PEOPLE v. WHITE

Respondent’s Petition for Review

Cal.July 24, 2015

SUPREME COLI Gur In the Supreme Court of the State of California THE PEOPLE OF THE STATEOF | CALIFORNIA, SUPREMe COURT. Plaintiff and Respondent, Case No. PDD v. . . - JUL 24 205 BILLY CHARLES WHITE, crate . wotjuire Clerk Defendant and Appellant. | oemm Fourth Appellate District, Division One, Case No. D060969 San Diego County Superior Court, Case No. SCD228290 The Honorable Frank A. Brown, Judge PETITION FOR REVIEW . _ KAMALA D. HARRIS Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General JULIE L. GARLAND . Senior Assistant Attorney General STEVE OETTING Deputy Solicitor General '. LiseJACOBSON. DeputyAttorney General A. NATASHA CORTINA Supervising Deputy Attomey General ‘State Bar No, 156368 © 600 West Broadway, Suite 1800 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2220 “Fax: (619) 645-2191 - Email: Natasha.Cortina@doj.ca.gov Attorneysfor PlaintiffandRespondent TABLE OF CONTENTS Page . Issue Presented Soveccecearecseseusvscecuseccacccacuauaceueuauateceseseceseeseespessnteneseeeacsestensesseese L Reasonsfor Granting Review ...........:c:sscccssescsecssssseesersseeeeeeseneeeees seseeasans veel Statementofthe Case and Facts ......cssessessesssseesseneenesseusaseesessenseeneenecsesens 2 ALBUMEN.....ccceccessssessserscsssenenesveveeseseseveveesvececcensccessssseedaceecenceseseceecauacenseeses 4 Conclusion......sesssssseseesseessesssnsssnsssesnsecsunsssseeenestsstsnasonssoinssensusesteee 12 TABLE OF AUTHORITIES Page CASES Inre Hess (1955) 45 Cal.2d 171ccssessessccsesseerevsssessnsresesstesssesesenserenesenaeeas peeeseeed People v. Craig | | | (1941) 17 Cal.2d 453 cscsccestecesssnresccsssseccescsssessnenanssnessensooseeeneseesensesee passim People v. Eid | (2014) 59 Cal.4th650...ccccccescsccseesssssseesesccessseesseecssssssacseneseneseorenetenes9 People v. Gonzalez (2012) 211 Cal.App.4thh 405vcccsccseccsterscsesesteereesessressresssssesenesseessees2 People v. Gonzalez | (2014) 60 Cal.4th 533...eesesseresseseeeneesseeseanenesesesesssesenseseeseensnenss passim People v. Palmer | - . . © (2001)24 Cal.4th 856 ....ceccecccessccsscessssssesessecsssesesescecssenesssscseseeecsecessensecees9 People v. White oo 7 a (2013) 2013 WL 1444254...seneunesesensnssensanenaeaucerseeessessseeeneneneaee 3, 10 STATUTES. Penal Code . © § 261 [1872]oceeessesececseneeseeeeneesentesensenseaseeeneaterecensenssegeenenneaenesseenaeenees7 § 261....... sancenses saseecensescavansnececeeeesacsacenscesasssenessescesseasseeersesssseesees"5 6. 7, 8 § 261,SUB. (A)(1) .....eieeesessesssereresseenessecresteneeeens sesaepeeeneceesers seeneeesenseass 10 § 261, subd. (a)(2)............seveesecsseseseesoreses eveessesaseaceeeessessenssersesseateeeeee Ty10 § 261, subd. (€)(3) oo... cssccsssccsseeseeteceressserseeeessdeeseseeceeeeesanetenseceseesoetoneneeaes 1 § 261, subd. (a)(4)-...eeeeeeeeesvaseveateneatessesenessacecsscecessenseceesseessaasneneecseescs l § 261, SUDA. (3)... esessessseenensenscescsnesesesssssessseseneaessssssesssssessseresererseneees2 § 261, Stub. (4)... eseccesseccsseeeeececeerececeenenrenenneeteesseeveeeaees satesreseeceesetenceeens2 ~ § 2615 isccsscsscesecsccsccsscsssecsssesccssccssseccsssseasceessssssconsnesessnssssscnseescescenssonssene § 262 [1872]..........- sasenuenseecnsnecenesenerssesesseseecesssesensdenbecenscassessesensvaseneosssenees 7 § 262 oo... eeesreneeesevsceesuessegetevsulensuseasescusacsacansnesseenenesscesssseeseesesuseateseeenenseeeee| § 263. [1872] ....sccccscsssstereeeeereesvessevorsveresseenesasssettee senteseesSessceneteatenesessed § 263 vecceescscsseessesvnssenstnsenuasennsesasotasenessisesnsetsvaseeaseanassanseutsssenses TABLE OF AUTHORITIES os Page Penal Code § 264 [1872] .......eeesceseseeeeesesesecenseneseacevseensvssessussassecsssesesseaeeseesensnserseses7. 8264 eececcsessessceesceeceseeeeseees Lececsessssaccnsesecccseecoeaseccesenaueceseneeenseceseas 6,7 § 264, SUDA. (C) oececccssresssssscssccsrseneessensccserscesssessssevesseuseanesesceneteseeseneed § 264.1 wepeeeeeesseesuveeeseceencscensseesereonecesenseeeeseeseetreetes Vvsaeteevevsusenesevuseness7 § 88a oo. eesecsessccssscsecsecccsseenscsatsenesaessessaceeseeeessesssseesossesscerseredenerensnsereees5 § 288a, subd. (f).........ecsssseessreesceseneessaseceseesnvorensensecesenseeenenseeeetorones 3,5, 6 —§ 288a, SUM,(i)oeccccseeeesesesesseeenesssnersaseesaseassssssssessseseeeesecees 3,5, 6. § 496 ve eeeeecssecceteesseseeeeseeqeseecessssseseseseeceneneeaeeanessusaesesussessenenenegsessenenensestaess9 § 654 vcccsessesseestsesseesssavececsecessescessesecacecacececsseesssvesuevscessasscsacsceocess passim § 667.6...saanesesnscuecceesssenneesreneecessneecesseseeaesVevesersecauseustsusrenserseveneusesees 8 § 667.6, SUDA. (€) vecccescecesessestssesseesssssesrecensesensdevvesneeeveseeeseupeenanseven 8 § 667.61 ose cctcccsecsscecssenessecnensccessesstesseseecesssassooesosesoseesennserseeenensaeevenaneeens 8 § 667.61, subd. ().ssveneevevensneneeeessseeveesaeteveeeseaeedeveeceeeeesuesuseunssevssnscssssscsasens8 — § 9540...seesecesadensussssesensseesonsasusseneeesSeanseseneeansuassaeeucseeegecesssooaneosseeoes passim ~ Statutes . 1921, ch. 848, p. 1633, § Dscvcelessssesssesectecsesseresrecneen sessssessacseseesesaeesseseseees7 CouRT RULES Cal. Rules of Court. TUle 8.500 0.0... seesscccesseeesscscesesereesJ eesuscouuscensegtesseesavsuatencetsonsesenecseesenssseaseas 1 rule 8.500, subd. (b)(1)....... vevsnetesseeceesaneneeecenseessesusosesssacenseussececeseusebeasevsna 1 OTHER AUTHORITIES CALCRIM NO. 3516 ccssssccssessssssssessssessesencosusstsutseceesssassesenensecntutttsstttteeeend ili Me e M M V 8 ow t o t e ‘TO THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICESOF THE CALIFORNIA SUPREME COURT:| Pursuantto rule 8.500 ofthe California Rules of Court, petitioner, the People of California, respectfully requests this court to grant review ofthe _above-entitled matter following the issuance of a published opinion on June 18, 2015, by the Fourth District Court ofAppeal, Division One. Inits . opinion, a two-justice majority held that a defendant, who was properly charged and found guilty by a jury ofboth rape of an intoxicated person | | and rape of an unconscious person based on the sameact, could only stand convicted of one count ofrape and vacated one ofthe convictions. Justice Benkedissented. A copy ofthe Court of Appeal’s opinion is attached. No | petition for rehearing wasfiled. | - ISSUE PRESENTED Whethera defendant may be convicted of both rape of an intoxicated person (Pen.Code, § 261, subd. (a)(3))' and rape ofaran unconscious person (§ 261,subd. (a)(4)) based on the same act. | - REASONS FOR GRANTING REVIEW - Review ofthis case is necessary to settle animportant question of law and to secure uniformityof decision. (Cal. Rules of Court,rule 8.500, | subd. (b)(1).) Notwithstanding this court’s decision in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez), the Court of Appealhere, as well as other courts throughoutthe state, continue to struggle with application of section 954, authorizing raultiple convictions arising out ofthe same act. Althoughthis court concluded in Gonzalez that section 954 authorizes ' All furtherstatutory references are to the Penal Code. | multiple convictions for oral copulationof an intoxicated person and oral copulation of an unconscious person based on the sameact, the Court of Appeal here reached the anomalous conclusionthat it does not allow multiple convictions when the defendantuses identical means to commit rape. Surely the Legislature did not intend such an absurd result. The uncertainty surrounding whether multiple convictions can stand under section 954 will continue to sow confusion and mischiefin charging, instruction and sentencingnot only in rape cases but also for other crimes as well. | . | Accordingly, granting review will provide needed guidance to lower courts, as well as to prosecutors across the state making charging decisions. | STATEMENT OF THE CASE AND-FACTS _ Appellant Billy White climbedinto the bed of an unsuspecting friend who wasin and out of consciousness due to intoxication and, over the course of several hours, engaged in sexual conduct, including intercourse, - until his victim realized what was happening andprotested. At that point, -White rolled offofhis victim and pretended to be asleep, as if nothing had happened, although he later claimed that his victim was begging him forit. | ' A San Diego County jury convicted White ofbothrape of an intoxicated person (count 1-Pen. Code, § 261, subd. (3))” and rape of an unconscious "person (count 2-§ 261,subd. (4)), and the trial court sentenced White to three years in state prison on count 1 and stayed his punishment on count 2 pursuant to section 654. | | oe | Appellant appealed on various grounds, but not on the groundthat lie could only stand convicted of one rape offense. That issue was taised sua sponte by theCourt of Appeal. The court requested briefing on the applicability, if any, ofPeople v. Gonzalez (2012) 211 Cal.App.4th 405 _? All future undesignated code references are to the Penal Code. (opinion superseded by People v. Gonzalez (2014) 60 Cal.4th 533), in which a different two-justice majority in the same Divisionheld that the . - defendant’s convictionsfor oral copulation of an unconscious person (§ 288a, subd.(f)) and oral copulation ofan intoxicated person (§ 288a, subd. (i)) based on the same act had to beconsolidatedinto one conviction under | the holding and reasoning of Peoplev. Craig (1941) 17 Cal.2d 453 (Craig). Following briefing, the Court ofAppeal rejected each of appellant’s claimed errors, includingsufficiency ofthe evidence for both rape . 7 convictions. (People v. White (2013) 2013 WL 1444254 (White I.) The CourtofAppeal divided, however, on the issue whether the two convictions could stand. Justice Huffman, joined by Justice McDonald, held that, under Craig, White could only stand convicted of one rape and chose, without explanation, count 2 as the conviction to be vacated. Cd. at . pp. *7, 12.) Justice Benke dissented on the ground that séctions 954 and 654, as well as subsequent decisions by this court conceming those. | provisions, limited Craig to its facts and permit multiple convictions, such _ as occurred in this case. Justice Benke would have affirmed both convictions andthetrial court’s stay ofpunishment on count2 pursuant to section 654. (White I, at pp. 1-14.) - | White I came on the heels of this court’s grant ofreview in Peoplev. Gonzalez, and the People successfully petitioned forreview ona grant-and- hold basis. After this court reversed the Court ofAppeal in Gonzalez— finding dual convictions for oral copulation of an unconscious and intoxicated person based on.the same act authorized undersection 954— it - _ transferredthe instant matter back to the Court ofAppeal“for _ reconsideration in light of Gonzalez.. On remand, the same two-justice majority again struck one of White’S rape convictions. (Slip Op. at pp. 3, 25 (White If).) Relying on the fact that this court declined the People’$ request to. overrule Craig andstructural and. textual differences between the oral copulation and rapestatutes, the majority foundthat this case was governed by Craig and not Gonzalezor section 954. (White II, at pp. 6-7.) The majority reasoned, “The People’s reliance on case law that allows convictions ofmultipleoffenses from a | single act, subject to section 654 limitationsis misplaced. Those cases _ address different offenses, withdifferent elements.” (Id. at p. 24.) Accordingly, the majority concluded: “(T]he prosecution properly pled two © counts of rape as separate statements ofthe sameoffense, but because the counts are in fact separate statements of only one offense, Craig, supra, 17 | Cal.2d 453 holds there may be only one conviction for the single act.” (Ibid.) | | _ Justice Benke again dissented, noting “the court in Gonzalez did not | disapprove Craig, but neither did it approve of Craig in the manner ~ suggested bythe majority.”. (Dissent,at p. 3.) Rather, Gonzalez reiterated the primacy ofthe elementstest for determining whether offenses were _ different and therefore subject to multiple convictions under section 954 and foundthat Craig likewise acknowledged the sametest. (Ibid) Justice Benke explained that the majority’s analysis abandonedthe elementstest, which would yield the sameresult as in Gonzalez, in favor ofa “structure | test” that compares the structure ofthe rape and oral copulation statutes. She found the majority’s comparison also does not withstand scrutiny. Alternatively, Justice Benke would have found dualconvictions authorized under section 954 as different statements of the same offense, an issue that this court declined to reach in Gonzalez becauseit found the twooral copulations offenses were different offenses. (/d. at p. 17.) | ARGUMENT This court remanded this case tothe Court ofAppeal to reconsiderits decision vacating one of White’.s two rape convictions based on the same act in light ofits decision in Gonzalez, where this court found dual oral copulation convictions based on the sameact authorized undersection 954. A divided court again vacated one of White’s rape convictions. The majority foundthat Craig’s holding, not Gonzalez’s, controlled on the groundthat the version ofthe rape statute applicable to White more closely resembled former section 261 examined in Craig than it did the oral copulation statute (§ 288a) examined in Gonzalez. The majority’s holding conflicts with this court’s decision in Gonzalez and a plain application of section 954. And, as in Gonzalez, Craig’s interpretation offormer section 261 does not compela different result in any case. | | As observed by Justice Benke in dissent, the majority’s analysis missed the mark becauseit choseto be guided by a reason supporting the court’s decision in Gonzalez notto overrule Craig—a comparison ofthe text and structure of former section 261 andsection 288a—insteadofthe actual holding andanalytical framework relied upon to reach it. And, even ‘relying on such a comparison, subsequent amendments to section 261 and related penal provisions provide ample reasons to distinguish it from the -_- former section 261 examinedin Craig and therefore to similarly distinguish | that aspect of Craig. Had themajority properly followed Gonzalezit, too, could have and should have reachedthe sameconclusion that dual rape convictions based on the sameact are authorizedunder section 954 where _ the convictions are based on different elements and neitheris a lesser included offense ofthe other. As in Gonzalez,it is a conclusion that simultaneously respects legislative intent (there is no basis for concluding the Legislature intendedto treat rapists more leniently than someone who commits oral copulation) and the principles of stare decisis. . In Gonzalez, this court held thatoral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of an intoxicated person (§ _ 288a,-subd. (i)) were differentoffenses subject to multiple convictions under section 954 even where based on the same act. (Gonzalez, supra, 60 Cal.4th at p. 535.) It reachedthis conclusion by looking at whether each offense had different elements and werelesser included offensesofthe other. (/d. at p. 539.) This court observed: “We have repeatedly held that the same act can support multiple charges and multiple convictions. _ ‘Unless one offense is necessarily included in the other[citation], multiple _ convictions can be based upona single criminal act or an indivisible course. “of criminal conduct (§ 954).”” (Id. at p. 537.) | Asnoted by Justice Benke, Craig is no bar to multiple convictions undersection 954. Subsequent amendments to section 261 and related penal provisions provide ample reasonsto distinguish the modern version of section 261 from theformer section 261 examined in Craig and therefore to similarly distinguish that aspect of Craig, which concludedthe rape statute formerly stated only one offense instead of different offenses. For -example, in finding that former section 261 defined but one crime, Craig _relied on the express language of former section 261, which stated that rape occurred “under either of the following circumstances.” (Craig, supra, 17 Cal.2d at p. 455, italics added.) The term “either” connotes “one or the other.” That term was subsequenitly replaced by “any,” which connotes “one.or more”and therefore is reasonably understood to mean a rape may now be accomplished by more than just one ofthe enumerated acts. (Dissent, at p. 10.) | | | Since Craig, the punishmentprovision for rape was also amended and in fact provides for a sentencing range for rape of an unconscious and . intoxicated person identical to the sentencing range forthe same offenses . under the oral copulation statuteevaluated in Gonzalez. (Compare § 264& _ § 288a, subds. (f) & (i).) Theidentical elements and punishmentfor these twotypes of offenses supports the conclusionthat the Legislature also _ intendedidentical treatment. The majority entirelydisregarded the significanceofthese legislative changes solely because underthe oral — copulationstatute all of the elements and particular punishmentareself- . contained within each subdivision whereas they are notin the rape statutes. As pointed out by Justice Benke, the majority’s analysis exalts form over substance, and substantively the statutes call for identical treatment under section 954, (Dissent, atpp. 5-6.) Notably, the Legislature has | demonstrated its intent to treat the different types ofrape separately by providing different punishments. (See § 264, subd. (c) [providing punishmentranges for rape under § 261, subd. (a)(2), when committed against a minor].) | | Thedifferent structures ofthe rape andoral copulation statutes are also readily explained by the history of the two statutes. Thecrime of rape wasset forth in the first Penal Code enacted in 1872 (indeed predatedit) . and, as society’s understanding of the crime has evolved,it has been expanded by amendments to existing rape provisionsand by the addition of new PenalCodesections. (Compare rape statutes in 1872 (§§ 261, 262, 263 and 264) with the present version §§ 261 , 261.5, 262, 263, 264 and 264.1.) In contrast, the oral copulation statute is a construct solely ofthe twentieth century, having firstbeen enacted in 1921. (AddedbyStats. 1921, ch. 848, p. 1633, § 2.) It is unremarkable thatthe Legislature,in | | creating an entirely new crime, drafted a more comprehensive singular Penal Codeprovision. | Other post-Craig amendments, such as providing different penal | . consequences for violationsofthe different subsections of 261, further _ support the conclusionthat the Legislature intended each subdivision to be treated as a different offense. For example, only convictions undercertain subdivisions ofthe rape statute render a defendanteligible for additional punishmentin future criminal prosecutions. | Additionally, as noted by Justice Benke, Craig also basedits decision _ ona discredited view ofrape as a single outrage to the victim and “as such a victim could not be ‘doubly outraged, once by force and once because of her tender years, but suffered only a single offense. []” (Dissent, at p. 11.) Themajority revives this abandoned view byignoring the legislative - expansion ofliability under the rape statute commensurate with a more evolved and enlightened understanding of rape. Ud. at pp. 5-7.) - And,as its holding indicates, Craig was also principally concerned with avoiding double punishment because in the 1940s the courts had yet to develop the stayprocedure under section 654 and, underthe then-existing | indeterminate sentencing law,.a defendant faced two judgments for the same offense with exposure of 50 years each. Aroundthe time of Craig, this court inconsistently authorized concurrent sentences, consolidation or - vacating convictions in anattempt to comply with section 654’s prohibition against double punishment. (Dissent, at pp. 12-17 and cases cited therein.) ; In that regard, asthiscourt previouslynoted, Craig “must be read in light ofthe problem then before thecourt, that is, whether the defendantcould be doubly punished for a single act.” (In re Hess (1955) 45 Cal.2d 171, 174.) - Thus, as recognized by Justice Benke, the court’s decision in Craig does not foreclose finding rape of an intoxicated and unconscious person >For example, section 667.6, which mandatesfull consecutive terms for multiple sexoffenses, applies to “Rapein violation of paragraph(2), (3), (6) or (7) of subdivision (a) of section 261.” (§667.6, subd. (e).) Penal Code section 667.61 provides fora life termfor anyone who,underthe additional circumstances specified, commits rape “in violation ofparagraph (2) or (6) ofsubdivision (a) of Section 261.” (§ 667.61, subd.(c).) constitutes different offenses subject to multiple convictions under section . 954. Evenifrape of an intoxicated and unconscious person are not different offenses, this case would present the opportunity to decide whether section 954 would authorize a conviction on both asdifferent statementsofthe same offense. The majority declined to address this issue but Justice Benke agreed with the People that, alternatively, multiple | convictions would be authorized undersection 954 as differentstatements _ ofthe same offense. In that regard, providing even further support forlike treatment under section 954is the fact that Legislature codified an exception to section 954in section 496 because it shows that when the Legislature intends an exception to dual convictions to apply it doesit expressly and not by implication. In section 496, concerning receiving . stolen property, the Legislature expressly prohibits dual convictions for theft and receiving stolen property. Consistently, juries in theft and. receiving cases are instructed that they can only return a verdict for one or the other crime (CALCRIM No. 3516); no suchinstruction exists in cases ofrape. Rather, juries are directed to consider each and every charge separately, by proof beyond a reasonable doubt, and return verdicts accordingly. . | Finally, the majority’s remedy, to vacate oneofthe rapeconvictions, as opposedto stay it under section 654, is devoidof anystatutory authority, and even Craig did not call for vacating an otherwise valid conviction. | | Jury verdicts,in general, should notbe lightly disregarded, (See People v. Palmer (2001) 24 Cal.4th 856, 863; Peoplev. Eid (2014) 59 Cal.4th 650, 657 [multiple convictions allow a jury “to tailor its verdictto reflectits / determination ofthe full extent of defendants’ criminal acts”].) The public’s confidencein the jury system depends, in part, on the sanctity of the verdict and its staying power. Further, there is no statutory mechanism or court rule guiding the court’s discretion over whichrape conviction | should be vacated or what to do if the remaining conviction is reversed on appeal or habeas. There does not appear to be any authority for reinstatement of the conviction and such a remedyraises concernsof double jeopardy. Vacating also jeopardizes application of future penalty provisions that may be enactedby the Legislature. Aspointed out by Justice Benke, the majority opinion will lead to - confusion and mischief as appellatecourts vacate or, as is being donein other cases, consolidate, convictions based on the sameact by comparing whetherthe Penal Code provision under which they have been prosecuted _ more closely resemble the form ofthe oral copulation statute or the rape - statutes. (Dissent at p. 9 & fn. 4.)' | This court has alreadygranted review in People v. Vidana (rev. granted April 1, 2015; case no. $224546), which raises the related question whether larceny and embezzlement are separate and distinct offenses under - Gonzalez. Although these cases involve different statutes, this court’s analysis ofsection 954 in, Vidana may well impact the outcomeofthe "present case. Accordingly,in the eventthis court declines to grant plenary — 4 In People v. Soria, .C070238, the Court ofAppealin the Third Appellate District recently granted rehearing to reconsiderits initial decision, pursuant to Craig, to consolidate the defendant’s convictions for rape of an intoxicated and unconscious person based on the same act and _ ordered oral argumentto discuss the significance ofthe decision in this © case. The day before White was decided the Third Appellate District issued . an unpublished decision in People v. Mesinas, C074781,likewise- a disregarding the elementstest and finding a defendant whoforci ly raped aa -14 year-old developmentally disable girl.and was properly charged and . __ found guilty ofrape of a developmentally disabled person (§ 26 1(a)(1))and forcible rape (§ 261(a)(2)) could only stand convicted of one rape offense. Twoofthe justicés in the unanimous Mesinas decision are also on the panel in Soria. Respondentwith alsofile a petition for review in Mesinas.’ 10 review, respondent respectfully requests this court grant and hold the present case for Vidana. lil CONCLUSION | Thepetition for review should be granted. Dated: July 23, 2015 ANC/ih $D2012702958 711091 12.doe Respectfully submitted, KAMALAD. HARRIS Attorney General of California GERALD A. ENGLER ChiefAssistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General STEVE OETTING Deputy Solicitor General LISE JACOBSON _ Deputy Attorney General iSawa OXNATASHA CORTINA Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent 12° CERTIFICATE OF COMPLIANCE I certify that the attached Petition for Reviewuses a 13 point Times _ New Roman font and contains 2,906 words. Dated: July 23,2015 — KAMALA D. HARRIS . Attorney General of California LISE JACOBSON | Deputy Attorney General Attorneysfor Plaintiffand Respondent — ATTACHMENT Filed 6/18/15 Ss CERTIFIED FOR PUBLICATION ~ OPINION ON REMAND COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, | D060969 Plaintiff and Respondent, | ve | (Super. Ct. No. $CD228290) BILLY CHARLES WHITE, Defendant and Appellant. APPEALfrom a judgmentofthe Superior Court of San Diego County, Frank A. Brown, Judge. Affirmed as modified. Theresa Osterman Stevenson, under appointment by the Court ofAppeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, and A. Natasha Cortina, Deputy Attorney -General, for Plaintiffand Respondent. Ajury found Billy Charles White guilty ofrape of an intoxicated person (Pen. . Code,! § 261, subd. (a)(3); count 1) and ofrape of an unconscious person (§ 261, subd. (aaa): count 2). Thetrial court sentenced White to three years in state prison and ordered him to register as a sex offender. | White contendsthe evidenceis insufficient to prove under section 261 that when - he engaged in sexual intercourse withthe victim, he knew the victim was unable to resist because ofintoxication (count 1) or because the victim was unconsciousofthe nature of the act of intercourse (count 2). White also contendsthetrial court prejudicially erred by refusing both to instruct the jury on mistake of fact and to grant his new trial motion based on juror misconduct. Finally, White contends thetrial court abusedits discretion when it denied him probation. In addition to these contentions, on our own motion we requested supplemental briefing from the parties whether White's convictions on counts 1 and 2 should be consolidated under People v. Craig (1941) 17 Cal.2d 453 (Craig) and its progeny into a single conviction given there wasa single act of sexual intercourse. | Inan unpublished opinion filed April 10, 2013, we rejected White's contentions on appeal. After considering the supplemental briefing of the patties, we concluded that White was not properly convicted both on counts 1 and 2 and further, that the judgment ‘must be modified to reflect only one conviction for violation of section 261. I ~All statutory referencesare to the Penal Code. | 2 Ourhigh court granted the People's petition for review, but deferred further action on the matter pending consideration and disposition ofa related issue in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez). After the court issued its opinion in that matter, it transferred the matter to this court with directions to reconsiderthe case in light of Gonzalez. We have complied with the Supreme Court's direction andaffirm the judgmentas modified. Specifically, we concludethat Gonzalez does not hold that White can be convicted of both rape of an intoxicated person and rape of an unconscious person based-on single act of intercourse under section 261. As such, westrike the second count for rape. We otherwise affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND OnFebruary 14, 2010, Whiteasked the victim to go outfor Valentine's Day. White knew the victim from a local bar White frequented, where the victim workedas a bartender. White and-the victim in the past had participated in some groupactivities, including taking a trip to Las Vegas with otheremployees and patronsofthe bar. Although the victim refusedto go out alone with White on Valentine's Day, she agreed to go out in a group that included White. _ Thatnight, the victim met White at the local bar where the victim worked. Before she met.up with White, the victim had dinner with a friend. During dinner thevictim consumed one beer. At about 9-00 p.m., the victim drove to downtown San Diego with White and John Jacoby (John), another regular from the bar wherethe victim worked. Thevictim | dropped offWhite at a hotel where White plannedto stay. However, the victim had not . 3 intended to stay the night at the hotel. After the victim parked hercar in the hotelparking . lot, they headed downtownto someclubs but foundthe lines to enter too long and the covercharge for admission too expensive. The victim next contacted a friend who workedat a "gentlemen's club"(club). The three ofthemwenttothe club at about 10:30 p.m., sat in the "V.I.P." section and purchaseda bottle ofvodka to share. While at the club, the group was joined by John's brother, Joey Jacoby (Joey), Joey's girlfriend, Jamey Booth (Jamey), and the victim's former boyfriend. White and John each received a private or "lap" danceat the - club. | With the exception of the victim's former boyfriend, the group stayed at the club until it closed at about 9-00 a.m. The victimtestified she consumedatleast four vodka drinks while at the club. The victim also testified she did not rememberleaving the club; instead, her last memory that night was being told by club employeesthat the club was - closing. Her next memory was wakingup at 5:30 a.m. in the hotel room after "somebody roll[ed] off of [her]." | | Thevictim testifiedthat on the night ofthe attack,she dreamt she wasbeing touched and kissed. The victim also testified.that when she awakened she lookedat the ‘clock and realized then she was in a hotel room and that somebody actually had been touching her, including her vagina and breasts. At that moment, the victim knew | somebody had intercourse with her while she had been in a "dream state.” The victim testified she remember saying "no" to intercourse, but could not remember whether she- _ was actually saying "no" out loud to her attacker or was saying it "inside [her] head." 1 The victim testified she saw John sleeping on a bedto herleft. The victimstill had on her dress and sweater but her dress was "scrunched up" like a shirt, her underwear was missing and her bottom halfwas exposed. The victim saw White in bed nextto her, wearing an undershirt with his pants down. White appeared to be sleeping. Thevictim got up from the bed, found her underwear andfrantically went over to John. The victim shook John to wake him. The victim next grabbed a few ofher belongings and ran outofthe roominto the hallway, where she sat crying. ‘John cameto the victim's assistance. The victim told John she had beenraped. Because ofthe noise, hotel security approached the victim and John in the hallway and told them either to leave the hotel-or go back inside their room. The victim did nottell security she had been raped because she was embarrassed. John drove the victim home. Thevictim testified that once homeshefelt "completely lost" emotionally. She could not remember going to the hotel the nightbefore or how she ended upsleeping in the hotel room. The dayafter the attack, the victim told her roommate what had happened, whocalled police. The victim was taken to a clinic for an evidentiary examination. .. The examination revealed abrasions onthe peri-hymenalareaofthe victim, both left and right, and lacerations on the victim's posterior fourchette and the fossa navcularis. Thefindings were consistent with the victim being asleep or unconscious and not physically aroused at the time of sexual penetration. _ The victim's roommatetestified she could hear the victim crying inside her room mostoftheday following the attack, and the victim appeared scared and shaken up. The . ; _ victim's roommatealso testified that more than a day after the attack, the victim wasstill crying and was wearing the same clothes she had worn onthe night of the assault. | Jameytestified on the night of the attack the victim appeared intoxicated as she was having trouble walking. The victim's former boyfriend testified before he left the club that night he offered to take the victim home becausein his opinion she was "totally wasted." | Asthe club closed, White and the victim left in a cab and returned to the hotel. Joey and Jamey wereoutside the club talking when they saw White and the victim leave. Joey and Jamey weresurprised the victim and Whiteleft in a cab because they believed Jamey was going to drive them all back to the hotel. Joey and Jamey waited outside the, club for John and they too went back to the hotel. Security camera footage from the hotel showed White helping the victim out of the cab and holding her up as they walked in andaroundthe hotelafter returning from the club. In addition, the footage showsthe victim at one point veering off and stumbling away from White after she dropped herpurse onthe floor. Onceat the hotel, Joey, John, and Jamey by happenstance met up with White and the victim. Joey observed the victim "stumbling around" and saw her walk into the men's restroom. John similarly testified the victim needed assistance walking. John had been - - with the victim in the past when they had drunk alcohol andhetestified he had never . ‘seen her as intoxicated as she was that night. ' The entire |group next went to White's hotel room. Jamey helped the victim into _ the room andputthe victim on oneofthe two beds. White and John left to find more 6 alcoholic beverages. Joey, Jamey, and the victim remainedin the room. Joey testified that one minutethe victim appeared "kind offine" and the next minute she was "kind of like passing out." As they talked, Joey saw the victim lying on the floor ofthehotel room, in between the two beds, "kind ofoutofit." Joey and Jamey helped the victim | back on the bed, and although the victim tried to sleep, Joey testified the victim kept using the bathroom ostensibly to vomit. _At aboutthat time, John and White returned without any alcohol. They then decided to get something to eat. Because the victim was intoxicated, the group decided she should stay behind and "sleepit off." Joey then drove toa restaurant where he and Jamey dropped off John and White. Joey and Jamey then drove home to Joey's house. Johntestified that he and White went back to the clubafter they finished eating in _ an attemptto retrieve White's cell phone, which White had left at the club. John and White returnedto the hotel at about 3:40 a.m. Thevictim was sleeping on one ofthe two beds. While John wasusing the bathroom, White climbed on the bed where the vietim wassleeping. Johnturned out the light and wentto sleep in the other bed. John testified he was awakened by the victim. She appeared "very scared and wascrying. Outside the room in the hallway,the victimtold John that White had sexually assaulted her. John went back in the room to obtain the victim's purse and her other belongings. John saw White underthe covers in the bed where the victim had been sleeping. John told White that the victim said White had sexually assaulted her. In response, White told John that thevictim "hadbeen begging [White]forit." Photos from the hotel security camera showedthe victim and John leaving the — hotel. John testified that at times he had to carry the victim as they walked to her car because she was distraught. DISCUSSION A. Sufficiency ofthe Evidence in Counts 1 and 2 White does not contest that he engagedin sexual intercourse with the victim. He also does not contest the victim had been "partying and drinking" on the night ofthe alleged assault and was "drunk" when the group reached the hotelat about 2:30 a.m. - However, White contendsthere is insufficient evidence heknew or should have known that the victim was prevented from or unable to resist theact of intercourse due to either intoxicating substances (§ 261, subd. (a)(3)) or unconsciousness (id., subd. - (a)(4)(A)) because there allegedly is no evidence of the victim's condition at about 5:30 a.m. that morning when sexualintercourse occurred, including evidence ofwhether she was awakeor sufficiently consciousat the time such that White would know or reasonably know she was unabletoresist. 1. Applicable Law "In assessing the sufficiency of the evidence,we review the entire record in the light most favorable to the judgment to determine whetherit discloses evidencethatis reasonable, credible,. and of solid value such that a reasonable trier of fact couldfind the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflictsin the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. 8 (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this groundis unwarranted unless " ‘upon no hypothesis whateveris there sufficient substantial evidence to support [the conviction].'" (Bolin, supra, at p. 33 1; see also Peoplev. Mendez (2010) 188 Cal.App.4th 47, 56.) This standard ofreview is the same in cases involving circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) _ ‘The jury here was properly instructed regarding the knowledge element to support a conviction under counts 1 and 2. Specifically, with regard to count 1, rape of an intoxicated person, the People were required to prove that, among other elements, the. defendant"knewor reasonably should have knownthatthe effect of an intoxicating substance prevented the woman from resisting." (CALCRIM No. 1002, as modified.) The jury wasalso instructed that a "person is prevented from resisting if he or she is so incapacitated thathe or she cannotgive legal consent. In order to give legal consent, a person mustbe able to exercise reasonable judgment. In other words,the person mustbe able to understand and weighthe physical nature oftheact, its moral character and probable consequences. Legal consentis consentthat's given freely and voluntarily by | someone who knows the nature of the act involved." (CALCRIM No.1002.) | Finally, the jury was instructed regarding a defendant's actual and reasonable belief that a woman wascapable of consentingto sexual intercourse, as a defenseto the crime of rape: "The defendant isnot guilty ofthis crime ifhe actually and reasonably believed that the woman was capable of consenting to sexual intercourse, even if that belief was wrong. The Peoplehave the burden ofproving beyond a reasonable doubtthat _ the defendantdid not actually and reasonably believe that the woman was capable of 9 consenting. Ifthe People have not met this burden, then you must find the defendant not guilty." (CALCRIM No.1002.) | 2. Analysis Substantial evidencein the record supports the jury's finding that White knew or reasonably should have knownthat the victim was incapable ofresisting due to intoxication. ‘Indeed, the record showsthat the victim consumedat least four alcoholic beverages between 10:30 p.m. and 2:00 a.m.; that the victim's last memory on the night ofthe attack was club employeestelling her it was time to leave; that multiple witnesses testified the victim was having trouble walking on her own; that the victim's former boyfriend testified the victim was "totally wasted"at the club;that security camera footage from the hotel confirmed thevictim was having troublewalking and was walking with the assistance of White; that the victim inexplicably dropped her purse while stumbling around inside the hotel; that once inside the hotel room, the victim "pass[ed] out"; that at somelater point inside the hotel room,the victim fell off the bed and slept on the floor betweenthe two beds; that the victim needed assistance getting back onto one of | the beds; that the group, including White, agreed the victim should stay in the hotel room to “sleep it off" while the rest of the group left forthe restaurant; that the victim did not awaken until about 5:30 a.m.; that when the victim awakened, she did not recall how she got to the hotel or to the room; and that the victim then realizedthat she was not wearing any underwear, although shestill had her dress on, that somebody had been touching and kissing her while she was in a "dream state" and that somebody had penetratedher | vagina. 10 We conclude this evidence -- and the inferences that can be drawnfromit (see People v. Wader (1993) 5 Cal.4th 610, 640) -- amply supports the finding ofthe jury that | White knew or should have knownthe victim was incapableofresisting intercourse due to alcohol intoxication. But there is more. The record also shows that when the victim awakened at about 5:30 a.m., White | pretendedto beasleepas he lay next to the victim with his pants down. This evidence, along with the evidence from the clinical examination that showed abrasions on the victim's peri-hymenal area and lacerations on her posteriorfourchette and fossa navcularis that were consistent with penetration without sexual arousal; further supports the jury's finding that the victim did not consent to, and was incapable of resisting, sexual intercourse with White. ~ .That much of this same evidence couldalso support one or more different findings, including that thevictim allegedly consented to sexual intercourse with White while she was ina "dream state," as White contended, does not as a matter of law change our conclusion in tis case. White madethis contention, and aggressively arguedit, at trial. As the fact finder, the jury was entitled to accept White's version of events; however by the samelogic, the jury also wasentitled to reject it, as clearly turned outto be the case here. (See Peoplev. Smith (2005) 37 Cal.4th 733, 739 [a court ofreview is boundto acceptthe factual and credibility determinationsofthetrier offact]; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [” ‘Although we mustensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of 1 the . . . jury to determinethe credibility of a witness andthetruth orfalsity of the facts on which that determination depends.’ "].) . As a court ofreview,we are notat liberty to make findings different from those made bythejury if, as in the instant case, those findings are supported by substantial evidence. (See People v. Ochoa, supra, 6 Cal.4th at p. 1206 [if the verdict or a findingis supported by substantial evidence, we must accord due deference to the trier of fact].) Moreover, White does not contend any ofthe witnesses’ testimony was physically impossibleor inherently improbable. (See People y. Ennis (2010) 190 Cal.App.4th 721, 725 [a court ofreview must acceptthe testimony believed by the jury unless it was physically impossible or inherently improbable, meaning "that the challenged evidence is ‘unbelievable per se' Lees [Citation.]"].) For similar reasons, we also reject White's contention that there is a lack of evidence to support the finding that White knew or should have known that the victim was unableto resist sexual intercourse with him because she was unconscious. We conclude there is substantial evidence in the record, as summarizedante, also supporting this finding. B. Consideration ofConvictions on Counts I and 2 As notedante, White was convicted in count 1 ofrape of an intoxicated person (8 261, subd. (a)(3)) and in count 2 ofrape of an unconsciousperson (§ 261, subd. (a)(4)(A)). There is no dispute that both convictions under section 261 are based on a single actof intercourse. 12 Previously, we determined that under Craig, supra, 17 Cal.2d 453, White could not be convicted ofboth rape of an intoxicated person and rape of an unconscious person as two separate counts based on a single act of intercourse. Put differently, we concluded that Craig standsfor the proposition that section 261, subdivision (a) sets forth one crime. On remandfrom our high court, we must determine if Gonzalez, supra, 60 Cal.4th 533 changes our analysis ofthis issue. In Gonzalez, the California Supreme Court held a defendant could beconvicted of both oral copulationof an unconsciousperson and oral copulation of an intoxicated person (§ 288a, subds.(f), (i)) based on a single act. The court reaffirmed Craig, supra, 17 Cal.2d 453, and distinguished section 288a from section 261. (Gonzalez, supra, 60 Cal.4th at pp. 538.540.) The court noted that in Craig it had "concluded, based on the wording and structure ofthe statute, that former section 261 set forth only one offense that could be committed under several different circumstances, as described in its several subdivisions.” (Gonzalez, supra, at p. 539.) "Section 288a is textually and structurally ‘ different fromformersection 261. Subdivision (a) of section 288a defines what conduct — constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define various ways the act maybe criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a specific punishment. Notall ofthese punishmentsare the same. That each subdivisionof section 288a was drafted to be self-contained supports the view that each describes an independent offense ...." (Gonzalez, supra, at p. 539.) Wealso observe that, in Gonzalez, supra, 60 Cal.4th 533, the Supreme Court os declined to address the People's argument that Craig, supra, 17 Cal.2d 453 was wrongly | | 13 decided. Instead, it distinguished Craig. (Gonzalez, supra, at p. 539.) In other words, weread nothing in Gonzalez that leads us to question the continuing validity of Craig as it applies to the interpretation of section 261. | Because we read Gonzalez as reaffirming Craig, supra, 17 Cal.2d 453,at least in the context ofthe interpretation of the former section 261, we must determineifthe version of section 261 under which White was charged is more similar to the former section 261 interpreted by the court in Craig or the version ofsection 288a2 that the court interpreted in Gonzalez, supra, 60 Cal.4th 533. 2 Formersection 288ain effect and applicable in Gonzalez, supra, 60 Cal.4th 533, _ provided in pertinent part: "(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. [{] (b)(1) Except as provided in Section 288, any person whoparticipates in an act.of oral copulation with another person whois under 18 yearsof ageshall be punished by imprisonmentin the state prison,or in a county jail for a period ofnot more than one year. [{] (2) Except as provided in Section 288, any person over 21 years of age who participates in an act of oral copulation with another person who is under 16 years ofageis guilty ofa felony. [§] (c)(1) Any person whoparticipates in an act of oral copulation with another person whois under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonmentin the state prison for three, six, or eight years. [{] (2) Any person who commits an act of oral copulation when the act is accomplished againstthe victim's will by meansofforce, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonmentin the state prison for three, six, or eight years. [{] (3) Any person who commits an actoforal copulation where the actis accomplished against the victim's will by threateningto retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetratorwill execute the threat, shall be punished by imprisonment in the state prison for three, six, or eightyears. [§] (d) Any person who,while voluntarily acting in concert with another person,either personally or by aiding and abetting that other person, commits an act of oral copulation (1) when the act is accomplished against the victim's will by means of force or fear ofimmediate and unlawful bodily injury on the victim or another person,or (2) wherethe act is accomplishedagainst the victim's will by threateningto retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (3) where the victim is at the time incapable, 14 Section 261 in effect at the time White was charged provided in pertinent part: "(a) Rapeis an act of sexual intercourse accomplished with a person notthe spouse ofthe perpetrator, underany ofthefollowing circumstances: iq] ..- [9] (3) Where a personis because of a mental disorder or developmentalor physical disability, of giving legal consent, and this is known or reasonably should be knownto the person committing the act, shall be punished by imprisonmentin the state prison for five, seven, or nine years.... [{] (e) Any person whoparticipates in an act of oral copulation while confined in any state prison, as defined in Section 4504 or in any local detention facility as defined in Section 6031.4, shall be punished by imprisonmentinthe state prison, or in a county jail for a period ofnot more than one year.[{] (f) Any person who commits an act of oral copulation, andthe victim is at the time unconsciousofthe nature ofthe act andthisis known to the person committing the act, shall be punished by imprisonmentinthestate prison for a periodofthree, six, or eight years.... [9]... [f] (g) Except as provided in subdivision (h), any person who commits an actoforal copulation, and the victim is at the time incapable, because of a mental disorder or developmentalor physical disability, of giving legal consent, and this is known or reasonably should be knownto the person -committing the act, shall be punished by imprisonmentin the state prison,for three,six, or eight years. . . . [{] (h) Any person who commits an act of oral copulation, and the victim is at the time incapable, because ofa mental disorder or developmentalor physical disability, of giving legal consent,arid this is knownor reasonably should be knownto’ the person committing the act, and both the defendant and the victim are at the time confinedin a state hospital for the care and treatmentofthe mentally disordered or in any other public or private facility for the care and treatment ofthe mentally disordered approved by a county mental health director, shall be punished by imprisonmentin the state prison, or in a county jail for a period ofnot more than oneyear... . [{]] (i) Any person who commits an act oforal copulation, where the victimis prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been knownby the accused,shall be punished by imprisonmentin the state prison for a period ofthree, six, or eight years. {q] (j) Any person who commits an act oforal copulation, where the victim submits under the belief that the person committing the act is the victim's spouse, andthis belief is induced byanyartifice, pretense, or concealmentpracticed by the accused, with intent to inducethebelief, shall be punished by imprisonmentin the state prison for a period of three, six, or eight years. [] (k) Any person who commits an act of oral copulation,: where the act is accomplished againstthe victim's will by threatening to use the authority of a public official to incarcerate, arrest, ordeport the victim or another, and the victim has a reasonablebeliefthat the perpetrator is a public official, shall be punished by imprisonmentin the state prisonfor a period ofthree, six, or eight years." 15 prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused. [{] (4) Wherea personis at the time unconsciousofthenature of the act, and this is knownto the accused... ." (§ 261 [effective Jan. 1, 2003 to Sept. 8, 2013].)3 In reviewing the applicable section 261, it is clear it shares morein common with the formersection 261 than section 288a interpreted in Gonzalez, supra, 60 Cal.4th 533. Section 261 remains textually and structurally different from section 288a. Like the former section 261, the applicable section 261 sets forth only one offense that can be. committed underseveral different circumstances, as described in its several subdivisions. Stated differently, the primary elements ofrape, underthe applicable section 261, remain the sameas the formersection 261: (1) anact of sexual intercourse(2) with a person not “the spouse of the perpetrator (3) without the consent of the victim. The various subdivisionsofthe applicable section 261 (subd. (a)(1)-(7)) merely describe the ways in ~ which lack of consent can be shown. Unlike the subdivisionsof section 288a, these subdivisions undersection 261, subdivision (a) do notcontainall the elementsofa crime. (See Gonzalez, supra, at p. 539.) They are not self-contained. (/bid.) To the contrary, 3 For clarity, we refer to the section 261 that the Supreme Court interpreted in Craig, supra,17 Cal.2d 453 as “former section 261." Werefer to the version of section 261 under which White was charged as the "applicable section 261." We note that the . current version of section 261 has been effective since September 9, 2013. The current section 261 isnot structurally different than the applicable section. Textually, the only changeofnote from the applicable statute to the current statute was to subdivision (5) of section 261, rape byartifice, pretense, or concealment, where the crime was expanded from the victim submitting under the belief that the person committing the act was the victim'sspouse to the beliefthat the person was "someone knownto the victim other than the accused. " . 16 subdivisions 1 through 7 of the applicable section 261 only make sense within the context _ of subdivision (a). Read by themselves, subdivisions1 through 7 describe a lack of consent. For example, the two subdivisionsat issue here describe lack of consent as follows: "(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known,or reasonably should have been knownbythe accused, [4] (4) Where a personis at the time | unconscious ofthenature of the act, and this is known to the accused...." (§ 261 [effective Jan. 1, 2003 to Sept.8, 2013]) These subdivisions do not mention rape or intercourse. Instead, subdivision (3) refers to beingunable to resist someact, but does describe that act. A reader will only understand subdivision (3) after reading subdivision (a). It does notset forth all the elements ofthe crime. Likewise, subdivision (4) refers generally to the "act," This "act," however, is defined in subdivision (a). Again, the two subdivisions at issue do not contain all the elements ofthe crime. In fact, they do not mention intercourse or rape whatsoever. This is markedly different than the subdivisions ‘ofsection 288a as interpreted by our Supreme Court in Gonzalez, supra, 60 Cal.4th at p- 539.) ~ | In addition, the punishmentforrape is set forth in a separate section of the Penal Code, which specifies that ail forms ofrape have the same punishment except for rape involving a minor. (See § 264, subds.(a), (c)(1) & (2).) In contrast, section 288a sets out | a specific punishment under each subdivision that describes a certain type oforal copulation. (See Gonzalez, supra, 60 Cal.4th at p. 539.) 17 Simply put, section 261as it applied to White is closer to the text of former section 261 that our high court interpreted in Craig, supra, 17 Cal.2d 453 than theversion of section 288a the court interpreted in Gonzalez, supra, 60 Cal.4th 533. The People, however, argue here the applicable version of section 261 was significantly changed to - bring that statute under the holding of Gonzalez. We disagree. Thestatute interpreted by the Supreme Court in Craig defined rape as "an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances... ." (Craig, supra, 17 Cal.2d at p. 455.) That | statute continued tolist six different ways rape could be committed. (bid.) The version ofthe statute at issue here defines rape as "anact of sexual intercourse accomplished with aperson not the spouse ofthe perpetrator, underany ofthe following circumstances’... ." (§ 261 [effective Jan. 1, 2003 to Sept. 8, 2013].) The People place great emphasis on the deletion ofthe word "either" and addition of the word "any." They claim that "any," as usedin the statute, connotes"one or some, regardless of . . . quantity" or an "indeterminate number." They also note that the word "either" is defined as "the | one or the other." Thus, the People maintain that the word "either" limited the statute and . madeclear that the subdivisions ofsection 261 merely described the various ways rape could be committed. But by replacing "either" with “any,” the statute described multiple, separate crimes. In other words, the addition of theterm “any" showsthat the Legislature had changed section 261 to provide a different crime for each subdivision that was violated. Weare not persuaded. 18 Weview the change of the word "either" tothe term "any" to be nothing more than correction of a poor grammatical choice in drafting the older versionofthestatute. Weagree that the word "either" indicates that there will be a choice between two options. However,the former section 261 that contained the word "either" provided six different options. As such, the word "either" wasnot grammatically correct in that context asthe statute did not present two options, but six. Therefore, the replacement ofthe word "either" with the word "any" simply renders the statute grammatically correct. We are not persuaded by the People's leap oflogic that the word "any" somehow transforms the statute. Even by replacing the word "either" with "any," the subdivisionsofthe applicable version of section 261 do notset forth all the elements of the crimeofrape, unlike the subdivisions of section 288a as interpreted in Gonzalez, supra, 60 Cal.4th at | page 539. Moreover, there is nothing in the court's reasoning in Craig, supra, 17 Cal.2d 453 that supports the People's position. In Craig, supra, 17.Cal.2d at page 455, the defendant was convicted of both rape by force and violence and statutory rape, and was sentenced to concurrent terms on both | convictions. Theissue before our high court was "the propriety ofentering separate judgments and sentences for both forcible andstatutory rape, charged underseparate counts, when but a single act of sexual intercourse has been committed." (ibid.) The court in Craig observed: "There has been aviolation of but one statute -- section 261 of the Penal Code. And, while the proof necessarily varies with respect to the several subdivisionsofthat section under which the charge may be brought, the sole punishable | 19 offense under any andall ofthem is the unlawful intercourse with the victim." (Craig, supra, at p. 458.) | Onthis basis, the courtin Craig conchided, "[O]nly one punishable offense of rape results from single act of intercourse, though it may be chargeable in separate counts when accomplished underthe varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Craig, supra, 17 Cal.2d at p. 458.) The court modified the judgmentto state that the defendant had been "found guilty ofthe crime of Rape, a felony, as defined and proscribed in subdivisions 1 and 3 of section261 ofthe Penal Code, and as charged in counts 1 and 2 ofthe amended information, being separate statements of the same offense... ." (Craig, supra, at p. 459.) It appears the court in Craig treated the issue before it as one involving included offenses, as noted by the following language: "The authorities have set down certain rules or tests whereby it may generally be determined whether one or more offenses result from a single act or transaction. Frequently, the test is stated to be the identity of the offenses as distinguished from theidentity of the transactions from which they arise. A defendant may be convicted oftwo separate offenses arising out ofthe same transaction wheneach offenseis stated in a separate count and whenthe two offenses differ in their necessary elements and oneis not included within the other.'" (Craig, - supra, 17 Cal.2d at p. 457.) | | The rule permitting multiple convictions for a single act is based on section 954, _whichstates that " '[a]n accusatory pleading may charge .. . different statements of the same offense! " and "'the defendant may be convicted of any numberofthe offenses 20 charged.'" (See People v. | Ortega (1998) 19 Cal.4th 686, 692.) The rule has been applied repeatedly by our Supreme Court in a variety of contexts in which defendants haveasserted that their convictions fall within the exception for lesser includedoffenses. (See e.g., People v. Reed (2006) 38 Cal.4th 1224, 1227 [single act of possessing firearm supports multiple firearm convictions]; Ortega, supra, at p. 693 [single act supports grand theft and carjacking convictions]; People v. Pearson (1986) 42 Cal.3d 351, 354- 355 [single act supports rape and lewd conduct convictions].) In those cases the court upheld multiple convictions because each crime had a distinct elementnot required of the other and neither crime wasthe lesser included offense ofthe other. The People arguethat, in Gonzalez, supra, 60 Cal.4th 533, the Supreme Court limited Craig to its facts. The Supreme Court did discuss the holding of Craig: "Craig did nothold that a single Penal Codesection could never comprise multiple offenses; it simply concluded, based on the wording and structure ofthestatute, that former section 261 set forth only one offense that could be committed under several different circumstances, as describedin its several subdivisions. This conclusion flowed naturally | from the wording andstructure of former section 261. Indeed, the court in Craig acknowledged that ' "[a] defendant may be convicted oftwo separate offenses arising out ofthe same transaction when each offense is stated in a separate count andwhen the two offenses differ in their necessary elements and one is not included within the other."' (Craig, supra, 17 Cal.2dat p. 457,)" (Gonzalez, supra, 60 Cal.4th at p. 539.) Even considering the Supreme Court's discussion ofthe scope ofthe holding in Craig,it remainsa caseofstatutory construction ofthe former rape statute. Further, our high 21 court has reiterated in various contextsthat "{t]he subdivisions of section 261 do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime ofrape." (People v. Collins (1960) 54 Cal.2d 57, 59; see People v. Maury (2003) 30 Cal.4th 342, 427 ["[R]ape by meansofviolence is not a | different offense from rape by meansofforce or fear; these terms merely describe different circumstances under which an act ofintercourse may constitute the crime of - rape."]; italics omitted.) Further, at least one other recent casehas followed Craig, supra, 17 Cal.2d 453. In a situation identical to the case at bar, the Court ofAppeal reached the same. conclusion. In People v. Smith (2010) 191 Cal.App.4th 199, the defendant was convicted. oftwo counts ofrape -- rape of an intoxicated woman,and rape of an unconscious woman. The evidence demonstrated only one act of sexual intercourse. (Jd. at p. 205.) Following Craig, the courtin Smith concluded that the defendant could stand convicted of only a single count ofrape based on the single act of intercourse. (Smith, supra, at p. 205.) During oral argument, the People madetherather remarkable argument that we should further limit or otherwise distinguish Craig, supra, 17 Cal.2d 453. They contend the Supreme Court wastelling us to do so in Gonzalez, supra, 60Cal.4th 533. Nevertheless, the People were unable to point to any portion ofthe opinion inGonzalez — to support their position. Unlike the People, we do not read Gonzalez as a plea from the Supreme Court to ignore Craig, especially when our high court explicitly declined to overrule Craig as urged by the People in Gonzalez. (See Gonzalez, supra, at p. 538.) 22 Further, we observe the Supreme Court again refrained from overruling Craig whenit granted review ofthis matter. Instead of addressing Craig, theSupreme Court remanded this matter to us to reconsiderin light of Gonzalez. Thus, our high court has recently declined to overrule Craig on two occasions. We doubt very much that the Supreme Court needsourhelp to determine if Craig should be overruled. It very well may be that the Supreme Court will determine. that Craig is no longer good law and should be overruled. Until it does so, however, wemust follow Craig. (See Auto Equity Sales, Ine. v. Superior Court (1962) 57 Cal.2d 450, 455.) Wealsoare not persuaded by the People's argument that section 954 authorizes multiple convictions, subject to section 654's limitations on multiple punishments. As we have noted, section954 allows pleading ofmultiple offenses, including separate statements ofthe same offense. We think the People's analysis is flawedatits starting point. The People approachthis issue from the premise that section 261, subdivisions (a)(3) and (a)(4) are separate offenses. That major premise in wrong. As the court noted in Craig, supra, 17 Cal.2d 453, section 261 creates a single orime of rape. Although the section has been amended a numberoftimes since Craig, | the statute still defines a single crime. Section 261, subdivision (a)(3) involving an intoxicated victim and subdivision (a)(4) involving an unconscious victim are simply _ separate ways in which the crime ofrape can be committed undersection 261. Section 261, subdivisions (a)(3) and (a)(4) donot define separatecrimes and do notcontain separate punishments. Rather, section 264 provides the punishmentfor rape under 23 section 261, without reference to the various subdivisions, which establish the circumstances in which sexual intercourse can be proved to be rape.4 The People's reliance on case law that allows conviction ofmultiple offenses from a single act, subject to section 654 limitations is misplaced. Those cases address different offenses, with different elements. The analysis of multiple offenses arising from the - same act is not relevant to a case such as this where the statute at issue only defines one crime, regardless ofthe manner of its commission. In the case of truly separate offenses arising from a single act, multiple convictions are permitted, even if multiple © punishments are not. In the present case, as we have discussed, only one crime exists, based upon a single act, and that is rape as defined in the applicable section 261. The prosecution properly pled two counts of rape as separate statementsofthesame offense, but because the counts are in fact separate statements of only one offense, Craig, supra, 17 Cal.2d_ 453 holds there may only be one conviction for the single act. (Smith, supra, 191 Cal.App.4th at p. 205.)9- 4 Section 264 does provide for increased punishmentfor forcible rape (§ 261, subd. (a)(2)) where the victim is a minor, a matter not relevant to this case. 5 Similarly, in People v. Ryan (2006) 138 Cal.App.4th 360, 368,the courtheld the defendant could only be convicted of one count where the person had been charged with forgery by signing a false name and forgery by presenting a forged check. In Peoplev. Muhammed(2007) 157 Cal.App.4th 484, 492-494, the court found a singlestalking offense where the defendant had been charged with and convicted of four counts of stalking. On appeal the court vacated three of the four convictions. 24 In summary, this case is controlled by Craig, supra, 17 Cal.2d 453, which requires that westrike one of the rape counts, leaving a single conviction for the single act. (See Smith, supra, 191 Cal.App.4th at p. 205.) We thereforewill modify the judgment to strike the second rape count. | C Mistake ofFact White next contends thetrial court prejudicially erred whenit refused to instruct the jury on mistake of fact, CALCRIM No. 3406, in connection with count 2 for rape of an unconsciousperson.6 Specifically, he contends that because a key issue in this case washis mistaken belief regarding whether the victim consented to sexual intercourse, the trial court erred whenit refused to giveCALCRIM No. 3406. We-reject this contention for two reasons. First, the trial court had no duty to instruct on mistake of fact because that defense is notavailableto a chargeofrape of an unconscious person. (See People v. Dancy (2002) 102 Cal.App.4th 21, 34-35.) | Second, we note the jury found against White on the issue of whether he knewor reasonably should have knownthe victim was unableto resist sexual intercourse because 6 CALCRIM No. 3406 provides: "The defendantis not guilty of if (he/she) did not have the intent or mental state required to commit the crime because (he/she) [reasonably] did not know fact or [reasonably and] mistakenly believed a fact. [{] Ifthe defendant's conduct would have been lawful underthe facts as (he/she) [reasonably] believed them to be, (he/she) did not commit . [4] Ifyou find that the defendant believed that [andifyoufind that belief was reasonable], (he/she) did not have the specific intent or mental state required for . [§]| Ifyou have a reasonable doubt about whether the defendant ~ had the specific intent or mentalstate required for , you must find (him/her) not guilty of (that crime/those crimes)." 25 the victim was unconscious. This finding also wentto the issue of consent: if the jury | believed that White didnot actually know,or that a reasonable person wouldnot have known, the victim was unableto resist the act of sexual intercourse because, for example, the victim consented to sex, as White aggressively arguedat trial, then it would have © acquitted him ofrape. Thus,the issue of White's intent and the victim's consent was already before the jury and therefore, we conclude under any standard ofreview that any potentialerrorin failing to instruct the jury with CALCRIMNo. 3406 was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836; Chapman vy. California (1967) 386 US. 18, 24.) | D. Juror Misconduct White next contends the trial court erred whenit denied his new trial motion based on juror misconduct. | | 1. BriefAdditional Background After the prosecution's case-in-chief, but before the defense put on its case, Juror No. 12 wrote the following note to the court: | | " [The victim], perhaps the most experienceddrinkerin the group, yet she's incapacitated at hotel and the next day. [] Defendant went in cab with only [the victim], withoutcell phone, essentially ditched the group, and could have been alone with [the victim] in hotel room except for accidental meeting [with the rest of the group]. [J] What's the clearance time ofa date rape drug from the system? Was the drug test in April [on the victim] to pick up the presence of drug in urine sample?" 26 After advising counsel, the prosecutor suggested the court reread the stipulation of the parties regarding the victim's negative drug test and re-admonishthe jury that it should only consider the evidencepresented. Defense counsel also recommended the court admonish the jury that it was merely at the listening stage ofthetrial. Whenthetrial resumed,the court reread the stipulation about the negative drug test and both counselreiterated their agreement to that stipulation. The court then advised the jury as follows: "The other issues that were of concern in the juror note to me, which is court exhibit number5, those are matters to be addressed in deliberations, those concerns." After the verdict, the defense moved for a new trial based on the alleged misconduct ofJuror No. 10. Specifically, after the verdict Juror No. 5 notified the court and ultimately testified that Juror No. 10, following the verdicts but before oral. pronouncementofthe verdict, admitted to conducting research on the bar where the victim worked and readinga flattering commentpotentially involving the victim. | The court in response questioned Juror No. 5 outside the presence ofthe remaining jurors. Juror No. 5 noted that Juror No. 10 did not indicate one way or the other whether that research affected Juror No. 10's judgment regarding the case, nor could Juror No.5 recall Juror No. 10 referencing that research during jury deliberations. - The court next questioned Juror No. 10. Juror No. 10 admitted to sharing the research with the jury after the jury had reached a verdict, while waiting to deliverit, but told the court that research "had nothing to do with the deliberations at all. Nothing.” Juror No. 10 explained, "There wasn'tany reason for it. I just kind of looked up . . the 27 bar, and then was reading the reviews.” Juror No. 10 admitted that duringtrial she spent a few minutes looking up the bar wherethe victim worked, but said "that wasit." Consistent with what Juror No. 5 had told the court and counsel, Juror No. 10 told the court she read a review about a "very good looking brunette bartender" who workedat the bar, but the review did not mention the bartender by name. In responseto the court's question whether the research affected her deliberations, Juror No. 10 answered, "Absolutely not.” Juror No. 10 further explained that when she learns of a new restaurantshe looks them up "online," that her doing so was not uniqueto this case and after she apologized to the court and counsel, that her doingso in this case "[h]lonestly . . . was the most innocent thing." The defense subsequentlyfiled a motion for new trial based on Juror No.10's alleged misconduct.’ In so doing, the defense attached reviews of the bar where the victim worked, including one that referenced the victim as being a good bartender who knew her customers’ names. The defense argued Juror No. 10 was notcredible concerning her motivations for looking up online the bar where the victimworked and that the complimentofthe victim was inherently prejudicial. 7 The mistrial motion did not addressthe alleged misconduct by Juror No, 12in | connection with the jury question. Although White ostensibly forfeited this claim of alleged misconduct when hefailed to objectto it in the trial court (see People v. Russell (2010) 50 Cal.4th 1228, 1250 [noting that a claim ofmisconductis forfeited "when the — defendantfails to object to a juror's continued service and fails to seek a mistrial based » upon prejudice"]), we nonetheless consider this issue on the merits to forestall any claim by. White ofineffective assistance of counsel. 28 In opposing the new trial motion, the prosecution noted the research done by Juror No. 10 wasnot disclosed to other jurors and was, in any event, irrelevantto the issue of guilt or innocence, particularly because there was evidence that another person with the same first name as the victim also workedat the bar. Theprosecutor also noted the alleged misconduct did not compare to a juror viewing a crime scene. Thetrial court agreed with the prosecution and thus denied the defense's new trial motion. _ 2. Governing Law and Analysis Section 1181, subdivision 3, provides that the trial court may grant a newtrial when "the jury has. . . ‘been guilty of any misconduct by which a fair and due consideration ofthe case has been prevented [citation].’ [{{] We first determine whether there was any juror misconduct. Only ifwe answer that question affirmatively do we consider whether the misconduct wasprejudicial." (People v. Collins (2010) 49 Cal.4th © 175, 242.) Juror misconductraises a presumption ofprejudice. (People v.Page (2008) 44 Cal.4th 1, 59.) Unless the presumptionis rebutted by the prosecution, a newtrial should be granted. (Ibid.) As noted by onecourt, " '[t]his does not mean that every insignificant | infraction ofthe rules by a juror calls for anew trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from © havinga fair trial, the verdict should notbe set aside.'" (People v. Calles (2012) 209. . CalApp.4th 1200, 1211.) In determining whether juror misconduct occurred we accept the trial court's credibility findings and findingsofhistorical facts if supported by substantial evidence. 29 (People v. Mendoza (2000) 24 Cal.4th 130, 195.) Whether a verdict must be overturned for jury misconduct is resolved by employing the substantial likelihood test, which is an objective standard. (In re Hamilton (1999) 20 Cal.4th 273, 296; People v. Marshall (1990) 50 Cal.3d 907, 951.) "'Whetherprejudice arose from juror misconduct ...isa_ mixed question of law and fact subject to an appellate court's independent | determination.'" (People v. Danks (2004) 32 Cal.4th 269, 303.) Turning first to the question posed by Juror No. 12, we conclude there was no misconduct whenthat juror asked the question about the "clearance time of a date rape drug.” Our high court and Courts ofAppeal repeatedly have held that a trial court has the discretion to allow jurors to submit questions to be asked of witnesses, as long as certain controls are in place. (See, e.g., People v. Majors (1998) 18 Cal.4th 385, 407; People v. Cummings (1993) 4 Cal.4th 1233, 1305; People v. Anderson (1990) 52 Cal.3d 453, 481; People v. Medlister (1985) 167 CalApp.3d 633, 644; People v. Gates (1979) 97 Cal.App.3d Supp. 10, 13-15.) The court should not allow jurors to ask questions directly to witnesses (McAlister, supra, at pp. 644-645), and questions instead should be written down and submitted for consideration by the court and counsel outside the presence of the jury. (Cummings, supra, at p. 1305; McAlister, supra, at p. 644.) The questions,if appropriate, may then be asked by the court or by counsel. (Majors, supra, at p. 407; Cummings, supra, at p. 1305.) | Here, the record shows Juror No. 12 submitted a written question to the court. - Outside the presence of the jury, the court then appropriately met with counsel to discuss the question. The record showsall agreed the best way to respond to the question was to 30 reread the stipulation ofthe parties regarding the negative drug screen performed on the | victim and to re-admonish the jury. The record shows the court did exactlythat whenit told the jury the parties had stipulated a urine sample from the victim was collected on February 16, 2010, a comprehensive drug screen was subsequently performed on that sample and the result ofthat screen was negative for all substances. Wethus conclude there was no misconductwith respect to Juror No. 12. However, Juror No. 10's conduct is another issue altogether. The record shows that sometime between opening and closing argument, Juror No. 10 went online and looked up the bar where the victim worked. Juror No. 10 told the court and counselshe . _ did so for no apparent reason other than when she hears about a new place she "always" looks them up andin this instance she looked up the nameofthe bar where the victim worked and read a few reviews aboutthe bar from a website. Juror No. 10 stated that she spent only a few minutes online reading about the bar, that the reviews she read in no way affected her deliberations and that she only mentioned she had donesoafter the jury had completedits deliberations and reacheda verdict. The People wisely concede Juror No. 10 committed misconduct by looking up the bar online, even if for just a few minutes. The issue thus becomes whether that misconduct, which we presumewasprejudicial, is rebutted " 'by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.'" (People v. Thomas (2012) 53 Cal.4th 771, 819.) 31 AN ea fh ev eb it ie She ald S e on Indeed, "[w]hen juror misconduct involvesthe receipt of information from extraneous sources, a substantial likelihood ofjuror bias ‘can appear in twodifferent ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced thejuror. [Citations.] Second, welookto the nature of the misconductandthe surrounding circumstancesto determine whetheritis substantially likely the juror was actually biased against the defendant. [Citation.]' [Citation.] ... ‘In an extraneous-information case, the "entire record” logically bearing on a circumstantial finding oflikely bias includes the nature ofthe juror's conduct, the circumstances under which the information was obtained, the instructions the jury received, the nature of the evidence and issuesat trial, and the strength of the evidence . against the defendant.'" (People v. Thomas, supra, 53 Cal.4th at p. 819.) Weconclude from the entire record that there is no substantial likelihood that White suffered actual harm when Juror No. 10 wentonline for a few minutes and read a few reviews about the bar where the victim worked. The reviews about the bar were irrelevant to any ofthe issues in the case, to wit whetherthe victim consented to sexual intercourse with White atthe hotel, after the victim had become intoxicated while out with a group that included White. That one ofthe reviews read by Juror No. 10 mentioned anattractive brunette that worked at the bar doesnot change our conclusion: the jury saw the victim for itself, heard her testimonyandit decided whether to accept her version ofwhat happened ot _ White's. 32 In addition, the review read by Juror No. 10 regarding the atmospherein the bar where the victim worked wasalready in evidence,as several witnesses testified it was a neighborhoodbar where the bartenders remembers their customers' names and drink preferences. Thus, the extrajudicial information learned by Juror No. 10 in the few minutes she read reviewsonline about the bar (not from the bar's website) was information already before the jury. Moreover, wereject White's contention that Juror No. 10's disregard of the court's instructions demonstrated actual bias against him. (See People v. Nesler (1997) 16 Cal.4th 561, 582-583 [actual bias occurs whenajuror is unable to put aside his or her impressions or opinions based on extrajudicial information he or she received and render a verdict based solely on the evidenceattrial].) We note from the record that thetrial » court, with counsel present, extensively questioned Juror No. 10 and she denied any improper motive in looking up the bar and told the court she did so out of curiosity, which is something she often did when she hears of a new restaurant or place. The court clearly found Juror No. 10 credible.and believed hertestimony that her actions did not in any way influence thejury's deliberations. Thus,although Juror No. 10 engaged in misconduct, given the nature of the misconduct, the circumstances surrounding the misconduct andtheissues in the case, and _ given the strength ofthe evidence against White reviewed ante, we independently _ concludethe presumption ofprejudice hasbeen rebutted because that misconduct was fleeting and was neither inherently and substantially likely to have influenced Juror No. 10 or the other members ofthe jury nor was Juror No. 10 actually biased against White. | 33° | E. Denial ofProbation Lastly, White contends the trial court abusedits discretion when it sentenced him to state prison for three years and denied his request for probation. A sentencing court enjoys broad discretion in determining whetherto grant or ‘deny probation. A defendant whois denied probation bears a heavy burden to show the trial court has abusedits discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People v. Weaver (2007) 149 Cal.App.4th1301, 1311.) " ‘In reviewing[a trialcourt's determination whether to grant or deny probation],it is not our function to substitute our judgment for that ofthe trial court. Our function is to determine whetherthetrial court's order granting [or denying] probationis arbitrary or capricious or exceeds the bounds of reasonconsidering all the facts and circumstances.'" ([bid.) Here, the record showsthat during the sentencing hearing the court fully considered the facts and circumstances ofthe case. The court heard from the victim, who made a lengthy statement askingthe court to sentence White to prison for the rape that ' the victim claimed "forever changed[her] life." The record showsthat in connection with sentencing the court also considered the sentencing statement submitted by the defense, which requested formal probation based on White's age, lack of significant. criminal history and his cooperation with law enforcement for having what White called "drunk sex"with the victim; a 13-page psychological evaluation of White suggesting White was a lowrisk to reoffend; the probation report, which, after identifying various mitigating factors including White's lack of significant criminal history, nonetheless 34 recommended White be sentenced to state prison for three years; and the lengthy _ argument of counsel. | Although there were various factors favorable to White, whichthe record shows the court carefully considered and which at one point appeared to sway the court to ~ consider eranting probation,in the end the record also showsthe court noted this was a presumptive prison case-and it found no reason to deviate from that presumption given the seriousness of the crime and the impactofthat crime on the victim. Onthis record, ~ we concludethe court's order denying White probation wasnot " ‘arbitrary or capricious’ " or " 'exceed{ed] the boundsofreason considering all the facts and circumstances’ " of the case. (People v. Weaver, supra, 149 Cal.App.4th at p. 1311.) DISPOSITION The judgmentis modified to: (1) strike count 2; and (2) vacate the conviction on count 2, together with the sentence imposed butstayed on that count. The judgment is otherwise affirmed. Thetrial court is directed to prepare anamended abstract of | judgment and minute orderto reflect these modifications and forward acertified copy to. the Departmentof Corrections and Rehabilitation. HUFFMAN,J. ‘TI CONCUR: McDONALD,J. . 35 BENKE,J., Concurring and Dissenting. Asnoted by the majority, our high court in this case previously granted the People's petition for review pending the court's decision in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez), after a majority ofthis court found pursuant to People v. Craig (1941) 17 Cal.2d 453 (Craig) that defendant White allegedly could not be convicted of both rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3); count 1) andrape of an unconscious person (Pen. Code, § 261, subd. (a)(4)(A); count 2).! The majority now reaffirmsits previousholdinginlight of, or despite, Gonzalez. The majority concludes subdivisions (a)(3) and (a)(4)(A) ofapplicable section 261 "do not define separate crimes and do not contain separate punishments," but rather "are simply separate ways in which the crimeofrape can be committed under section 261." (Maj. opn.ante, at p. 23.) I dissentto part B ofthe majority'sopinion, which holds that counts 1 and 2 must be consolidated. First, based on Gonzalez and its discussion ofBlockburger v. United States (1932) 284 U.S. 299, 304 (Blockburger), and based on Craig itself, | conclude that - subdivisions (a)(3) and (a)(4)(A)ofapplicable section 261 require proof ofdifferent elements (i.e., the "elementstest"), and, therefore, each subdivision constitutes an | individual rape offense for which defendant may be separately charged and convicted. With respect to the actual holding of Craig (i.e., that rape and statutory rape constitute a "single outrage" to be sentenced as one crime), I conclude it was based on I Forclarity, I will use the same nomenclature as the majority (maj. opn. ante,at p. 16, fn. 3) in referring to the versions of section 261 of the Penal Codeat issuein this case. "Former section 261"will refer to the version interpreted by the high court in 1941 in Craig, and "applicable section 261" will refer to the version under which defendant was charged. In addition,all further statutory referencesare to the Penal Code.. _ then-existing cultural views of rape, whichhavesince been abandoned,andthat, in any event, the narrow holding of Craig was superseded when, among other actions, the Legislature adopted section 261.5. That statute set forth the separate crime ofstatutory rape, with a separate sentencing scheme. (Stats. 1970, ch. 1301,§ 2.) Finally, I conclude Craig's consolidation oftwo counts into a single conviction is explained by concerns with regard to the then-existing sentencing system, and, in any event, the disposition in Craig has, for sound reasons, been abandoned by case law culminating with In re Wright (1967) 65 Cal.2d 650 (Wright), which interprets section 654 as requiringapplication of a stay where a defendant has been convicted of multiple crimes arising from the sameact. In summary, because Craig was boundby cultural views and sentencing concerns that no longer exist, I conclude the modern andprimary importance of Craigis its clear support for use ofthe elements test. Therefore, I would affirm White's conviction on count 2 for violation of applicable section 261, subdivision (a)(4)(A)and,like the trial court, would apply section 654, subdivision (a) to stay sentenceonthatoffense. A. Because each count requiresproofofatleast one different element, defendant was properly convicted on counts I and 2. Our highcourt in Gonzalez considered a question similar to the one presentedin the instant case, namely, "whether a defendant may, consistently with . . . section 954, be convicted of both oral copulation of an unconsciousperson (§ 288a, subd. (f)) and oral copulation of an intoxicated person (id., subd. (i)) based on the sameact." (Gonzalez, supra, 60Cal.4th at p. 535, fn. omitted.) As noted, a majority of our court had used Craig to preclude multiple convictions under formersection 288a.2 (Jbid.) In reversing, the court in Gonzalez did not disapprove ofCraig, butneitherdidit approve of Craig in the manner suggested by the majority. Notably, Gonzalez points out that Craig "acknowledged that '"[a] defendant may be convicted oftwo separate offenses arising out ofthe same transaction when each offense is stated in a separate count and whenthe two offensesdifferin their necessary elements and oneis not included within the other.""" (Gonzalez, supra, 60 Cal.4th at p. 539, quoting Craig, supra, 17 Cal.2d at p. 457.) Although the court in Gonzalez examinedthe structureof section 288a and noted that each subdivision was drafted to be self-contained by prescribing a specific punishment, the court also noted this fact "supports the view that each describes an independent offense, and therefore section 954 is no impedimentto a defendant's conviction under more than one suchsubdivision for a single act." (Gonzalez, at p. 539, italics added.) It is clear to me that, although Gonzalez uses the separate punishments of section 288a as support for its conclusion thereare multiple offenses in the subdivisions of section 288a, it did not by this statement create a requirement that a separate | punishment mustbe prescribed in each subdivision in order to charge and convict a defendant of multiple subdivisionsthat already require different elements. Holding, as my colleagues do, that Gonzalez imposes an additional requirementof separate punishment for each such subdivision creates an inconsistency in Gonzalez that is not — 2 ~~ Section 288a was amendedeffective September 9, 2013. (Stats. 2013, ch. 282, § 1.) The amendmentdid notalter subdivisions (f) or(i) under which the defendantin Gonzalez was charged and convicted. Forclarity, I will refer to the version of section 288a under whichthe defendant in Gonzalez was convicted as "former section 288a." 3 there and marginalizes or perhapseliminates altogether the elementstest that is clearly set forth in that caseand in Craig. | In concluding Gonzalez applies an elementstest rather than what I will call a "structure test,” I find it significant that Gonzalez's analysis rests in large part on Blockburger, supra, 284 U.S. 299. (Gonzalez, supra, 60 Cal.4th at p. 539, citing Blockburger, supra, 284 U.S.at p. 304.) Briefly, in Blockburger, the defendant was- charged and convicted in count3 with selling eight grains of morphine "notin or from the original stamped package" and in count 5 with the sale (as charged in count 3) of that drug not made pursuantto a "written order of the purchaser," as was required. | (Blockburger, at p. 301 .) The defendantthere argued there was butonesale to the same purchaser, and, therefore, he committed only one offense for purposes of counts 3 and 5. (Id. at p.304) In rejecting this argument, Blockburger states: "The applicable rule is that where the sameact ortransaction constitutes a violation oftwo distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one,is whether each provision requires proofofafact which the other does not." (Blockburger, supra, 284 U.S.at p. 304, italics added: see Gonzalez, supra, 60 Cal.4th at p. 539, quotingthis language in Blockburger.) As a result, the United States Supreme Court concluded there were two offenses, despite the fact counts 3 and 5 involved only one sale ofmorphine. _(Blockburger, at p. 304.) I note, there is no mention in Blockburger of any requirement there must be separate punishments, in addition to separate elements, in determining whether the same act or transaction gives rise to independent offenses when multiple statutory provisions of 4 a criminal statute are violated. All that is required for separate charging and convictionis that the elements are different and one subdivision is not necessarily included within the other. The majority, in my view, completely disregards the elements test required by established law andinsteadrelies exclusivelyon a "structure test" in concludingthat _ applicable section 261 more closely resembles former section 261 than formersection 288a. In particular, the majority states that applicable section 261 sets forth only one offense of rape, which is "(1) an act of sexual intercourse (2) with a person not the spouse | of the perpetrator (3) without the consentofthe victim.” (Maj. opn. anie, at p. 16.) Accordingto the majority, the various provisions (i.e., (1)-(7)) following subdivision (a) of applicable section 261 "merely describe the ways in which lack of consent can be shown" for purposesofrape. (Maj. opn. ante, at p. 16.) Relying on the structure of the statute, the majority notes that a reader can only understand subdivision (3) or (4) of applicable section 261 by reading subdivision(a) ofthat statute, which, according to the majority, makes former section 288a "markedly different" than applicable section 261. (Maj. opn. ante, at p. 17.) | at find no help in this comparison because I note that subdivision (a) of former section 2882 is the only subdivision within that statute to define what"oral copulation” means: "Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person." (Former § 288a, subd.(a).) Subdivisions (b) through (k) of former section 288athen rely on that definition to define the various circumstances under whichthe crimeoforal copulation can be committed. This is not unlike subdivisions (1) through (7) of subdivision (a) of applicable section 261, which must be read andconsidered in connection with subdivision(a), defining rape. NordoI find persuasive the case law relied upon by the majority. In support ofits holding, the majority relies on People v. Smith (2010) 191 Cal.App.4th 199 (Smith). Briefly, much like White here, the defendant in Smith was convicted of rape of an intoxicated person and rape ofan unconsciousperson. (/d. at p. 201.) Relying onCraig, the Smith court summarily concluded both ofthe defendant's convictions could not stand "because ‘only one punishable offense of rape results from a - single act ofintercourse, though it may be chargeable in separate counts when accomplished underthe varying circumstances specified in the subdivisions of [former] section 261 of the Penal Code." (Smith, at p: 205, quoting Craig, supra, 17 Cal.2d at p. 458.) Unlike the majority, I do not find Smith helpful. The case lacks any analysis on our issue and instead, in several sentences, merely quotes Craig for the ruleit applied. | Moreover,it is important to note that Smith modified the judgmentto strike, as opposed to consolidate, the rape counts. Thus, the majority's apparent agreement with the disposition allowed in Smith would leave a sentencing court with multiple options, _ including consolidation of counts, as occurred here, or striking of counts, as occurred in Smith. | AsI discuss in more depth post; this resulting state of confusion and inconsistency of sentences is one of the main reasons whyI believe our Supreme Court abandoned use of the dispositions applied here and in Smith. Instead, the court has for decades required application of section 654, subdivision (a) when a defendantstands convicted ofmultiple offenses arising outofthe sameact. Themajority also relies on People v. Maury (2003) 30 Cal.4th 342 (Maury) and | People v. Collins (1960) 54 Cal.2d 57 (Collins) to support its conclusion that violation of | multiple subdivisions of subdivision (a) of applicable section 261 by the sameact or transaction involves only one offense. (Maj. opn. ante, at p. 22.) As relevant to my discussion, the issue in Maury was whether a defendant's due processrights wereviolated when he was charged with rape "by means of force and fear of immediate and unlawful — bodily injury,'" and whenthe jury wasinstructed the defendant couldbe guilty of rape if he accomplished the sexual intercourse with the victim "by meansofforce, violence, or fear of immediate and unlawful bodily injury." (Maury, at p. 427, italics added.) In rejecting this argument, the Maury court cited Collins for the proposition that "rape by ~ meansofviolenceis nota different offense from rape by meansofforce or fear," but rather were terms that "merely describe[d] different circumstances under which anactof |. intercourse may constitute the crime of rape." (Maury, at p. 427.) Maury, however, offers no support for the proposition that the various subdivisions in applicable section 261 comprise merely one offense of rape because I note that "force," "violence" or "fear of immediate and unlawful bodily injury" all appear under the same subdivision—(a)(2)—of applicable section 261. Likewise, the holding in Collins—affirming a conviction of statutory rape under an information charging a defendant with forcible rape—has been abrogated as a result of "legislative recasting" of former section 261. (Gonzalez, supra, 60 Cal.4th at p. 540; see People v. Chapman ~ (1975) 47 Cal.App.3d 597, 604, fn. 3.) Neither Maury nor Collins supports a continued 7 Craig-type analysis used by the majority in circumstances such as those presented in the instant case. _ Finally, the majority opinion leadsto the conelusion that the Legislature intended to treat the sex crimes ofrape and oral copulation differently, such that a defendant who commits oral copulation of an intoxicated and unconscious person can beguilty oftwo offenses, whereas a defendant who commits rape of an intoxicated and unconscious person can be guilty of only one offense. I do not agree that the Legislature intended such a result. Applying the elementstest consistently to both statutes prevents this | disparity. Because we can assume the Legislature was aware ofthis test and its settled application in the law, we need notchallenge the Legislature to make itselfmore clear on this point or solve aproblem that does notexist. ~ Applying. the elements test here, I conclude that White committed two separate offenses when he was found guilty in counts. 1 and 2 ofrape of an intoxicated person and rape ofunconsciousperson,respectively, as clearly each count required proofofa different element and each defined a different way in which the act ofrape was committed.3 I find the majority's abandonmentofthe elements test and exclusive 3 Underapplicable section 261, subdivision (a)(3), the crime of rape occurs "[w]here a person is prevented from resisting [the act of sexual intercourse accomplished with a person not the spouseofthe perpetrator] by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known,or reasonably ‘should have been knownbythe accused." (§ 261, subd. (a)(3).) However, under subdivision (a)(4) of applicable section 261, thecrime ofrape occurs "[w]Jhere a personis at the time unconsciousofthe nature ofthe act, and this is knownto the accused. As used in this paragraph,‘unconsciousofthe nature of the act’ means incapable of resisting (the act of sexual intercourse accomplished with a person not the spouse ofthe perpetrator] becausethe victim meets any one ofthe following conditions:[{] (A) Was unconscious or asleep." (§ 261, subd. (a)(4).) Clearly, subdivisions (a)(3) and (a)(4)(A) 8 reliance on a "structure test" not only confusing andlikely to cause mischief,4 but also | contrary to Gonzalez. | B. Penal Code section 654 and the post-Craigjurisprudential developmentofthat statute govern this case. | Asindicated,I believe that Gonzalez, Blockburger, and Craig require use of the elements test; that defendant was properly charged and convicted ofseparate subdivisions of applicable section 261, subdivision (a); and that section 654 was thereafter properly applied. This should end the analysis. However, the ending is not so simple because we must deal with Craig's consolidation. oftwo counts into one. My colleagues view this . ' disposition in Craig as support for their conclusionthat Craig requires there be a | conviction of only one count ofrape in this case. | In my view, Craig is a case with a particularly complex identity. I wouldnot concludeit has been overruled nor wouldI agreeit should be overruled. However,I do believe it was compelled to rest on a culture that no longer exists, and the serious ~ problem ofmultiple punishmentit then faced has long since been resolved. I am left with are comprised of different elements, which supports the conclusion they are independent offenses. a 4 I note our high court recently granted the People's petition for review in People v. Vidana, review granted April 1, 2015, 8224546, which involved the issue ofwhether larceny and embezzlement were separate and distinct offenses under Gonzalez. Similarly, the Court ofAppeal just granted rehearing on our exact issue in People v. Soria. (People v. Soria (C070238, rehg. granted Mar. 16, 2015).) In addition, Division Three of our court recently decided People v. Wilson(2015) 234Cal.App.4th 193, 199 by relying in parton Gonzalez andCraig, whenit found the Legislature did not intend to create two different crimes within the meaning of section 422(i.e., making a criminal threat). In my view,these cases as well as others recently decided show the difficulty of - applying a Craig-type analysis, as that case is interpreted bythe majority, in . circumstances such as those presented in the instarit case. 9 the conclusion, discussed ante in section A, that Craig's significance is its application of the elements test. | 1. The culture and law regardingthe crimeofrape at the time of Craig Atthe time of Craig, the then-prevailing view ofrape wasthat ofa single form of "outrage" to the person and feelings ofthe victim, and, as such, a victim could not be "doubly outraged, once by force and once because ofher tender years, but suffered only a single offense." (People v. Mummert(1943) 57 Cal.App.2d 849, 856-857, overruled in Collins,supra, 54 Cal.2d at p. 60.) Society's evolving view ofrape teachesthat in enactingseparate subdivisions in applicable section 261, each with its own elements, the Legislature has recognized each subdivision as a separate anddistinct "outrage" and, thus, offense. Moreover, in finding that former section 261 defined but one crime, the court in - Craig relied on the express language of the former statute, which stated that rape ‘occurred "undereither ofthe following circumstances." (Former § 261, italics added.) The term "either" connotes the choice between "oneorthe other." (Random House _ Unabridged Dict (2d ed. 1993) p. 625.) The "either of" language in the former statute - certainly lent the statute to the interpretation adopted in Craig. However,the "either of" languageis no longerin subdivision (a) of section 261— it was replaced with the word "any"—and rape may nowbe accomplished by any ofthe ’ enumerated acts. The term '‘any’' connotes "one or more." (Random House Unabridged Dict., supra, at p. 96.) Significantly, this change was madebythe samebill that extended | the protection of our rape statute, for the first time, to men. (Stats. 1979, ch. 994, § 1, p. | 3383.) I believe these changes, coupled with the Legislature's earlier separation of 10. statutory rape from the main rape statute, should be interpreted as the Legislature's abandonmentofantiquated views represented in the law ofrape asit existed when Craig was decided and, hence,at the time ofthe narrow holding ofthe court in that case. 1 find no rational reason to accept the majority's revival of those abandoned views. 2. The sentencing processat the time of Craig Craig also was faced at the time with resolving a serious sentencing concern that no longer exists, specifically how a defendant should be sentenced for multiple convictionsarising out ofa single act. At the time of Craig, the State Board of Prison Termsand Paroles (Board) was responsible for fixing the definite sentence term of defendants. The defendant in Craig was faced with twojudgments for the same offense. The court soughtto eliminate potential confusion and the prejudice ofmultiple punishmentto the defendantifthe Board saw there were two judgments and did not realize there was but a single act involved. The court solved this specter ofmultiple punishment byconsolidating the judgments to ensure the Board was not confused and the defendantwas not punished twice for the same act. (Craig, supra, 17 Cal.2d at pp. 458- 459.) Neither before nor immediately after Craig did section 654° provide any guidance regarding how to punish an act or omission made punishable by differentprovisions of 5 Formersection 654, which was applicable when Craig was decided, provided: "Anact or omission which is made punishable in different ways by different provisions of this Code may be punished undereither of such provisions, but in no case can it be | punished under more than one; an acquittal or conviction and sentence undereither one bars a prosecution for the sameact or omission under any other. In the cases specified in Sections 648, 667 and 668, the punishments therein prescribed must be substituted for those prescribed fora first offense, if the previous conviction ischarged in the indictment and found by the jury." © | | 11 the statute. Although, like the current version of section 654,the former version ofthat statute precluded multiple punishment, and while section 654, subdivision (a) now provides that the provision setting the longest potential term of imprisonment applies, there was,and is, no express provision in the statute allowing for a stay to avoid multiple punishmentfor crimes arising out of the same criminal act. Thus, clearly at the time | Craig was decided, there was a serious need to carve out a uniform sentencingtoolthat would consistently avoid multiple punishmentfor the sameact. In understanding the resolution of the sentencing problem facing our courts at the time of Craig, | find particularly useful the decision of our high court in Peoplev. | Pearson (1986) 42 Cal.3d 351 (Pearson), which fully discusses the developmentof section 654 jurisprudence. That discussion leads me to concludethe sentencing disposition in Craig has been disapproved. | In Pearson,the court notes: "Someofourearlierdecisions held that the imposition of concurrent sentences sufficiently protected the defendant from multiple punishment because he would be serving each ofhis sentences simultaneously. (See, ¢.g., People v. — - Kynette (1940) 15 Cal.2d 731, 761-762 [(Kynette)].) In other cases, however, we refused to affirm multiple convictions because ofthe possibility that such convictions would _ disadvantage the defendant whenthe Adult Authority fixed the date he wouldultimately Section 654 was amended in 1976to reflect the current version ofthe statute: "An act or omissionthat is punishable indifferent ways by different provisions of law shall be punished under the provision that provides for the longest potential term of 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 underany other." . 12 be releasedfrom prison. (See, e.g., People v. Brown (1958) 49 Cal.2d 577, 593; People . v. Logan [(1953)] 41 Cal.2d 279, 290-291; cases cited in Peoplev. Smith [(1950)] 36 Cal.2d 444, 448.) In Nealv. State ofCalifornia ((1960)] 55 Cal.2d 11, we wentso far as to indicate that multiple convictions were invalid per se. (/d. at p. 19 [If only a single act | is charged asthe basis ofthe multiple convictions, only one conviction can be affirmed.'].) — "Our later cases, however, reaffirmed that section 654 bars multiple punishment, not multiple conviction. (People v. Tideman (1962) 57Cal.2d 574, 586-587; Peoplev. | McFarland (1962) 58 Cal.2d 748, 762-763.) In McFarland we explained: 'With respect - to the procedureto be followed on appeal where double punishment has been erroneously imposed, it should be stressed that section 654 proscribes double punishment, not double conviction; conduct giving rise to more than one offense within the meaning ofthe statute © may result in initial conviction ofboth crimes, only one ofwhich, the more serious offense, may be punished. [Citation.] The appropriate procedure, therefore, is to eliminate the effect of the judgmentasto the lesser offense insofar as the penalty aloneis concemed.' (/bid.) "In People v.Niles (1964) 227 Cal.App.2d 749, 756 (Wiles) the Court ofAppeal determined that the proper methodofeliminating the punitive consequences ofmultiple convictions was to stay execution ofsentenceforall but one conviction arising out of each act or indivisible course of conduct. This procedure was developed to avoid the » - potentially unfair consequencesto the state of refusing to allow multiple convictions: ‘if [a trial court] dismisses the count carrying the lesser penalty, and the conviction on the —— 13 remaining count should be reversed on appeal, the defendant would stand with no conviction at all.’ (Jbid.) "Soon after Niles, this court decided In re Wright (1967) 65 Cal.2d 650, in which we approved ofthe procedure the Niles court haddeveloped. In Wright wereaffirmed the rule that section 654 does notprohibit multiple convictions, but also declared thatit does bar concurrent sentences for such convictions. We reasoned that concurrent sentences still amounted to punishment under morethan oneprovision, prohibited under section 654, and could prejudice the defendant in various ways: 'Underthehabitual criminal statute [citation] defendant would be prejjudiced by erroneous concurrent sentences for an offense subject to a lesser penalty but available to support a determination of habitual criminality ...and an offense subject to a greater penalty but not listed in the habitual criminalstatute .... [§] "Erroneous concurrent sentences for petty theft, with a maximumterm ofsix monthsin jail [citation], and issuing a check not exceeding $100 without sufficient funds, with a maximum term of one year in jail [citation], would be detrimental to a defendant who suffered a subsequent conviction because he would be subject to the increased minimum punishments provided byPenal Codesection 666 forone who has been previously convicted ofpetty theft and "served a term therefor in any penal institution.” (Id. at p. 654,fn. 2, italics added.) | "In Wright we therefore balancedthe potential windfalltothe defendant of reversing multiple convictions against the prejudice to him of allowing sentencingfor | such convictions. We then determined that the procedure of staying execution of sentence for multiple convictions instead of reversing such convictions ‘reasonably reconciles the policies involved in applying section 654 to protect the rights of both the 14 state and the defendant,’ and followslogically from the section 654 prohibition against punishing the defendant under more than one provision based ona single criminal act. (Id. at pp. 655-656, fn. 4.)" (Pearson, supra, 42 Cal.3dat pp. 359-360.) | As explained by Pearson,I believe Craig reflects a sentencing problem that plagued ourcourts prior to Wright. It was a sentencing problem that saw inconsistent rulings by our Supreme Court. Indeed, a year before Craig was decided, as Pearson noted the Kynette court applied former section 654 to require sentences to run concurrently in order to avoid double punishmentafter a defendant was convicted of attempted murder, assault with intent to murderandthe malicious use ofexplosives,all of which convictions the court noted were "traceable to and [were] the direct result ofthe placing of a bombin the automobile ofthe vietim." (See Kynette, supra, 15 Cal.2d at pp. 761-762, overruled on another groundas stated in People v. Snyder(1958) 50 Cal.2d 190, 197.) Inreaching its decision, Kynette noted "it would have been more in conformity with the legislative intent expressed in section 654 of the Penal Code to preclude more than one punishmentfor an act punishable in different ways by different provisionsofthis code,’ ifthe court below had caused all threesentences to run concurrently rather than two ofthem, with the third running consecutively." (Kynette, at — p. 762.) For reasonsspecific to each case, inKynette the response ofthe court wasto- apply concurrent sentences, while in Craig the response was to consolidate the multiple convictions.® 6 As recognized by Gonzalez,the first count in Craig alleged the defendant committed the rape with force andviolence, in violation of subdivision (3) of former section 261, andthe second count, "after alleging [inthe information] thatit was "a different statementofthe same offense"[citation] charged statutory rape of a child below 15 Once Niles was decided in 1964, which introduced the concept of staying sentence and punishmentfor convictions otherwise appropriate under former section 654, clearly it was no longernecessary to consolidate multiple offenses into a single conviction orto ensure sentences from multiple convictions ran concurrently, as was the case in the 1940's when Craig and Kynette were decided. In light of this, I view Craig and Kynette as cases that are part of the history of inconsistency so meticulously set forth in Pearson. AsI have noted,it is not an inconsistency | believe merits any argumentthat Craig should be overturned;rather, it is inconsistencyattributable to a sentencing concern that has been remedied. | Unfortunately, the consolidation approach now employed by the majority, and the option to strike presented in Smith, negate muchofthe historical progress noted in ~ Pearson and deliver us back to the inconsistency and confusion that existed before implementation ofthe stay procedure engrafted onto section 654 by Niles and-approved by Wright. / | - Indeed, the majority's use of Craig to consolidate counts, and Smith's use of Craig | to. strike counts, potentially lead to the unintended consequences disapprovedofin Wright and give a defendant the precise windfall our section 654 jurisprudence has,over the last 50 years, attempted to eliminate. In my view,instead ofconsolidating and/or striking multiple rape offenses that are based on a single act, we are compelledto follow the rule set forth by our Supreme Court the age of consent, in violation of former section 261, subdivision 1.” (Gonzalez, supra, 60 Cal.4th at p. 538, italics added, quoting Craig, supra, 17 Cal.2d at p. 454.) Thus, perhapsCraig was decided differently than Kynette as a result ofhow the defendantin Craig was charged. 16 and a very long line of authority and stay punishment of one or more of such offenses under subdivision (a) of section 654,thus avoidingthe risk of any unintended benefit to a defendant while preserving hisor her right to be free ofmultiple punishment for the same act. | C. Section 954permits multiple convictionsfor different statements ofan offense. Even assuming subdivisions(a)(3) and (a)(4)(A) of section 261 are not independent offenses, I wouldstill conclude White was properly convicted of counts 1 and 2 in the instant case because section 954 permits conviction of "any numberofthe offenses charged” underthat statute, including "different statements of the same offense or two or more different offenses ofthe sameclass of crimesor offenses." My colleagues give scant regard to the plain language of section 954,yetit clearly allows for the charging that took placein this case. Giving the words in section 954 their "plain and commonsense meaning"(Gonzalez, supra, 60 Cal.4th atp. 537), I thus alternatively conclude White was properly convicted on both counts 1 and 2. (See Pearson, supra, 42 Cal.3d at p. 354 [concluding defendant was properly convicted for _ lewd conducton a child and sodomybased on the singular act of sodomy: because "such chargesclearly constitute ‘different statementsofthe same offense’ and thus are authorized under section 954"].) 17 In sum,I conclude White was properly convicted in counts 1 and 2 ofrape of an intoxicated person (former§ 261, subd. (a)(3)) and rape of an unconsciousperson (id. subd. (a)(4)(A)). I further conclude White's punishmentin connection with count 2 was properly stayed undersection 654, subdivision (a). In all other respects, I agree with the majority decision. BENKE,Acting P. J. 1, KEVIN J, LANE, Clerk ofthe Court of Appeal. Fourth Appellate District, State ofCalifomia, do hereby certify that this preceding and annexed is a true and correct copy ofiheoriginal on file in my office. WITNESS, my hand andthe Seal of the Court this June 18, 2015 - , KEVIN }. LANE, CLERK 18 Filed 7/14/15 CERTIFIED FOR PUBLICATION OPINION ON REMAND COURT OF APPEAL, FOURTH APPELLATEDISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D060969 Plaintiff andRespondent, (Super. Ct. No. SCD228290) v. ORDER MODIFYING BILLY CHARLES WHITE, DISSENTING OPINION Defendant and Appellant. [NO CHANGEIN JUDGMENT OR MAJORITY OPINION] THE COURT: : It is ordered that the dissenting opinion filed herein on June18, 2015, be modified as follows: | 1. For the convenience of readers, attached as Appendix A is a complete version. ofthe dissent, as modified by this order. 2. On page1, the following changesare made: e - The following seritence is added to the beginningofthefirstfull paragraph: | | I dissent to part B ofthe majority's opinion. e Footnote 1, at the bottom ofpage 1, is split into two footnotes, which will require renumbering ofall subsequent footnotes, and read as follows: ! All further statutory references are to the Penal Code. ? For clarity, I will use the same nomenclature as the majority (maj. opn.ante, at p. 16, fn. 3) in referring to the versions of section 261 ofthe Penal Codeat issue in this case. "Former section 261" will refer to the version interpreted by the high court in 1941 in Craig, and "applicable section 261”will refer to the version under which defendant was charged. e The numerical reference to footnote 1 at line 6, paragraph 1, is movedto line 5 between the words "Code," and "§"in thefirst parenthetical statutory reference. e . The numericalreference to footnote 2, paragraph1, is insertedat line 6 at the end ofthe sentence beginning with the words "an unconscious person." ° A paragraph break is inserted following the second full sentence of the first paragraph, beginning with the words "The majority concludes subdivisions," and a sentence is added to that paragraph. Thefull - paragraph now readsas follows: The majority concludes subdivisions (a)(3) and (a)(4)(A) of applicable — section 261 "do not define separate crimes and do not contain separate punishments," but rather "are simply separate ways in which the crimeof rape can be committed under section 261." (Maj. opn. ante, at p. 23.) Asa . result, the majority strikes defendant's conviction on count 2, meaning defendant White now stands convicted of only one count of rape. e The secondfull paragraph, beginning with "I dissent to part B"is replacedin its entirety with the following: 3. In doing so, the majority does not explain for the benefit of sentencing courts or for our high court (in connection with any forthcoming petition for review) why it struck count 2, as opposedto count 1, or why it did not merely consolidate defendant's two rape counts, as was donein Craig. In any event, I note if our high court or another court in a habeas corpus proceeding should overturn defendant's conviction on count 1, White then would stand convicted ofno counts of rape, despite the majority's conclusion in this case that substantial evidence supports both convictions. ° Thethird full paragraph, beginning with "With respect”is replaced in its entirety with the following: Based on Gonzalez and its discussion ofBlockburger v. United States (1932) 284 U.S. 299, 304 (Blockburger), and based on Craig itself, I conclude that subdivisions (a)(3) and (a)(4)(A) of applicable section 261 require proofofdifferent elements(i.c., the “elements test"), and, therefore, each subdivision constitutes an individual rape offense for which defendant may be separately charged and convicted. With respect to the actual On holding of Craig (i.e., that rape andstatutory rape constitute a "single outrage” to be sentenced as one crime), I conclude it was based on then- existing views of rape, which have since been abandoned,andthat, in any event, the narrow holding of Craig was superseded when, among other actions, the Legislature adopted section 261.5. That statute setforth the separate crime of statutory rape, with a separate sentencing scheme. (Stats. 1970, ch. 1301, § 2.) page 5, the following changes occur: e The first full paragraph beginning with "The majority, in my view" is deleted. e@ The following four paragraphs are added: In urging a conclusion that violation of multiple subdivisions within subdivision (a) of section 261are but one crime, my colleagues erroneously - concludethe circumstanceslisted in those subdivisions have no ‘significance except to describe conditions under which a crime of rape occurs. This premise merits close examination and rejection. We need not resort here to debate as to what the holding of Craig is, and is not. Nor do we need to debate whether, as my colleagues believe, rape always constitutes a single outrage against the victim whatever the circumstances of the crime. We needonly look at what our Legislature has done in enacting the version of section 261 applicable when defendant was charged, a statute I note is vastly different andexpanded than the one interpreted by our high court in Craig. Examinationof applicable section 261 leads me to conclude my colleagues establish an unwarranted and unwise reduction of the Legislature's intent in section 261. It is true that subdivisions 1-7 within subdivision (a) of section 261 address the outrage ofthe same physical violation. However,it is clear to methat - each such subdivision carves out an individual outrage orillegality in addition to the physical act. For example, in subdivision (3) the additional ~ outrageis the advantage taken ofthe victim due to intoxication. In subdivision (4)(A), it is the advantage taken of an unconscious victim. The same maybesaid the other subdivisions. In subdivision (4)(C)the additional outrage is the perpetrator's use of fraud in fact. In (4)(D)it is the use offraud to induce the victim to believe sexual penetration is necessary for a professional purpose whenit is not. (See § 729.) In subdivision (6) it is the threat of retaliation against the victim or another. (See § 422.) In subdivision (7) the additional outrageis the use ofa threat of incarceration, arrest or deportation. (See Bus. & Prof. Code, § 494.6, subd.(b).) Thus, my colleagues' necessary conclusion only one outrage has occurred regardless ofthe circumstances described in subdivisions 1-7 of subdivision (a)ignores the clear legislative intent that each distinct circumstance enumerated in the statute is an outrage, not just against the victim, but as _ ‘expressed by individual law enforcement goals and public policy considerations, society in general. As such, each circumstance is an additional element that must be plead andproved. In disregarding the elementstest, the majority relies excfusively ona "structure test" in concluding that applicable section 261 more closely resembles former section 261 than former section 288a. Relying on the structure of applicable section 261, the majority notes that a reader can only understand subdivision (3) or (4) ofthat statute by reading subdivision (a) ofthatstatute, which, according to the majority, makes former section 288a "markedly different" than applicable section 261. (Maj. opn. ante, at p. 17.) 4. On page 6, the secondfull paragraph beginning with "Unlike the majority," and . the third full paragraph beginning with "As I discuss" are combined into one paragraph, and nowreads as follows: Unlike the majority, I do not find Smith helpful. The case lacks any analysis on our issue and instead, merely quotes Craig for the ruleit applied. Moreover,it is important to note that Smith modified the judgment to strike, as opposed to condolidate, the rape counts. Thus, the majority's _ apparent agreementwith the disposition allowed in Smith wouldleave a sentencing court with multiple options. As I discuss in more depth post, this resulting state of confusion and inconsistency ofsentencesis oneofthe main reasons whyI believe our SupremeCourt abandoneduseofthe disposition applied here by the majority and by the court in Smith. Instead, the court has for decades required application of section 654, subdivision (a) when a defendantstands convicted of multiple offenses arising out of the sameact. 5. On page 9,the first full paragraph beginning with "Asindicated," under heading B,is replacedin its entirety with the following: Asindicated, I believe that Gonzalez, Blockburger, and Craig require use ofthe elementstest; that defendant was properly charged and convicted of _ separate subdivisions of applicable section 261, subdivision (a); and that section 654 wasthereafter properly applied. This should endthe analysis. However, the ending is not so simple because we mustdeal with Craig's consolidation oftwo counts into one. Mycolleagues view this disposition in Craig as support for their conclusion that Craig requires westrikeone of defendant's rape counts so that he stands convicted ofonly one count of rape. 6. On page 10,the first full paragraph beginning with "At the time of Craig," under subheading No.1, is replacedin its entirety with the following: At the time of Craig, the then-prevailing view ofrape wasthat of a single form of "outrage" to the person and feelings of the victim, and, as such, a victim could not be "doubly outraged, once by force and once because of her tender years, but suffered only a single offence." (People v. Mummert (1943) 57 Cal.App.2d 849, 856-857, overruled in Collins, supra, 54 Cal.2d at p. 60.) Society's evolving viewof rape teaches that in enacting separate subdivisions in applicable section 261, each governedbyits own circumstances, the Legislature has recognized each subdivision as a - separate anddistinct offense with separate required elements. 7, On page 16, the followingchanges are made: e The paragraph beginning with the words "Indeed, the majority's use of" is replaced in its entirety with the following: Indeed, the majority's use of Craig and Smith to strike one of defendant White's rape counts potentially leads to the unintended consequences- expressly disapproved of in Wright. That is, if White's remaining rape conviction on count 1 is subsequently overturned, White would stand convicted of no counts of rape, despite the majority's findings in this case that substantial evidence supports convictions on both counts | and 2. Clearly, this is not a result intended by our Legislature, as reflected in sections 654, and 954, or by our Supreme Court, as reflected in Pearson and its progeny. e Anew paragraph, following the second full paragraph, is added and reads as follows: -e The majority's decision in this case strikingarape countalso has unintended consequences with respect to other statutes and-a defendant's sentence. For example, under certain circumstances, rape ofan intoxicated victim (§ 261, subd. (a)(3)) subjects a defendant to a five-year enhancement. (§ 667.6, subds. (a) and (e)(1).) Similarly, section 667.61, subdivision (c)(1) requires sentence enhancement when other requirements ofthe statute are met and when arape is committed only in violation of section 261, subdivision (a)(2) (i.e., force) or (a)(6)(i.e., threat of force). The majority fails to explain how in the face of such complications a court is to select which countit should strike. The majority renders such considerations ofno importance. e The paragraph beginning with the words "In my view'‘is replaced in its entirety with the following: In my view,instead of consolidating two rape countsbased on a single act as in Craig, or striking oneofthetwo rape countsas the majority in the instant case order, we are compelled to follow therule set forth by our Supreme Court and a very longline ofauthority and stay punishment of one or more of such offenses under subdivision (a) of section 654, thus avoiding the risk of any unintended benefit to a defendant while preserving his or her right to be free of multiple punishmentfor the sameact. 8. On page 17, heading C and the two subsequent paragraphsare deleted. BENKE,Acting P.J. APPENDIX A BENKE,J., Concurring and Dissenting, I dissent to part B ofthe majority's opinion. As noted by the majority, our high court in this case previously granted the People's petition for review pendingthe court's decision in People v. Gonzalez (2014) 60 Cal.4th 533 (Gonzalez), after a majority ofthis court found pursuant to People v. Craig (1941) 17 Cal.2d 453 (Craig) that defendant White allegedly could not be convicted of both rape of an intoxicated person (Pen. Code,! § 261, subd. (a)(3); count 1) and rape of an unconscious person (Pen. Code, - § 261, subd. (a)(4)(A); count 2).2 The majority now reaffirmsits previous holdingin light of, ordespite, Gonzalez. | - The majority concludes subdivisions (a)(3) and (a)(4)(A) of applicable section 261 "do not define separate crimes and do not contain separate punishments," but rather "are - ‘simply separate ways in which the crime ofrape can be committed undersection 261." (Maj. opn. ante, at p. 23.) Asa result, the majority strikes defendant's conviction on count 2, meaning defendant White now stands convicted of only one countofrape. In doing so, the majority does not explain for the benefit of sentencing courts or for our high court (in connection with any forthcomingpetition for review) why it struck count 2, as opposed to count 1, or whyit did not merelyconsolidate defendant's two rape od Allfurther statutory references are to the Penal Code. 2 Forclarity, I will use the same nomenclature as the majority (maj. opn. ante, at p. 16, fn. 3) in referring to the versions of section 261 ofthe Penal Code atissue in this case. "Former section 261"will refer to the version interpreted by the high court in 1941 - in Craig, and “applicable section 261"will refer to the version under which defendant was charged. . counts, as was done in Craig. In any event, I note if our highcourt or another court in a habeas court proceeding should overturn defendant's conviction on count 1, White then would stand convictedofno counts of rape, despite the majority's conclusion in this case that substantial evidence supports both convictions. Based on Gonzalez andits discussion ofBlockburger v. United States (1932) 284 U.S. 299, 304 (Blockburger), and based on Craig itself, I conclude that subdivisions (a)(3) and (a)(4)(A) of applicable section 261 require proofof different elements (i.e., the "elements test"), and, therefore, each subdivision constitutes an individual rape offense for which defendant may be separately charged and convicted. With respectto the actual holding of Craig (i.e., that rape andstatutory rape constitute a "single outrage"to be. sentenced as one crime), I conclude it was based on then-existing views of rape, which have since been abandoned, and that, in any event, the narrow holding of Craig was superseded when, amongother actions, the Legislature adopted section 261.5, That | statute set forth the separate crime of statutory rape, with a separate sentencing scheme. (Stats. 1970, ch. 1301, § 2.) | Finally, I conclude Craig's consolidation oftwo counts into a single conviction is explained by concernswith regard to the then-existing sentencing system, and, in any event, the disposition in Craig has, for sound reasons, been abandoned by case law culminating with In re Wright (1967) 65 Cal.2d 650 (Wright), which interprets section 654 as requiring application of a stay where a defendant has been convicted ofmultiple crimes arising from the sameact. In summary, because Craig was boundby cultural views and sentencing concerns that no longer exist, I conclude the modern and primary importance of Craig is its clear support foruse ofthe elements test. Therefore, I would affirm White's conviction on count 2 for violation of applicable section 261, subdivision (a)(4)(A) and, like thetrial court, would apply section 654, subdivision (a) to stay sentence on that offense. A. Because each count requires proofofat least one different element, defendant wasproperly convicted on counts I and 2. Our high court in Gonzalez considered a question similar to the one presented in the instant case, namely, "whether a defendant may, consistently with .. . section 954, be convicted of both oral copulation of an unconscious person (§ 288a, subd. (f)) and oral copulation of an intoxicated person (id., subd. (i)) based on the same act." (Gonzalez, supra, 60 Cal.4th at p. 535,fn. omitted.) As noted, a majority of our court had used Craig to preclude multiple convictions under former section 288a.3 (bid) In reversing, the court in Gonzalez did not disapprove of Craig, but neither did it approve of Craig in the manner suggested by the majority. Notably, Gonzalez points out that Craig "acknowledgedthat[a] defendant may be convicted oftwo separate offenses arising out of the same transaction when each offenseis stated in a separate count and ' when the two offensesdiffer in their necessary elements and one is not included within the other.""" (Gonzalez, supra, 60 Cal.4th at p. 539, quoting Craig, supra, 17 Cal.2dat p. 457.) Although the court in Gonzalez examinedthestructure of section 288a and noted that each subdivision was drafted to be self-contained by prescribing a specific ‘punishment, the court also noted this fact "supports the view that each describes an 3 Section 288a was amendedeffective September 9, 2013. (Stats. 2013, ch. 282, § 1.) The amendmentdid notalter subdivisions (f) or (1) under which the defendantin Gonzalez was charged and convicted. Forclarity, I will refer to the version of section - 288aunder which the defendant in Gonzalez was convictedas "former section 288a." 3 independentoffense, and therefore section 954is no impediment to a defendant's conviction under more than one such subdivision for a single act." (Gonzalez, at p. 539, italics added.) It is clear to me that, although Gonzalez uses the separate punishments of section 288a as support for its conclusion there are multiple offenses in the subdivisions ofsection 288a,it did not by this statement create a requirementthat a separate punishment mustbe prescribed in each subdivision in order to charge and convict a defendantofmultiple subdivisions that already require different elements. Holding,as my: colleagues do, that Gonzalez imposes an additional requirementof separate punishmentfor each such subdivision creates an inconsistency in Gonzalez that is not there and marginalizes or perhaps eliminates altogether the elementstest that is clearly set forth in that case and in Craig. In concluding Gonzalez applies an elements test rather than whatIwill call a "structuretest,” I find it significant that Gonzalez's analysis rests in large part on Blockburger, supra, 284 U.S. 299. (Gonzalez, supra, 60 Cal.4th at p. 539, citing _ Blockburger, supra, 284 U.S.at p. 304.) Briefly, in Blockburger, the defendant was charged and convicted in count 3 with selling eight grains ofmorphine "not in or from the otiginal stamped package" and in count 5 with the sale (as charged in count3) ofthat drug not made pursuant to a "written order of the purchaser," as was required. (Blockburger,at p. 301.) The defendant there argued there was butonesaleto the same purchaser, and,therefore, he committed only one offense for purposes of counts53 and 5. (id. at p. 304.) In rejecting this argument, Blockburger states: "The applicable rule is that where the sameactor transaction constitutes a violation oftwo distinct statutory provisions, the test to be applied to determine whetherthere are two offenses or only one, is whether eachprovision requiresproofofafact which the other does not." (Blockburger, supra, 284 U.S.at p. 304, italics added; see Gonzalez, supra, 60 Cal.4th at p. 539, quoting this language in Blockburger.) As a result, the United States Supreme Court concludedthere were two offenses, despite the fact counts 3 and 5 involved only onesale of morphine. (Blockburger, at p. 304.) | I note, there is no mention in Blockburger of any requirement there mustbe separate punishments, in addition to separate elements, in determining whether the same act or transaction givesrise to independent offenses when multiple statutory provisions of a criminal statute are violated. All that is required for separate charging and conviction is that the elements are different and one subdivision is not necessarily included within the other. In urging a conclusion thatviolation ofmultiple subdivisions within subdivision (a) of section 261 are but one crime, my colleagues erroneously conclude the circumstances listed in those subdivisions have nosignificance except to describe conditions under which a crime ofrape occurs. This premise merits close examination and rejection. We neednotresort here to debate as to what the holding of Craig is, and is not. Nor do we need to debate whether, as my colleagues believe, rape always constitutes a single outrageagainst the victim whatever the circumstances of the crime. We need only look at what our Legislaturehas donein enacting the version of section 261 | applicable when defendant was charged,a statute I note is vastly different and expanded than the oneinterpreted by our high court in Craig. Examination of applicable section 261 leads me toconclude my colleagues establish an unwarranted and unwise reduction of the Legislature's intent in section 261. It is true that subdivisions (1)-(7) within subdivision (a) of section 261 address the outrage ofthe same physical violation. However,it is clear to me that each such subdivision carves out an individual outrage. orillegality in addition to the physical act. For example, in subdivision (3) the additional outrage is the advantage taken ofthe victim due to intoxication. In subdivision (4)(A),it is the advantage taken of an unconscious victim. The same maybe said ofthe other subdivisions. In subdivision (4)(C), the additional outrage is the perpetrator's use of fraud in fact. In (4)(D), it is the use of fraud to induce the victim to believe sexual penetration is necessary for a professional purpose whenit is not. (See § 729.) In subdivision (6), it is the threat of retaliation against the victim or another. (See § 422.) In subdivision (7), the additional outrageis the use of a threat of incarceration, arrest or deportation. (See Bus. & Prof. Code, § 494.6, subd. (b).) | Thus, my colleagues’ necessary conclusion only one outrage has occurred regardless of the circumstances described in subdivisions (1-7) of section 261, subdivision (a) ignores the clear legislative intent that each distinct circumstance enumerated in the statute is an outrage, not just against the victim, but as expressed by individual law enforcement goals and public policy considerations, society in general. As _ such, each circumstanceis an additional element that must be plead and proved. In disregarding the elements test, the majority relies exclusively on a "structure test" in concludingthat applicable section 261 more closely resembles formersection 261 than former section 288a. Relying on the structure of applicable section 261, the majority notes that a reader can only understand subdivision (3) or (4) of that statute by reading subdivision (a) of that statute, which, according to the majority, makes former section -288a "markedly different" than applicable section 261. (Maj. opn. ante, at p. 17.) I find no help in this comparison becauseI notethat subdivision (a) of former section 288a is the only subdivision within that statute to define what"oral copulation" means: "Oral copulation is the act of copulating the mouth ofone person with the sexual organ or anusofanotherperson." (Former § 288a, subd. (a).) Subdivisions (b) through (k) of formersection 288a then rely on that definition to define the various circumstances under whichthe crime of oral copulation can be committed. This is not unlike | subdivisions (1) through (7) ofsubdivision (a) of applicable section 261, which must be read and considered in connection with subdivision(a), defining rape. -Nor do I find persuasive the case law relied upon by the majority. In support ofits holding, the majority relies on People v. Smith (2010) 191 Cal.App.4th 199 (Smith). Briefly, much like White here, the defendant in Smith was convicted ofrape of an intoxicated person and rape ofan unconscious person. (Jd. at | Pp. 201.) Relying on Craig, the Smith court summarily concluded both ofthe defendant's convictions could not stand "because ‘only one punishable offense ofrape results from a single act ofintercourse, though it may be chargeable in separate counts when accomplished under the varying circumstancesspecified in the subdivisions of [former] section 261 ofthePenal Code." (Smith, at p. 205, quoting Craig, supra, 17 Cal.2d at p. 458.) Unlike the majority, I do not find Smith helpful. The case lacks any analysis on ourissue and instead merely quotes Craig for the rule it applied. Moreover,it is importantto note that Smith modified the judgmentto strike, as opposed to condolidaie, the rape counts. Thus, the majority's apparent agreementwith the disposition allowed in Smith would leave a sentencing court with multiple options. As I discuss in more depth post, this resulting state of confusion and inconsistency of seritencesis one ofthe main reasons whyI believe our Supreme Court abandoneduseofthe disposition applied here by the majority and by the court in Smith. Instead, the court has for decades required application of section 654, subdivision (a) when a defendant stands. convicted of multiple offenses arising out of the sameact. The majority also relies on People v. Maury (2003) 30 Cal.4th 342 (Maury) and People v. Collins (1960) 54 Cal.2d 57 (Collins) to support its conclusion that violation of multiple subdivisions of subdivision (a) of applicable section 261 by the same act or transaction involves only one offense. (Maj. opn. ante, at p. 22.) As relevant to my discussion, the issue in Maury was whether a defendant's due processrights were violated when he was charged with rape "by means of force and fear of immediate and unlawful . bodily injury," and when the jury was instructed the defendant could be guilty ofrape if he accomplishedthe sexual intercourse with the victim "by means of force, violence, or | ‘fear of immediate andunlawful bodily injury.” (Maury, at p. 427, italics added.) In rejecting this argument, the Maury court cited Collins for the proposition that "rape by meansofviolence is not a different offense fromrape by meansof force or fear," but _ rather were terms that "merely describe[d] different circumstances under which an act of intercourse may constitute the crime of rape." (Maury, at p. 427.) Maury, however, offers no support for the proposition that the various subdivisions in applicable section 261 comprise merely one offense ofrape becauseI tt it.note that "force," "violence"or "fear of immediate and unlawful bodily injury"all appear under the same subdivision—(a)(2)—of applicable section 261. Likewise, the holding in Collins—affirming a conviction of statutory rape under an information charging a defendant with forcible rape—hasbeen abrogatedasa result of "legislative recasting" of former section 261. (Gonzalez, supra, 60 Cal.4th at p. 540; see People v. Chapman (1975) 47 Cal.App.3d 597, 604, fn. 3.) Neither Maury nor Collins supports acontinued | Craig-type analysis used by the majority in circumstances such as those presented in the instant case. Finally, the majority opinion leads to the conclusion that the Legislature intended to treat the sex crimes ofrape and oral copulation differently, such that a defendant who > commits oral copulation of an intoxicated and unconscious person can be guilty oftwo offenses, whereas a defendant who commits rape of an intoxicated and unconscious person can be guilty ofonly one offense. I do not agree that the Legislature intended such a result. Applying the elements test consistently to both statutes prevents this disparity. Because we can assume the Legislature was awareofthis test andits settled application in thelaw, we neednot challenge the Legislature to makeitselfmore clear on this point or solve a problem thatdoes notexist. Applying the elementstest here, 1 conclude that White committed two separate offenses when he was found guilty in counts 1 and 2 ofrape of an intoxicated person and rape of unconscious person, respectively, as clearly each count required proof of a different element and each defined a different way in which the act ofrape was committed.4 I find the majority's abandonmentofthe elements test and exclusive ‘relianceon a “structure test” not only confusing and likely to cause mischief,> but also contrary to Gonzalez. 4 ‘Underapplicable section 261, subdivision (a)(3), the crime ofrape occurs "{w]here a person is prevented from resisting [the act of sexual intercourse accomplished with a person not the spouse ofthe perpetrator] by any intoxicating or anesthetic . substance, or any controlled substance, and this condition was known,or reasonably should have been knownby the accused.” (§ 261, subd. (a)(3).) However, under subdivision (a)(4) of applicable section 261, the crime of rape occurs "[w]here a personis at the time unconsciousofthe nature ofthe act, and this is known to the accused. As used in this paragraph, ‘unconsciousofthe nature ofthe act' meansincapableofresisting . {the act of sexual intercourse accomplished with a person not the spouse ofthe perpetrator] because the victim meets any oneofthe following conditions: [{[] (A) Was unconsciousor asleep." (§ 261, subd. (a)(4).) Clearly, subdivisions (a)(3) and (a)(4)(A). are comprised of different elements, which supports the conclusion they are independent offenses. 5 I note our high court recently granted the People’s petition for review in Peoplev. Vidana, review granted April 1, 2015, S224546, which involved the issue of whether larceny and embezzlement were separate and distinct offenses under Gonzalez. Similarly, the Court ofAppeal just granted rehearing on our exactissue in People v.. Soria. (People v. Soria (C070238, rehg. granted Mar. 16, 2015).) In addition, Division Three of our court recently decided People v. Wilson (2015) 234 Cal.App.4th 193, 199 by relying in part on Gonzalez and Craig, when it found the Legislature did not intend to create two different crimes within the meaningofsection 422 (i.e., making a criminal threat). In my view,these cases as well as others recently decided show the difficulty of applying a Craig-type analysis, as that case is interpreted by the majority, in circumstances such as those presented in the instantcase. 10 B. | PenalCode section 654 and the post-Craigjurisprudential developmentofthat statute govern this case. | | | Asindicated, I believe that Gonzalez, Blockburger, and Craig require use of the elementstest; that defendant was properly charged and convicted of separate subdivisions of applicable section 261, subdivision (a); and that section 654 was thereafter properly applied. This should end the analysis. However, the ending is not so simple because we must deal with Craig's consolidation oftwo counts into one. My colleaguesviewthis disposition in Craig as support for their conclusion that Craig requires westrike one of defendant's rape counts so that he stands convicted of only one countofrape. In my view, Craig is a case with a particularly complex identity. I wouldnot concludeit has been overruled nor would I agree it should be overruled. However, I do believe it was compelled to rest on a culture that no longer exists, and the serious | problem ofmultiple punishment it then faced has long since been resolved. I am left with the conclusion, discussed ante in section A,that Craig's significanceis its application of the elementstest. 1. The culture and law regarding the crime ofrape at the time of Craig Atthetime of Craig,the then-prevailing view of rape wasthat of a single form of “outrage” to the person and feelings of the victim, and, as such, a victim could not be "doubly outraged, once by force and once because ofher tender years, but suffered onlya single offence." (People v Mummert(1943) 57 Cal.App.2d 849, 856-857, overruled in Collins, supra, 54 Cal.2dat p. 60.) Society's evolving view ofrape teaches that in | enacting separate subdivisions in applicable section 261, each governed byits own 11 circumstances, the Legislature hasrecognized each subdivision as a separate and distinct offense with separate required elements. Moreover, in finding that former section 261 defined but one crime, the court in| Craig relied on the express languageofthe formerstatute, which stated that rape occurred "undereither ofthe following circumstances." (Former § 261, italics added.) The term “either” connotes the choice between “oneor the other." (Random House Unabridged Dict. (2d ed. 1993) p. 625.) The "either of" language in the formerstatute certainly lent the statute to the interpretation adopted in Craig. However, the "either of" language is no longer in subdivision (a) of section 261— it was replaced with the word "any"—and rape may now be accomplished by any ofthe enumerated acts. Theterm "any" connotes "oneor more." (Random House Unabridged Dict., supra, at p. 96.) Significantly, this change was madebythe samebill that extended the protection of our rape statute, for the first time, to men. (Stats. 1979, ch. 994, § 1, p. 3383.) I believe these changes, coupled with the Legislature's earlier separation of statutory rape from the mainrape statute, should be interpreted as the Legislature's abandonment of antiquated views represented in the law ofrape as it existed when Craig was decided and, hence,at the time ofthe narrow holding ofthe court in that case. I find no rational reason to accept the majority's revival ofthose abandoned views. 2. The sentencing process at the time of Craig Craig also was faced at the time with resolving a serious sentencing concern that _ nolongerexists; specifically how a defendant should be sentenced for multiple convictionsarising out of a single act. Atthe time of Craig, the State Board ofPrison. 12 Terms and Paroles (Board) was responsible for fixing the definite sentence term of - defendants. The defendant in Craig was faced with twojudgments for the same offense. The court soughtto eliminate potential confusion and the prejudice ofmultiple punishmentto the defendant if the Board saw there were two judgments and did not realize there was but a single act involved. The court solved this specter of multiple punishment by consolidating the judgments to ensure the Board was not confused and the defendant was not punished twice for the same act. (Craig, supra, 17 Cal.2d at pp. 458- 459.) Neither before nor immediately after Craig did section 6549 provide any guidance regarding how to punish an act or omission made punishable by different provisions of the statute. Although,like the current version of section 654, the formerversion ofthat statute precluded multiple punishment, and while section 654, subdivision (a) now provides that the provision setting the longest potential term of imprisonmentapplies, there was, and is, no express provisionin the statute allowing for a stay to avoid multiple punishment for crimes arising out of the same criminal act. Thus, clearly at the time 6 Formersection 654, which wasapplicable when Craig was decided, provided: "An act or omission which is made punishablein different ways by different provisions of thisCode may be punished undereither ofsuch provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other. In the cases specified in Sections 648, 667 and 668,the punishments therein prescribed must be substituted for those prescribed for a first offense, if the previous conviction is charged in the indictment andfound by the jury." Section 654 was amended in 1976 toreflect the current version of the statute: "An act or omission thatis punishableiin different ways by different provisions of law shall be punished underthe provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one ~ provision. An acquittal or conviction and sentence underany one bars a prosecutionfor the same act or omission under any other.” 13 Craig was decided, there wasa serious need to carve out a uniform sentencing toolthat would consistently avoidmultiple punishmentfor the sameact. In understanding the resolution of the sentencing problem facingour courts at the time of Craig, I find particularly useful the decision of our high court in Peoplev. Pearson (1986) 42 Cal.3d 351 (Pearson), which fully discusses the development of section 654 jurisprudence. That discussion leads me to conclude the sentencing disposition in Craig has been disapproved. In Pearson, the court notes: "Someofourearlierdecisions held that the imposition of concurrent sentencessufficiently protected the defendant frommultiple punishment because he would be serving eachofhis sentences simultaneously. (See, ¢.g., Peoplev. Kynette (1940) 15 Cal.2d 731, 761-762 [(Kynette)].) In other cases, however, we refused to affirm multiple convictions because of the possibility that such convictions would _ disadvantage the defendant when the Adult Authority fixed the date he would ultimately be released from prison. (See, e.g., People v. Brown (1958) 49 Cal.2d 577,593; People yv. Logan [(1953)] 41 Cal.2d 279, 290-291; cases cited in People v. Smith [(1950)] 36 Cal.2d 444, 448.) In Neal v. State ofCalifornia [(1960)] 55 Cal.2d 11, we wentso far as to indicate that multiple convictionswere invalid per se. (/d. at p. 19 ['If only a single act is charged as the basisofthe multiple convictions, only one conviction can be affirmed.'].) "Our later cases, however, reaffirmed that section 654 bars multiple punishment,. not multiple conviction. (People v. Tideman (1962) 57 Cal.2d 574, 586-587; People vy. McFarland (1962) 58 Cal.2d 748, 762-763.) In McFarland we explained: "With respect to the procedure to be followed on appeal where double punishment has been erroneously | 14 ‘imposed,it should be stressed that section 654 proscribes double punishment, not double conviction; conduct giving rise to more than one offense within the meaning ofthe statute mayresult in initial conviction of both crimes, only one ofwhich, the more serious offense, may be punished. [Citation.] The appropriate procedure, therefore,is to eliminate the effect ofthe judgment asto the lesser offense insofar as the penalty aloneis concerned.’ ([bid.) - | | | "InPeople v. Niles (1964) 227 Cal.App.2d 749, 756 [(Niles)], the Court ofAppeal determinedthat the proper method ofeliminating the punitive consequences ofmultiple convictions wasto stay execution of sentence forall but one conviction arising out of each act or indivisible course of conduct. This procedure was developed to avoid the potentially unfair consequencesto the state of refusing to allow multiple convictions: ‘if [a trial court] dismisses the count carrying the lesser penalty, and the conviction on the remaining count should be reversed on appeal, the defendant would stand with no conviction at all.' (/bid.) | "Soon after Niles, this court decided Jn re Wright (1967)65 Cal.2d 650, in which we approved ofthe procedure the Niles court had developed. In Wright we reaffirmed the rule that section 654 does not prohibit multiple convictions, but also declared that it does bar concurrent sentences for such convictions. Wereasoned that concurrent sentencesstill amounted to punishment under more than one provision, prohibited under section 654, and could prejudice the defendantin various ways: 'Under the habitual criminal statute [citation] defendant would be prejudiced by erroneous concurrent sentences for an offense subject to a lesser penalty but available to support a - determination of habitual criminality . . . and an offense subject to a greater penalty but 15 M G S O Po v ha to not listed in the habitual criminal statute .... 4] ‘Erroneous concurrent sentences for petty theft, with a maximum term of six monthsin jail [citation], and issuing a check not exceeding $100 without sufficient funds, with a maximum term of one year in jail [citation], would be detrimentalto a defendant who suffereda subsequent conviction — because he would be subjectto the increased minimum punishments provided by Penal Code section 666 for one who has been previously convicted ofpetty theft and "served a term therefor in any penal institution."" (/d. at p. 654,fn.2, italics added.) | "In Wright we therefore balancedthe potential windfall to the defendant of reversing multiple convictions against the prejudice to him ofallowing sentencing for such convictions. We then determined that the procedure of staying execution of sentence for multiple convictions instead of reversing such convictions reasonably reconciles the policies involved in applying section 654 to protect the rights ofboth the | state and the defendant,' and follows logically from the section 654 prohibition against punishing the defendant under more than one provision based on a single criminal act. (Id. at pp. 655-656,fn. 4.)" (Pearson, supra, 42 Cal.3d at pp. 359-360.) As explained by Pearson, I believe Craig reflects a sentencing problem that plaguedour courts prior to Wright. It was a sentencing problem that saw inconsistent tulingsby our Supreme Court. Indeed, a year before Craig was decided, as Pearson ’ noted the Kynette court applied former section 654 to require sentences to run concurrently in order to avoid double punishment after a defendant was convicted of attempted murder, assault with intent to murder and the malicious use of explosives,all of which convictions the court noted were "traceable to and [were] the direct resultofthe placing of a bombinthe automobile ofthe victim." (See Kynette, supra, 15 Cal.2d at 16 pp. 761-762, overruled on another ground as stated in People v. Snyder (1958) 50 Cal.2d 190, 197.) In reachingits decision, Kynette noted "it would havebeen morein conformity with the legislative intent expressed in section 654 ofthe Penal Code to preclude more thanone punishment for an act 'punishable in different ways by different provisions ofthis code,' ifthe court below had causedall three sentences to run ‘concurrently rather than two ofthem, with the third running consecutively." (Kyneite, at p. 762.) For reasons specific to each case, in Kynette the response of the court was to apply concurrent sentences, while in Craig the response wasto consolidate the multiple convictions.7 Once Niles was decided in 1964, which introduced the concept of staying sentence and punishment for convictions otherwise appropriate under formersection 654, clearly it. | wasno longer necessary to consolidate multiple offenses into a single conviction or to’ ensure sentences from multiple convictions ran concurrently, as was the case in the 1940's when Craig and Kynette were decided. In light of this, 1 view Craig and Kynette as casesthat are part ofthe history of inconsistency so meticulously set forth in Pearson. As J have noted, it is not an inconsistency I believe merits any argument that Craig 7 As recognized by Gonzalez, the first count in Craig alleged the defendant committed the rape with force and violence, in violation of subdivision (3) of former section 261, and the second count, "after alleging [in the information] that it was "a different statementofthesame offense"[citation] charged statutory rape of a child below the age of consent, in violation of former section 261, subdivision 1." (Gonzalez, supra, 60 Cal.4th at p. 538,italics added, quoting Craig, supra, 17 Cal.2d at p. 454.) Thus, perhaps Craig was decided differently than Kyne?te as a result ofhow the defendantin Craig was charged. . . . 17 should be overturned; rather, it is inconsistency attributable to a sentencing concern that _has been remedied. Unfortunately, the approach now employed by the majority, like the option to. strike presented in Smith, negate muchofthehistorical progress noted in Pearson and deliver us back to the inconsistency and confusionthat existed before implementation of the stay procedure engrafted onto section 654 by Niles and approved by Wright. Indeed, the majority's use of Craig and Smith to strike one of defendant White's rape counts potentially leads to the unintended consequences expressly disapproved of in Wright. Thatis, if White's remaining rape conviction on count1 is subsequently overturned, White would stand convicted ofno counts of rape, despite the majority's findings in this case that substantial evidence supports convictions on both counts | and ' 2. Clearly, this is not a result intended by our Legislature, as reflected in sections 654, and 954, or by our Supreme Court, as reflected in Pearson and its progeny. The majority's decision in this case striking a rape count also hasunintended consequences with respect to other statutes and a defendant's sentence. For example, undercertain circumstances, rape ofan intoxicated victim (§ 261, subd. (a)(3)) subjects a defendantto a five-year enhancement. (§ 667.6, subds. (a) and (e)(1).) Similarly, section 667.61, subdivision (c)(1) requires sentence enhancement whenother requirements ofthe statute are met andwhena rapeis committed only in violation of section 261, subdivision (a)(2)(ie., force) or (a)(6)(i.e, threat of force). The majority failsto explain how in the face ofsuch complications a court is to select which countit should strike. The majority renders such considerations ofno importance. 18 In my view, instead of consolidating two rape counts based ona single act as in Craig, or striking one ofthe two rape counts as the majority in the instant case order, we are compelledto follow therule set forth by our Supreme Court and a very long line of authority and stay punishment of one ormore ofsuch offenses under subdivision (a) of section 654, thus avoiding the risk of any unintended benefit to a defendant while preservinghis or her right to be free ofmultiple punishment for the same act. _ In sum, I conclude White was properly convicted in counts | and 2 ofrape of an intoxicated person (former § 261, subd. (a)(3))and rape of an unconscious person(id., subd. (a)(4)(A)). I further conclude White's punishment in connection with count 2 was properly stayed under section 654, subdivision (a). In all other respects, I agree with the majority decision. BENKE,ActingP.J. L, KEVIN J. LANE, Clerk of the Court of Appeal, Fourth Appellate District, State ofCalifomia, do herebycertify (hat this preceding and annexed is a trac and correct copyofthe original on file in my office. WITNESS, my hand and the Seal of the Court this July 14, 2015 : KEVIN J. LANE, CLERK By A . Calve2_ Deputy Clerk ' 19 DECLARATIONOF SERVICEBYU.S. MAIL & ELECTRONIC SERVICE Case Name: People v. White | No.: D060969 I declare: I am employedin the Office of the Attorney General, whichis the office of a member _of the California State Bar, at which member's directionthis service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office ofthe Attorney Generalfor collection and processing ofcorrespondence for mailing with the United States Postal Service. In accordance with thatpractice, correspondenceplaced in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same dayin the ordinary course of business. The Office ofthe Attomey General’s eService address is AGSD.DAService@doj.ca.gov. On July23, 2015, I served the attached: PETITION FOR REVIEW, byplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office ofthe Attorney Generalat 600 West Broadway, Suite 1800, P.O. . Box 85266, San Diego, CA 92186-5266, addressed as follows: ; Theresa Osterman Stevenson Attorney at Law Kevin J. Lane - P.O. Box 83924 | Clerk/Administrator ( San Diego, CA 92138 . Fourth Appellate District, Division {Counsel for Appellant White] - Division One . | 750 B Street, Suite 300 Honorable Frank A. Brown, Judge San Diego, CA 92101 c/o Michael M. Roddy | Executive Officer San Diego County Superior Court | 220 West Broadway San Diego, CA 92101-3409 and, furthermore I declare, in compliance with California Rules of Court, rules 2.251(i)(1)(A)- (D) and8.71(£)(1)(A)-(D),I electronically served a copy of the above document onJuly 23, 2015, by 5:00 p.m., on the close of business day to the following. eservice-criminal@adi-sandiego.com da.appellate@sdcda.org Appellate Defenders,Inc.’s San Diego District Attorney’s Office Stevenson129272@gmail.com Theresa Osterman Stevenson . Ideclare under penalty of perjury under the laws of the State of California the foregoing is true ' and correct andthat this declaration was executed on July 23, 2015, at San Diego, California. |L.Hernénder | a 4\ ane’ A . Declarant a Signature $D2012702958 , 71109297.doc ue : .