her boyfriend, she opened the door and saw a stranger, defendant. Defendant said he was looking for “Richard” and the victim suggested he check the rear apartment units. She shut the door and returned to watching television. About 10 minutes later there was another knock. Again thinking it was her boyfriend, the victim opened the door, saw the defendant, and when he asked to use her phone, said—although the [1477]phone was behind her—that she didn’t have one. The defendant, pointing a gun at her, punched a hole through the closed screen door and said he’d shoot her if she didn’t let him in. He entered and shut the door.
Defendant asked if anyone else was in the apartment and when the victim said “no,” he nevertheless checked the entire apartment. He then asked her if she had any money and when she said she didn’t he stated “if he couldn’t take from [her], he was going to take of [her].”
At gunpoint defendant forced the victim to orally copulate him. He then twice had forcible vaginal intercourse with her, first while she lay on her back, and second, after having her turn over.
Following these acts defendant had the victim bathe, douche, dress, and “wipe down everything that he might have come in contact with.” He then tied her feet, bound her hands behind her back, put her face down on the floor of the closet and closed the door. For about 30 minutes the victim heard defendant rustling about her apartment.
Defendant then reentered the closet and began strangling the victim with her scarf. Her left eye swelled, her nose bled, and she was about to pass out when something may have startled defendant and the victim managed to swing around and scream. He stopped strangling her.
Defendant untied the victim’s feet, took her into the bathroom, cleaned the blood from her face, and at gunpoint forced her from the apartment, down the street, and into the passenger seat of his van. Defendant drove to a dark side street in the Altadena hills and parked.
After what seemed to the victim like two hours of talking, the defendant ordered her to lie down in the back of the van. Defendant then struck the victim on the back of her head, causing her to momentarily lose consciousness, bleed profusely, and feel excruciating pain. He returned to the driver’s seat and drove off. But when he noticed the victim was still conscious defendant ordered her back to the passenger seat. She crawled forward to the passenger seat and, eyes closed from pain, leaned against the door.
Defendant stopped the van, got out, and opened the passenger door. The victim fell out. Defendant grabbed one of her arms and dragged her away from the van. He then shot her, once in the buttock and once in the back. The victim remained motionless, pretending to be dead, until she heard the van drive away.
[1478]The victim managed to sit up, crawl to a pole, pull herself up, and stumble to the street. When she couldn’t get a passing car to stop, she crossed the street, staggered to a house and banged on the door.
The victim was hospitalized for five days and incapacitated for fifteen days. When she returned home she discovered that her television, tuner, speakers, and jewelry box were missing. Her jewelry box was later recovered from defendant’s home.
Defendant was arrested in April 1984 at Parchman State Penitentiary, Mississippi.
Contentions
Defendant contends:
1. Ata restoration of competence hearing (§ 1372, subd. (c)) the burden of proof is on the state.
2. There is insufficient evidence of two rapes.
3. The trial court erred in separately punishing him for two rapes.
4. The trial court erred in imposing separate punishment for each sexual offense gun use (§ 12022.5).
5. The trial court violated section 654 by punishing him for both the sex offenses and for burglary.
6. The burglary great bodily injury enhancement must be stricken.
Discussion
1. Defendant contends that at a restoration of competence hearing (§ 1372, subd. (c)) the burden of proof is on the state.
In finding that defendant’s competence had been restored, the trial court (Superior Court Judge Eric E. Younger) relied upon the section 1369, subdivision (f) presumption and burden of proof: “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.” The court stated, “I find for the purposes of this hearing that that burden of proof has not been met and that the defendant is competent .... The statutory presumption is the primary basis for my reasoning.” Defendant contends that by imposing the burden of proof upon him, rather than upon the state, the trial court erred.
[1479]His argument is multipronged. He asserts: (a) even in an initial competency hearing (§§ 1368, 1369) the section 1369, subdivision (f) burden of proof violates due process; (b) the prosecutor should have had the burden of proof at the restoration hearing because the prosecutor was the moving party; (c) the statutory scheme (§§ 1367-1375.5) does not prescribe a burden of proof at a restoration hearing (§ 1372, subd. (c)); and (d) that at a restoration hearing due process requires that the state have the burden of proof.
We separately consider each assertion.
a. Defendant asserts that at an initial competency hearing (§ 1368) the section 1369, subdivision (f) burden of proof violates due process.
At his initial 1985 competency hearing, defendant sought to be found incompetent. His attorney commenced the hearing and called the first witness (§ 1369, subd. (b)(1)). The hearing concluded with defendant’s success: he was found incompetent.
Defendant now claims that he should not have had the burden to prove his incompetence. Defendant having suffered no prejudice from the statutory burden, and having made no timely objection to it (Evid. Code, § 353), cannot complain of it. Moreover, the California Supreme Court has recently held section 1369, subdivision (f), as applicable at an initial competency hearing, to comport with due process. (People v. Medina (1990) 51 Cal.3d 870 [274 Cal.Rptr. 849, 799 P.2d 1282].)
b. Defendant asserts the prosecutor should have had the burden of proof at the restoration hearing because the prosecutor was the moving party.
Defendant here relies upon a fundamental legal principle: “On all motions the burden is on the moving party . . . .” (Scott v. Renz (1945) 67 Cal.App.2d 428, 431 [154 P.2d 738]; accord, Heesy v. Vaughn (1948) 31 Cal.2d 701, 708 [192 P.2d 753]; People v. Carson (1970) 4 Cal.App.3d 782, 785 [84 Cal.Rptr. 699] [“A motion is an application made to the court for an order. (Citations.) On the hearing the movant has the burden to support his motion by proof. (Citations.)”].) Evidence Code section 500 incorporates this principle: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” Succeeding Evidence Code sections provide examples: “The party claiming that a person is guilty of crime or wrongdoing has the burden of proof on that issue.” [1480](Evid. Code, § 520); “The party claiming that a person did not exercise a requisite degree of care has the burden of proof on that issue.” (Evid. Code, § 521); “The party claiming that any person, including himself, is or was insane has the burden of proof on that issue.” (Evid. Code, § 522.)
To determine upon whose motion the court ordered the subject restoration hearing, we consider both the record and the provisions of section 1372.
The record indicates that on January 7, 1987, the trial court had received from a state hospital medical director a certification that defendant had regained competence. (§ 1372, subd. (a)(1).) As defendant’s trial counsel stated to the court, “Atascadero state hospital staff has [sic] informed the court that they believe Mr. Mixon is presently competent to stand trial . . . .” (Ibid.)
Upon receipt of this certification and the defendant’s return to court, the trial court, absent a request for a hearing, had authority to summarily approve the certification. Section 1372, subdivision (c) (ante, fn. 4) does not mandate a hearing, and subdivision (d)7 implies approval authority without such a hearing.8 (See People v. Sundberg (1981) 124 Cal.App.3d 944, 947, 956 [177 Cal.Rptr. 734]; Shephard v. Superior Court (1986) 180 Cal.App.3d 23, 26 [225 Cal.Rptr. 328].)
But, although section 1372 does not explicitly so provide, it has been construed to comply with the mandate of In re Davis (1973) 8 Cal.3d 798, 806 [106 Cal.Rptr. 178, 505 P.2d 1018]: “Should the person committed desire to challenge the report’s conclusions, reasonable opportunity should be provided him to do so.” As People v. Murrell (1987) 196 Cal.App.3d 822, 826 [242 Cal.Rptr. 175] notes: “Although section 1372 does not directly provide for a hearing where the defendant may challenge the medical director’s certification of competence, the numerous references in that statute to a hearing indicate a legislative intention that such a hearing be afforded.”
The trial court did not summarily approve the certification of competence because defendant’s trial counsel challenged that certification and requested a competency hearing. Trial counsel stated, “Atascadero . . . informed the [1481]court . . . Mr. Mixon is presently competent to stand trial . . . . [¶] We would ask the court for a formal hearing on that issue.” Needless to say, the prosecution made no such motion.
Thus, as the record makes plain, it was defendant, not the prosecution, who made the motion for a section 1372, subdivision (c) competency hearing. As the moving party he appropriately bore the burden of proof. (Evid. Code, § 500.)
c. Defendant asserts the statutory scheme (§§ 1367-1375.5) does not prescribe a burden of proof at a restoration hearing (§ 1372, subd. (c)).
Section 1372, subdivision (c) is part of “a comprehensive scheme for dealing with criminal defendants whose mental competency is suspect.” CPeople v. Bye (1981) 116 Cal.App.3d 569, 571 [172 Cal.Rptr. 186].) In construing this section we are guided by the following principles.
Our “quest [is] to determine the Legislature’s intent so that the purpose of the legislation may be effectuated .... [A] statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts . . . .” (People v. Caudillo (1978) 21 Cal.3d 562, 576 [146 Cal.Rptr. 859, 580 P.2d 274].) “The interpretation of a statute as a whole must be reasonable and when opportunity arises, made compatible with common sense and the dictates of justice. It is the duty of courts not to be ingenious to find ambiguity in the statutes because of extraneous matters, but to interpret them in such a manner that they may be free of ambiguity, and to give, if possible, a construction which not only renders them constitutional, but which is consistent with sound common sense and wise policy, with a view to promoting justice.” (Adoption of Thevenin (1961) 189 Cal.App.2d 245, 249-250 [11 Cal.Rptr. 219].)
Clearly, the Legislature intended, as due process requires (Pate v. Robinson (1966) 383 U.S. 375 [15 L.Ed.2d 815, 86 S.Ct. 836]), that “[a] person cannot be tried or adjudged to punishment while such person is mentally incompetent.” (§ 1367.) When a substantial doubt of competency arises, criminal proceedings shall be suspended (§ 1368, subd. (c)), and a competency hearing shall be held. (§§ 1368, 1369.) Also clear is the Legislature’s intent to both prevent the undue confinement of incompetent defendants who cannot be returned to competence (§§ 1370, subd. (b)(1), 1370.1, subd. (b)(2), 1370.1, subd. (c)) and to “promote the . . . speedy restoration to mental competence” of those who can (§ 1370, subd. (a)(1)). To effect this latter purpose the Legislature required a court to order that an evaluation [1482]report be submitted within 15 days (§ 1370, subd. (a)(2)), then, if necessary, within 90 days (§ 1370, subd. (b)(1)), then at 6-month intervals (ibid.), and at 18 months the defendant “shall be returned to the committing court where a hearing shall be held pursuant to the procedures set forth in Section 1369.” (§ 1370, subd. (b)(2).) The maximum confinement period is three years. (§ 1370, subd. (c)(1).)
It is apparent that the Legislature foresaw a stream of returning defendants, either promptly certified as having regained competence,9 or automatically returned after an 18-month interval.
As we earlier observed, the Legislature did not prescribe an automatic hearing for defendants certified competent. Instead, the trial court was authorized to merely “approve[] the certificate of restoration to competence . . . .” (§ 1372, subd. (d).) But, as we have also observed, the Legislature did provide a “hearing” for those returned defendants who requested one. (§ 1372, subd. (c).) That “hearing,” except for the right to a jury trial (People v. Murrell, supra, 196 Cal.App.3d 822, 826), is the only hearing provided by the statutory scheme, a section 1369 hearing.
A defendant about whose competency a doubt arises receives a section 1369 hearing (§ 1368, subd. (b)). A defendant found incompetent, and after 18 months still not certified as competent, also receives a section 1369 hearing. (§ 1370, subd. (b)(2).) A defendant found incompetent, certified competent, and whose competency is again doubted receives a section 1369 hearing. (§ 1368.) To suggest, as defendant does, that as to another and populous class of defendants, those certified as having regained competence, the Legislature granted a hearing but simply failed to prescribe what kind,10 flaunts common sense and fundamental principles of statutory construction. We hold that the reference to “any hearing” in section 1372, subdivision (c) means a section 1369 hearing,11 including its prescription that: “It shall be presumed that the defendant is mentally competent unless it is proved by a preponderance of the evidence that the defendant is mentally incompetent.”
d. Defendant asserts that at a restoration hearing due process requires that the state have the burden of proof.
Defendant argues that to impose upon an accused the burden to prove his own incompetence creates an unconstitutional risk: when the evidence is [1483]balanced an incompetent defendant may be compelled to stand trial. (People v. Medina, supra, 51 Cal.3d 870, decides this issue adversely to defendant.) Although defendant “submits that for constitutional purposes there is no difference between a competency hearing . . . and a restoration hearing” we, nevertheless, inquire whether there is such a difference.
We begin by considering what due process does and does not require.
“Due process requires only that the procedure adopted comport with fundamental principles of fairness and decency. The due process clause of the Fourteenth Amendment does not guarantee to the citizen of a state any particular form or method of procedure.” (People v. Rojas (1981) 118 Cal.App.3d 278, 287 [174 Cal.Rptr. 91].) As Justice White observed for the Court in Patterson v. New York (1977) 42 U.S. 197 [53 L.Ed.2d 281, 97 S.Ct. 2319] “we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally ‘within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion’ and its decision in this regard is not subject to proscription under the Due Process Clause unless ‘it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” (Patterson v. New York, supra, 432 U.S. 201-202 [53 L.Ed.2d 281, 286-287].) In applying these principles Patterson upheld a New York statute which imposed upon a murder defendant the burden of proving “extreme emotional disturbance” in order to reduce the offense to manslaughter.
An Ohio statute went further. To establish self-defense, in an aggravated murder trial, it required the defendant to prove this defense by a preponderance of the evidence. The statute was found consistent with due process in Martin v. Ohio (1987) 480 U.S. 228 [94 L.Ed.2d 267, 107 S.Ct. 1098], Martin distinguished In re Winship (1970) 397 U.S. 358 [25 L.Ed.2d 368, 90 S.Ct. 1068, which “declared that the Due Process Clause ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” (Martin v. Ohio, supra, at pp. 231-232 [94 L.Ed.2d at p. 273].)
Similarly, In re Winship is inapposite here. The subject statutory scheme (§§ 1367-1375.5) applies only to competency hearings, not criminal proceedings. There is no impingement upon the “proof beyond a reasonable doubt” burden of proof constitutionally required at such criminal proceedings.
One premise of defendant’s argument cannot be denied: the statutory burden of proof (§§ 1372, subd. (c), 1369, subd. (f)) may compel an [1484]incompetent defendant to stand trial. The point is not novel. In People v. Bye, supra, 116 Cal.App.3d 569, it was the prosecutor who sought to prove defendant incompetent12 and the defendant who sought to be found competent. Bye, as does defendant Mixon, argued that the preponderance of evidence standard (§ 1369, subd. (f)) violated due process. Bye, in contrast to defendant Mixon, urged that the burden to prove incompetence be raised, to the beyond a reasonable doubt standard. The court declined to do so, holding defendant “has been afforded due process of law . . . . The statutory ‘preponderance of the evidence’ standard of section 1369, subdivision (f) is approved.” (Id. at p. 578.)
Inherently, burdens of proof draw lines. Those who cannot cross the line, regardless of how close they may come, are denied relief. Therefore to argue, as defendant does, that the statutory burden of proof line denies relief to those who come close (“the evidence is balanced”) but fail to cross it, only describes an attribute inherent in all burdens of proof. Defendant must do more. He must show that this line “offends some principle of justice . . . rooted in the traditions and conscience of our people . . . .” (Patterson v. New York, supra, 432 U.S. 197, 201-202 [53 L.Ed.2d 281, 287].) We conclude he has not done so.
Although defendant cites federal and some state authorities which “put the burden on the prosecution to establish competence to stand trial,” he acknowledges contrary authorities. This issue, at least in California, is now settled. The burden of proof (at an initial competency hearing) may constitutionally be placed upon the defendant. (People v. Medina, supra, 51 Cal.3d 885, 886.)
Additionally, in reviewing a Missouri mental competence statutory scheme similar to California’s which included a preponderance burden of proof to establish incompetence, a unanimous United States Supreme Court stated, “Missouri’s statutory scheme ‘jealously guards’ a defendant’s right to a fair trial.” (Drope v. Missouri (1975) 420 U.S. 162, 173 [43 L.Ed.2d 103, 114, 95 S.Ct. 896].)
We believe California’s mental competence statutory scheme no less “jealously guards” a defendant’s right not to be tried—if incompetent.
Having been found incompetent, criminal proceedings can only be resumed if a qualified director “certifies” that a defendant has regained [1485]competence. (§ 1372.) As appellate counsel for defendant concedes, “The certification is the opinion of the medical professionals who observed and treated the defendant while he was committed .... Their opinion is based on long-term observation . . . .” One such medical professional testified he spent about 40-50 hours with defendant.
At any restoration hearing defendant must be represented by counsel. (§ 1368, subd. (a).)
Moreover, after a court, at a restoration hearing, finds a defendant competent the court has “a continuing duty to monitor for substantial evidence” of defendant incompetence. (George, Criminal Trial Judges’ Benchbook, supra, § 3.1, p. 131; § 1368, subd. (a); see People v. Pennington (1967) 66 Cal.2d 508, 520 [58 Cal.Rptr. 374, 426 P.2d 942]; People v. Hays (1976) 54 Cal.App.3d 755 [126 Cal.Rptr. 770]; People v. Melissakis (1976) 56 Cal.App.3d 52, 61 [128 Cal.Rptr. 122]; Shephard v. Superior Court, supra, 180 Cal.App.3d 23.) In the instant case defendant, at the conclusion of the restoration hearing, was found competent on November 2, 1987, but it was over six months later (May 18, 1988) before his criminal trial started. A week elapsed before that trial ended on May 26, 1988. And almost another month passed before judgment was pronounced on June 23, 1988. If at any time during this almost eight-month period “a doubt [arose] in the mind of the judge as to the mental competence of the defendant” (§ 1368, subd. (a)) the judge had a duty to initiate mental competency proceedings.
Finally, we perceive no constitutional difference in the burden of proof at an initial competency hearing (§§ 1368, 1369) and at a restoration hearing (§ 1372, subd. (c)). At each hearing the fact to be proved is the same. At each hearing defendant is represented by counsel. Although at the initial hearing defendant has not yet been found incompetent, at the restoration hearing he has been certified competent—a difference we regard as a standoff. As to access to relevant information, a factor termed “critical” by People v. Medina, defendant’s counsel not only has equal access with the prosecutor to all precertification state hospital reports but thereafter “one might reasonably expect that the defendant and his counsel would have better access than the People to the facts relevant to the court’s competency inquiry.” (People v. Medina, supra, 51 Cal.3d 870, 885.)
2. Defendant contends there is insufficient evidence of two rapes.
“Under Penal Code, section 261 rape is an act of sexual intercourse. Any sexual penetration, however slight, is sufficient to complete the crime.” (People v. Clem (1980) 104 Cal.App.3d 337, 347 [163 Cal.Rptr. 553].) As our Supreme Court stated regarding the related crime of sexual penetration [1486]with a foreign object, “a new and separate violation ... is ‘completed’ each time a new and separate ‘penetration, however slight’ occurs.” (People v. Harrison (1989) 48 Cal.3d 321, 329 [256 Cal.Rptr. 401, 768 P.2d 1078].)
Since the trial court expressly found “there was a separate act involved” in the two rapes, our task is to determine if substantial evidence supports that finding. We conclude it does.
The victim testified that the first act occurred while she was on the couch, lying on her back, with the “unusually heavy” defendant atop her. “After that act was completed” defendant turned the victim over and vaginally penetrated the victim from the rear. Although the victim did not expressly describe a penile withdrawal separating the two acts of intercourse, the scene she did describe vividly and sufficiently implies such a withdrawal.
3. Defendant contends the trial court erred in separately punishing him for two rapes.
Our Supreme Court has recently and dispositively answered defendant’s contention: “[S]ection 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the ‘sole’ aim of achieving sexual gratification.” (People v. Harrison, supra, 48 Cal.3d 321, 325.)
4. Defendant contends the trial court erred in imposing separate punishment for each sexual offense gun use (§12022.5).
We need not consider whether or not section 654 generally prohibits separate punishment for multiple gun use enhancements, a question dividing courts of appeal. (See People v. Ramirez (1987) 189 Cal.App.3d 603, 627-629 [233 Cal.Rptr. 645].) It suffices to conclude that when, as in the instant case, the gun use enhancement is pursuant to section 12022.3,13 which expressly authorizes separate punishment, section 654 is no bar. (People v. Ramirez, supra, 189 Cal.App.3d 603, 629; People v. Blevins (1984) 158 Cal.App.3d 64, 71 [204 Cal.Rptr. 124].)
[14875]. Defendant contends the trial court violated section 654 by punishing him for both the sex offenses and for burglary.
If defendant had a common intent in committing the burglary and the sex offenses, section 65414 bars separate punishment for the burglary.
The trial court found “[t]he crimes and their objectives were predominantly independent of each other . . . the burglary [’s] . . . ultimate goal was larceny.”
Substantial evidence supports the finding. Almost immediately after entering the victim’s apartment defendant “wanted to know if [she] had any money.” Only after the victim said she had no money did the defendant state “if he couldn’t take from [her] he was going to take of [her].” And, in fact, the defendant did steal property from the victim: her TV, jewelry box, tuner, and speakers. Since there is substantial evidence defendant’s intent at the time of the burglary was to steal, he may be punished for both burglary and the sex offenses. (People v. Green (1985) 166 Cal.App.3d 514 [212 Cal.Rptr. 451].)
6. Defendant contends the burglary great bodily injury enhancement must be stricken.
Defendant correctly argues that the injuries inflicted by the two gunshots cannot be relied upon to sustain the burglary great bodily injury enhancement. It was those injuries which supported the attempted murder great bodily injury enhancement, and section 654, prohibiting double punishment for the same act, applies to enhancements. (People v. Dobson (1988) 205 Cal.App.3d 496, 501 [252 Cal.Rptr. 423].)
Defendant also correctly observes that the sex offenses cannot support the subject enhancement. However traumatic they must have been, there was no evidence of physical injury. (People v. Caudillo, supra, 21 Cal.3d 562, 587-588.) Moreover, defendant received separate punishment for each sex offense. (§ 654.)
Defendant then concludes, incorrectly, that the only injuries which may support the subject enhancement were those inflicted inside the victim’s apartment. The law is otherwise.
[1488]Section 12022.7 imposes additional punishment upon a person who “inflicts great bodily injury ... in the commission . . . of a felony . . ,”15
“In considering the words of a statute, an appellate court is required to read the enactment in the light of the objective sought to be achieved by it as well as the evil sought to be averted. In enacting section 12022.7, the clear intent of the Legislature was to deter infliction of serious bodily injury on victims of burglary, robbery and other felonies .... Since human experience teaches that a person who has committed an offense will attempt to escape from its situs and since the risk of violent confrontation and consequent injury is at least as great during the course of flight as during the perpetration of the crime itself, for the purposes of section 12022.7, offenses committed during escape from the scene of the crime must be deemed acts in the commission of the crime. The conclusion reached by us is in harmony with the existing case law which in analogous situations (e.g., burglary, robbery), held that the crime is not complete until the felon has won his way to a place of temporary safety.” (Citations omitted.) (People v. Johnson (1980) 104 Cal.App.3d 598, 608 [164 Cal.Rptr. 69]; see also People v. Chavez (1951) 37 Cal.2d 656, 669-670 [37 Cal.2d 656, 234 P.2d 632]; People v. Salas (1972) 7 Cal.3d 812, 823-824 [103 Cal.Rptr. 431, 500 P.2d 7 [58 A.L.R.3d 832]; People v. Kendrick (1961) 56 Cal.2d 71 [14 Cal.Rptr. 13, 363 P.2d 13]; People v. Eaker (1980) 100 Cal.App.3d 1007, 1012 [161 Cal.Rptr. 417]; People v. Fuller (1978) 86 Cal.App.3d 618, 622-624 [150 Cal.Rptr. 515].)
When defendant departed from the victim’s apartment the “commission” of the burglary, for section 12022.7 purposes, had not ended. Defendant not only possessed property stolen during the burglary but still controlled the burglary victim. By removing her from the burglary situs defendant extended the need for section 12022.7’s deterrent threat and thereby its effect.
Therefore, in determining whether defendant inflicted “significant or substantial physical injury” on the victim we consider injuries inflicted within and without her apartment, excluding the gunshot wounds.
[1489]“ ‘Whether the harm resulting to the victim . . . constitutes great bodily injury is a question of fact.... If there is sufficient evidence to sustain the . . . finding ... we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.’ ” (People v. Wolcott (1983) 34 Cal.3d 92, 107 [192 Cal.Rptr. 748, 665 P.2d 520].)
If the injuries are more than “ ‘transitory and short-lived bodily distress” they “will qualify as ‘great bodily injury.’ ” (34 Cal.3d at p. 107)
The question then is, does the following constitute substantial evidence of more than “transitory and short lived bodily distress”: the defendant strangled the victim with her scarf tight enough to nearly cause her to pass out; she felt herself choking; her left eye started swelling and her nose started bleeding; she couldn’t breathe; she felt pain around her neck and saw blood; blood was all over her face; when she was forced from her house she was still suffering from the head injuries she received in the closet; when she lay on her stomach in the van she felt a strong blow on her head; it produced a big lump on the back of her neck; she momentarily lost consciousness; she then went into “very excruciating pain”; the wound bled; when she then crawled to the front seat she was in “really bad pain”; as defendant drove fast and erratically she wasn’t looking because she was in a lot of pain and kept her eyes closed; she bled a lot in the van; when defendant later stopped the van she was in so much pain that she wasn’t looking around; when defendant opened the passenger door she fell to the concrete or asphalt-like ground; she was in pain when she fell to the ground; defendant grabbed her by one arm and dragged her away from the van; she sustained a dark purple line across her neck from the strangulation; her eyes were all red and her face was very bruised.
Our answer is yes. (See People v. Lopez (1986) 176 Cal.App.3d 460, 463-465 [222 Cal.Rptr. 83].) Defendant’s contention is without merit.
Disposition
The judgment is affirmed, as modified.16
Lillie, P. J., concurred.
Unless otherwise noted, all statutory references are to the Penal Code.
Section 1367 provides, in part: “A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for pur[1476]poses of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.”
This section provides, in relevant part: “If the medical director of the state hospital . . . to which the defendant is committed . . . determines that the defendant has regained mental competence, such director shall immediately certify that fact to the court.”
The section provides: “When a defendant is returned to court with a certification that competence has been regained, the court shall notify either the community program director or the regional center director and the Director of Developmental Services, as appropriate, of the date of any hearing on the defendant’s competence and whether or not the defendant was found by the court to have recovered competence.” (Italics added.)
The prosecution, during its case in chief, failed to offer proof of defendant’s prior felony convictions, and the trial court made no findings concerning them.
Defendant does contend the evidence establishes only one not two rapes. We separately consider this claim later in our opinion.
In pertinent part the section provides: “Where the committing court approves the certificate of restoration to competence as to a person in custody, the court shall hold a hearing to determine whether the person is entitled to be admitted to bail. . . .”
Trial courts have so understood their authority. (George, Criminal Trial Judges’ Bench-book (1988) § 5.D, p. 144 [“The determination can be made on the basis of the report from the hospital, the appearance of the defendant in court, and the representations of defense counsel. . . .”].)
In 1978, one California state hospital alone certified 184 defendant-patients as having regained competence. (Pendleton, Treatment of Persons Found Incompetent to Stand Trial, Am.J. Psychiatry (Sept. 1980) p. 1100.)
This statutory scheme was enacted in 1872 and has been repeatedly and substantially amended.
Not including a jury trial (People v. Murrell, supra, 196 Cal.App.3d 822, 826).
Section 1369, subdivision (f) does not assign the burden of proof to a particular party. Rather, the burden to prove incompetence applies whenever the statutory presumption of competence is challenged. Whoever initiates that challenge—defendant, prosecutor, or judge (§ 1368, subd. (b))—bears the burden of proof.
The section provides: “For each violation of Section 261, 264.1, 286, 288, 288a, or 289, and in addition to the sentence provided, any person shall receive an enhancement (a) of three, four, or five years if the person uses a firearm or any other deadly weapon in the commission of the violation or (b) of one, two, or three years if the person is armed with a firearm or any other deadly weapon. The court shall order the middle term unless there are circumstances in aggravation or mitigation. The court shall state the reasons for its enhancement choice on the record at the time of the sentence.”
In pertinent part it provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”
The section provides: “Any person who, with the intent to inflict such injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony shall, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he has been convicted, be punished by an additional term of three years, unless infliction of great bodily injury is an element of the offense of which he is convicted.
“As used in this section, great bodily injury means a significant or substantial physical injury.
“This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. The additional term provided in this section shall not be imposed unless the fact of great bodily injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact.”
The abstract of judgment incorrectly shows sentence stayed on count 7 but imposed on count 8. We hereby correct it to show sentence stayed on count 8 but imposed on count 7. This change does not affect the sentence length.