“Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. It would reward the defendant who has the greater criminal ambition with a lesser punishment.” (citation omitted)
How later courts described this case
- “Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. It would reward the defendant who has the greater criminal ambition with a lesser punishment.” (citation omitted)
- “A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.”
Written by the judges who cited it.
Distinguished
Distinguished by People v. Harrison, 48 Cal. 3d 321 (1989)
Perez, is distinguishable, he contends, because it involved a defendant who chose to satisfy his sexual urges by committing a variety of sex acts.
The opinion
MOSK, J.
I dissent.
There is no question that defendant Perez, also known as War Eagle, committed several serious felonies, including a brutal sexual assault upon a 25-year-old female victim. The assault took place over a period of 45 minutes to an hour and took the form of rape (Pen. Code, § 261, subd. 3), sodomy (§ 286) and oral copulation (§ 288a). He deserves, and received, a long state prison sentence. The primary issue is whether the trial court abused its discretion in staying execution of sentence on three counts of sodomy and oral copulation.
Whether defendant committed acts which were separate and distinct, unrelated physically and differentiated in time, or were acts based on a single intent and objective and contained within a clearly defined time frame, is primarily a question of fact. The judge had presided at the jury trial and was familiar with the evidence; at time of sentencing he stated in effect that he was staying the sentence of defendant on three of the sex charges because they were part of one act “punishable in different ways.” (§ 654.)
The trial judge thus made a factual determination that there was one intent and objective in the sexual misconduct of defendant. The *556 prosecutor originally agreed with the trial court, 1 only later suffering the equivalent of “plea remorse.” My colleagues in the majority fall into error in reviewing and reweighing the evidence and reaching a different factual conclusion. This, I suggest, is not within the appellate prerogative.
The divisibility of acts in cases involving sexual misconduct is not easily susceptible of precise definition. (People v. Greer (1947) 30 Cal.2d 589, 600 [ 184 P.2d 512 ].) It is generally recognized that if several prohibited sex offenses are separate and distinct acts, a defendant may be punished separately for each offense. (People v. Cline (1969) 2 Cal.App.3d 989, 994 [ 83 Cal.Rptr. 246 ].) But there are no cases cited by the majority, nor have I found any, that preclude a trial court, pursuant to Penal Code section 654, from finding as a fact that a series of sexual offenses performed by one person on one person during a single time frame constitutes a single intent and objective.
Nevertheless the majority leap dextrously from a rule which declares a court may find several sex offenses to be separate acts to a unique holding that in effect the trial court must so find. In so doing my colleagues have permitted their understandable revulsion at the brutality of. defendant to induce them to adopt a broad rule which threatens the independent fact-finding role of trial courts in emotionally charged sex cases. The melancholy aspect of this ill-advised result is that it is wholly unnecessary, because under previously prevailing law defendant’s inevitable destiny was lengthy state prison confinement. Indeed, he is under sentence for armed robbery with great bodily injury, kidnaping, and rape, these sentences to run consecutively with others previously imposed. Certainly there is no pragmatic need to interfere with the trial court’s exercise of its fact-finding function.
The majority strain Penal Code section 654 to reach their result, despite our interpretation of the statute in Neal v. State of California (1960) 55 Cal.2d 11 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ], holding that it applies if there is but a single intent and objective. It seems elementary that intent and objective, single or multiple, are generally factual, not legal, determinations.
*557 A simple analogy may make the single intent and objective concept more readily understandable. If an armed robber holds up three persons and relieves each of his possessions, he may be punished for three separate offenses; he intended to commit three robberies for economic gain. (See People v. James (1977) 19 Cal.3d 99, 119 [ 137 Cal.Rptr. 447 , 561 P.2d 1135 ] [burglary of three offices in one building].) But if an armed robber holds up one person, and removes a wallet from one pocket of the victim, money from another pocket, and a watch from his wrist, the criminal has not committed three punishable crimes, only one. His intent and objective was economic gain by robbing one victim of his possessions, however numerous and wherever located on the person the possessions may have been.
This defendant had one intent and objective: gratification of his unnatural sexual desires. The record reveals he so stated to the victim, and the trial court so found. That he achieved his objective of sexual gratification through three bodily techniques involving one victim in one time frame does not compel a trial court to find as a matter of law that there were three separate and distinct punishable offenses.
I would affirm the judgment of the trial court.
Newman, X, concurred.
At the time of sentencing, the prosecutor stated to the court: “I would be forced to agree at this point, however, that the other offenses, the sodomy charge and the two oral copulations did occur at the same basic time as the rape, in the same general room and in the same general time period with apparently similar and identical motive of sexual gratification; and that Section 654 would preclude this Court from imposing an additional sentence for those three charges . . . .”