PEOPLE v. WHITEAppellant’s Answer Brief on the MeritsCal.June 17, 2016IN THE SUPREME COURTOF CALIFORNIA Case No. 8228049 THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent Court of Appeal y Case No. D060969 San Diego County BILLY CHARLES WHITE ;? Cc Defendant and Appellant. SupSCD20!sOO SUPREME COURS? ON REVIEW FROM JUN 17 2016 THE FOURTH APPELLATEDISTRICT, DIVISION ONE we AND THE SAN DIEGO COUNTY SUPERIOR COURT Frank A. McGuire Clark THE HONORABLE FRANK A. BROWN,JUDGE Depul uly FILED WITH PERMISSION APPELLANT’S ANSWERBRIEF ON THE MERITS Raymond Mark DiGuiseppe State Bar Number 228457 Post Office Box 10790 Southport, North Carolina 28461 Phone: 910-713-8804 Email: diguiseppe228457@gmail.com Attomey for Defendant and Appellant, Billy Charles White TABLE OF CONTENTS Page ISSUES PRESENTED 1 INTRODUCTION STATEMENT OF THE CASE AND FACTS 2 ARGUMENT 3 I. THE JUDGMENT REVERSING COUNT 2 MUST BE AFFIRMED BASED UPON THE LONG SETTLED, LEGISLATIVELY ADOPTED INTERPRETATION OF SECTION 261 AS A UNITARY OFFENSE THAT PERMITS JUST ONE CONVICTION FOR ONE ACT OF NONCONSENSUAL SEXUAL INTERCOURSE A. The Intent Behind Section 261 Ultimately Determines the Propriety of Multiple Convictions Based Upon a Single Act 4 B. The Textual, Structural, and Contextual Analysis of Section 261 Demonstrates It Continues to Define a Unitary Offense of Rape 7 1. The Legislature is Presumed to be Fully Aware of, and By Now to Have In Fact Adopted, the Long Settled Case Law Interpreting Section 261 as Creating a Unitary Offense 8 i. The Historical Interpretations of Section 261 9 ii. The Legislative Activity During Development of the Judicial Interpretations of Section 261 11 2. The Textual Features of Section 261 Are Consistent with This Settled Interpretation of that Statute 13 TABLE OF CONTENTS(continued) Page ARGUMENT(1.B.) 3. The Settled Interpretation of Section 263 Further Reflects a Legislative Design of a Unitary Offense in Section 261 15 4. Lack of Self-Contaimment is Another Supportive Factor 16 Cc. The Legislative History Solidifies the Presumptions that the Judicial Interpretation of Section 26] Has Been Adopted 18 D. Properly Framed and Analyzed, the Opposition’s Claims Highlight More Reasons Why This Interpretation is Controlling 21 1. The “Elements Test” Precludes the Multiple Convictions 22 2. Respondent’s Extrinsic Evidence Just Proves This Point 24 3. The Majority Opinion is Properly Designed to Achieve the Ultimate Aim of Effectuating the Legislative Intent 25 4. Craig Remains Consistent with the Prevailing Legislative Intent; Any Criticisms that It is “Outdated” or “Unwise” Should be Addressed to the Legislature, Not the Courts 26 5. Any Disparities in the Penal Consequences Flowing from Violations of Section 288a and Section 261 Are Also Matters Reserved for the Legislature 29 ii TABLE OF CONTENTS(continued) Page ARGUMENT(LD.) CONCLUSION 6. Section 954 Is Not a Means to Circumvent This Preclusion or Any Other Preclusion of Multiple Convictions, Whether the Charged Offenses Are Considered “Different Offenses” or “Different Statements of the Same Offense” 32 Treating These Charges as What They Are — Alternate Charges — Would Avert Complications of Improper Dual Convictions 38 The Existence of Complications in the Return of Dual Convictions Cannot Somehow Permit or Justify Allowing Both to Stand 40 Any Doubt Should be Resolved in White’s Favor 42 Any Reversal Now of This Long Settled Interpretation of Section 261 Cannot Fairly be Applied Against White 43 45 CERTIFICATE OF COMPLIANCE TABLE OF AUTHORITIES Cases Page Am. Acad. ofPediatrics v. Lungren (2007) 16 Cal.4th 307 30 American Bank & Trust Co. v. Community Hospital 29 (1984) 36 Cal.3d 359 Big Creek Lumber Co. v. County ofSanta Cruz 8 (2006) 38 Cal.4th 1139 Biggus v. State (1991) 323 Md. 339 11, 14 ill TABLE OF AUTHORITIES(continued) Cases Page Bouie v. Columbia (1964) 378 U.S. 347 43 Bumgarner v. Nooth (2012) 254 Or.App. 86 13 Cmty. Cause v. Boatwright (1981) 124 Cal.App.3d 888 8, 12, 21 Higgins v. City ofSanta Monica (1964) 62 Cal.2d 24 29 In re Christian S. (1994) 7 Cal.4th 768 43 In re T.B. (2009) 172 Cal.App.4th 125 43 In re Mosley (1970) 1 Cal.3d 913 5 Johnson v. Dept. ofJustice (2015) 60 Cal.4th 871 | 11, 18, 30-31 McLaughlin v. State Bd. ofEduc. (1999) 75 Cal.App.4th 196 8 Pac. Intermountain Express v. Nat’l Union Fire Ins. Co. 12 (1984) 151 Cal.App.3d 777 People v. Amick (1942) 20 Cal.2d 247 38 People v. Arias (2008) 45 Cal.4th 169 43 People v. Avila (2000) 80 Cal.App.4th 791 26 People v. Beamon (1973) 8 Cal.3d 625 37 People v. Belleci (1979) 24 Cal.3d 879 36 People v. Blakely (2000) 23 Cal.4th 82 44 People v. Carmony (2004) 33 Cal.4th 376 4] People v. Catelli (1991) 227 Cal.App.3d 1434 7 People v. Collins (1960) 54 Cal.2d 57 10, 11, 13, 18 People v. Correa (2012) 54 Cal.4th 331 15, 28 People v. Coyle (2009) 178 Cal.App.4th 209 36 People v. Craig (1941) 17 Cal.2d 453 passim People v. Davenport (1985) 41 Cal.3d 247 8, 18 People v. Day (1926) 199 Cal. 78 38 People v. Eid (2013) 216 Cal.App.4th 740 35 iv TABLE OF AUTHORITIES(continued) Cases People v. Flores (1986) 178 Cal.App.3d 74 People v. Garcia (2016) 62 Cal.4th 1116 People v Garcia (2003) 107 Cal.App.4th 1159 People v. Gonzalez (2014) 60 Cal.4th 533 People v. Haney (1994) 26 Cal.App.4th 472 People v. Harrison (1989) 48 Cal.3d 321 People v. Jailles (1905) 146 Cal. 301 People v. Jones (2012) 54 Cal.4th 350 People v. Kirvin (2014) 231 Cal.App.4th 1507 People v. Leonard (2014) 228 Cal.App.4th 465 People v. Lohbauer (1981) 29 Cal.3d 364 People v. Marshall (1957) 48 Cal.2d 394 People v. Martinez (1999) 20 Cal.4th 225 People v. Maury (2003) 30 Cal.4th 342 People v. McGee (1993) 15 Cal.App.4th 107 People v. Miller (1977) 18 Cal.3d 873 People v. Moon (1935) 7 Cal.App.2d 96 People v. Montoya (2004) 33 Cal.4th 1031 People v. Newton (2007) 155 Cal.-App.4th 1000 People v. Ng Sam Chung (1892) 94 Cal. 304 People v. Ortega (1998) 19 Cal.4th 686 People v. Pearson (1986) 42 Cal.3d 351 People v. Phillips (2010) 188 Cal.App.4th 1383 People v. Poon (1981) 125 Cal.App.3d 55 People v. Reed (2006) 38 Cal.4th 1224 People v. Robinson (May 23, 2016, S220247) —_Cal4th [2016 WL 2956884] Page 7 7, 33 6, 7 passim 37 6, 7, 8, 12, 15-16 9, 44 23 6 17 11,19 10 43 12-13 5 11 38 4 6 38 4, 36 7, 36, 36-37 17 38 4 22 TABLE OF AUTHORITIES(continued) Cases Page People v. Rodriguez (2012) 55 Cal.4th 1125 13 People v. Ryan (2006) 138 Cal.App.4th 360 5, 27, 36 People v. Scott (1944) 24 Cal.2d 774 10, 35 People v. Scott (1995) 9 Cal.4th 331 16 People v. Sloan (2007) 42 Cal.4th 110 28 People v. Smith (2010) 191 Cal.App.4th 205 13, 26, 43 People v. Smith (2012) 209 Cal.App.4th 910 6, 20, 36 People v. Soper (2009) 45 Cal.4th 759 35 People v. Vann (1900) 129 Cal. 118 9 People v. Velasco (2015) 235 Cal.App.4th 66 14 People v. Walker (1983) 146 Cal.App.3d 34 38 People v. Whitmer (2014) 59 Cal.4th 733 5, 6, 7, 21, 28-29, 43 People v. Wilson (2015) 234 Cal.App.4th 193 6, 33 People v. Zanoletti (2009) 173 Cal.App.4th 547 5,6 Renee J. v. Superior Court (2001) 26 Cal.4th 735 35 Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952 28 Schabarum v. California Legislature (1988) 60 Cal. App. 4th 1205 29 State v. Banks (1987) 113 Idaho 54 11 State v. Barrett (1999) 331 Or. 27 14 State v. Hughes (2009) 166 Wash.2d 675 22, 42 State v. LaMere (1982) 103 Idaho 839 11 State v. Parkins (2009) 346 Or. 333 13 Stone St. Capital, LLC vy. California State Lottery Comm’n 8 (2008) 165 Cal.App.4th 109 Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128 8, 12 Wilkoffv. Superior Court (1985) 38 Cal.3d 345 5-6 Vi TABLE OF AUTHORITIES(continued) Cases Page Willis v. State ofCalifornia (1994) 22 Cal.App.4th 287 7, 28, 29, 30 Statutes Health & Safety Code 11370.4 23 Penal Code § 6 7 § 148 22 § 186.22 14 § 209 37 § 211 37 § 215 22 § 243.4 16 § 245 5, 25, 40 § 261 passim § 261.5 11, 18, 26 § 262 12, 18, 20 § 263 15, 20, 30 § 264 17, 24, 26, 30 § 265 16 § 266 16 § 266a 16 § 266b 16 § 266c 16 § 266d 16 § 266¢ 16 Vii TABLE OF AUTHORITIES(continued) Statutes Penal Code § 266f § 266g § 266h § 2661 § 266} § 267 § 269 § 286 § 288 § 288a § 288.2 § 288.3 § 288.4 § 288.5 § 288.7 § 289 § 289.5 § 289.6 § 290.008 § 290.46 § 459 § 470 § 496 § 550 § 654 § 647.6 vill Page 16 16 16 16, 17 16 16 30 37 17, 37 passim 17 17 17 17, 40 30 17 17 17 24 24 37 5 22 5, 25, 40 3-4, 28, 33, 43, 44 17 TABLE OF AUTHORITIES(continued) Statutes Page Penal Code § 667.6 24 § 667.51 30 § 667.61 24, 30 § 954 10, 21, 28, 32, 33, 34, 36, 37 § 1203.065 24, 45 § 1203.66 40 § 1260 4] § 12001 15 § 12021 14 § 23510 15, 22 § 29800 15 Vehicle Code § 13377 24 California Rules of Court Rule 4.408 4} Rule 4.410 4] Rule 4.414 45 Legislative History Stats.1905, c. 574, p. 772, §1 34 Stats.1915, c. 452, p. 744, §1 34 Stats.1951, c. 1674, p. 3836, §45 34 Stats.1970, ch. 1301, §§1, 2 11 Stats.1979, ch. 994, §1 14, 18 ix TABLE OF AUTHORITIES(continued) Legislative History Page Stats.1979, c. 994, § 3 15 Stats.1980, c. 587, p. 1595, §1 18 Stats.1981, c. 849, p. 3270, §1 19 Stats.1983, c. 949, §1 19 Stats.1984, c. 1634, §1 19 Stats.1984, c. 1635, §79.5 19 Stats.1985, c. 283, §1 19 Stats.1986, c. 1299, §1 19 Stats.1990, c. 630, §1 | 19 Stats.1993, c. 595, §1 12, 19 Stats. 1993-94, 1st Ex.Sess., c. 40, §1 20 Stats.2002, c. 302, §2 20 Stats. 2010, ch. 219, §4 20 Stats.2013, c. 259, §1 20 Other Resources CALCRIM No.3515 38 CALCRIM No.3516 39, 41 American Heritage Dictionary (4th ed. 2000) 13, 14 Hand, The Bill of Rights (Harv.U.Press 1958) 30 ISSUE PRESENTED Was White properly convicted of both rape of an intoxicated person and rape of an unconsciousperson for a single act of sexual intercourse?! INTRODUCTION Billy White’s two rape convictions under section 261 based upon a single act of sexual intercourse have been under appellate review since November 2011. In that time, a Court of Appeal majority has twice ruled in his favor that both convictions cannot stand — inits initial opinion andinits subsequent opinion after reconsideration of the matter in light of People v. Gonzalez (2014) 60 Cal.4th 533, concerning dual convictions of unlawful oral copulation under section 288a based on similar circumstances. Both times, the majority followed the long settled case authority holding that section 261 is intended to create a unitary offense permitting a single conviction of rape for a single act of nonconsensual intercourse. Both times, the majority was correct. This consistent line of case authority traces back over a century now andhasyetto be atall disturbed or even called into doubt, by Gonzalez or any other discernible published authority — much less the Legislature. In fact, this unbroken line of authority, the canons of statutory construction, and the legislative history of section 261 all compel the conclusionthat the Legislature has adopted this interpretation of section 261. Being a matter reserved to the exclusive province of the Legislature, unless and until it determines otherwise,this is the law that must be enforced. And the courts are fully equipped to properly enforce it so long as they interpret and apply section 261 as the unitary offense it is intended to be. The disposition the Court of Appeal crafted to remedy the situation on appeal (reversal of the rape conviction on Count 2) is consistent with the disposition l Statutory citations are to the Penal Code unless otherwise indicated. 1 that could and should have been reachedinthefirst instance had the charged offenses been treated as whatthey are — alternate charges permitting a single conviction of rape for the single act ofnonconsensualintercourse. Moreover, the interpretation of section 261 as creating a unitary offense is now so firmly established that even if the Court determines it can and should reverse that law by judicial declaration, such a marked reversal could only be applied prospectively. Thus, the judgmentin this case must be affirmed either way. STATEMENT OF THE CASE AND FACTS On the night of 14, 2010, Valentine’s Day, Stephanie W., White, Johnny Jacoby, and other mutual friends socialized and drank alcohol togetherat a strip club in downtown San Diego until the early morning hours of the next day. (RT 43-44, 47-48, 77, 79, 94.) Stephanie, White, and Jacoby then wentto a hotel. (RT 87, 99-100, 124, 162-163.) Stephanie had consumed several alcoholic drinks and was apparently intoxicated — “stumbling” aroundthe hotel lobby asif “totally wasted” and throwingup insidethe hotel room. (RT 47, 68-69, 100-103, 111-114, 123-129, 163-165, 194, 267.) She was “kind of in and out” ofit, until she fell asleep on one of the beds. (RT 103, 128-130, 168, 185.) White got on the bed next to her, on top of the covers, and Jacoby wentto sleep in the other bed. (RT 129-130, 186.) At somepoint during the early morning hours, White and Stephanie had sexual intercourse. All Stephanie recalled of this was the sensation of having intercourse with someoneontop ofher, while being in a “dreamlike” state in which she was “having a dream of sex” involving her ex-boyfriend, mumbling “no”or thinking “no;” feeling the person roll off her; and then waking up to see White lying next to her wearing only an undershirt. (RT 48- 49, 59, 74-75, 78-80, 83, 89, 93.) Stephanie woke up Jacoby and told him White had assaulted her. (RT 75, 130-131.) When Jacoby confronted him, White deniedthat, saying Stephanie was “begging him forit.” (RT 131, 191.) 2 White was charged, and convicted, of both rape of an intoxicated person (§261, subd. (a)(3); Count 1) and rape of unconsciousperson (§261, subd. (a)(4); Count 2.) (CT 87-88, 173-176.) On appeal, the Court of Appeal majority reversed the conviction on Count 2, holding that section 261 permits only a single conviction for a single act of nonconsensual sexual intercourse. This Court granted respondent’s petition for review and held the case pending disposition of the Gonzalez case, which wasthenstill considering whether section 288a permits dual convictions of oral copulation based upon a single act of unlawful oral copulation under similar circumstances. After the Court held that section 288a permits such dual convictions,it transferred the matter back to the Court of Appeal for reconsideration of White’s case. The Court of Appeal majority reconsidered the matter accordingly and again concluded that section 261 precludes White’s conviction on Count 2. This Court granted respondent’s petition for review on the issue now presented. ARGUMENT I THE JUDGMENT REVERSING COUNT 2 MUST BE AFFIRMED BASED UPON THE LONG SETTLED, LEGISLATIVELY ADOPTED INTERPRETATION OF SECTION 261 AS A UNITARY OFFENSE THAT PERMITS JUST ONE CONVICTION FOR ONE ACT OF NONCONSENSUAL SEXUAL INTERCOURSE Just whena single act or course of conduct may properly give rise to more than one criminal conviction, even if not multiple punishments under section 654,” has been a subject of some complexity within the courts which 2 Section 654, subdivision (a), provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of 3 have applied varying tests and analyses depending upon the context. While the means have varied, the end goal is simple, and always the same: to effectuate the apparent legislative intent behind the statutes defining the crimes involved. All the interpretative devices for discerning the intent behind section 261 demonstrate it was intended to create a unitary offense for which only one conviction of rape is permissible for one act of nonconsensualintercourse, and that is what must dictate the outcomehere. A. The Intent Behind Section 261 Ultimately Determines the Propriety of Multiple Convictions Based Upon a Single Act Courts have recognized numerous situations in which multiple convictions based upona single act or course of conduct are prohibited. One such bar applies to “necessarily included offenses.” (See e.g., People v. Reed (2006) 38 Cal.4th 1224; People v. Ortega (1998) 19 Cal.4th 686, 692-693.) Sometimes referred to as the “elements test,” the basic rule is that if one charged offense cannot be committed without necessarily committing another charged offense, the latter is considered included within the former and cannotbethe basis of a separate conviction. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) Language in somecases has implied that this is the only prohibition against multiple convictions based upon a single act or course of conduct. (See Reed,at p. 1229 [“only statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding .. .”].) While it is always true that lesser necessarily included offenses cannot serve as the basis for multiple convictions based upon a imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the sameact or omission under anyother. single act or course of conduct, it is clear that the converse is not always true: the mere existence of different elements between or among the charged offenses does not mean multiple convictions are necessarily permissible. Where, as here, the charged offenses are based upona single act or course of conduct that violates different subdivisions of the samestatute defining a particular criminal offense, courts have found multiple convictions precluded if the apparent legislative intent is to create a unitary offense. For example,it is settled that a person maynot be convicted of both assault with a deadly weapon (§245, subd. (a)(1)) and assault by meansofforce likely to produce great bodily injury (§245, subd. (a)(4)), even though the latter is “certainly not an offense lesser than and included within” assault with a 393 deadly weapon, becausethis statute “defines only one offense’” (Peoplev. McGee (1993) 15 Cal.App.4th 107, 114, quoting Jn re Mosley (1970) 1 Cal.3d 913, 919, fn. 5). Also, “the commission of any one or more ofthe acts enumerated in section 470, in reference to the same instrument, constitutes but one offense of forgery,” even though the subdivisions describing the various ways to commitforgery are not necessarily included offenses of one another. (People v. Ryan (2006) 138 Cal.App.4th 360, 371.) Similarly, the numerousacts listed in section 550, subdivision (a), creating the crime of insurance fraud, “simply describe different means of committing the single crime of insurance fraud,” and yet they also are not offenses necessarily included within one another because they are based on different elements. (People v. Zanoletti (2009) 173 Cal.App.4th 547, 556, fn. 3.) Where the multiple charged offenses are based upon the same provision of the samestatute allegedly violated multiple times, one line of cases followsthe rationale of Wilkoffv. Superior Court (1985) 38 Cal.3d 345, reaffirmed in People v. Whitmer (2014) 59 Cal.4th 733, that “a charge of multiple counts ofviolating a statute is appropriate only where the actus reus prohibited by the statute — the gravamenofthe offense — has been committed 5 more than once.”(Wilkoff, at p. 349.) The focus is solely upon the “separate and distinct” nature of the acts. (See e.g., Whitmer, at pp. 740 [“separate and distinct” thefts as part of a singular criminal enterprise justified separate convictions]; People v. Zanoletti, supra, 173 Cal.App.4th at pp. 559-560 [separate acts of fraud as part of a singular enterprise supported separate convictions]; Wilkoff; at p. 349 [one act of driving under the influence causing injury permits only one conviction, however many personsinjured]; People v. Newton (2007) 155 Cal.App.4th 1000, 1002-1004 [only one conviction for one act offleeing an accident, regardless ofhow manypersons injured]; People v. Wilson (2015) 234 Cal.App.4th 193, 199-202 [only one conviction for making criminal threats during a single episode no matter how manythreats]; People v. Smith (2012) 209 Cal.App.4th 910, 915-917 [only one conviction of indecent exposure for each exposure however many observers]; People v Garcia (2003) 107 Cal.App.4th 1159, 1161-1162 [only one conviction of evading a police officer however many officers involved].) Another line of these cases has held that “a defendant may be convicted of multiple crimes — even if the crimes are part of the same impulse, intention or plan — as long as each conviction reflects a completed act” — with exception ofthose to which the “converse Bailey doctrine” would apply. (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1518.) The converse Bailey doctrine has been invoked in various contexts to preclude multiple convictions based upon crimes“unified by a single intent, impulse or plan” or that permit the prosecution to “aggregate” the harm orinjury. (/bid.) Where the multiple charged offenses are based upon alleged violations of entirely distinct criminal statutes during a single incident, the courts have also focused upon the existence of separate and distinct completed criminalacts in determining the propriety of multiple convictions. (See People v. Harrison (1989) 48 Cal.3d 321, 325-327 [illustrating case examples upholding multiple convictions for each completed sex act during 6 a single episode in violation of separate criminal statutes, such as rape and sodomy]; People v. Catelli (1991) 227 Cal.App.3d 1434, 1446-1447 [same]; People v. Pearson (1986) 42 Cal.3d 351 [finding the same act properly supported convictions of the distinct offenses of sodomy and lewd conduct].) The key factor ultimately driving the outcomein all these cases has been the apparent legislative intent behind the criminal statutes involved. (See Gonzalez, supra, 60 Cal.4th at p. 537 [whether the subdivisions of section 288a create separate offenses permitting multiple convictions for a single act “turns on the Legislature’s intent in enacting these provisions. . "|; Whitmer, supra, 59 Cal.4th at p. 743, conc. opn. of Liu, J. [this is ultimately “a question of legislative intent that arises when interpreting any criminal statute”]; People v. Garcia (2016) 62 Cal.4th 1116, 1123-1127 [determining the propriety of multiple convictions by giving effect to “the Legislature’s intended purpose” in defining burglary]; People v. Harrison, supra, 48 Cal.3d at p. 332-333 [noting the legislative intent controls this inquiry because a “court is notto sit as a ‘super-legislature’ altering criminal definitions”].) Andso it must be in determining the propriety ofmultiple rape convictions under section 261 based upon single act of intercourse. B. The Textual, Structural, and Contextual Analysis of Section 261 Demonstrates It Continues to Define a Unitary Offense of Rape It is solely the prerogative of the Legislature to “make conduct criminal” (Gonzalez, supra, 60 Cal.4th at p. 537; §6), to “determin[e] which class of crimes deserves certain punishments and which crimes should be distinguished from others” (People v. Flores (1986) 178 Cal.App.3d 74, 88), andto “assess the competinginterests and to determine public policy” (Willis v. State of California (1994) 22 Cal.App.4th 287, 293). In determining the legislative intent, “[w]e begin by examining thestatute’s words, giving them a plain and commonsense meaning. We do not, however, consider the 7 statutory languagein isolation.” (Gonzalez, at p. 537.) Rather, “we construe the words in question in context, keeping in mind the nature and obvious purposeofthe statute... We must harmonize the variousparts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.” (/bid.) “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.” (/bid.) 1. The Legislature is Presumed to be Fully Awareof, and By Now to Have In Fact Adopted, the Long Settled Case Law Interpreting Section 261 as Creating a Unitary Offense “(T]he Legislature is presumed to be aware not only of the general laws which it has enacted . . . , but also of the judicial decisions interpreting those laws .. .” (Stone St. Capital, LLC v. California State Lottery Comm'n (2008) 165 Cal.App.4th 109, 120-121; accord People v. Harrison, supra, 48 Cal.3d at p. 329.) It is “conclusively presumed to have enacted the new laws in light of existing laws having direct bearing upon them.” (McLaughiinv. State Bd. ofEduc. (1999) 75 Cal.App.4th 196, 212.) However, ““[i]t should not be presumed that the legislative body intends to overthrow long- established principles of law unless suchintention is made clearly to appear either by express declaration or by necessary implication.”’ (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1156, quoting People v. Davenport (1985) 41 Cal.3d 247, 266; accord Big Creek Lumber Co. v. County ofSanta Cruz (2006) 38 Cal.4th 1139, 1149-1150.) “[[nsteadit will be presumed that the Legislature took such principles for granted rather than soughtto alter them by omitting any specific provision for their application.” (Cmty. Cause v. Boatwright (1981) 124 Cal.App.3d 888, 903.) i. The Historical Interpretations of Section 261 While section 261 has been modified numerous times since its enactmentin 1872, throughoutit all, the Legislature has preservedthe salient feature on which the courts have repeatedly relied to concludeit is intended to create a unitary offense permitting a single conviction for a single act of intercourse: a preamble stating the general act involved (intercourse with a non-spouse), followed bya list of circumstances, which, when read withthe preamble, state one crime perpetrated by the same essential means of procuring nonconsensual intercourse. Or, as the Court of Appealputit, “the primary elements of rape, under the applicable section 261, remain the same as the former section 261: (1) an act of sexual intercourse (2) with a person not the spouse of the perpetrator (3) without the consent of the victim. The various subdivisions of the applicable section 261 (subd. (a)(1)-(7)) merely describe the way in which lack of consent can be shown.” (Slip Opn. 16.) The judicial construction of section 261 as creating such a unitary offense has become firmly embedded over more than a century now. Way back at the beginning ofthe last century, this Court noted that section 261 is not intended “to create six different kinds of crime” (People v. Vann (1900) 129 Cal. 118, 121) and simplystates a single crime that may be committed “in different ways” (People v. Jailles (1905) 146 Cal. 301, 304). The next judicial pronouncement came in 1941, when this Court specifically held again, in Craig, that as a general principle “[t]hese subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based uponthat single act.” (People v. Craig (1941) 17 Cal.2d 453, 455.) It also reaffirmed the decision in Jailles, noting the outcomethere wasstill correct even though the version of section 954 then in effect prohibited multiple convictions of different offenses in a single prosecution, because the multiple charges were “based ona single act of intercourse that constituted 9 but one offense.”? (/d. at pp. 456-457.) Four yearslater, in People v. Scott (1944) 24 Cal.2d 774, this Court found again that the defendant “c[ould] not be convicted on three separate counts of rape, all based on a single act of intercourse” undersection 261, “even though it be accomplished under more than one of the circumstances enumerated in that section.” (Ud. at p. 777.) These pronouncements also lay undisturbed until 1957, when this Court reaffirmed the holding in Craig and further noted the existing cases “(c]onfirm[ed] the view that the six subdivisions of section 261 of the Penal Code do not proscribe six distinct offenses, but rather that they describe six different ways in which the one crime of rape can be committed.” (People v. Marshall (1957) 48 Cal.2d 394, 402.) A few years later in People v. Collins (1960) 54 Cal.2d 57, the Court reiterated “[t]he subdivisions of section 261 do notstate different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape,” and it went on to reject the claim that Craig was no longer good law.(dd. at p. 58.) 3 The current version of section 954, which is substantially similar to the version in effect at the time of Craig, provides in pertinentpart: 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 ofthe sameclass of crimes or offenses, under separate counts, and if two or more accusatory pleadings are 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 number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; . . . An acquittal of one or more counts shall not be deemed an acquittal of any other count. 10 ii. The Legislative Activity During Development of the Judicial Interpretations of Section 261 Ten years after Collins, in 1970, the Legislature amended section 261 for the first time since 1913. (Stats.1970, ch. 1301, §§1, 2, pp. 2405-2406.) This action removed intercourse with an underage female from the definition of “rape” under section 261, relabeled it “unlawful sexual intercourse,” and placed it into the newly created section 261.5. This change servedthe distinct purpose of reducing the punishment and eliminating the stigma of being a “rapist” for those involved in a consensual sexual relationship with a near- adult minor. (Johnson v. Dept. ofJustice (2015) 60 Cal.4th 871, 884-885.) There is no indication it was intended to refute the 70 years of case law construing the circumstances ofsection 261 as creating a unitary offense. In fact, when the Court addressed this change in the 1981 opinion of People v. Lohbauer (1981) 29 Cal.3d 364, it noted the creation of section 261.5 had abrogated the Collins decision only insofar as one could no longer say that pleading a general charge of rape under section 261 would provide adequate notice of an intent to prosecute for “unlawful sexual intercourse with a minor under section 261.5.” (/d. at pp. 371-372.) The Court went on to essentially reaffirm the basic preceptthat the circumstances enumerated in section 261 for the crime ofrape establish a single crime. (/d. at p. 372.) Over the next decade, otherstate courts cited this California case law in likewise construing their similarly structured rape statutes. (State v. LaMere (1982) 103 Idaho 839, 842 [following Collins and Lohbauerto find the provisionsofIdaho’s “nearly identical” rape statute “do notstate different offenses but merely define the different circumstances under whichanact of intercourse constitutes the crime of rape”]; State v. Banks (1987) 113 Idaho 54, 56-57 [740 P.2d 1039] [citing Collins and Craig in reaffirming “the unitary offense nature of our rape statute]; Biggus v. State (1991) 323 Md. 339, 343 [593 A.2d 1060] [citing Craig and Collins in holding a Maryland 11 sexual offense statute creates a single offense that permits a single conviction for a single act even if more than one enumerated circumstanceis involved].) Then, significantly, in 1993 the Legislature completely redesigned section 262 to essentially mirror section 261 for each of the enumerated circumstances constituting spousal rape. (Stats.1993, c. 595, §1.)* This recasting of section 262 in a substantially identical manner unavoidably implies an intent to adopt the judicial interpretation of section 261. (See People v. Harrison, supra, 48 Cal.3d at p. 329 [“Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction.”]; Pac. Intermountain Express v. Nat’l Union Fire Ins. Co. (1984) 151 Cal.App.3d 777, 783 [“the Legislature is presumed to use wordsin the samesenseas given by previous judicial construction of statutes on an analogous subject, unless the Legislature clearly expresses a contrary intent”].) At the least, given the absence of any express intent to “overthrow” these “long-established principles of law” (Weeks v. Baker & McKenzie, supra, 63 Cal.App.4th at p. 1156), one must presume the Legislature did not intend to refute them, and instead “took such principles for granted” (Cmty. Cause v. Boatwright, supra, 124 Cal.App.3d at p. 903). Morecases followed, reaffirming this interpretation of section 261 with no intervening contrary legislative action. In People v. Maury (2003) 30 4 The quite different former version of section 262 provided in pertinent part: “Rape of a person whois the spouseofa perpetrator is an act of sexual intercourse accomplished against the will of the spouse by meansofforce or fear of immediate and unlawful bodily injury on the spouse or another, or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonablepossibility that the perpetrator will execute the threat. As used in this subdivision ‘threatening to retaliate’ meansa threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.” 12 Cal.4th 342, this Court invoked Collins as the foundation forits holding that dual rape convictions could not stand because the statute “merely describ[ed] different circumstances under whichan act of intercourse mayconstitute the crimeofrape.” (/d. at p. 427.) Then, as the Court of Appeal observed here, in People v. Smith (2010) 191 Cal.App.4th 205, the appellate court squarely held, based on Craig, in a situation “identical to the case bar,” that the defendant could not properly stand convicted of two counts of rape for his single act of intercourse with the victim. (Slip Opn.at p. 22.)° In essence, “[a]lthough the section has been amended a number of times since Craig,the statute stil] defines a single crime.” (Slip Opn.at p. 23, italics added.) This century-long, unbroken track record of case law so interpreting section 261 means we must presumethe Legislature has intended andstill intends for section 261 to be interpreted and applied in that manner. 2. The Textual Features of Section 261 Are Consistent with This Settled Interpretation of that Statute Additional textual features support this interpretation of the statute. The preamble subdivision describes the sexual act in terms of “an act of sexual intercourse” accomplished with a non-spouse. (§261, subd.(a),italics added.) “An”is an indefinite article that modifies the singular form of a noun (American Heritage Dict. (4th ed. 2000), p. 63) and thus, in context, should be read to describe merely a single act of rape (see People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [“[W]heneverpossible, significance must be given to every word[in a statute] in pursuing the legislative purpose. . .”]; ° The Oregon courts have also recently held that Oregon’s similarly structured sex offense statutes create unitary offenses even though the underlying act may violate more than one of the enumerated circumstances constituting the crime. (State v. Parkins (2009) 346 Or. 333, 355 [211 P.3d 262]; Bumgarner v. Nooth (2012) 254 Or.App. 86, 93-94 [295 P.3d 52].) 13 see also People v. Velasco (2015) 235 Cal.App.4th 66, 76 [holdingthe article “that” in “that gang” implies a singular meaningin section 186.22]; Biggus v. State, supra, 323 Md.at p. 346 [a statute’s preamble stating “that one is guilty of a sexual offense in the third degree if he engages in sexual conduct in the following ways, on its face appears to create a single offense”’]). The end of the preamble, stating “under any of the following circumstances” (§261, subd. (a), italics added), also connotes singularity. Before 1979, this used to say “under either of the following circumstances.” (Stats.1979, ch. 994, §1.) As the Court of Appeal noted (Slip Opn. 18-19), the change likely was prompted by the recognition that “any of” is more grammatically consistent with a list ofmore than two enumerated itemssince “either” more commonly refers to “any one of two.” (American Heritage Dict. (4th ed. 2000), p. 572.) The word “any” is most commonly understood to mean “[o]ne, some,every,orall without specification”(id. at p. 81, italics), and thus, as used in the preamble of section 261, indicates the enumerated circumstances create a list of ways that a singular act of “rape” may be committed. (See State v. Barrett (1999) 331 Or. 27, 35 [“any of” in the preamble to the list of circumstances constituting aggravated murder indicates “the legislature intended to define a single crime”].)° There is also precedent that the Legislature takes action when the singular import of “any” results in an unintended preclusion of multiple convictions. When an appellate court held that former section 12021 (now 6 Respondentpreviously argued this changereflected an intent to reject the prior case law. (Resp. Pet. Rev. 6; Resp. Supp. Brief, Ct. of Appeal 6-7.) Respondent has not pursued this claim on the merits, and rightly so. It is an unsupported “leap of logic.” (Slip Opn. 19.) If the Legislature sought to refute the notion that section 261 creates a unitary offense, it would not have sat idly by as 79 years of contrary law filled the annals, only to then just change “either” to “any of,” creating a stronger connotation ofsingularity. 14 section 29800), prohibiting possession of “any firearm” by felon, permitted a single conviction regardless of how many firearms possessed, the Legislature responded with section 12001, subdivision (k) (now section 23510), to provide “notwithstanding the fact that ‘any firearm’ may be used [in this prohibition], each firearm . . . constitutes a distinct and separate offense.” (People v. Correa (2012) 54 Cal.4th 331, 345-347; §23510.) Through this change, the Legislature “made clear that multiple convictions were permissible.”(Jd. at p. 348, conc. opn. of Werdegar, J, italics added.) 3. The Settled Interpretation of Section 263 Further Reflects a Legislative Design of a Unitary Offense in Section 261 “The section which describes the basic elements and circumstances attending the crime of rape (§261) is modified by companion language in section 263.” (People v. Harrison, supra, 48 Cal.3d at p. 328.) It provides: “The essential guilt of rape consists in the outrage to the person and feelings ofthe victim ofthe rape. Any sexual penetration, howeverslight, is sufficient to complete the crime.” Section 263 has remainedessentially the same since 1872 whenit was enactedalongside section 261. (/d. at p. 328.)’ “Obviously, one purposeofthe ‘slight penetration’ language”is to clarify “that prolonged or deep insertion, or emission or orgasm, is unnecessary to ‘complete’ the crime.” (/d. at p. 329.) It is also obviousthat actual “outrage” of the victim or an intent inflict “outrage” is unnecessary to prove the crime.(Jd. at p. 333, fn. 9.) What these aspects of section 263 meanin the context of defining the crime of rape under 261 is that the “outrage” peculiar to rape “is deemed to 39 66 occur” and is thus “complete” “each time the victim endures a new, 7 The sole amendment occurred in 1979, to change “the feelings of the female”to “the feelings of the victim.” (Stats.1979, c. 994, p. 3384, §3.) 15 unconsented sexual insertion,” regardless of how “slight.” Ud. at p. 330, italics added; accord People v. Scott (1995) 9 Cal.4th 331, 341.) “The Legislature, by devising a distinctly harsh sentencing scheme, has emphasized the seriousness with which society views each separate unconsented sexual act, even whenall are committed on a single occasion.” (People v. Harrison, supra,48 Cal.3dat p. 330,italics added.) The “distinctly harsh” consequence the Legislature devised for this crime is that an act of penetration to any degree without the victim’s consent is enough to complete the crime, and each such separate act even during a single| uninterrupted episode warrants a separate conviction. (/d. at p. 331.) So, consistent with the settled interpretation of section 261 as permitting only a single conviction for a single act of nonconsensual intercourse, companion section 263 showsthe Legislature envisionedthe “harshness”ofthe rape statute to result in multiple convictions based upon multiple acts of even the “slightest” penetration during a single assault — not multiple convictions for one suchact. 4. Lack of Self-Containment is Another Supportive Factor Another contextual factor further supporting the settled judicial construction of section 261 is that the various subdivisions are not “self- contained” — each does not “set[] forth all the elements of a crime” and prescribe a specific punishment for the offense described. (Gonzalez, supra, 60 Cal.4th at p. 539.) As the Court of Appeal noted (Slip Opn. 16-17), the “self-contained”nature of section 288a influenced this Court’s conclusion in Gonzalez that the subdivisions of the statute were intended to establish separately convictable offenses based on one act. Notably, with the exception ofthe rape and spousalrape statutes, and one other(section 266i), all the sex offense statutes that create crimes (as opposed to merely enhancements for aggravated forms of sex crimes) are similarly “self-contained.” (See §§ 243.4, 265, 266, 266a, 266b, 266c, 266d, 266¢e, 266f, 266g, 266h, 266), 267, 16 288, 288a, 288.2, 288.3, 288.4, 288.5, 289, 289.5, 289.6, 647.6.)® As far as White’s research reveals, courts have specifically considered the multiple- conviction issue with respect to two of these sections: 288a and 647.6; and both have been held to permit multiple convictions based on single act. (Gonzalez, at p. 539 [section 288a]; People v. Phillips (2010) 188 Cal.App.4th 1383, 1396-1397 [section 647.6].) By contrast, section 266i, whichprohibits “pandering,”andlike the rape statute is not “self-contained,” has been construed to create a unitary offense. (People v. Leonard (2014) 228 Cal.App.4th 465, 490 [“The subdivisions of the [pandering] statute do not state different offenses but merely define the different circumstances under which the crime of pandering may be committed.”].) The rape and spousal rape statutes also stand apart from the lot of other sex offense statutes in that the punishmentsare not only not within the individual subdivisions of each but are not even within the statute. Instead, they are set forth in section 264,an entirely separate statutory provision. That the Legislature has consistently adhered to a structure fundamentally different from the structure employed for virtually all other sex offense statutes, and similar to the one other sex offense statute that has also been construed to permit a single conviction for a single act, can only further indicate it has adopted and chosen to maintain the long settled judicial construction of section 261 as permitting a single convictionfor a single act. 8 While section 261.5’s general structure is “self-contained” in a technical sense, its subdivisions obviously would never overlap and giverise to a situation of more than one charge or conviction based upona single act of intercourse, since each simply targets “an act” of intercourse with a minor based upon a specific age difference between the victim and the perpetrator. 17 C. The Legislative History Solidifies the Presumptions that the Judicial Interpretation of Section 261 Has Been Adopted A closer look at the legislative activity concerning rape and the other major sex offense statutes, “in aid of ascertaining legislative intent” (Gonzalez, supra, 60 Cal.4th at p. 537), confirmsthat the Legislature has not, “by express declaration or necessary implication” (People v. Davenport, supra, 41 Cal.3d at p. 266), ever attempted to refute or even expressed any concern about the long settled interpretation of section 261. This further solidifies the presumptions aboutthe intent of the Legislature. (/bid.) Again, the first legislative action taken concerning section 261 since 1913 came in 1970, 29 years after Craig and 10 years after the reaffirmation of Craig in Collins. “[I]n separating and renaming the offense of unlawful sexual intercourse, the Legislature sought to eliminate, for section 261.5 offenses, the social stigma associated with the rape label so that offenders could more readily obtain employment and support children conceived as a result of such intercourse.” (Johnson v. Dept. ofJustice, supra, 60 Cal.4th at pp. 884-885.) This action had nothing to do with multiple convictions based upon a single act. Similarly, the activity in 1979 just rendered section 261 gender neutral, substituted “any of” for “either of” in the preamble, and enacted section 262 to cover spousal rape. (Stats.1979, c. 994, p. 3383, §1.) There was moreattention to sections 261 and 262 the next year with Assembly Bill 2899, which eliminated the requirement of “resistance” for rape and spousal rape. (Stats.1980, c. 587, p. 1595, §1).) Proponents described how they and “dozens and dozens” of other people, including ” co “judges, defense attorneys, and prosecutors,” “spent countless hours evaluating” and “carefully scrutiniz[ing]” “every word in the bill.” (Exh. J, p. 16.)° Yet, there was no mention ofany other concerns aboutthese statutes. 9 See White’s contemporaneouslyfiled a request for judicial notice. 18 It was the samesort of situation the following year, when the Legislature took up section 261 again and just added the use of threats of future retaliation as another circumstance of rape. (Stats.1981, c. 849, p. 3270, §1.) The Legislature considered the statute two years later with Senate Bill 1094, just a couple of years after Lohbauer issued. (Stats.1983, c. 949, §1.) This time, the Legislature addressed the references in the statute (“lunacy” and “unsoundness of mind”), which it saw as “antiquated” and “outmoded,” and ‘“moderniz[ed]” them with “more contemporary terms” to describe persons with mental and physical disabilities. (Exh. No. 2, pp. 20, 23, 26, 29.) Despite this “modernizing” focus, there was no indication atall that anything within the statute was “antiquated,” “outmoded,” or otherwise out of step with the Legislature’s view of how the statute should be interpreted concerning the numberofconvictionsarising from a singleact of intercourse. There was more focus uponthe rape statute in 1984, 1985, and 1986, with amendments adding more circumstances as other forms of rape (Stats.1984, c. 1634, §1; Stats.1984, c. 1635, §79.5), clarifying the need for “legal” consent (Stats.1985, c. 283, §1), and further updating the terminology used to describe victims with mental and physical disabilities (Stats. 1986,c. 1299, §1). Four years later, in 1990, the Legislature added the use of “menace” and “duress” as forms of rape, in response to an appellate court decision highlighting the anomaly that rape was the only major sex offense which could not be committed by such means.(Stats.1990, c. 630, §1; Exh. No.3, pp. 67, 74-75.) Still, no mention of any concern about the decades of case law interpreting the structure of the statute as precluding multiple convictions based upona single act of intercourse. Instead, as noted, in 1993 the Legislature adoptedthat structure in revampingsection 262. (Stats.1993, c. 595, §1.) This pattern continued between 1994 and 2010, as the Legislature considered section 261’s definition of rape three more times, but just amendedit along with other major sex offense statutes to address distinct 19 eeL isuses about the definition of and punishmentfor these crimes. (Stats.1993- 94, 1st Ex.Sess., c. 40, §1; Stats.2002, c. 302, §2; Stats. 2010, ch. 219, §4.) The latest legislative change occurred in 2013. (Stats.2013, c. 259, §1). This most recent amendment also sought to “update” the language of section 261 to “better reflect the modern society we live in” — this time by eliminating the “archaic,” “anachronistic,” and “anomalous” requirement that someone who submits to intercourse under a mistaken belief about the identity of the perpetrator must believe the perpetrator is his or her spouse. (Exh. 4, pp. 98, 108, 111.) This was in response to a case in which the then- current definition had prevented prosecution because the non-married victim submitted under the mistaken belief that the perpetrator was her boyfriend. (Exh. 4, pp. 99, 106.) We must presume the Legislature was also aware of the 2010 Smith case, again applying Craig to preclude dual convictions of rape based upona single act; yet that case evidently raised no such concerns. In the midst ofall the other activity dealing with section 261, the lack of any mention of Craig, its progeny, or any concernsat all about the well settled principle for which they stand demonstrates continued legislative approval; at the least, it is a further illustration that the Legislature has not taken any and evidently does not intend to take anyactionto refuteit. In fact, the four mostrecentbills introduced concerning the rape statutes also do not contain even a hint of concern about the framework or substance of section 261, 262, or 263 that has led the courtsto interpret section 261 as permitting a single conviction for a single act of intercourse: Assembly Bill 860 concerns abuse of a professional capacity to perpetrate a sex act (Exh. 5); Assembly Bill 1276 was introduced to make non-substantive changes to section 261 but later amended to deal with a different subject (Exh. 6); Assembly Bill 2599 concerns the “resisting” requirement (Exh. 7); and Senate Bill 22 was introduced to make non-substantive changesto section 263 but later changed to address a different subject (Exh. 8). 20 With the Legislature’s continuous and exacting scrutiny of the rape statutesall over these years, this could notjust be the result ofmere oversight. (See Whitmer, supra, 59 Cal.4th, at p. 741 [the failure to act may sometimes be the result of “sheer pressure of other and more important business, political considerations, or a tendencyto trust the courts to correct their own errors . . .”].) All the evidence points to the conclusion that the Legislature has by now “t[aken] such principles for granted” regarding section 261. (Cmty. Cause v. Boatwright, supra, 124 Cal.App.3d at p. 903.) D. Properly Framed and Analyzed, the Opposition’s Claims Highlight More Reasons WhyThis Interpretation is Controlling Respondentandthe dissent essentially stand alone in their contention that section 261 compels multiple convictions based upon a single act of intercourse that implicates more than one of the enumerated circumstances constituting rape. They do not, and cannot, cite any case authority that has ever read section 261 this way. In urging for reversal here, and in the other cases on review whichfollow the long line of contrary authority (see RBOM 39, fn. 19 [urging reversal in People v. Soria (8228653), People v. Brown (S230134), and People v. Mesinas (S227887), on grant-and-hold review]), they contend their interpretation is compelled by the “elements test,” potential consequences flowing from thesettled interpretation of section 261 that they see as problematic andinconsistent with the “modern”view ofrape, and the general pleading provision of section 954. Their efforts to dismantle the firm institution of section 261 case law ultimately just serve to further illustrate why it must remain standingas it is unless and until the Legislature — having exclusive province over such matters — says otherwise. 21 1. The “Elements Test” Precludes the Multiple Convictions Respondentand the dissent groundtheir attack against the settled case law on the notion that all determinations of whether a single act may give rise to multiple convictions are driven by “the elements” test. From there, they reason that multiple convictions are permissible in all cases, with the sole exception of those that constitute necessarily included offenses or those that fall within the express prohibition under section 496 prohibiting dual convictions of theft and receiving stolen property. (RBOM 2, 7, 11-13, 15, 23, 31; Slip Opn., dis. opn. of Benke, J., 2, 5, 10-11 (“Dissent”).) Again, the mere existenceofdifferent elements between or amongthe charged offenses does not ipso facto render them permissible as multiple convictions since it is the intent behind the statute defining the crime that ultimately controls. (Section I.B.1., ante; State v. Hughes (2009) 166 Wash.2d 675, 683 [while the elements of the two rape convictions “facially differ[ed],” only one could stand based upon the single act of nonconsensual sexual intercourse]; see also People v. Robinson (May 23, 2016, $220247) __Cal.4th [2016 WL 2956884] *1 [illustrating the limitations ofthe elements test when the sameproofis offered to satisfy all the elements of both offenses].) And an express prohibition is clearly not required. While section 496, subdivision (a), happens to contain one, few of the other recognized prohibitions do, and they are no less valid. Indeed, sections 148 (obstructing an officer), 215 (carjacking), and 23510 (firearm possession) contain provisions expressly allowing multiple convictions (§§148, subd.(e), 215, subd. (c), 23510), which shows the Legislature also takes action to permit this when it sees the need to expressly clarify such an intent. Anyway, the Legislature is not expected to undertake the task of inserting into each criminal statute an express statement one wayorthe other. Rather, the intent is generally determined by examining the text, structure, and context. (See 22 People v. Jones (2012) 54 Cal.4th 350, 369, fn. 10 [the provisions of Health and Safety Code section 11370.4 “impliedly settle” that only one conviction is permissible for possession of a controlled substance based upontotal weight, however many packages into which the substance may be divided].) In any event, the “elementstest,” properly applied, would necessarily preclude multiple convictions here. In Gonzalez, this Court endorsed the formulation of the elementstest as articulated in Craig: “[a] defendant may be convicted of two separate offenses arising out of the same transaction wheneach offense [i.e., each of the two separate offenses] is stated in a separate count and whenthe two offensesdiffer in their necessary elements and oneis not included within the other.” (Gonzalez, supra, 60 Cal.4th atp. 539, italics omitted, underlining added.) This test presumesat the outset that the charged offenses are in fact separate offenses and permits multiple convictions of each such separate offense when (1) they are charged separately and (2) neither is necessarily included within the other. Thatis, the existence of different elements between the two charged offenses does not prove their “separate” nature. Different elements are a necessary condition of such multiple convictions, but that alone is not sufficient. The charged offenses must in and of themselves be truly “separate offenses” based uponthe Legislature’s intent to create two distinct crimes, and thatis determined by an examinationofthe statute in context “in order to determine the scope and purposeofthe provision.” (Gonzalez, at pp. 537-538.) This is surely what the Court of Appeal meant whenit said “[i]n the caseof truly separate offenses arising from single act, multiple convictions are permitted, even if multiple punishments are not,” but respondent’s analysis “is flawed at the starting point” becauseit is based on “the premise that section 261, subdivisions (a)(3) and (a)(4) are separate offenses” when the statute “only defines one crime.” (Slip Opn. 23, 24.) This focus upon the “truly separate” nature of charged offenses is also undoubtedlyat the bottom 23 of the cases precluding other multiple convictions despite the existence of different elements: a contextual interpretation indicates the charged offenses were not intended to be “separate” crimes, just as in the case of section 261. 2. Respondent’s Extrinsic Evidence Just Proves This Point Respondentcites the legislative activity over the last several decades, arguing the various changescollectively reflect some kind of gradual or implicit effort to refute the settled construction of section 261. (RBOM 2,20- 21, 22, 23, 26-27, 29.) While the Legislature certainly has been modernizing the definitions of and punishments for sex offense crimes to best reflect prevailing legislative aims and social norms,asillustrated in Section I.C., ante, its acute sensitivity to such matters and repeated pattern of remedial actions to weed out all it has seen as “outmoded” or “outdated” actually presents a completely different picture. It shows the Legislature knows how to and does respond when the language of these statutes is construed in a manner inconsistent with the prevailing views of appropriate liability and punishment, and thus the picture can only portray a Legislature that has effectively adopted the now longsettled judicial constructions of the statute. Respondent also emphasizes the legislative actions enhancing punishmentsandcreating different collateral consequencesfor certain forms of rape undersection 261 — otherthan those at issue here, since subdivisions (a)(3) and (a)(4) are identical in that regard. (See RBOM 21; §§ 264 [rape punishments], 667.6, subd. (e) [consecutive sentencing], 667.61, subd. (c) [“one-strike” law], 290.008, subd. (c)(2) [sex offender registration], 290.46, subds. (b) & (c) [online information about rape convictions], 1203.065, subds. (a) & (b) [probation]; Veh. Code, §13377, subd. (a)(2) [licensing].) Such factors do not serve to rebut the strong presumptions compelled by the lack of any express or implied concern about the case authority concerning the distinct issue of permissibility of multiple convictions. The possibility of 24 such disparities could exist in myriad other contexts where multiple convictions are prohibited, such as with the assault crimes under section 245, subdivision (a)(1) and (a)(4), since the formeris a “serious” felony whereas the latter is not, and with the subdivisions of section 550 defining insurance fraud, since someconstitute felonies and others do not. (§550, subs. (a)-(d).) 3. The Majority Opinion is Properly Designed to Achievethe Ultimate Aim of Effectuating the Legislative Intent Respondent and the dissent contend the Court of Appeal majority erred in “abandoning”the elementstest and basingits analysis entirely upon a “comparisontest” of section 261 and 288a and the degree to which eachis “self-contained.” (RBOM 17, 30-31; Dissent 4, 10, 11.) The majority relied upon self-containment as one important factor in analyzing section 261 (Slip Opn. 16-18), as it should have since it was ordered to reconsiderthecase in light of Gonzalez, where this Court relied upon the “self-contained” nature of the statute in deciding the same issue with respect to section 288a (Gonzalez, supra, 60 Cal.4th at p. 539).'° But the primary focus of the opinion wasthat section 261 retains the same basic featuresit had at the time of Craig which had givenrise to the initial interpretations of the statute as creating a unitary offense and which have beenreaffirmed. (Slip Opn. 17-18, 21.) The court cited the basic elementstest as it was articulated in Craig (and reaffirmed in Gonzalez), while aptly recognizing that the mere existence of different elements did not permit rejection of this settled body of case law because it was evident that the statute was not intended to create “truly separate” offenses permitting multiple convictions. (Slip Opn. 20-23.) 10 Respondent likewise relies upon a comparison of section 261 with section 288a;it just argues for a different conclusion. (RBOM 19.) 25 4. Craig Remains Consistent with the Prevailing Legislative Intent; Any Criticisms that It is “Outdated” or “Unwise” Should be Addressed to the Legislature, Not the Courts A focal point of the attack upon the judgment here is this Court’s opinion in Craig, as it was in Gonzalez. (See Gonzalez, supra, 60 Cal.4th at p. 538.) Respondentand the dissent characterize Craig as a relic of a bygone society based on “abandoned” and “outdated” views of rape which “lay essentially dormant for decades” until “resurrected” in 2010 by the appellate court in the Smith case. (RBOM 2, 11-13, 29, fn. 15; Dissent 6, 11.) Aswehaveseen, Craig’s interpretation of section 261 as creating a unitary offense of rape has actually remained alive and well in the case law betweenthe time of Craig and Smith, and in the six years since Smith. It is also inaccurate to characterize the enactment of section 261.5 in 1970 as somesort oflegislative intent — formed 29 years later — to “abandon” the rationale of Craig that a minor forcibly raped is “not doubly outraged, once because she was forcibly attacked and once because she was under18 years of age.” (RBOM 11-12; Dissent 6; Craig, supra, 17 Cal.2d at p. 455 [relying uponthis point in finding dual convictions of forcible rape and rape of a minor impermissible].) Again, this change served entirely distinct purposes. And section 261.5 is designed to address the distinct situation of consensual sexual relationships between near-adult minors; it would have no application to forcible rape of a minor. (See People v. Avila (2000) 80 Cal.App.4th 791, 798 [“Outrage, however, is not a consideration where a sexual act is consensual.”].) That circumstance would continue to be prosecuted as a single offense under section 261, subdivision (a)(2) [forcible rape], with the attendant penalty under section 264, subdivision (c) [enhanced penalty for forcible rape of a minor under §261, subd.(a)(2))). AndCraig did notfail to apply the “elementstest.” (RBOM 13.) The Court clearly applied the elementstestit articulated. (Craig, supra, 17 Cal.2d 26 at pp. 457-458 [applying “the abovetest for determining whether one or more offenses result from the same act or transaction,” through illustrations of permissible multiple convictions].)'! While respondentalso claims that this Court “mistakenly” viewed the two subdivisions at issue there as lesser included offenses (RBOM 13-14, citing Craig, at p. 457 [where the Court noted the two charged offenses “necessarily crystallize[d] into one ‘included’ or identical offense”), it appears this was just a figurative illustration of the key point that the charged offenses represented a singular offense. And the Court’s recognition that this was the case even thoughthe proofis necessarily “dual in character” and “varies with respect to the several subdivisions” showsit properly applied the discernable legislative intentto create a single offense as the ultimately determinative factor. (/d. at pp. 457, 458.) The extensive criticisms of Craig based upon its references to “punishable” offenses and the existence of a different sentencing schemeat the time are also misguided. (RBOM 23; Dissent 1, 14-19.) First, the Court’s use of the term “punishable” was obviously synonymouswith “convictable” since the entire point of the case was that the defendant could not be convicted of two crimes undersection 261. (Craig, supra, 17 Cal.2d at p. 457, italics added [focusing upon when “[a] defendant may be convicted of two separate offenses”]; People v. Ryan, supra, 138 Cal.App.4th at p. 371 [“Although Craig speaks in terms of ‘punishable offenses,’ we think it apparentthat it proscribes more than one conviction underthe circumstances before it . . .”].) And the Court certainly interpreted Craig this way in the recent Gonzalez case. (See Gonzalez, supra, 60 Cal.4th at p. 539.) Second,as for the claims that Craig’s analysis should be disregarded as the product of sentencing concerns that no longer exist since the ul In fact, Justice Benke herself writes in dissent: “Craig’s significance is its application of the elements test.” (Dissent 11, emphasis added.) 27 development of the “staying” practice under 654 (see People v. Correa, supra, 54 Cal.4th at p. 337 [“Whensection 954 permits multiple convictions, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishmentis prohibited”}), these criticisms rest upon the faulty premise that the convictions constitute separate offenses. By its terms, section 654 only applies to “[a]n act or omission that is punishable in different ways by different provisions of law.” (§654, subd. (a), italics added; see People v. Sloan (2007) 42 Cal.4th 110, 114, emphasis added [a person may be convicted of, although not punished for, more than one crimearising out of the same act or course of conduct”].) Where the charged offenses do not constitute “two separate offenses” (Craig, supra, 17 Cal.2d at p. 457), there is only one crime to which one punishmentapplies; there is nothing to “stay.” So reliance on cases permitting multiple convictions for “truly separate offenses” subject to section 654 is just “misplaced.” (Slip Opn. 23-24.) For all these criticisms leveled at Craig, there is not even a hint of disapproval in this Court’s most recent analysis of it. Gonzalez actually approved the holding, and impliedly approved the reasoning, in finding “the conclusion” in Craig “flowed naturally from the wording andstructure of former section 261.” (Gonzalez, supra, 60 Cal.4th at p. 539, italics added.) Andthis is not the forum for debates over policy or wisdom:“thelegislative body or the electorate that enacted the legislation must be entrusted to weigh whatever harms and benefits result from the legislation in determining whetherthat legislation should be amended or abrogated.” (Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 970; Willis v. State of California, supra, 22 Cal.App.4th at p. 293 [courts “must follow the language used by the Legislature whatever may be thought of the wisdom, expediency, or policy ofthe act”]; Whitmer, supra, 59 Cal.4th at p. 747 [to 28 the extent the Bailey rule may provide a “felony discount” to defendants,“it is up to the Legislature to determine whetherthe rule should be otherwise”’].) 5. Any Disparities in the Penal Consequences Flowing from Violations of Section 288a and Section 261 Are Also Matters Reserved for the Legislature Respondent and the dissent make muchout of potential disparities in treatment of those convicted under section 288a of unlawful acts of oral copulation upon a victim whois both intoxicated and unconsciousand those convicted under section 261 of rape involving similar circumstances, arguing the existence of such “anomalies” means this Court can and should equalize the treatment by construing section 261 to reach the sameresult it reached in the Gonzalez case concerning section 288a. (RBOM 18-19, 22; Dissent 9.) The Legislature has been scrutinizing the rape statutes for decades and responding with the changes it has deemed necessary and appropriate to eliminate the “anomalies.” The Legislature is, of course, presumed to have investigated and ascertained the facts bearing upon the issue of multiple convictions under section 261, including the consequences flowing from the judicial interpretations. (See Higgins v. City of Santa Monica (1964) 62 Cal.2d 24, 30; Schabarum v. California Legislature (1988) 60 Cal. App. 4th 1205, 1219.) The courts are not “super-legislatures,” which reweigh such “peculiarly legislative” determinations. (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372; Schabarum,at p. 121.) “To allow a court... to say that the law must mean something different from . . its language, because the court may think that its penalties are unwise or harsh would make the judicial superior to the legislative branch of the government, andpractically invest it with lawmaking power.”(Willis v. State of California, supra, 22 Cal.App.4th at p. 293.) “[W]hen the claim at issue involves fundamentally moral and philosophical questions as to which there 29 is no clear answer, courts must remain tentative, recognizing the primacy of legislative prerogatives.” (Am. Acad. of Pediatrics v. Lungren (2007) 16 Cal.4th 307, 419-420, dissenting opn. of Brown, J., quoting Hand, The Bill of Rights (Harv.U.Press 1958), p. 70.) Thus, at this point, any complaints or concerns about the nature of the sentencing and punishment consequences flowing from the settled and accepted interpretation of the rape statutes must be addressed to the Legislature, because “[t]he remedy . . . is not in interpretation but in amendmentorrepeal.” (Willis, at p. 293.) In any event, the existing penal consequences are indeed “harsh” given the settled interpretation of section 263 to permit as many convictions as there are “completed” acts of penetration, “however slight,” during a single incident. There is also nothing to prevent the prosecution from charging, and even convicting, the defendant of violating other sex offense statutes based upon the sameact of intercourse so long as they representtruly separate offenses. (See §§ 264, subd. (c)(3) [“this subdivision does not preclude prosecution under Section 269 [aggravated sexual assault of a child], 288.7 [sexual intercourse with a child 10 years of age or younger], or any other provision of law”]; Craig, supra, 17 Cal.2d at p. 458 [indicating a single act of intercourse upon a child could properly support convictions of both rape and lewd acts].) And, of course, the enhanced penalties for aggravated forms of sex crimes already apply to rape. (§§ 667.51 [prior conviction enhancement], 667.61 [“one-strike” life term enhancement].) Theorigins ofthe oral copulation statute and the historical perceptions of that form of sexual activity are also worth noting. Justice Werdegar recently conducted an in-depth analysis of the origins of the oral copulation and sodomy statutes in her dissent from an equal protection decision concerning the registration requirements for those convicted of unlawful oral copulation of a minor. (Johnson v. Dept. ofJustice, supra, 60 Cal.4th 871, dis. opn. of Werdegar,J. (joined by Justice Liu).) The origins trace backto a 30 period “when oral copulation and sodomy were regarded as abhorrent sexual perversions closely associated with homosexuality and were therefore outlawed regardless of the participants’ ages.” (/d. at p. 890.) Both acts were 99 66 considered “sex perversions,” “crimes against nature,” “forbidden,” and “unnatural,” and oral copulation specifically was considered “the [v]ilest of [a]ll [o]ffenses,” and a “debasing immorality.” Ud. at pp. 899-901.) The “clear message” wasthat “vaginal intercourse is the only morally acceptable form of penetrative sexual behavior.” (Johnson, supra, 60 Cal.4th at p. 900.) “[H]eterosexual intercourse with pubescent minors, even whenit violates the law, has often been viewed as proceeding from morally and psychologically normal impulses.” (/d. at p. 902.) “[O]ral copulation was disfavored in comparison to sexual intercourse because the former act was regarded as a perversion engaged in by homosexuals.” (Jd. at p. 905.) In dissent’s view, this “difference in attitudes towards oral copulation and sexual intercourse” subsists to this day, as “a historical atavism” from 30 years ago whenthe law “treated all oral copulation as criminal regardless of age or consent.” (/d. at pp. 899, 902.) And the Legislature simply hasyet to reevaluate the matter and purgethe law ofthis historicalbias. (/d. at p. 904.)’” Perhaps the differences in apparent legislative intent concerning the permissibility of multiple convictions under section 288a and section 261 based on a single act are rooted in this yet-to-be-reevaluated “historicalbias.” But this case is just not a search for a “rational basis” in support of the differences (RBOM 22); the merits of their differences are considerations distinctly reserved for the Legislature. Unless and until it decides to change things, the law must be enforced as it stands. This also sidelines the matter R To this day, both the oral copulation and sodomystatutes remainin a different chapter than the rape offense statutes — the chaptertitled “Bigamy, Incest, and the Crime Against Nature.” (Pen. Code, Title 9, Ch. 5.) 31 Ee = ie: 5 . of how such issues might be resolved under other sex offense statutes. (See RBOM31, fn. 6 [hypothesizing a resolution of this issue under the sexual penetration statute].)!* Those are matters to be resolved in light of the Legislature’s intent as to those statutes, when they becomeripe for review. 6. Section 954 Is Not a Means to Circumvent This Preclusion or Any OtherPreclusion of Multiple Convictions, Whether the Charged Offenses Are Considered “Different Offenses” or “Different Statements of the Same Offense” The final observation about the contrary position of respondent and the dissent reveals another foundational flaw: they characterize section 954 as establishing an express authorization or legislative mandate in favor of multiple convictions based upon a single act or course of conduct, for not only “different offenses” but also merely “different statements of the same offense” arising out of a single act or course of conduct, which thus proves their claim that the multiple convictions here are proper. (RBOM 5-8; Dissent 18.) Respondent goesso far as to claim this Court “has definitively held that multiple convictions based on different statements of the same offense are permissible as long as they are based on different elements and neither is a lesser included offense of the other.” (RBOM 38-39.) This Court has yet to “definitively” decide anything in that respect, having just made clear in Gonzalez that this remains an open question. (Gonzalez, supra, 60 Cal.4th at p. 537 [“we need not determine whether section 954 allows conviction of different statements of the same offense”).) And, as we haveseen,the existence of different elements between or among the charged offenses is simply not determinative in this context; it is the 13 Anyway,respondent’s hypothetical result is rooted in the notion that the Court of Appeal relied solely upon the self-contained nature of section 288a, which, as discussed, is simply not the case. (See Section I.D.3.) 32 legislative intent behind the statutes defining the crimes that controls. The form in which charged offenses are pleaded or characterized under section 954 —as “different offenses” or “different statements of the same offense” — cannot somehow dictate a result contrary to that legislative intent. Indeed, respondent made similar claims in the recent case of People v. Garcia, supra, 62 Cal.4th 1116, which concerned whether two convictions of burglary were proper based upon the defendant’s having robbed a cashier in one room of the store and raped her in another. Ud. at p. 1131.) As the Court put it, respondent “rel[ied] heavily on section 954,” “suggest[ing] that this section reflects a legislative ‘preference’ for multiple convictions that should guide [the Court’s] hand” in determining whether they were proper. (Ibid.) The Court found these observations “largely beside the point” because section 954 “offers no insight into what constitutes an offense under the Penal Code in the first place . . .” (/bid.) Further, when it resolved the multiple-conviction issue under section 288a in Gonzalez, this Court did not characterize section 954 as the basis ofauthority for the dual convictions, but as simply presenting “no impediment” to those convictions. (Gonzalez, supra, 60 Cal.4th at p. 539, italics added.) The Court made clear that whatever section 954 may indicate about the propriety of the multiple convictions,“ifthe Legislature meant to define only one offense, we may not turn it into two.” (Ud. at p. 537; see also People v. Wilson, supra, 234 Cal.App.4th at p. 199, fn. 4 [although “[t]he parties focus[ed] muchoftheir briefing on sections 954 and 654,”the court found that framework simply could not be used to resolve the propriety of the dual convictionsat issue].) These constructions of section 954 as having limited utility in the resolution of such issues highlights the key pointhere:it is not a freestanding provision of substantive law generally authorizing multiple convictions based upon single act or course of conduct.It is, instead, a pleading statute (chaptered under “Rules of Pleading, in Title 2, Chapter 5), which simply 33 authorizes a form ofpleading that may result in multiple convictions based upon a single act or course of conduct if and when such convictions are permissible based uponthe intent behind the statute defining the crime. So respondent’s claim that the multiple convictions here are permissible because “at the very least” they constitute “different statements of the same offense” under section 954 is entirely misdirected. (RBOM 48.) The convictions are impermissible regardless of whether this is true, because they are prohibited by section 261 based upon the intent behindthatstatute. Anyway,section 954 does not even contemplate, much less authorize, such convictions based merely upon “different statements of the same offense.” As originally designed, this pleading provision only permitted the prosecution of “different offenses, or different statements of the same offense” “related to the same act, transaction, or event” in a single action, and expressly provided that the defendant could be convicted of “but one of the offenses charged.” (Stats.1905, c. 574, p. 772, §1.) The joining of any “chargesofoffenses occurring at different anddistinct times and places” was prohibited. (/bid.) In 1915, section 954 was changed to permit the prosecution in a single proceeding of charges of “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.” (Stats.1915, c. 452, p. 744, §1.) Like under the former version, the prosecution was “not required to elect between the different offenses or counts.” However, consistent with the change permitting the prosecution in a single proceeding of |“two or more different offenses” arising out of the same incident or involving the same class of crimes, the statute provided “the defendant may be convicted of any number of the offenses charged.” (/bid.) This language remains in substantially the same form today. (Stats.1951, c. 1674, p. 3836, §45.) 34 The obvious purpose of these changes was to promote efficiency and conserve judicial resources by permitting prosecution of the same defendant in the same proceeding onrelated charges. “The purpose of section 954 is to govern ‘the form of the information’ [citation] and to permit joinder of different offenses so as to prevent‘repetition of evidence andsave[] time and expense to the state as well as to the defendant’” (People v. Eid (2013) 216 Cal.App.4th 740, 752, quoting People v. Scott, supra, 24 Cal.2d at p. 779; accord People v. Soper (2009) 45 Cal.4th 759, 771-772.) It seems clear enoughthat the language contemplating the possibility of conviction on “any number of the offenses charged” was simply intendedto refute the previous express prohibition against the same, with an express statement that there could be multiple convictions against the same defendant in the samecase. The language concerning multiple convictions also makesclearthatit is expressly limited to two or more “different offenses” — it says “[t]he prosecution is not required to elect between the different offenses or counts set forth in the indictmentor information, but the defendant may be convicted of any numberofthe offenses charged.” One cannot divorce the secondhalf of the sentence from the first and read it as a free standing statement regarding permissibility of multiple convictions; the most natural andlogical reading of the full statement is that the reference to “the offenses” in the second clause of the sentence relates back to and is thus modified by the reference to “the different offenses or counts” in the first clause. (Renee J. vy. Superior Court (2001) 26 Cal.4th 735, 743 [“qualifying words, phrases and clausesare to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote”].) The statute uses the term “different offenses” only in connection with two of the three categories of charges that may be joined: “different offenses connected together in their commission”and “different offenses of the same class of crimes or offenses.” The third category of charges — 35 “different statements of the same offense” - is wholly different than the other two categories since it concerns alternative means of pleading the same offense as opposed to separate offense, and is not referenced in the language concerning the charges of which the defendant may properly be convicted. Thus, the most reasonable construction of section 954 is that it only contemplates such convictions based upon different offenses — a matter determined(i.e., authorized) by the underlying criminal statutes themselves. Courts have in fact said, while section 954 “permits the charging ofthe same offense on alternative legal theories” to avoid the need fora pretrial election (People v. Ryan, supra, 138 Cal.App.4th at p. 368, italics added), it does not permit multiple convictions based upon alternate theories of the same crime: “(multiple convictions can be based on a single criminal act, ifthe charges allege separate offenses” (People v. Smith, supra, 209 Cal.App.4th at p. 915, italics added; accord People v. Coyle (2009) 178 Cal.App.4th 209, 217). The cases of People v. Ortega, supra, 19 Cal.4th 686 and People v. Pearson, supra, 42 Cal.3d 351 do not provide any “definitive” evidence to the contrary. When this Court quoted section 954 in Ortega, saying ““[a]n accusatory pleading may charge.. . different statements ofthe same offense’ and ‘the defendant may be convicted of any number of the offenses charged,”’ that was in the context of determining whether the two convictions at issue were lesser included offenses. (Ortega, at p. 692.) The Court neither considered nor resolved the distinct question ofwhether section 954 permits multiple convictions of “different statements of the same offense.” (See People v. Belleci (1979) 24 Cal.3d 879, 888 [“cases, of course, are not authority for propositions not there considered”].) In Pearson, this Court said: “It is undisputed that defendant was properly charged with statutory sodomy and lewd conductfor each act; such chargesclearly constitute ‘different statements of the same offense’ and thus are authorized undersection 954.It also appears the court was authorized to 36 convict defendant of both offenses for each act; the statute clearly provides that the defendant may be convicted of ‘any number of the offenses 999charged.” (People v. Pearson, supra, 42 Cal.3d at p. 354.) Sodomy and lewd conduct consist not only of entirely distinct elements but also occupyentirely distinct criminal statutes serving entirely distinct policies. (§§ 286, 288.) Unlike in the context of the rape statute, it does not appear a court has ever held this set of dual convictions is impermissible. Indeed, the supporting case examples in Pearson also involved dual convictions based upon entirely separate and distinct criminal offenses. (Pearson, at p. 354, citing People v. Miller (1977) 18 Cal.3d 873, 884-885 [robbery (§211) and burglary (§459)], and People v. Beamon (1973) 8 Cal.3d 625, 639-640 [robbery (§211) and kidnapping for robbery (§209)]; see also Craig, supra, 17 Cal.2d at p. 458 [indicating dual convictions of rape and lewd conduct would be permissible based upontheir nature as distinct offenses arising under distinct statutes].) So the dual convictions in Pearson were proper because they involved clearly “different offenses,” not because section 954 permits dual convictions based on merely “different statements of the same offense.” Pearson simply does not stand for any such general proposition. The primary issue there concemedthe distinct matter of whetherall the convictions “could be used at a later date to enhance a subsequent sentence should the defendant commit another crime.” (People v. Haney (1994) 26 Cal.App.4th 472, 476.) The last sentence of section 954 further indicates the Legislature envisioned multiple convictions based on the same act or course of conduct only for separate and distinct offenses. It provides, as it has since being added in 1927: “An acquittal of one or more counts shall not be deemed an acquittal of any other count.” (§954.) In isolation, this would mean an acquittal of any of the charged offenses would not constitute an acquittal of any ofthe other chargedoffenses, even with respect to charges that constitute lesser included offenses of the acquitted charge. But it is long settled that an 37 acquittal of a greater offense necessarily constitutes an acquittal of any lesser included offense. (People v. Ng Sam Chung (1892) 94 Cal. 304, 306 [“a conviction or acquittal of a higher offense is a conviction or acquittal ofall lesser offenses necessarily included therein”]; People v. Day (1926) 199 Cal. 78, 83; People v. Poon (1981) 125 Cal.App.3d 55, 83.) This is resolved by reading “[a]n acquittal of one or more counts shall not be deemed an acquittal of any other count” as applying only to “counts” charging separate and distinct offenses. Courts have recognizedthis: “This language clearly means that each count in an indictment or information, which charges a separate anddistinct offense must stand upon its own merit, and that a verdictofeither conviction or acquittal upon one such charge has no effect or bearing upon other separate counts which are contained therein.” (People v. Moon (1935) 7 Cal.App.2d 96, 99, italics added; accord People v. Amick (1942) 20 Cal.2d 247, 252; see also People v. Walker (1983) 146 Cal.App.3d 34, 38, italics added [Walker’s acquittal of one charge did not require reversal of the other since “his charged offenses consisted of separate anddistinct acts.”].) E. Treating These Charges as What They Are — Alternate Charges — Would Avert Complications of Improper Dual Convictions The consequences respondent and the dissent forecast as flowing from the settled construction of section 261 and infecting the entire class of these cases with problems and complications at the post-verdict phase would be headed off at the pass by treating the charges as what they are — alternate charges based upona single criminal act for which only one conviction is permissible — and so instructing the jury before deliberations. The potential issues all stem from treating the charges as separate anddistinct offenses and instructing the jury accordingly (as was done here) bytelling it that: “Each ofthe counts chargedin this case is a separate crime. You must consider each count separately and return a separate verdict for each crime.” (CT 66 38 [CALCRIM 3515 — “Multiple Counts: Separate Offenses”].) The Bench Notes to this instruction specifically counsel the trial court to give it “on request if the defendant is charged with multiple counts for separate offenses.” (Ibid., italics added.) On the other hand, the court is told, “[iJf the prosecution has charged, in the alternative, more than one offense for the sameevent, give CALCRIM No.3516, Multiple Counts: Alternative Charges for One Event—Dual Conviction Prohibited.” (/bid., italics added.) CALCRIM 3516 specifically contemplates a situation like the present case, where “the law does not specify which crime must be sustained or dismissed if the defendant is found guilty of both,’ and advises the court should instruct the jury as follows in such situations: “The defendant is chargedinCount _——_— with and in Count with . These are alternative charges. If you find the defendant guilty of one of these charges, you must find (him/her) not guilty of the other. You cannot find the defendant guilty of both.” (CALCRIM 3516.) Theinstruction has alternative language for cases in which the two chargesat issue are theft and receiving stolen property. So long as the jury abides by the instruction, this would avert any complications associated with sorting out the judgment and sentencing consequences of dual convictions based upon the single act of intercourse: The prosecution could initially allege both charges separately without the need for a pretrial election; the jury would be instructed on the specific elements of each charged offense so it could make the appropriate factual findingsrelative to each; it would be told only one conviction is permissible; and it would then determine which of the two on which to convict based on the facts as it finds them to be under the circumstances of the case. The proceedings would end as they should: with a single convictionofrape. 39 F. The Existence of Complicationsin the Return ofDual Convictions Cannot Somehow Permit or Justify Allowing Both to Stand Of course, in cases where the jury nevertheless returns improper dual convictions, both cannot stand. The potential complications about which respondentand the dissent express so much concern — verdict “nullification,” unfair “windfalls,” and sentencing disparities — all presume the existence of two otherwise valid convictions based upon the single act of intercourse (RBOM 20, 23, 25; Dissent 16) — again circling back to the same faulty premise. There is and can be just a single conviction; necessarily then, an “upset” in the dual convictions cannot result in any sort of inappropriate meddling with jury verdicts or a “windfall” to the defendant. The consequences flowing from the actions rectifying the dualconvictions — including any potential disparities in the nature of the direct and indirect penal consequences as between the two convictions, however undesirable or problematic respondent mayfind them — simply cannotbe turned around and used to permit or justify retaining the improper dual convictions. Surely, one could make similar complaints about other situations in whichthe verdicts result in a set of impermissible multiple convictions. All such situations require “judicial nullification” of a verdict and many could involve disparate penal consequences. In addition to the existence of such disparities in the situation of the assault crimes under section 245 and insurance fraud under section 550, this would arise in cases where the defendant is improperly convicted of both continuous sexual abuseofa child undersection 288.5 and ofthe underlying discrete sex offenses. (See § 288.5, subd. (c)). The trial court must determine which to vacate, and the penal consequences could vary significantly between the continuous abuse conviction and the convictions on the wide variety ofunderlying sex offenses that may serve as the basis for the abuse conviction. (See §1203.66, subd. (b).) Ultimately, these matters are simply neither determinative of, or really 40 even directly relevant to, the resolution of the primary substantive question as to whether the multiple convictions are permissible in the first instance. Unless and until the Legislature decides to permit multiple convictions in cases where they are now prohibited, this is the law that must be followed. Meanwhile, the trial courts are not without the experience and tools necessary to deal with improper multiple convictions. The process of vacating a conviction in suchsituations is certainly not unfamiliar territory given the long established rule prohibiting convictions of lesser included offenses. And onceit is clarified for trial courts that section 261 does not permit multiple convictions based upon a single act, we must presume those courts would properly apply the law byinstructing the jury accordingly under CALCRIM 3516 that only one conviction is proper and taking appropriate actionto rectify any improper dual convictions that may result. Thus, the trial judge would deal with the matter in the first instance and from the best perspective of the facts and circumstances bearing uponit. Trial courts are vested with broad discretion to make such determinations. (See §1260.) The general objectives of sentencing empower them to “consider which objectives are of primary importance in the particular case,” based upon “statutory statements of policy, the criteria in the{] rules [of court], and the facts and circumstances of the case,” as well as any other “reasonably related”criteria. (Cal. Rules of Court, rules 4.408(a) & 4.410(b).) And their decisions are entitled to substantial deference: “a trial court does not abuse its discretion unlessits decisionis so irrationalor arbitrary that no reasonable person could agree withit.” (People v. Carmony (2004) 33 Cal.4th 376, 377.) Even in caseslike this, where the chargesare closely related in nature, in many situations, there will be differences in the degree and relative strength of the evidence that form the basis for the trial court to reasonably determine which conviction best reflects the nature of the defendant’s ultimate culpability. Here, for example, the evidence in support of Count 1 4] (rape of an intoxicated person) was stronger than the evidence in support of Count 2 (rape of an unconscious person). While Stephanie wasindisputably intoxicated throughoutthe incident (IRT 47, 68-69, 100-103, 267), it appears she experienced different levels of awareness or “consciousness” during the sexual activity with White (IRT 48-49, 59, 78, 83, 101). This could have supplied a reasonable basis for the trial court to vacate the conviction on Count 2 in favor of Count 1. After all, it is clear that the intoxication was the cause of any “unconsciousness.” And that is precisely how the Court of Appeal handled the matter in vacating the conviction on Count 2. So the problem with the dual convictions here wasappropriately resolved.'* In cases where additional fact-finding may be appropriate or necessary in determining which conviction to vacate, the matter could be remanded. (See State v. Hughes, supra, 166 Wash.2dat p. 686, fn. 13 [remanding because “which conviction to vacate necessitate[d] further fact-finding bythe trial court”].) G. Any Doubt Should be Resolved in White’s Favor “When language whichis reasonably susceptible oftwo constructions is used in a penal law ordinarily that construction which is more favorable to 4 In Craig, this Court appears to have chosen consolidation of the rape convictions based uponthe nature of the proceedings peculiar to that case.It was not a jury trial, but a bench trial, at the conclusion of which the court entered a “separate judgment” on each count. (Craig, supra, 17 Cal.2d atp. 455.) It made senseto first “consolidat[e] them into a single judgment” in disposingofthe problem.(/d. at p. 458.) And, unlike here, where the charges were initially alleged in separate counts, the prosecution hadactually charged the offenses “as separate statements ofthe same offense.” (/d. at p. 454.) This appears to be whythe Court ultimately left the convictionsin a consolidated form that reflected both subdivisions of section 261 at issue, “being separate statements of the same offense,” as opposedto just striking one of them. The disposition in Craig furtherillustrates that multiple convictions undersection 261 based on a single act are impermissible in either form — whether considered“different offenses”or “different statements of the same offense.” 42 the offender will be adopted.” (In re Christian S. (1994) 7 Cal.4th 768, 780; accord People v. Arias (2008) 45 Cal.4th 169, 177; In re T.B. (2009) 172 Cal.App.4th 125, 129 [“[A]ny doubts as to the correct interpretation of the statutory prohibition must be resolved in [defendant’s] favor.’’].) While respondent will surely now contend that its interpretation is the only reasonable one,in the pending Soria case (S228653) involving precisely the same issue, respondentinitially conceded this very point. Based squarely upon the rationale of the Craig and Smith cases with which it now takes so much issue, respondent argued “notwithstanding the remedy provided by section 654,” the rationale of those cases applies such that “both convictions cannot stand.” (Resp. Brief, Court of Appeal No. C070238, 31-32,italics added.) Respondentis, of course, entitled to change its position. But that change ofposition after formally advocating for the opposite conclusion at the least demonstrates the matter is “reasonably susceptible of two constructions,” thus invokingthe rule of lenity. (Christian S., at p. 780.) H. Any Reversal Now of This Long Settled Interpretation of Section 261 Cannot Fairly be Applied Against White “TAjn unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law. . .” (Bouie v. Columbia (1964) 378 U.S.347, 353-354.) If a construction is “unexpected and indefensible by reference to the law which had been expressed prior to the conductin issue, it must not be given retroactive effect” (/bid.) California recognizes this. (People v. Martinez (1999) 20 Cal.4th 225, 238 [“[i]t is settled that a state Supreme Court, no less than a state Legislature, is barred from making conduct criminal which was innocent whenit occurred, through the process ofjudicial interpretation”]; Whitmer, supra, 59 Cal.4th at p. 742 [declining to retroactively apply the judicial interpretation for this reason].) 43 White’s extensive research has not unearthed a single published Opinion interpreting section 261 in the manner respondent seeks this Court to adopt, and neither respondentnor the dissent cites such a case. Rather, as illustrated above, in the more than 100 years since the Jailles case, to this day, it is apparent thatall the published case authority concerning this issue has consistently interpreted section 261 as creating a unitary offense. Neither White nor any similarly situated defendant(like the defendants in the Soria, Brown, and Mesinas cases) has had any fair warning that his single act of unlawful intercourse could result in two rape convictions. The law at the time of their acts clearly indicated only one conviction would occur. Thus, any holding that section 261 permits such a result would constitute “an unforeseeable judicial enlargementofa criminalstatute” that cannot properly be applied retroactively. (People v. Blakely (2000) 23 Cal.4th 82, 91.) Just as the existence of potential disparities in the penal consequences flowing from dual convictions based upon a single act cannot drive the analysis of whether the dual convictions are permissible in the first place, neither can the degree to which the defendantis oris not “prejudiced” by the two convictions in the event one of them is “stayed” under section 654. (See Dissent 13-17 [emphasizing the ostensible lack of prejudice in such situations].) But it is worth noting that saddling the defendant with two convictions instead of one does matter. Carrying an additional conviction on one’s criminal record surely increases the social stigma one experiences while concomitantly decreasing his or her future prospects of obtaining future employment and thus reentering society as a productive citizen. A “stay” under section 654 does nothing to ameliorate these practical effects. The existence of multiple convictions can also impede the defendant’s opportunity to reenter society in the first place. A conviction under either of the two subdivisions that served as the basis for the convictions here (§261, subds. (a)(3) & (a)(4)) does not render the defendant ineligible for probation 44 (See §1203.065, subd. (a).) If two convictions are allowed to stand based uponthe individual subdivisions,surely the trial court could and likely would take into account the multiple convictions in determining whether to grant probation based on “[t]he nature, seriousness, and circumstances of the crime” as well as “[t]he vulnerability of the victim,” and thus be morelikely to deny probation than if the defendant stood convicted of just one crime. (Cal. Rule of Court, rule 4.414(a)(1), (a)(3) [Criteria affecting probation].) CONCLUSION Forall these reasons, the firmly established interpretation of section 261 should dictate the result here as well. But if this Court decides it can and should reverse that interpretation so as to permit multiple convictions based upon a single act of nonconsensual sexual intercourse, such a new rule could only be applied prospectively. The judgment should therefore be affirmed. Dated: June 10, 2016 Respectfully submitted, ZY Raymond Mark DiGuiseppe, Attorney for Defendant and Appellant CERTIFICATE OF COMPLIANCE I certify that the attached Appellant’s Answer Brief on the Meritsis prepared with 13 point Times New Romanfont and contains 14,684 words. Dated: June 10, 2016 Respectfully submitted, LOVE Raymond Mark DiGuiseppe 45 DECLARATION OF SERVICE Re: People v. Billy Charles White, Case Number S228049 I, Raymond Mark DiGuiseppe, declare that I am over the age of 18 and nota party to this case. My business address is: P.O. Box 10790, Southport, NC 28461. On June 10, 2016, I served the foregoing Answer Brief on the Merits on each of the parties listed below, either by placing a true copyofit in a sealed addressed envelope with postage fully paid and depositing it with the Postal Service in Southport, North Carolina, or by serving it through the approved electronic process, as indicated below: Billy Charles White c/o Mrs. Phyllis Duncan 22520 County Road 49 Silverhill, Alabama 36576 Appellate Defenders, Inc. Electronically served to: eservice-court@adi-sandiego.com San Diego County Public Defender Electronically served to: ppd.eshare@sdcounty.ca.gov Theresa Osterman Stevenson (Court of Appeal Appellate Counsel) Electronically served to: tstevenson@tosterlaw.com Attorney General’s Office Electronically served to: ADIEService@doj.ca.gov San Diego County Superior Court Electronically served to: Appeals.Central@SDCourt.ca.gov San Diego County District Attorney Electronically served to: DA.Appellate@sdcda.org Court of Appeal Fourth Appellate District, Division One 750 B Street, Suite 300 San Diego, California 92101 I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and was executed on June 10, 2016. Raymond Mark DiGuiseppe Declarant CLY/ Signature DECLARATION OF SERVICE Re: People v. Billy Charles White, Case Number 8228049 I, Raymond Mark DiGuiseppe, declare that I am over the age of 18 and not a party to this case. My business address is: P.O. Box 10790, Southport, NC 28461. On June 10, 2016, I served the foregoing Answer Brief on the Merits on each of the parties listed below,either by placing a true copy ofit in a sealed addressed envelope with postage fully paid and depositing it with the Postal Service in Southport, North Carolina, or by servingit through the approvedelectronic process, as indicated below: Billy Charles White c/o Mrs. Phyllis Duncan 22520 County Road 49 Silverhill, Alabama 36576 Appellate Defenders,Inc. Electronically served to: eservice-court@adi-sandiego.com San Diego County Public Defender Electronically served to: ppd.eshare@sdcounty.ca.gov Theresa Osterman Stevenson (Court of Appeal Appellate Counsel) Electronically served to: tstevenson@tosterlaw.com Attorney General’s Office Electronically served to: ADIEService@doj.ca.gov San Diego County Superior Court Electronically served to: Appeals.Central@SDCourt.ca.gov San Diego County District Attorney Electronically served to: DA.Appellate@sdcda.org Court of Appeal Fourth Appellate District, Division One 750 B Street, Suite 300 San Diego, California 92101 I declare under penalty of perjury underthe laws of the State of California the foregoingis true and correct and was executed on June 10, 2016. Raymond Mark DiGuiseppe Declarant “Ch Signature
