People v. Gonzalez

Filed 10/20/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S207830

v. )

) Ct.App. 4/1 D059713

RAMON FULGENCIO GONZALEZ, )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. SCD 228173

____________________________________)

In this case we are asked to decide whether a defendant may, consistently

with Penal Code section 954,1 be convicted of both oral copulation of an

unconscious person (§ 288a, subd. (f)) and oral copulation of an intoxicated person

(id., subd. (i)) based on the same act. The Court of Appeal understood our

decision in People v. Craig (1941) 17 Cal.2d 453 (Craig) as precluding multiple

convictions in these circumstances and vacated defendant‘s conviction for oral

copulation of an intoxicated person. We conclude that Craig is distinguishable,

the two statutory subdivisions at issue here describe different offenses, and

defendant may properly be convicted of, although not punished for, both. (§ 654;

see People v. Vargas (2014) 59 Cal.4th 635, 637 [multiple prior convictions

arising out of a single act against a single victim cannot constitute multiple strikes

under ―Three Strikes‖ law].) We therefore reverse the judgment.

1 Further statutory references are to the Penal Code.

FACTUAL AND PROCEDURAL BACKGROUND

In the early evening of June 25, 2010, defendant Ramon Fulgencio Gonzalez

and the victim, Carolyn H., were on the sidewalk near the intersection of 16th

Street and Island Avenue in San Diego. Carolyn, who had passed out after having

drunk a pint of vodka, lay with her head near defendant‘s lap. Witnesses saw

defendant moving Carolyn‘s head up and down with one hand while his penis was

in her mouth. A police officer arrived on the scene and confronted defendant, who

put his penis back in his pants and tried to zip them. When the officer pulled

defendant away from Carolyn, who was unconscious, her head hit the concrete.

The officer handcuffed defendant, and paramedics transported Carolyn to a

hospital.

An information charged defendant with, among other things and as relevant

here, oral copulation of an unconscious person in violation of section 288a,

subdivision (f) (count 1), and oral copulation of an intoxicated person in violation

of section 288a, subdivision (i) (count 2), based on the same act. A jury convicted

him of both charges. On count 1 the trial court sentenced defendant to the low

term of three years, and on count 2 the court imposed but stayed execution of

sentence pursuant to section 654. On appeal, citing this court‘s decision in Craig,

supra, 17 Cal.2d 453, defendant argued his convictions on counts 1 and 2 could

not both stand because he had committed a single act of oral copulation. A

majority of the Court of Appeal agreed and vacated the conviction on count 2,

reasoning subdivisions (f) and (i) of section 288a delineate different circumstances

under which the statute may be violated but do not set forth distinct offenses of

which defendant could be convicted. A dissenting justice contended (1) that Craig

does not apply when, as in this case, a defendant is charged and convicted under

two provisions of section 288a that require proof of different elements and

prescribe separate punishments, and (2) that the only exception to the rule that

2

multiple convictions may arise out of the same act—that a defendant may not be

convicted of both greater and lesser included offenses—is not implicated here.

We granted the People‘s petition for review.

ANALYSIS

As relevant here, section 954 provides: ―An accusatory pleading may charge

two or more different offenses connected together in their commission, or different

statements of the same offense or two or more different offenses of the same class

of crimes or offenses, under separate counts . . . . The prosecution is not required

to elect between the different offenses or counts set forth in the accusatory

pleading, but the defendant may be convicted of any number of the offenses

charged . . . .‖ We have repeatedly held that the same act can support multiple

charges and multiple convictions. ―Unless one offense is necessarily included in

the other [citation], multiple convictions can be based upon a single criminal act or

an indivisible course of criminal conduct (§ 954).‖ (People v. Benavides (2005)

35 Cal.4th 69, 97.) Section 954 thus concerns the propriety of multiple

convictions, not multiple punishments, which are governed by section 654.

The People contend that both of defendant‘s convictions are proper because

subdivisions (f) and (i) of section 288a define different offenses, neither of which

is included in the other, and that section 954 permits conviction of different

statements of the same offense in any event. Defendant contends the subdivisions

of section 288a set forth not different offenses but merely different ways of

committing criminal oral copulation, and section 954 does not permit conviction

of different statements of the same offense. Because we conclude that the

subdivisions of section 288a describe different offenses, we need not determine

whether section 954 allows conviction of different statements of the same offense.

―In California all crimes are statutory and there are no common law crimes.

Only the Legislature and not the courts may make conduct criminal.‖ (In re

3

Brown (1973) 9 Cal.3d 612, 624; see People v. Chun (2009) 45 Cal.4th 1172,

1183; § 6.) It follows that the determination whether subdivisions (f) and (i) of

section 288a define different offenses or merely describe different ways of

committing the same offense properly turns on the Legislature‘s intent in enacting

these provisions, and if the Legislature meant to define only one offense, we may

not turn it into two.

In addressing this question, ― ‗[w]e begin by examining the statute‘s words,

giving them a plain and commonsense meaning. [Citation.] We do not, however,

consider the statutory language ―in isolation.‖ [Citation.] Rather, we look to ―the

entire substance of the statute . . . in order to determine the scope and purpose of

the provision . . . . [Citation.]‖ [Citation.] That is, we construe the words in

question ― ‗in context, keeping in mind the nature and obvious purpose of the

statute . . . .‘ [Citation.]‖ [Citation.] We must harmonize ―the various parts of a

statutory enactment . . . by considering the particular clause or section in the

context of the statutory framework as a whole.‖ ‘ ‖ (People v. Acosta (2002) 29

Cal.4th 105, 112.) ―If, however, the statutory language is susceptible of more than

one reasonable construction, we can look to legislative history in aid of

ascertaining legislative intent.‖ (People v. Robles (2000) 23 Cal.4th 1106, 1111.)

Subdivision (a) of section 288a defines oral copulation as ―the act of

copulating the mouth of one person with the sexual organ or anus of another

person.‖ Subdivision (f) provides: ―Any person who commits an act of oral

copulation, and the victim is at the time unconscious of the nature of the act and

this is known to the person committing the act, shall be punished by imprisonment

in the state prison for a period of three, six, or eight years. As used in this

subdivision, ‗unconscious of the nature of the act‘ means incapable of resisting

because the victim meets one of the following conditions: [¶] (1) Was

unconscious or asleep. [¶] (2) Was not aware, knowing, perceiving, or cognizant

4

that the act occurred. [¶] (3) Was not aware, knowing, perceiving, or cognizant of

the essential characteristics of the act due to the perpetrator‘s fraud in fact.

[¶] (4) Was not aware, knowing, perceiving, or cognizant of the essential

characteristics of the act due to the perpetrator‘s fraudulent representation that the

oral copulation served a professional purpose when it served no professional

purpose.‖ Subdivision (i) provides: ―Any person who commits an act of oral

copulation, where the victim is prevented from resisting by any intoxicating or

anesthetic substance, or any controlled substance, and this condition was known,

or reasonably should have been known by the accused, shall be punished by

imprisonment in the state prison for a period of three, six, or eight years.‖

In concluding subdivisions (f) and (i) of section 288a set forth different

circumstances under which the same offense of oral copulation can be committed,

the Court of Appeal relied largely on the reasoning of our decision in Craig,

supra, 17 Cal.2d 453, and the People devote most of their opening brief in this

court to the argument that Craig was wrongly decided and should be overruled.

As we shall demonstrate, Craig is distinguishable.

The defendant in Craig, supra, 17 Cal.2d at page 453, was found guilty of

two counts of rape based on a single act of intercourse committed without the

consent and against the will of a 16-year-old girl. The first count alleged the rape

was committed with force and violence, in violation of former section 261,

subdivision 3. The second count, after alleging that it was ― ‗a different statement

of the same offense‘ ‖ (Craig, at p. 454) charged statutory rape of a child below

the age of consent, in violation of former section 261, subdivision 1. This court

held that ―[u]nder this section, but one punishable offense of rape results from a

single act of intercourse, although that act may be accomplished under more than

one of the conditions or circumstances specified in the foregoing subdivisions.

These subdivisions merely define the circumstances under which an act of

5

intercourse may be deemed an act of rape; they are not to be construed as creating

several offenses of rape based upon that single act.‖ (Craig, at p. 455.)

Craig did not hold that a single Penal Code section could never comprise

multiple offenses; it simply concluded, based on the wording and structure of the

statute, that former section 261 set forth only one offense that could be committed

under several different circumstances, as described in its several subdivisions.2

This conclusion flowed naturally from the wording and structure of former section

261. Indeed, Craig acknowledged that ― ‗[a] defendant may be convicted of two

separate offenses arising out of the same transaction when each offense is stated in

a separate count and when the two offenses differ in their necessary elements and

one is not included within the other.‘ ‖ (Craig, supra, 17 Cal.2d at p. 457.)

Here, the information charged defendant with violation of section 288a,

subdivision (f) in count 1 and of section 288a, subdivision (i) in count 2. These

offenses differ in their necessary elements—an act of oral copulation may be

committed with a person who is unconscious but not intoxicated, and also with a

person who is intoxicated but not unconscious—and neither offense is included

2 At the time Craig was decided, former section 261 read in full as follows:

―Rape is an act of sexual intercourse, accomplished with a female not the wife of

the perpetrator, under either of the following circumstances: [¶] 1. Where the

female is under the age of eighteen years; [¶] 2. Where she is incapable, through

lunacy or other unsoundness of mind, whether temporary or permanent, of giving

legal consent; [¶] 3. Where she resists, but her resistance is overcome by force or

violence; [¶] 4. Where she is prevented from resisting by threats of great and

immediate bodily harm, accompanied by apparent power of execution, or by any

intoxicating narcotic, or anesthetic, substance, administered by or with the privity

of the accused; [¶] 5. Where she is at the time unconscious of the nature of the act,

and this is known to the accused; [¶] 6. Where she submits under the belief that the

person committing the act is her husband, and this belief is induced by any artifice,

pretense, or concealment [practiced] by the accused, with intent to induce such

belief.‖ (As amended by Stats. 1913, ch. 122, § 1, p. 212.)

6

within the other. (Cf. Blockburger v. United States (1932) 284 U.S. 299, 304

[―where the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a fact which the other does

not.‖].)

Section 288a is textually and structurally different from former section 261.

Subdivision (a) of section 288a defines what conduct constitutes the act of oral

copulation. Thereafter, subdivisions (b) through (k) define various ways the act

may be criminal. Each subdivision sets forth all the elements of a crime, and each

prescribes a specific punishment. Not all of these punishments are the same. That

each subdivision of section 288a was drafted to be self-contained supports the

view that each describes an independent offense, and therefore section 954 is no

impediment to a defendant‘s conviction under more than one such subdivision for

a single act.

Given these differences between section 288a and former section 261, and in

view of the legislative recasting, subsequent to Craig, of former section 261 into

separate statutes prohibiting rape and unlawful intercourse with a minor (§§ 261

and 261.5, respectively), we need not address the People‘s remaining criticisms of

Craig, supra, 17 Cal.2d 453. Nor, as indicated, need we address whether section

954 allows conviction of different statements of the same offense.

Lastly, defendant contends that the determinative factor, when the criminal

conduct is not clearly divisible as multiple distinct acts, is whether the charged

offenses were all committed with the same criminal intent and objective. We are

not persuaded. Defendant‘s ―single objective‖ rationale is not supported by the

broad language of section 954. Moreover, none of the cases defendant cites stands

for the proposition that the existence of distinct criminal intents is a prerequisite to

7

multiple convictions; rather, all involve offenses defined by different statutes with

distinct mental state requirements.3

DISPOSITION

The judgment of the Court of Appeal is reversed and the case is remanded

to the Court of Appeal for further proceedings consistent with this opinion.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

NEEDHAM, J.*

3 See People v. Benavides, supra, 35 Cal.4th 69, 98 (lewd acts on a child and

rape and sodomy); People v. Ortega (1998) 19 Cal.4th 686, 693 (carjacking and

grand theft); People v. Pearson (1986) 42 Cal.3d 351, 355–356 (sodomy and lewd

conduct).

* Associate Justice of the Court of Appeal, First Appellate District, Division

Five, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzalez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 211 Cal.App.4th 405

Rehearing Granted

__________________________________________________________________________________

Opinion No. S207830

Date Filed: October 20, 2014

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Roger W. Krauel

__________________________________________________________________________________

Counsel:

Raymond M. DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,

Assistant Attorney General, Scott C. Taylor, James D. Dutton, Steven T. Oetting and Meredith S. White,

Deputy Attorneys General, for Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Raymond M. DiGuiseppe

Post Office Box 10790

Southport, North Carolina 28461

(910) 713-8804

Meredith S. White

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2297

2