PEOPLE v. GONZALEZ

Respondent’s Reply Brief on the Merits

Cal.November 26, 2013

In the Supreme Court of the State of Caltfornta THE PEOPLE OF THE STATE OF SUPREME COURT CALIFORNIA, | FILED Plaintiff and Respondent, Case No. $207830 NOV 2 6 2013 v. ROMAN FLUGENCIO GONZALEZ, Frank A. McGuire Clerk Defendantand Appellant. Deputy FILED WITH PERMISSION Fourth Appellate District, Division One, Case No. SCD228173 San Diego County Superior Court, Case No. D059713 The Honorable Roger W.Krauel, Judge RESPONDENT’S REPLY BRIEF KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING Supervising Deputy Attorney General MEREDITH S. WHITE Deputy Attorney General State Bar No. 255840 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2297 Fax: (619) 645-2271 Email: Meredith.White@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page INtrOdUctiOn........ceseccseecesecesescecssesssscsesseseeeeseassecseecscsesecseesssessssessecaseevareaceas 1 ALQUMENL0.0... ccecsseseeseseeseeeecsetseesecaneseseesesseseesesessssassassesacseseecaessnensscsssssesenes 3 I. Section 954 permits multiple convictions for different offenses connected in their commission and different offenses of the same class of crimes regardless of the criminalintents of the crimes charged ............ccsceccsesesssseeeeees 3 II. Section 954 also permits multiple convictions for different statements of the same offense...............cccccscseeeeee 8 lil. The exceptions to section 954’s general rule do not underminethe validity of the statute’s express language permitting multiple convictions..............c.cccees 14 IV. Oral copulation of an intoxicated person is not a lesser included offense of oral copulation of an unconscious PCTSON.......cccccccssesessecesssseseseeeaecesneeeeessaceesesseeeescsnaeeeeeessesnseeees 27 COMCIUSION..........ccccccccsccesssssscsscsnccecccccsvevscesnscecseesessssecesensctasesceesceceeseccensucees 30 TABLE OF AUTHORITIES Page CASES Inre C.H. (2011) 53 Cal.4th 94ooecseseeeececeeeeseresseeeeeessetsenesenssessssseesseessesees 17 In re Peter F. (2005) 132 CalApp.4th 877oeeeeeeeeseeeneeeeeseeeneeens beseeceeaeteneetaes 17 Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48.00 ccesesseceesesesesssescnsssersnesessessssenseesesenssens 10 Nealv. State ofCalifornia (1960) 55 Cab.2d Ld cccccceseetececesteesensisseseesseeeeeessssereessserssees 25, 26 People v. Aguirre (1970) 10 Cal.App.3d 884.0... cecesseecseceteeceseeessesessesssessssssssesseneseasenes 22 People v. Alvarez (2002) 27 Cal.4th 1161ccceeeseeeenererereereeeeesseoneeenseenneennnneen-18 People v. Bailey (1961) 55 Cal.2d 514oeeeeeeceeneeeeeeeeesnessesseeesoeseseteeerens 14, 16, 22, 23 People v. Bailey (1961) 55 Cal.2d 514. cceeccecssesececeeereesessessessteeetseseseecsesssnsnesseasssecsssenees 16 People y. Beamon (1973) 8 Cal.3d 625 oo. cccccscsescssssecsceecerensseseesecesesesaeesesserscsessrecsevseseneeees 20 People v. Benavides (2005) 35 Cal.4th 69occsccessceeeeeseeeseencesteseseeeesseetsctsesesesessssaseeeseneness 5 People v. Briones + (2008) CalApp.4th 524.eesceseeeersnssssscsseecsssssssrsessssensesseneneees 22 People v. Brooks (1985) 166 Cal.App.3d 24.0...eeeeacecsaeseseseseeausaeseueeeeccsesesecseeneneesees 11 People v. Butte (2004) 117 CalApp.4th 956 ooeccetsceeseessesseessseeteeseeeesseseeeneenes 11 il People v. Ceja (2010) 49 Cal.4th booccssssssesessssssesssccsssnessssssecssessecscssssesscsecnens 16 People v. Correa (2012) 54 Cal.4th 331 occsecscessessseseseeessesesssessesesssesssssessern 24, 25, 26 People v. Coyle (2009) 178 CalApp.4th 209 ooiecccsessssecsssesesssssssssscsssssssscsessesacsesseane 13 People v. Craig (1941) 17 Cal.2d 453 occceccsssscsecesssscscsssscscncsssrsrsesvsseresseacansrenees passim People v. Duff (2010) 50 Cal.4th 787ooceccsssessesesscstesessessesescercsesssessescsstsssssesarenees 20 People v. Frank (1865) 28 Cal. 507 oeecsecessesessesesessssessessesssscseesesssssesssssanssesseseessees 21 People v. Garcia (2003) 107 CalApp.4th 1159 oo cccccccsessescsestsssssersssssscssstsveseseens 17, 18 People v. Harris . (1977) 71 Cal.App.3d 963...cccssssssessssessssssessssssesesesesscscsssssstsncsesetare 22 People v. Harrison (1989) 48 Cal.3d 320 oooecsessssssesscscseesssssseacssscseesesseesssnseseeseneneneaeeees 6 People v. Harrold (1890) 84 Cal.S67... eecsssesssssssessessesesscsecsessesessssecesssecsscscarsesssssncsseaeens 21 People v. Hertzig (2007) 156 Cal.App.4th 398 ooo. cccscssssssssessesscesessessssssesssssssesssesssnseae 22 People v. Johnson (1980) 26 Cal.3d 557 ooecscsssssssssssessssesessessecsssasssssesscsssassrsetssesseesneenee 10 People v. Kirk (1989) 211 Cal.App.3d 58 vocccccccccsssesscssssecccssssesssssveccssscssssesessecesssssessssssssees 25 People v. Kronemyer - (1987) 189 Cal.App.3d 314 ooccssssssescssesesnssssrerescsessssssessessesaveneens 23 People v. Kuhn (1963) 216 Cal.App.2d 695 oo. ccccsssssetessesessesssesesssesesssssssesscsessescarencaes 7 iii People v. Latimer (1993) 5 Cal.4th 1203 osececscessessssssssessesssessessesstssessessvesussutsusateaeerecasess 26 People v. Leyshon (1895) 108 Cab. 440oeeccccseeseeseesseesssssessessesscssessrssvesueseeensaenssee Zl People v. Linwood (2003) 105 Cal.App.4th 59 ooccessssessessseesesssessssssessesecsrsssvsaeeseeesees 28 People v. Lohbauer (1981) 29 Cal.3d 364 ooccccssesssssessessssssvessessesssssssrsssessuesaesstatsassavcanees 28 People v. Lopez (1998) 19 Cal.4th 282 ooccccsescsesssesssssesscssessssessesassessacsecsesessessesecens 28 People v. McFarland (1989) 47 Cal.3d 798 ooo. ecccccecsessccssescsssssssssstsscstsetsesersatssessvsneavereseens 19, 20 People v. Montoya (2004) 33 Cal.4th 1031 oo. ecceecssssessessseessesseesssesssssnsnesssesessessessesseessees 20 People v. Muhammad (2007) 157 Cal.App.4th 484 oo. cccecceccsssesssessscsscsscssessesenesstessrssesseeaseen 14 People v. Newton (2007) 155 Cal.App.4th 1000 w....ccccccccssseccessssessesrssssssessesseareseens 17, 18 People v. Ortega (1998) 19 Cal.4th 6860.0.eecsecssessessesssesseesesesssseeseseaee 5, 12, 14, 20 People v. Packard (1982) 131 Cal.App.3d 622 u....ccscccssessssssssssecsessscvecsscsecsesesassarsessessesare 23 People v. Palmer (2001) 24 Cal.4th 856.0... essesssssesssssesssssessesssessesscssessesarscessussuseeesanes 10 People v. Pearson (1986) 42 Cal.3d 351ccccsessessecssessssssssssssecsscsesesseseesaessesasseaeess passim People v. Pearson . (1986) 42 Cal.4th 35 1 oescecssesseesseessesssscssscssessssvesseeseessesesessessaseass 12 People v. Perez (2010) 50 Cal.4th 222ooscsscssscsseessecssssesssesssesssessvssssesseeseeesesseesseesane 21 iv People v. Rouser (1997) 59 Cal.App.4th 1065 oo... ccscsessssssesesescsessesssssssescscscscessessices 22 People v. Rowland (1999) 75 Cal.App.4th 61.cccccccscssssesesesesssssseesesssessssssrsssensessestesees 22 People v. Russell (2010) 50 Cal4th 1228ooeccecesssessesssseseesessseenseseseessssseescessscsssessees 13 People v. Ryan (2006) 138 Cal.App.4th 360 oo.escssessssseseeeesssescsresssesasssseessessssess 14 People v. Sanchez (2001) 24 Cal.4th 983 oocesssssseessssssessssesnssesessessseessseaes seseaeneneaeaeeees 20 People v. Scott (1944) 24 Cal.2d 774 oo eeeccsseccsssssssssessssessscssssesesescsesssssnssesesessessesecneans 11 People v. Smith (2012) 209 CalApp.4th 910 oo ccccccccscsssessssesessescsesesssssssssscsssssssesavenes 17 People v. Stephens (1889) 79 Cal.428ooeesetsessteteeseseeescoeseseeeseenacacsaracaeaeeceseneaeereeeeeaeaes 18 People v. Watson (1956) 46 Cal.2d 818 oo.ecssssssesssesscsesesssecsecsesesseseeecsesssssssecsvsvsecevavens 10 People v. Whitmer (2013) 213 CalApp.4th 122cccccecsesssessecsessssesssesessesssscsssesssscsesseseens 16 People v. Wyatt (2012) 55 Cal4th 694 ooiccccscessseeseseessssesessesesesseseesesseeeesessesenenees 20 Schad v. Arizona (1991) SOL US. 624.cecsessccsscsecessesscessscesssarsscsecsecsesscsessesseaeeeees 6 United States v. Powell (1984) 469 U.S. 57 occcsccsscsscsecsececcsecsscsesssessveceesseucesssessessesapiesuececees 10 Wilkoffv. Superior Court (1985) 38 Cal.3d 345oeeccssssssesesssesessecseseseesesssessessssssscesees 18, 19, 20 STATUTES Penal Code § 186.11, subd. (a)(1)...eee csececseeeeeesseessssesscesesesesseseeeeceeseecseesesseresseneags 23 § 192, subd. (C)(3)...ccccsccceceessceeceeecseeseneeceesseseeseecesenssseesseeseeeseseeesecssnersenesas 19 § 237 vccccessesscesscsecessesesseeecsecseesecesneapesseaeseeseeessesssnsessssasesasseessessseseaseestensentens 7 § 286, Subd. (C) oo. eeceeceeeserseeeseeceeessosneesssseesseessseseesseesseeesseessseseeesatenteneees 12 § 288, subd. (A) oc.ccecceseeeteesnecseeeeeenecseeeeeeeesssesseeessusceeeeeeseseres 12, 28 § 2888 oo ecccescesesscssesceeeseeseseeecscessecessecsassassessesessssereseseseeseessesneascaeenenneas 7, 24 § 288a, subds. (C)(2)(B).....ceeecsseesecseeseeseesseesscesssssseseessseseaseeseeeeeeesessenseenses 7 § 288a, SUMS. (C)(3) ... ee eesccsccesecerecsscsreesssessecesrseessrsneesesseesseeeesseseseenseserssates 7 § 288a, SUDA. (1)... eecesseseesecseeeseceeeesesetsnevesessessessesesseaseeesseessesseeseees 6. 20, 28 § 288a, SUDA. (f) oo... cee eeeseeceeseseeeseeeevsecssssressessssssseessecesceseseseeseeeatents 6.20, 28 § ABT ooecccccccssesseeencscetseserseeseesecsessseacsesseeressstessseseaseseesresseseenectensnessennsas 23 § 487, subd. (a) occccccsecsessecteeeseeeeeseesscsnseresssasssssssssseassecessenssneseneeereneenesnes 23 § 496, subd. (a) oo. ccceecceeseeesesseeceeeeteecerssrersesesessseeeuesscsusseeseessaeneeeaes 16, 17 § 654 oo eccecccsccececcneeserecseceeeseesseeessesseseesssersseussassssressseseseasesseseeenseeneses passim § O54 oo eeccccccccsscestetseeesctecentereceaaeceaaenesensecneussaesersseusaseesessererateeasenaeeneees passim § LSDec ceccececsecscsceeceersetseeseessessersnesseseaseeseasssessseeseeerseensesseeseenesans 27, 28 § 1192.7, subd. (C)(26).....cseeceecececenerenceessersessecssssssseesseessessrssssesesneenteneenes 23 Vehicle Code § 23153 ccecccseesscssessetecsctectcesseeeesseeeeseesssesssssssessesensseseerenseeenesesesenenees 18, 19 § 23153, SUD. (A) oo. eeccecescseccseceseteeeecersereeeessssensseeerenesnsneeseeessensesesseneneenees 19 § 23182 vceccscesccseseessecceeesecescseressesaescessecsesenessceaeeresesesessssensesausendeasesseeeees 20 vi INTRODUCTION This court granted review in this case to decide if appellant was properly convicted of oral copulation of an intoxicated person and oral copulation of an unconscious person for the sameact. Relying on People v. Craig (1941) 17 Cal.2d 453 (Craig), the lower court struck the conviction for oral copulation of an intoxicated person.In the openingbrief, respondent argued the two convictions were permissible by the express terms of Penal Code! section 954, although appellant could not be punished for both convictions pursuantto section 654 (and appropriately, was not punishedfor both convictions). Further, respondent argued Craig was outdated, inconsistent with the termsofthe statute, and contrary to the more modern understanding of sections 954 and 654. In trying to justify the holding in Craig and here, appellant proposes an entirely new reading ofsection 954, and arguesthat the explicit language of section 954 is limited by a judicial “gloss” that appellant extracts from the holdings of cases that never considered or decided the pertinentissue. While he recognizes defendants may be convicted ofdistinct offenses for a single act, he claims they may only be so convictedif the two offenses require proof ofdifferent criminalintents. The explicit language of section 954 does not imposethis requirement, and no court has everheld that multiple convictions under section 954 are only permissible where the convictions are for crimes with distinct criminal intents. Beyond the obviouslack ofauthority, adopting this rule would invite an unnecessary flood oflitigation over the propriety of multiple convictions. This would defeat the purpose of section 954 and undermine the now well-settled approach to multiple convictions and multiple punishments. Notably, appellant has proposedthis rule instead of adopting or defending the ' Future unlabeled statutory references are to the Penal Code. reasoning of the Court of Appeal or the Court in Craig. Accordingly, he has abandoned those arguments. Further, appellant proposes an interpretation of section 954 which would prohibit multiple convictions arising from different statements of the same offense, despite section 954’s language permitting such convictions. Because the crimesat issue in this case are distinct offenses, this Court need not reach this second issue. Even so, appellant’s proposed interpretation of the statute distorts the purpose and creates confusion. The more natural reading proposed by respondentis straight-forward, better effectuates the legislative intent, and has already been adopted bythis Court. | Attempting to buttress his argument regarding the interpretation of section 954, appellant contends four judicially-created exceptions to section 954’s allowance of multiple convictions confirm that the statute should be read to prohibit multiple convictions whereverthey arise from charges of different statements of the same offense. But, the four judicially-created exceptions are offense-specific and viewing them collectively, as appellant urges, permits the exceptions to take over the general rule, and renderit meaningless. In a separate attempt to justify the lower court’s decision in this case, appellant argues that his two convictions are not permissible becauseoral copulation of an intoxicated personis a lesser included offense oforal copulation of an unconsciousperson. A basic application of the elements test demonstrates that this argument is wholly without merit. For the reasons explained in respondent’s openingbrief on the merits and herein, the two convictions at issue are permissible under section 954, and the reasoning in Craig, which was usedto strike one of the counts, should be overturned. ARGUMENT I. SECTION 954 PERMITS MULTIPLE CONVICTIONS FOR DIFFERENT OFFENSES CONNECTEDIN THEIR COMMISSION AND DIFFERENT OFFENSES OF THE SAME CLASS OF CRIMES REGARDLESS OF THE CRIMINAL INTENTS OF THE CRIMES CHARGED Respondent and appellant appear to agree that the issue of multiple convictionsis primarily governed by Penal Codesection 954. And, we agree that the language ofsection 954 permits multiple convictions for a single criminal act where the convictions are for different offenses. But, appellant argues that the statute’s explicit language has beenrestricted by this Court and such multiple convictions are only permissible where the twoconvictions are for crimes which require proofof different criminal intents. This Court has never interpreted section 954 in such a manner, and no other court has either. Thereis no indication that the Legislature intended sucha restriction on the permissibility of multiple convictions and accordingly, appellant’s proposed rule should berejected. Section 954 reads: 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 sameclass of crimesor offenses, under separate counts, and if two or more accusatory pleadingsare filed in such cases in the same court, the court may order them to be consolidated. 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 numberofthe offenses charged, and each offense of which the defendant is convicted mustbestated in the verdictor the finding of the court; provided,that the court in which a caseis triable, in the interests ofjustice and for good cause shown, mayin its discretion order that the different offenses or counts set forth in the accusatory pleadingbe tried separately or divided into two or more groups and each ofsaid groupstried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count. Asnoted in respondent’s openingbrief, the statute authorizes multiple chargesin three different situations: 1) where the prosecution charges different offenses connected together in their commission, 2) where the prosecution charges different statements of the same offense, and 3) where the prosecution charges different offenses of the same class of crimes. (ROBM25.) Appellant concedes this point (AABM36), and agreesthat multiple convictions may result from the first and third situation, i.e. where the chargesare for “different offenses.” (AABM 6-7.) Here, the Court of Appeal concluded the two crimesat issue in this case were not “different offenses” because they were subdivisions of a single statute instead of separately delineated Penal Code provisions. (Slip Op. 12-14.) Appellant does not make this argument, and abandons the reasoning, claiming,“this Court need nottrouble itself with whether or the extent to which this point—that the two descriptions of the offense appear as subdivision of the same statute—bears upon the analysis in such cases.” (AABM 32.) Respondentalso argued in the opening brief that the remaining reasoning offered by Craig in support ofits “one offense” conclusion, and relied upon by the Court of Appeal, wasflawed and should not be adopted by this Court. (ROBM 12-22.) Appellant also does not attempt to save Craig— he never defends the reasoning of the opinion, nor doeshe rely on its reasoning when defending the decision of the Court of Appeal. . . Instead of adopting the reasoning of the Court ofAppeal or attempting to use Craig, appellant proposes a new rule whichrestricts the broad * “ROBM”refers to Respondent’s Opening Brief on the Merits. ° “4ABM”refers to Appellant’s AnswerBrief on the Merits. languageof section 954. While appellant acknowledgesthat a defendant can suffer multiple convictions for a single act, he posits that multiple convictions are not permissible unless the two charges require distinct criminal intents. (AABMatpp. 19-20.) But,there is no authority for this proposedlimitation on section 954’s clear language. In support of his proposedrestriction on section 954, appellant cites People v. Ortega (1998) 19 Cal.4th 686, 693, People v. Benavides (2005) 35 Cal.4th 69, 98, and People v. Pearson (1986) 42 Cal.3d 351, 355-356. Appellant argues that these cases held multiple convictions were permissible even though based on a single criminal act, but only because the crimesat issue in each required distinct criminal intents. Eveniftrue that the criminal intents for each crime committed in these cases were distinct, this Court did not base its holdings on the notion that distinct criminal intents were a requirement to permit multiple convictions. Instead, this Court held in all three cases that the multiple convictions were permissible under the explicit language of section 954. (Ortega, supra, 19 Cal.4th at p.692; Benavides, supra, 35 Cal.4th at p. 97; Pearson, supra, 42 Cal.3d at p. 354.) The mere coincidence that the crimesat issue in these cases had distinct criminal intents does notgive rise to a universal rule limiting multiple convictions to such circumstances. Appellant offers no other authority in support ofhis proposedrule limiting multiple convictions for different offenses under section 954, Adopting appellant’s rule would also invite a flood oflitigation over whatconstitutes “distinct criminal intents.” The Court need only look to. the massof cases on section 654 to preview the litigation that would result if appellant’s rule were adopted. Courts acrossthis state are flooded with claims under section 654 regarding whether two convictions had “multiple simultaneous butdistinct criminalobjectives,” or were part of one “indivisible transaction” based on single intent and objective, such that - multiple punishments was either permissible or prohibited. (People v. Harrison (1989) 48 Cal.3d 321, 335 [“[I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be foundto have harboreda single intent and. therefore may be punished only once.[Citation.] [{] [f, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared commonacts or were parts of an otherwise indivisible ].) If appellant’s rule were adopted, courts would need999course of conduct. to decide the issue of distinct criminal intents twice—onceto determineif the multiple convictions are permissible, and again to determine if multiple punishments are permissible. The language of section 954 doesnotlimit the types of offenses for which a defendant may be convicted, and appellant has not offered any legitimate reason or basis to imposea restriction on the ' statute’s clear language. Asexplained in respondent’s opening brief, oral copulation of an intoxicated person (§ 288a, subd. (i)) and oral copulation of an unconscious person (§ 288a, subd.(f)) are different offenses because they are defined by distinct elements. (ROBM 11-12.) The Legislature knows howto define criminaloffenses, and is, in general, constitutionally permitted to do so. (Schad v. Arizona (1991) 501 U.S. 624, 632.) In striking count 2, the Court of Appeal majority in this case concluded these werenot different offenses, _ but simply different “circumstances” by which a defendant commits the same offense—unlawful oral copulation. (See Slip Op. 12-14.) This conclusion was, according to the majority, supported by the delineation of the crimes in subdivisions of the samestatute, as opposed to underdistinct Penal Code provisions. Appellant does not attempt to defend this . conclusion. As explained in respondent’s openingbrief, the organizational ease with whichthese crimesare identified in the Penal Code is not enough, by itself, to conclude the two crimesare in fact the same offense. (ROBM 17-18.) Most importantly, the two subdivisions of section 288a at issue in this case are two ofa total of 10 subdivisions of section 288a. Someofthe other subdivisions carry different punishments. (See §§ 288a, subds. (c)(2)(B) and (c) (3).) This is a strong indicationthat the Legislature intended the different subdivisions of 288a to operate as distinct offenses. Further, the two crimes have different elements, and require different proof. (See People v. Kuhn (1963) 216 Cal.App.2d 695, 700 [statutes do not define identical offenses if one offense requires proof of an element not required for the other offense].) They happen to carry the same punishment, but certainly that alone is not a sufficient basis to conclude two crimesare actually one crime — otherwise false imprisonment and grand theft, both of which are punished by not morethan a yearin countyjail(§ 237 and § 489, subd. (a)), would be considered the same crime. Forthe reasons stated above, the mere fact that two crimes are delineated in subdivisions as opposed to separate Penal Codeprovisionsis not a sufficient basis on which to conclude they are the sameoffense. If this were true, every time a defendant was charged with a violation of one subdivision ofa statute, the jury would need to be instructed onall subdivisions as all would be a permissible basis by which to convict him of the singular offense. This has never been the law, nor shouldit be. Appellantoffers no other basis for finding these two crimesare not distinct criminal offenses. And, he acknowledgesthatifthey are distinct criminal offenses, section 954 permits multiple convictions even where the offenses arise out of a single act. (AABM 8.) Theonly otherbarrier to allowing both convictions in this case to stand is Craig. But, appellant makesnoattemptto justify the reasoning in Craig either. Andrightfully so. Havingalready explainedall ofthe manyflawsin the Craig opinion, (ROBM 12-22), respondent submits Craig is not an appropriate basis upon whichto strike one of appellant’s convictions. Accordingly, the two convictions in this case were permissible and should stand. II. SECTION 954 ALSO PERMITS MULTIPLE CONVICTIONS FOR DIFFERENT STATEMENTS OF THE SAME OFFENSE Alternatively, respondent argued in the opening brief that these two crimes are “different statements of the same offense” and that multiple convictions are permitted on this basis as well under section 954. (ROBM 10, 18-19.) Appellant argues section 954 permits charges based on _ “different statements of the sameoffense,” but it does permit convictions on those charges. (AABM 6-8.) Notably, if this Court agrees with respondentthat the two crimes are distinct offenses, it need not reach this issue regarding whetherdifferent statements of the same offenses mayresult in multiple convictions under section 954. Should this Court agree with appellant that the two crimes were not distinct offenses, the multiple convictions are still proper under section 954 becausethe statute allows for multiple convictions based on different statements of the same offense. As noted above, section 954 permits charges in three different situations: 1) where the prosecution charges different offenses connected together in their commission, 2) where the prosecution charges different statements of the same offense, and 3) where the prosecution charges different offenses of the same class ofcrimes. Following the sentence which authorizes these charges, the statute reads, “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 numberofthe offenses charged...” (§ 954.) Appellant argues that the phrase,“the defendant may be convicted of any numberofthe offenses charged,”only applies to situations where the charges are comprisedofdistinct criminal offenses. Stated another way, appellant argues that convictions can only result for the different charges where the charges state different offenses connected in their commission or different offenses of the same class of crimes. But, where the charges are different statements of the same offense, multiple convictions would be prohibited because the statute allows convictions only for “offenses.” (AABM6.) Readingthe statute in this manner creates unnecessary confusion and necessitates judicial nullification of the jury verdict. After explaining the various charges whichare permissible, section 954 expressly states, “the defendant may be convicted of any numberofthe offenses charged.” (italics added.) Thus, the language of the statute unambiguously provides the defendant can be convicted of any of the charges previously identified as permissible. This includes different statements of the same offenselaid out underdifferent counts which the previous sentence explicitly authorized. Further, the statute clarifies that the prosecution need notelect from amongst the different counts or offenses. It also dictates that each offense of which the defendant is convicted mustbe stated in the verdictor finding of the court. Accordingly, it is not clear how, under appellant’s reading, a court would preserve the prosecutor’s right to proceed on all of the charges, but also ensure that the jury only return verdicts on the counts which constitute distinct “offenses.” Read more naturally, it appears the Legislature used the term “offense” interchangeably with “offenses and counts.” Whenread in this manner, the statute permits charges on the three bases previously mentioned and permits a jury to convict a defendant on any of the charges included in the pleading. Wheninterpreting statutory text, courts strive to “give the provision a reasonable and commonsense interpretation consistent with the apparent purposeandintention ofthe lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.” (Marshall M. v. Superior Court (1999) 75 Cal.App.4th 48, 55) Further, assuming appellant would argue that the court could strike unnecessary offenses after the jury returnsits verdicts; this interpretation of section 954 necessitates judicial intervention and the nullification of a portion of the jury’s verdict where the charges represent different statements of the same offense. Such intervention should not be built into the criminal proceedings as a necessary matter of law. Appellant argues that at that point, the prosecution could elect which counts it wished to keep. But, this too forces the prosecutorto elect to nullify a portion of the jury verdict. Jury verdicts, in general, should notbe lightly disregarded: “[W]ith few exceptions, once the jury has heard the evidence andthe case has been submitted,the litigants must accept the jury’s collective judgment. Courts have alwaysresisted inquiring into a jury’s thought processes; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.” (People v. Palmer (2001) 24 Cal.4th 856, 863, citing United States v. - Powell (1984) 469 U.S. 57, 66-67.) Courts are,in general, cautious about interfering with the jury verdict, and do so only underparticular circumstances. All of the standards of review on appeal demonstratethis. (See e.g. People v. Watson (1956) 46 Cal.2d 818 [requiring a showing of a miscarriage ofjustice before.a court will overturn a verdict‘on state law grounds]; and see People v. Johnson (1980) 26 Cal.3d 557, 578 [all inferences are drawn in favor ofthe jury’s verdict].) The public’s confidence in the jury system depends,in part, on the sanctity of,the verdict andits staying power. It seems counter-productive to read section 954 ina manner which would require interference with the jury verdict and thus underminethereliability of the entire jury trial process. 10 Appellant’s proposed interpretation of section 954 would also contradict the statute’s express purpose and cause unnecessary confusion and litigation. The purpose of section 954 is to govern “the form of the information” (People v. Brooks (1985) 166 Cal.App.3d 24, 29) and to permit joinderof different offenses so as to prevent“repetition of evidence and save[ ] time and expenseto the state as well as to the defendant” (People v. Scott (1944) 24 Cal.2d 774, 779). “[A]n information plays a _ limited but importantrole: It tells a defendant what kinds of offenses heis charged with (usually by referenceto a statute violated), andit states the number of offenses (convictions) that can result from the prosecution.” (People v. Butte (2004) 117 Cal.App.4th 956, 959, internal quotations omitted.) Section 954 is supposed to make the procedure behind charging a defendant morestraight-forward. The broad permissibility in the charges and counts puts the defendant on notice of the crimes he faces. Reading the statute in the manner proposed by appellant would defeat this purpose and introduce into the pleading stages of criminaltrials unnecessary confusion about which charges can result in convictions and which cannot. This could potentially raise a whole new subset of claims regarding whether a defendant wasonnotice that he faced convictionsforall of the charges or convictions for only some of the charges. Appellant’s proposed approach would also create a tangled mess of unnecessary litigation about what constitutes a “different offense,” versus whatis merely a “different statement of the same offense.” This case is a good example ofthe arguments through which courts would havetosift to make such determinations. The morenatural reading of section 954 permits multiple convictions for any of the charges which are permitted. Put simply, if the prosecutor can charge the crime, the defendant can be convicted of it. To hold — otherwise necessitates intervention by a court after everybody has done 11 everything correctly. A prosecutor appropriately charges different statements of the same offense, and appropriately presents evidence to support the differing charges, and the jury returns verdicts on all of the charges. No judicial intervention should be statutorily or legally required at this point. | Demonstrating that the more natural reading of the statute permits multiple convictions based on different statements of the same offense,this Court also read section 954 in this manner in People v. Ortega (1998) 19 Cal.4th 686 (Ortega). There, the Court summarized section 954 as follows: “Section 954 states that, ‘[aJn accusatory pleading maycharge... different statements of the same offense’ and ‘the defendant may be convicted of any numberofthe offenses charged.’” (/d., at p. 692.) The obvious implication from the statement in Ortega is that multiple convictions are permissible where the multiple counts are based on different statements of the same offense. Similarly, in People v. Pearson (1986) 42 Cal.4th 351 (Pearson), this Court considered whether a defendant could be convicted of lewd conduct on a child (§ 288, subd. (a)), and sodomy (§ 286, subd. (c)), for the same singular act of sodomy.(/d., at p. 354-355.) The Court recited section 954 as follows: Section 954 sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct. It provides in relevantpart: “An accusatory pleading may charge two or more different offenses connected together in their commission or different statements ofthe same offense .... The prosecutionis not required to elect between the different offenses or countsset forth in the accusatory pleading, but the defendant may be . convicted of any numberofthe offenses charged...” (d., at p. 354,italics in original.) The Court went on to concludethat the defendant was properly charged with both crimes because, “such 12 charges clearly constitute ‘different statements of the same offense’ and thus are authorized undersection 954.” (Jbid.) Andfinally, the Pearson Court, reading section 954 in the manner proposed by respondent, stated, “Tt also appears the court was authorized to convict defendantofboth offenses for each act; the statute clearly provides that the defendant may be convicted of ‘any numberofthe offensescharged.’” (/bid.) A few lowercourts have interpreted section 954 in the manner suggested by appellant. In People v. Coyle (2009) 178 Cal.App.4th 209, the defendant was charged with three counts of murder based on three alternative theories of first degree murder. Count 1 charged the defendant with murder during the commission ofa burglary, count 2 charged the defendant with murder during the commission ofa robbery, andcount 3 charged the defendant with second degree murder.(/d., at p. 211.) At the outset, the charging decision in Coyle is curious becauseit necessarily made the prosecutor’s job more difficult. Where a charge offirst degree murderis alleged, and alternate theories of committing the offense are presented, the jury need not unanimously agree on the theory of commission. (People v. Russell (2010) 50 Cal.4th 1228, 1257.) But, by charging the crime as three separate counts, the prosecutor required the jury to unanimouslyagreeonall three theories. It seems unlikely this type of charging is commonplace. The court in Coyle held the three convictions could not stand because undersection 954, the defendant’s multiple convictions had to be based on separate “offenses” and the three countsin Coyle were simply different “theories” of committing the same offense.* (Id., at p. 217.) The holding in Coyle may be correct in that a “theory” of an offense would not constitute a different “statement” of the offense for 4 Notably, the court in Coyle did not have the benefit of adversarial view points as the Attorney General concededthe point. 13 purposesof section 954, but its conclusion that section 954 prohibits multiple convictions if the charges are different statements of the same offense is in conflict with the holdings in Pearson and Ortega which read section 954 to permit multiple convictions based on different statements of the same offense. People v. Muhammad (2007) 157 Cal.App.4th 484 and People v. Ryan (2006) 138 Cal.App.4th 360, read section 954 in the same manner, and thus are similarly at odds with this Court’s authority on the issue. | Respondent’s interpretation of section 954 follows the interpretation adopted by this Court in Pearson and Ortega, and readsthestatute to permit convictions arising from charges based on different statements of the sameoffense. This is the more natural and straightforward reading of section 954 and it avoids unnecessary litigation and confusion. Accordingly, respondent’s proposedinterpretation best effectuates the legislative intent behind section 954. III. THE EXCEPTIONS TO SECTION 954’S GENERAL RULE DO NOT UNDERMINETHE VALIDITY OF THE STATUTE’S EXPRESS LANGUAGE PERMITTING MULTIPLE CONVICTIONS Next, appellant contendsthe case law “makesclear that multiple convictions are permissible only for multiple distinct offenses.” (AABM 13, emphasis in original.) In support of this claim, he cites a number of cases where courts have found an exception to section 954’s generalrule permitting multiple convictions. These cases can be categorized into four main groups: 1) the multiple victims’ cases, 2) the forgery cases, 3) the possessioncases, and 4) the theft cases (based on the Bailey’ doctrine). Appellant argues that these cases, taken together, confirm that courts have > People v. Bailey (1961) 55 Cal.2d 514 (Bailey). 14 interpreted section 954 to prohibit multiple convictions based on different statements of the same offense. (AABM 13-20.) This Court need not address the propriety of each of these lines of cases. Section 954 sets forth a general rule: a prosecutor can charge different statements of the same offense, and a defendant may be convicted of any of the charges. As explained in Section II, ante, this reading of section 954 is supported by principles of statutory construction and the opinionsof this Court. The cases cited by appellant do not undo the general rule; they simply highlight that there are certain exceptions to the rule. The exceptions are offense specific, and cannot, as appellant suggests, be distilled into one cohesive rule which woulddirectly contradict the | language of section 954. The reasoning underlying each ofthe exceptionsis different, and each may be ofdiffering validity. Respondent does not concedethe validity of any of these exceptions to section 954’s general rule—it is simply unnecessary to address the propriety of each exceptionin order to resolve this case. Noneofthe exceptions cited by appellant appliesto this case,as this case does not involve multiple victims, forgery, possession or theft. The only potential exception which would apply is the one created in Craig, which respondenthas asked this Court to reconsider, and which, notably, appellant does not defend. These exceptionsto the general rule are hold-overs from the common law, based onstatutory interpretation of the specific offense at issue (without any discussion of section 954), or derived from cases which predate changesto section 954.And someofthem,like Craig, are products of a period of confusion over how to appropriately reconcile multiple convictions and multiple punishment. (See ROBM 14.) Asa result ofthis confusion, many courts struck or reversed convictions in an effort to avoid multiple punishment. The confusion undoubtedly left in its wake, authority 15 and case law thatis inconsistent with the plain language of section 954 and predates the nowsettled interpretation applied by this Court over the last several decades. The more modern understanding of the interplay between section 954 and section 654 sheds new light on the questionable soundness of these prior decisions. This Court may,in the years to come, need to address the propriety of these decisions,as it is being asked to address the propriety of Craig. Indeed, the Bailey doctrine is already pending review in _ People v. Whitmer (2013) 213 Cal.App.4th 122, review granted May1, 2013, $208843°. But, importantly, resolution of this case does not require review ofall of these exceptions to section 954’s explicit language. . That section 954 sets forth a general rule regarding multiple convictions is confirmed by the Legislature’s specific enactmentofstatutes disallowing multiple convictions in specific circumstances. In People v. Ceja (2010) 49 Cal.4th 1, this Court explained that section 496, subdivision (a), codified a rule of commonlaw that a defendant could not be convicted of receiving stolen property and theft for the theft of the sameproperty. _ Section 496, subdivision (a), explicitly states, “A principalin the actual theft of the property may be convicted pursuantto this section [for receiving stolen property]. However, no person may be convicted both pursuantto this section andof the theft of the same property.” The very existence of section 496, subdivision (a), demonstrates that the generalrule would permit multiple convictions in such circumstances. The Legislature enacted section 496, subdivision(a), becausein the particular case of receiving stolen property and theft, it wished to recognize an exception to the generalrule. If section 954 would not permit multiple convictions for ° The issue before this Court in Whitmeris: “Was defendant properly sentenced on multiple counts ofgrand theft or did his multiple takings constitute a single offense under People v. Bailey (1961) 55 Cal.2d 514?” 16 receiving stolen property and theft of the same property, there would be no need to enacta statute duplicating that principle. Indeed, section 496, subdivision (a), would be rendered superfluous.“It is a settled principle of statutory construction [ ] that courts should‘strive to give meaning to every word in a statute and to avoid constructions that render words,phrases, or clauses superfluous.’ [Citations.]” (In re C.H. (201 1) 53 Cal.4th 94, 103.) The multiple victims’ cases hold a defendant can only be convicted of one offense where a single act has resulted in harm to more than one victim. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1161-1 162, 1166 (Garcia) [evading three police officers is not three counts of evading, but just one]; People v. Newton (2007) 155 Cal.App.4th 1000, 1002-1005 (Newton) [defendant could only be convicted of one count of felony hit and run despite injuring multiple people]; Jn re Peter F. (2005) 132 Cal.App.4th 877, 878-881 [defendant could only suffer one true finding for brandishing even though two people witnessed the brandishing]; People v. Smith (2012) 209 Cal.App.4th 910, 915-917 (Smith) [defendant could only be convicted of one countofindecent exposure despite multiple witnesses].) Two ofthe casesheld only one such conviction was allowed because the crime itself did not necessitate a victim (brandishing and indecent exposure). (In re Peter F., supra, 132 Cal.App.4th at pp. 880-881, and Smith, supra, 209 Cal.App.4th at p. 915.) Arguably, in such circumstances, including different victims in the counts would not constitute a justifiably - “different statement of the same offense” becausethe existenceofa victim is not an elementof the offense. Thus, the holdings in these cases may well be correct, but they do not undermine the validity of the two convictions in this case becausetheidentity of the victim was notthe distinction in the charges; instead the two counts charged crimes comprised ofdistinct elements. 17 Citing Garcia, appellant argues that courts have “long recognized that multiple convictions cannot be based on ‘different statements of the same offense.”” (AABM 11.) The portion of Garcia on which appellantrelies is a quotation from an opinionofthis Court from 1889. The quote reads, “Although, when a man has done a criminalact, the prosecutor may carve as large an offense out ofthe transaction as he can, yet heis notat liberty to cut but once.” (People v. Stephens (1889) 79 Cal.428, 432.) While the quote is indeed catchy, the case predates the change in section 954 which addedthe language that explicitly permits multiple convictions for different statements of the same offense, and for different offenses. (See ROBM at pp. 20-22.) In addition, Garcia and Newton rely on Wilkoffv. Superior Court (1985) 38 Cal.3d 345, 349 (Wilkoff). (Garcia, supra, 107 Cal.App.4th at pp. 1162-1163; Newton, supra, 155 Cal.App.4th 1000.) In Wilkoff, the defendant was charged with multiple counts of felony driving under the influence resulting in injury (§ 23153) arising out of a single incident in which six people were injured. (/d., at p. 348.) Wilkoffand Newton base their holdings on statutory interpretation of the specific offense at hand. (Wilkoff, supra, 38 Cal.3d at p. 353 Newton, supra, 155 Cal.App.4th at pp. 1003-1004.) Further, the cases never discussed section 954, and never purportedto interpret the language includedin section 954. Accordingly, these cases are not authority for the issue now raised in this case whichis whether section 954 permits multiple convictions for a single act where the pleading charges different statements of the same offense. Cases are not, of course, authority for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) In reaching its conclusion, Wilkoffdid use broad language which appellant now cites as a general all-encompassing rule regarding the propriety of multiple convictions. Without any citation to authority, the 18 Court in Wilkoffstated, “a charge of multiple countsofviolating a statute is appropriate only wherethe actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once.” (Wilkoff, supra, 38 Cal.3d at p. 349.) This Court has already addressed this broad language and concludedthe holding of Wilkoffis limited to the facts of the particular case. In People v. McFarland (1989) 47 Cal.3d 798, 803, the defendant, while intoxicated, collided with a car stopped at a stop light. Oneofthe victims, the driver, was killed, but his wife and son (passengersin the vehicle) survived although both were severely injured. (/d., at p. 800.) Distinguishing Wilkoff, the McFarland Court held the defendant could be properly convicted and punishedfor a violation of section 192, subdivision (c)(3) (vehicular manslaughter), and Vehicle Codesection 23153, subdivision (a) (felony drunk driving causing injury). (/d., at p. 803-804.) The Court wascareful to emphasize that the holding in Wilkoffwas offense- specific and a determination oflegislative intent with respect to Vehicle Code section 23153: Our holding was based uponthe express languageofthe statute, which defines the offenseprincipally in termsof driving while intoxicated rather than the injuries whichresult therefrom, as well as evidencethat the Legislature clearly intended only oneviolation ofthe statute regardless of the numberofvictims. (Citation.) The legislative intent, we concluded, indicated “that one instance ofdriving under the influence which causesinjury to several persons is chargeable as only one countof driving underthe influence.” (Citation.) (McFarland, supra, 47 Cal.3d at p. 802.) Accordingly, appellant’ s attempt to use the broad language in Wilkoffas a generalrule restricting multiple convictions under section 954 is misguided. This Court has already determined that the language in Wilkoffdid notgive rise to a 19 universal rule restricting multiple convictions to situations where the actus reas has been committed twice.’ In addition, contrary to Wilkoff’s broad language, this Court has repeatedly held, and appellant acknowledges,that a single act (i.e. only one commission of the actus reas) can result in multiple convictions. (See e.g. People v. Wyatt (2012) 55 Cal.4th 694, 704 [involuntary manslaughter and assault on a child resulting in death for the sameact of killing a child]; People v. Duff(2010) 50 Cal.4th 787, 792-793 [second degree murder and assault on a child resulting in death for single act of suffocating child]; People v. Sanchez (2001) 24 Cal.4th 983, 989-991 [murder and gross vehicular manslaughter]; Ortega, supra, 19 Cal.4th at p. 693 [grand theft and carjacking for the single act of taking a car}; Pearson, supra, 42 Cal.3d at p. 354 [sodomyand lewd conductfor the same act of sodomy]; People v. Beamon(1973) 8 Cal.3d 625, 639-640 [kidnapping for the purpose of robbery and robbery]; People v. Montoya (2004) 33 Cal.4th 1031, 1034 {carjacking and unlawful taking of a vehicle].) Tn Wilkoff, the defendant was charged with multiple violations of the samestatute, and here, similar to the other cases cited immediately above, the defendant was charged with violations of different subdivisions. (§ 288a, subd. (f) and § 288a, subd. (i).) To the extent appellant is arguing Wilkoffshould govern the resolution ofthis case, it is distinguishable on that basis as well. Accordingly, this case aligns more appropriately with the holdings in Ortega, Pearson, and the numerousother cases cited above, and is distinguishable from Wilkoff. ’ The Legislature responded to Wilkoffby enacting Vehicle Code ~ section 23182, which provides enhancements for each additional injured victim. (McFarland, supra, 47 Cal.3d at p. 805.) 20 Appellantalso claims People v. Perez (2010) 50 Cal.4th 222,is additional authority for his contention that courts have concluded a defendant maynot suffer multiple convictions for different statements of the same offense—wherethe statements allege different victims. (ABOM. 14.) But, Perez decided an entirely different issue and is inappositeto the instant case. In Perez, the defendantfired one shotinto a groupofpeople. He wasconvicted of multiple counts of attempted murder based on the numberofpeople in the group. This Court held there was insufficient evidence to support multiple convictions because the defendantfired a solitary shot andthere was noadditionalevidence to prove hehadtheintent to kill more than one person (a necessary showing for the attempted murder convictions). (/d., at p. 234.) Perez did not address section 954 and whether ornot it permits multiple convictions based on a single act—it was a sufficiency of the evidence claim. Thus, Perez is not helpful in resolving the issue before this Court in this case. With forgery, a handful of cases from the 19th century held that a defendant could only be convicted of one count offorgery per forged document, despite multiple forged signatures on that document. (People v. Frank (1865) 28 Cal. 507, 513; People v. Leyshon (1895) 108 Cal. 440, 442-443; People v. Harrold (1890) 84 Cal.567, 568-569.) But, the cases whichfirst enunciated the forgery rule predate the changes to section 954 which explicitly permit multiple convictions based on different statements of the same offense. (See ROBM 20-22.) There may well be independent considerations in the context of forgery convictions which lend the rule validity and warrantits continued application, despite the change in the statutory language of section 954. These considerations would best be vetted in a case which squarely presentsthe issue. The possession cases present another exception to section 954’s generalrule permitting multiple convictions. Essentially, this line of cases 21 holds that a defendant can only be convicted of one count of a possession offense despite possessing multiple unlawful items. (People v. Hertzig (2007) 156 Cal.App.4th 398, 399-403 (Hertzig) [possession of multiple imagesof child pornography]; People v. Harris (1977) 71 Cal.App.3d 963, 971 [possession of various items with defaced serial numbers]; Peoplev. Rowland (1999) 75 Cal.App.4th 61, 63-67 (Rowland) [possession of multiple weaponsin prison]; People v. Rouser (1997) 59 Cal.App.4th 1065, 1071-1074 (Rouser) [possession of multiple controlled substancesin prison].) First, the cases on this point seem somewhatinconsistent as defendants whoare notin prison can suffer multiple convictions (and multiple punishment) for the simultaneous possession ofdifferent types of controlled substances. (See People v. Briones (2008) Cal.App.4th 524, 529- 530; People v. Aguirre (1970) 10 Cal.App.3d 884, 893; contra Rouser, supra, 59 Cal.App.4th at pp. 1071-1074.) Closer examination of each of these cases demonstrates that this exception,like the others, is offense- specific. Courts often engage in an analysis of the specific statute at hand without any discussion of section 954. (Hertzig, supra, 156 Cal.App.4th at p. 301; Rouser, supra, 59 Cal.App.3d at pp. 1071-1072; Rowland, supra, 75 Cal.App.4th at p. 65.) For these reasons, the possession exception cannot be easily expanded to encompassthe oral copulation crimesat issue in this case. The theft cases hold that multiple theft convictions are not permissible where the defendant steals multiple items from the same victim as part of the same “plan or scheme.” (See cases cited in AABMat pp. 15-16.) All of these cases trace back to People v. Bailey (1961) 55 Cal.2d 514 (Bailey), wherethe rule wasfirst announced. In Bailey, the defendant committed a series of petty thefts which were aggregated into one count of grandtheft becauseall of the individual petty thefts were part of the same plan or scheme.(/d., at pp. 515, 518-520.) This rule makes sense, as the defendant 22 is employing the same schemeto steal an amount of money which, when aggregated, exceeds the threshold for grand theft. Thus, the conduct is more appropriately viewed as grandtheft, and notpetty theft. But, based on broad language in Bailey (Id., at p. 519), the rule was extended to multiple counts of grand theft. (See e.g. People v. Packard (1982) 131 Cal.App.3d 622; and see People v. Kronemyer (1987) 189 Cal.App.3d 314.) The extension of the Bailey rule is problematic for many of the same reasons the Craig rule is problematic. It runs counterto the explicit language of section 954, andit creates inherent problemsfor prosecutors charging cases. Considerthe following hypothetical: a defendant breaks into a victim’s house andsteals a gun and $1 million in cash. The theft statute (§ 487), like the oral copulation statute, is divided into subdivisions. Subdivision (a) of section 487 sets out the crime of grand theft based on the value of the property taken. Any theft of property valued over $950 is grand theft. (§ 487, subd. (a).) Subdivision (d)(2) of section 487 makes it grand theft for a defendant whosteals a firearm, no matter the value ofthe firearm (i.e., even if the firearm is valued under $950,theft ofit is still grand theft). A convictionfor theft of a firearm is a strike offense. (§ 1192.7, subd. (c)(26).) Accordingly, under the expanded Bailey doctrine, the defendant whosteals a gun and $1 million can only be convicted of onetheft | offense—either grandtheft under subdivision (a), for stealing property valued over $950,or grand theft under subdivision (d)(2), for stealing the firearm. The prosecutor then must choose betweenrestitution for the victim of the $1 million (or potentially a sentence enhancement undersection 186.11, subd. (a)(1)), or the strike offense. This makes no sense, andit runs contrary to nearly every basic notion of criminal law andliability. Thus, | this Court’s review ofthe Bailey doctrineis likely necessary, just as its review of Craig is necessary. But, the considerations for undoing the Bailey exception to the generalrule will undoubtedly differ from the 23 considerations before this Court in determining whetheror not to overturn Craig. With each exception, the courts have lookedto the legislative intent behindthe particular statute. This analysis demonstrates the individualized consideration necessary for each offense, and the propriety of multiple convictions in each case. In each situation, something in the legislative intent regarding the particular offenses indicated the Legislature intended an exception to section 954’s generalrule. In the opening brief, respondent argued no suchlegislative intent is apparent with section 288a. (ROBM 11- 12.) To the contrary, the use of differing punishments for crimes which contain differing elements indicates the Legislature intended the subdivisions of section 288a operate as distinct.criminal offenses. Appellant has pointed to nothing about section 288a which hints at a contrary legislative intent. Accordingly, the exceptions laid out aboveare not . applicable to this case and appellant has not attempted to demonstrate that the Legislature intended an exception apply here, as it has with these other types of offenses. The individualized nature of the analysis also cuts against appellant’s argument that the exceptions should be taken together as an indication of a cohesive rule which would completely undermine section 954. Finally, appellant contends this court’s recent decision in Peoplev. Correa (2012) 54 Cal.4th 331 (Correa), “recognized the continuing vitality” of the line of cases prohibiting multiple convictionsfor a single act. (ABOM 17.) Appellant goes on to explain that this court’s discussion of several cases in Correa operates as an implicit approval of the holdings in those cases. (ABOM 17-19.) Appellant reads too muchinto the Correa opinion. The issue in Correa was whether a defendant could be punished 24 multiple times for multiple convictions of possessing a firearm’.(Id., at p. 336.) The court stated explicitly, “[t]his case involves only the multiple punishmentaspectof section 654.” (/bid.) This Court in Correa reconsidered a footnote in Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote 1 (Neal), which precluded “double punishment whenanact gives rise to more than oneviolation of the same Penal Code section...” (/bid.) In reconsidering the footnote,the court examined the cases on which Neal hadrelied. (Correa, supra, 54 Cal.4th at pp. 339-340.) The Correa court concludedthat none ofthe cases cited in the Neal footnote supported the proposition espoused, which was that defendants could not be punished for multiple violations of the same provision. (Correa, supra, 54 Cal.4th at p. 340.) For the mostpart, the cases cited in the Neal footnote dealt with whether multiple convictions were proper. In discussing the cases and their holdings, the Correa court simply referencedthe fact that the courts were concerned with multiple convictions as a means ofdistinguishing the cases from the proposition they purportedly supported which was whether multiple punishment was permissible for multiple violations of the same statute. Thus, the Correa court found the cases addressed a different issue, and were not support for the legal proposition announcedin the Neal footnote. This analysis waspart of the Correa court’s overall discussion about the Neal footnote and whetherit should be overruled. Ultimately, the Correa court concludedthat 8 Multiple convictions for possessing multiple firearmsare explicitly authorized undersection 23510 (formerly section 12001, subdivision (k)). Similar to the cases cited by appellant, People v. Kirk (1989) 211 Cal.App.3d 58, held that such multiple convictions were not permissible. In a specific moveto overrule Kirk, the Legislature enacted section 23510 to permit multiple convictions and punishmentfor possessing multiple firearms. (See Correa, supra, 54 Cal.4th at 345-346.) 25 the footnote should be overruled because it was a misstatementof law. (Correa, supra, 54 Cal.4th at p. 344.) The discussion ofthe cases cited in the Neal footnote cannotfairly be characterized as a “recognition of their continued vitality.” The Correa court never discussed or considered the propriety of the holdings in those cases;it simply discussed them to the extent necessary to show they were not authority for the legal principle announced in the Neal footnote. Accordingly, appellant’s reliance on Correa is misplaced. Whatis more, Correa actually recites all of the pertinent legal principles which support respondent’s position. The opinion explains, like many opinionsbeforeit, that section 954 permits multiple convictions basedona single act, but section 654 prohibits multiple punishment. (/d. at pp. 336-337.) In addition, as respondent recognizedin its opening brief, the doctrine of stare decisis is a consideration wheneverthis Court revisits or reconsiders older opinions. (ROBM 27-28.) To the extent any of the above exceptions are also inconsistent with section 954 and products ofthe confusion overapplication of sections 954 and 654, they too may need to be revisited. But, as this court explained in Correa, the policy considerations supporting the doctrine of stare decisis must be weighed against other factors including the legal support for the principle, later jurisprudence, and the extent to which the Legislature has relied on a particular judicial construction. (Correa, supra, 54 Cal.4th at pp. 343-344.) Such a balancing of factors can lead to different results in different cases. For example, the policies behind the doctrine and the extent of legislative reliance prevented this Court from overruling Neal in People v. Latimer (1993) 5 Cal.4th 1203, 1205-1206, despite agreeing with someofthe Attorney General’s criticisms of the Neal opinion. But, those same factors weighed differently in Correa, and permitted this Court to correct the legally unsupported principle announcedin the Neal footnote. (Correa, 26 supra, 54 Cal.4th at p. 344.) Accordingly, reconsideration of any ofthe exceptionsis likewise an individualized task. Ultimately, appellant’s citation to these four exceptionsto the general rule serves only to confuse the issue and muddy the waters of what is otherwise a very clear application of section 954, but for the existence of Craig. Appellant has thrown before this Court a panoply of cases which are all distinguishable from the issue at hand. Consideration of each of these lines of cases would require a separate and distinct analysis beforethis Court could determine the propriety of each exception. Contrary to appellant’s argument, these exceptions do not overrun the general rule— they are simply exceptions. Despite appellant’s attemptto craft from these lines of cases a consistent rule, these cases do the opposite and highlight that the general tule is exactly what this Court has held on numerousoccasions: multiple convictions are permissible for different statements of the same offense, but multiple punishmentis prohibited. The cases cited by appellant simply demonstrate that there are somejudicially recognized exceptionsto this rule. None of these exceptions is applicable to this case except Craig, and accordingly, Craig is the only exception this Court needs to review. 1V. ORAL COPULATION OF AN INTOXICATED PERSONIS NOT A LESSER INCLUDED OFFENSE OF ORAL COPULATION OF AN UNCONSCIOUS PERSON Both parties recognize that courts have long held (and the Legislature has confirmed)that lesser included offenses are an exception to the ordinary rule permitting multiple convictions based on single act. (ROBM 7; AABM9;see also § 1159.) Because ofthis, appellant arguesthat oral copulation ofan intoxicated personis a lesser included offense of oral copulation of an unconscious person. (AABM 33-37.) Appellant’s tortured attempt to squeeze these two crimesinto this exception is to no avail. 27 Put simply, as this Court hasreiterated many times, the test for determining lesser included offenses is this: “[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (People v. Lopez (1998) 19 Cal.4th 282, 288; People v. Pearson (1986) 42 Cal.3d 351, 355.) A perpetrator can certainly violate section 288a, subdivision (i), without violating section 288a, subdivision (f). For instance, a perpetrator couldhit a non-intoxicated victim over the head with a blunt force object rendering her unconscious, and then force her to engage in an act oforal copulation. In such a case, the perpetrator doesnot violate section 288a, subdivision(i), because thereis no intoxicating substance in the victim’s system that has prevented that victim from resisting the unlawful act of sexual penetration. A perpetratorcan also violate section 288a, subdivision(f), without violating section 288a, subdivision (i). For example, a perpetrator can orally copulate a victim whois intoxicated, but whoisstill sufficiently conscious ofthe nature of the act. (See, e.g., People v. Linwood (2003) 105 Cal.App.4th 59, 63-65, & fn. 3 [the juryfound the defendantguilty of raping and attempting to rape an intoxicated woman,butnotguilty of attempting to rape an unconscious woman because the victim wasstill semi-consciousalthough intoxicated].) Thus, contrary to appellant’s argument, oral copulation of an intoxicated person is nota lesser or necessarily included offense within oral copulation of an unconscious person. Viewed in another context, the absurdity of appellant’s argument that these two crimesare lesser included offensesis clear. A defendant may only be convicted of an uncharged crime where the uncharged crimeis a lesser included offense of one of the charges. (§ 1159.) This protects the defendant’s constitutional due process right to notice of the charges he faces. (People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) If appellantis 28 correct that oral copulation of an intoxicated personis a lesser included offense oforal copulation of an unconsciousperson, then a defendantis on notice when heis charged with thelatter, that he is also facing a charge for the former. Undoubtedly, if a prosecutor charged a defendantwith oral copulation of an unconsciousperson,but then after the evidence was presented, the prosecutor sought a conviction for oral copulation of an intoxicated person, the defendant would havea valid claim that he had not received adequate due processin that he did not have notice that he was facing a chargeoforal copulation of an intoxicated person. Neither of the crimes at issue is a lesser included offenses ofthe other. /// ‘fl /T/ 29 CONCLUSION Onthe whole, appellant’s entire answerbrief is perhaps the best argument in favor of overturning Craig and applying the familiar and consistent application of sections 954 and 654. As appellant has demonstrated, the case law contains numerous exceptions and can be inconsistent and confusing. Even where the various exceptionsthat have been created work in a given context, they cannot be applied universally. But, sections 954 and 654, when applied correctly, are consistent, _ predictable, and fair. Respondent does not doubtthat the work of cleaning up these anomaliesin the case law is notover, this is simply one more step in that direction, and reviewing Craig is the only step this Court needs to take in this case. Dated: November 15, 2013 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANE R.GILLETTE ChiefAssistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVEN T. OETTING (ea Supervising Deputy Att MEREDITH S. WHITE Deputy\Attorney General Attorneysfor Plaintiffand Respondent MSW:cce $D2013804855 - 70784195.doc 30 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S REPLYBRIEFuses a 13 point Times New Romanfont and contains 8, 860 words. Dated: November15, 2013 KAMALAD.HARRIS MEREDITH S. WHITE Deputy’ Attorney General Attorneysfor Plaintiffand Respondent. General Fund- Legal/Case Work DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: People v. Gonzalez Case No.: S$207830 I declare: I am employedin the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business. On November15, 2013, I served the attached RESPONDENT’S REPLY BRIEFbyplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Raymond M.DiGuiseppe Court Appeal of the State of California Attorney at Law Fourth Appellate District P.O. Box 10790 Symphony Towers Southport, NC 28461 750 B Street, Suite 300 **ADI PanelAttorney San Diego, CA 92101 diguiseppe228457@gmail.com Attorneyfor Appellant San Diego County Superior Court The Honorable Roger W. Krauel Appellate Defenders,Inc. P.O. Box 122724 555 West Beech Street, Suite 300 San Diego, CA 92112-2724 San Diego, CA 92101 Bonnie M. Dumains San DiegoDistrict Attorney's Office 330 West Broadway,Suite 1300 San Diego, CA 92101-3826 and I furthermore declare, I electronically served a copy of the above documentfrom Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on November 15, 2013, to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. and to ADI Panel Attorney, Raymond M.DiGuiseppe,electronic notification addressat diguiseppe228457@gmail.com. I declare under penalty of perjury under the laws ofthe State of California the foregoing is true and correct and that this declaration was executed on November15, 2013, at San Diego, California. Claudia Chavez-Estrada Declarant $D201380485570784267.doc