P. v. White

• Court: California Court of Appeal
• Decided: July 14, 2015
• Docket: D060969M
• Status: Published

Opinion

Filed 7/14/15 (unmodified opn. attached after Appendix A)

CERTIFIED FOR PUBLICATION

OPINION ON REMAND

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D060969

Plaintiff and Respondent, (Super. Ct. No. SCD228290) v. ORDER MODIFYING BILLY CHARLES WHITE, DISSENTING OPINION

Defendant and Appellant. [NO CHANGE IN JUDGMENT OR MAJORITY OPINION]

THE COURT:

It is ordered that the dissenting opinion filed herein on June 18, 2015, be modified

as follows:

1. For the convenience of readers, attached as Appendix A is a complete version

of the dissent, as modified by this order.

2. On page 1, the following changes are made:

 The following sentence is added to the beginning of the first full

paragraph:

I dissent to part B of the majority's opinion.  Footnote 1, at the bottom of page 1, is split into two footnotes, which

will require renumbering of all subsequent footnotes, and read as follows: 1 All further statutory references are to the Penal Code. 2 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 of the Penal Code at 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.

 The numerical reference to footnote 1 at line 6, paragraph 1, is

moved to line 5 between the words "Code," and "§" in the first parenthetical

statutory reference.

 The numerical reference to footnote 2, paragraph 1, is inserted at line

6 at the end of the 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. The full

paragraph now reads as 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 crime of rape can be committed under section 261." (Maj. opn. ante, at p. 23.) As a result, the majority strikes defendant's conviction on count 2, meaning defendant White now stands convicted of only one count of rape.

 The second full paragraph, beginning with "I dissent to part B" is

replaced in its entirety with the following:

2 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 opposed to count 1, or why it did not merely consolidate defendant's two rape counts, as was done in Craig.3 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 of no counts of rape, despite the majority's conclusion in this case that substantial evidence supports both convictions.

 The third full paragraph, beginning with "With respect" is replaced

in its entirety with the following:

Based on Gonzalez and its discussion of Blockburger 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 proof of 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 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 then- existing views of rape, which have since been abandoned, and that, 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 of statutory rape, with a separate sentencing scheme. (Stats. 1970, ch. 1301, § 2.)

3. On page 5, the following changes occur:

 The first full paragraph beginning with "The majority, in my view"

is deleted.

 The following four paragraphs are added:

In urging a conclusion that violation of multiple subdivisions within subdivision (a) of section 261 are but one crime, my colleagues erroneously conclude the circumstances listed 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

3 of the crime. We need only 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 and expanded than the one interpreted by our high court in Craig. Examination of 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 of the same physical violation. However, it is clear to me that each such subdivision carves out an individual outrage or illegality in addition to the physical act. For example, in subdivision (3) the additional outrage is the advantage taken of the victim due to intoxication. In subdivision (4)(A), it is the advantage taken of an unconscious victim. The same may be said 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 of fraud to induce the victim to believe sexual penetration is necessary for a professional purpose when it 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 outrage is 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 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 and proved.

In disregarding the elements test, the majority relies exclusively on a "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) 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.)

4. On page 6, the second full paragraph beginning with "Unlike the majority," and

the third full paragraph beginning with "As I discuss" are combined into one paragraph,

and now reads as follows:

4 Unlike the majority, I do not find Smith helpful. The case lacks any analysis on our issue and instead, merely quotes Craig for the rule it 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 agreement with 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 sentences is one of the main reasons why I believe our Supreme Court abandoned use of the 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 same act.

5. On page 9, the first full paragraph beginning with "As indicated," under

heading B, is replaced in its entirety with the following:

As indicated, I believe that Gonzalez, Blockburger, and Craig require use of the elements test; 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 of two counts into one. My colleagues view this disposition in Craig as support for their conclusion that Craig requires we strike one of defendant's rape counts so that he stands convicted of only one count of rape.

6. On page 10, the first full paragraph beginning with "At the time of Craig,"

under subheading No. 1, is replaced in its entirety with the following:

At the time of Craig, the then-prevailing view of rape was that 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 view of rape teaches that in enacting separate subdivisions in applicable section 261, each governed by its own circumstances, the Legislature has recognized each subdivision as a separate and distinct offense with separate required elements.

5 7. On page 16, the following changes are made:

 The paragraph beginning with the words "Indeed, the majority's use of" is

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 1 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.

 A new paragraph, following the second full paragraph, is added and reads

 The majority's decision in this case striking a rape count also has unintended consequences with respect to other statutes and a defendant's sentence. For example, under certain circumstances, rape of an 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 of the statute are met and when a rape 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 count it should strike. The majority renders such considerations of no importance.

 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 counts based on a single act as in Craig, or striking one of the two rape counts as the majority in the instant case order, we are compelled to follow the rule set forth by our Supreme Court and a very long line of authority 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 punishment for the same act.

6 8. On page 17, heading C and the two subsequent paragraphs are deleted.

BENKE, Acting P. J.

7 APPENDIX A

BENKE, J., Concurring and Dissenting.

I dissent to part B of the majority's opinion. As noted 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 of this

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,1 § 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 reaffirms its previous holding in

light of, or despite, 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 of rape can be committed under section 261."

(Maj. opn. ante, at p. 23.) As a result, the majority strikes defendant's conviction on

count 2, meaning defendant White now stands convicted of only one count of rape.

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 opposed to count 1, or why it did not merely consolidate defendant's two rape

1 All further statutory references are to the Penal Code.

2 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 of the Penal Code at 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. counts, as was done in Craig. In any event, I note if our high court or another court in a

habeas court proceeding should overturn defendant's conviction on count 1, White then

would stand convicted of no counts of rape, despite the majority's conclusion in this case

that substantial evidence supports both convictions.

Based on Gonzalez and its discussion of Blockburger 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 proof of 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 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 then-existing views of rape, which

have since been abandoned, and that, 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 of statutory rape, with a separate sentencing scheme.

(Stats. 1970, ch. 1301, § 2.)

Finally, I conclude Craig's consolidation of two 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 requiring application of a stay where a defendant has been convicted of multiple

crimes arising from the same act.

In summary, because Craig was bound by cultural views and sentencing concerns

that no longer exist, I conclude the modern and primary importance of Craig is its clear

2 support for use of the 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 sentence on that offense.

A. Because each count requires proof of at least one different element, defendant

was properly convicted on counts 1 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 (Ibid.)

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 "acknowledged that '"[a] defendant may be convicted of two separate offenses

arising out of the same transaction when each offense is stated in a separate count and

when the two offenses differ in their necessary elements and one is not included within

the other."'" (Gonzalez, supra, 60 Cal.4th at p. 539, quoting Craig, supra, 17 Cal.2d at

p. 457.) Although the court in Gonzalez examined the structure 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 amended effective September 9, 2013. (Stats. 2013, ch. 282, § 1.) The amendment did not alter subdivisions (f) or (i) under which the defendant in Gonzalez was charged and convicted. For clarity, I will refer to the version of section 288a under which the defendant in Gonzalez was convicted as "former section 288a."

3 independent offense, and therefore section 954 is 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

of section 288a, it did not by this statement create a requirement that a separate

punishment must be prescribed in each subdivision in order to charge and convict a

defendant of multiple subdivisions that already require different elements. Holding, as

my colleagues do, that Gonzalez imposes an additional requirement of separate

punishment for each such subdivision creates an inconsistency in Gonzalez that is not

there and marginalizes or perhaps eliminates altogether the elements test that is clearly

set forth in that case and in Craig.

In concluding Gonzalez applies an elements test 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 count 3 with selling eight grains of morphine "not in or from

the original stamped package" and in count 5 with the sale (as charged in count 3) of that

drug not made pursuant to a "written order of the purchaser," as was required.

(Blockburger, at p. 301.) The defendant there argued there was but one sale 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 same act or transaction constitutes a violation of two distinct statutory provisions, the

4 test to be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not." (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 concluded there

were two offenses, despite the fact counts 3 and 5 involved only one sale of morphine.

(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

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 that violation of multiple subdivisions within subdivision

(a) of section 261 are but one crime, my colleagues erroneously conclude the

circumstances listed 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 need

only 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 and expanded

than the one interpreted by our high court in Craig. Examination of applicable section

5 261 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 of the same physical violation. However, it is clear to me that each such

subdivision carves out an individual outrage or illegality in addition to the physical act.

For example, in subdivision (3) the additional outrage is the advantage taken of the

victim due to intoxication. In subdivision (4)(A), it is the advantage taken of an

unconscious victim. The same may be said of 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 of fraud to induce the victim to believe sexual penetration is necessary for a

professional purpose when it 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

outrage is 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 circumstance is an additional element that must be plead and proved.

In disregarding the elements test, the majority relies exclusively on a "structure

test" in concluding that applicable section 261 more closely resembles former section 261

6 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 because I note that 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 of one person with the sexual

organ or anus of another person." (Former § 288a, subd. (a).) Subdivisions (b) through

(k) of former section 288a then rely on that definition to define the various circumstances

under which the crime of oral copulation can be committed. This is not unlike

subdivisions (1) through (7) of subdivision (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 of its 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 of an unconscious person. (Id. at

p. 201.) Relying on Craig, the Smith court summarily concluded both of the defendant's

convictions could not stand "because 'only one punishable offense of rape results from a

single act of intercourse, though it may be chargeable in separate counts when

accomplished under the 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.)

7 Unlike the majority, I do not find Smith helpful. The case lacks any analysis on

our issue and instead merely quotes Craig for the rule it 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 agreement with 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 sentences is one of the main

reasons why I believe our Supreme Court abandoned use of the 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 same act.

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 process rights 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 of rape if

he accomplished the sexual intercourse with the victim "'by means of force, 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

means of violence is not a different offense from rape by means of force or fear," but

8 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 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

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 of rape and oral copulation differently, such that a defendant who

commits oral copulation of an intoxicated and unconscious person can be guilty of two

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 elements test consistently to both statutes prevents this

disparity. Because we can assume the Legislature was aware of this test and its settled

application in the law, we need not challenge the Legislature to make itself more clear on

this point or solve a problem that does not exist.

9 Applying the elements test here, I conclude that White committed two separate

offenses when he was found guilty in counts 1 and 2 of rape 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 of rape was

committed.4 I find the majority's abandonment of the elements test and exclusive

reliance on a "structure test" not only confusing and likely to cause mischief,5 but also

contrary to Gonzalez.

4 Under applicable 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 spouse of the perpetrator] by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused." (§ 261, subd. (a)(3).) However, under subdivision (a)(4) of applicable section 261, the crime of rape occurs "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting [the act of sexual intercourse accomplished with a person not the spouse of the perpetrator] because the victim meets any one of the following conditions: [¶] (A) Was unconscious or 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 People v. 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 of Appeal 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) 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 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 by the majority, in circumstances such as those presented in the instant case.

10 B. Penal Code section 654 and the post-Craig jurisprudential development of that

statute govern this case.

As indicated, I believe that Gonzalez, Blockburger, and Craig require use of the

elements test; 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 of two counts into one. My colleagues view this

disposition in Craig as support for their conclusion that Craig requires we strike one of

defendant's rape counts so that he stands convicted of only one count of rape.

In my view, Craig is a case with a particularly complex identity. I would not

conclude it 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 of multiple punishment it then faced has long since been resolved. I am left with

the conclusion, discussed ante in section A, that Craig's significance is its application of

the elements test.

1. The culture and law regarding the crime of rape at the time of Craig

At the time of Craig, the then-prevailing view of rape was that 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 view of rape teaches that in

enacting separate subdivisions in applicable section 261, each governed by its own

11 circumstances, the Legislature has recognized 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 language of the former statute, which stated that rape

occurred "under either of the following circumstances." (Former § 261, italics added.)

The term "either" connotes the choice between "one or the 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" 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 of the

enumerated acts. The term "any" connotes "one or more." (Random House Unabridged

Dict., supra, at p. 96.) Significantly, this change was made by the same bill 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 main rape statute, should be interpreted as the Legislature's

abandonment of antiquated views represented in the law of rape as it existed when Craig

was decided and, hence, at the time of the narrow holding of the court in that case. I find

no rational reason to accept the majority's revival of those 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

no longer exists, specifically how a defendant should be sentenced for multiple

convictions arising out of a single act. At the time of Craig, the State Board of Prison

12 Terms and Paroles (Board) was responsible for fixing the definite sentence term of

defendants. The defendant in Craig was faced with two judgments for the same offense.

The court sought to eliminate potential confusion and the prejudice of multiple

punishment to 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 6546 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 former version of that

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

punishment for crimes arising out of the same criminal act. Thus, clearly at the time

6 Former section 654, which was applicable when Craig was decided, provided: "An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such 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 and found by the jury." Section 654 was amended in 1976 to reflect the current version of the statute: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of 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 same act or omission under any other."

13 Craig was decided, there was a serious need to carve out a uniform sentencing tool that

would consistently avoid multiple punishment for the same act.

In understanding the resolution of the sentencing problem facing our courts at the

time of Craig, I find particularly useful the decision of our high court in People v.

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: "Some of our earlier decisions held that the imposition

of concurrent sentences sufficiently protected the defendant from multiple punishment

because he would be serving each of his sentences simultaneously. (See, e.g., People v.

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

v. Logan [(1953)] 41 Cal.2d 279, 290-291; cases cited in People v. Smith [(1950)] 36

Cal.2d 444, 448.) In Neal v. State of California [(1960)] 55 Cal.2d 11, we went so far as

to indicate that multiple convictions were invalid per se. (Id. at p. 19 ['If only a single act

is charged as the basis of the 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 v.

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 of the statute

may result in initial conviction of both crimes, only one of which, the more serious

offense, may be punished. [Citation.] The appropriate procedure, therefore, is to

eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is

concerned.' (Ibid.)

"In People v. Niles (1964) 227 Cal.App.2d 749, 756 [(Niles)], the Court of Appeal

determined that the proper method of eliminating the punitive consequences of multiple

convictions was to stay execution of sentence for all but one conviction arising out of

each act or indivisible course of conduct. This procedure was developed to avoid the

potentially unfair consequences to 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.' (Ibid.)

"Soon after Niles, this court decided In re Wright (1967) 65 Cal.2d 650, in which

we approved of the 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. We reasoned that concurrent

sentences still amounted to punishment under more than one provision, prohibited under

section 654, and could prejudice the defendant in 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 not listed in the habitual criminal statute . . . . [¶] 'Erroneous concurrent sentences for

petty theft, with a maximum term of six months in 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 by Penal

Code section 666 for one who has been previously convicted of petty theft and "served a

term therefor in any penal institution."' (Id. at p. 654, fn. 2, italics added.)

"In Wright we therefore balanced the potential windfall to the defendant of

reversing multiple convictions against the prejudice to him of allowing 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 of both 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

plagued our courts 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 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 result of the

placing of a bomb in the automobile of the 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 reaching 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 punishment for an act 'punishable in different ways by different

provisions of this code,' if the court below had caused all three sentences to run

concurrently rather than two of them, with the third running consecutively." (Kynette, 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 was to 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 former section 654, clearly it

was no 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, I view Craig and Kynette

as cases that are part of the history of inconsistency so meticulously set forth in Pearson.

As I 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 statement of the same 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 Kynette as a result of how the defendant in 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 much of the historical progress noted in Pearson and

deliver us back to the inconsistency and confusion that 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. 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 1 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 has unintended

consequences with respect to other statutes and a defendant's sentence. For example,

under certain circumstances, rape of an 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 of the

statute are met and when a rape 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 count it should strike. The majority

renders such considerations of no importance.

18 In my view, instead of consolidating two rape counts based on a single act as in

Craig, or striking one of the two rape counts as the majority in the instant case order, we

are compelled to follow the rule set forth by our Supreme Court and a very long line of

authority 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 punishment for the same act.

In sum, I conclude White was properly convicted in counts 1 and 2 of rape 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.

19 Filed 6/18/15 CERTIFIED FOR PUBLICATION

Plaintiff and Respondent,

v. (Super. Ct. No. SCD228290)

BILLY CHARLES WHITE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Frank A.

Brown, Judge. Affirmed as modified.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for

Kamala D. Harris, Attorney General, and A. Natasha Cortina, Deputy Attorney

General, for Plaintiff and Respondent. A jury found Billy Charles White guilty of rape of an intoxicated person (Pen.

Code,8 § 261, subd. (a)(3); count 1) and of rape of an unconscious person (§ 261,

subd. (a)(4)(A); count 2). The trial court sentenced White to three years in state prison

and ordered him to register as a sex offender.

White contends the evidence is insufficient to prove under section 261 that when

he engaged in sexual intercourse with the victim, he knew the victim was unable to resist

because of intoxication (count 1) or because the victim was unconscious of the nature of

the act of intercourse (count 2). White also contends the trial 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 the trial court abused its 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 was a single act of sexual intercourse.

In an unpublished opinion filed April 10, 2013, we rejected White's contentions on

appeal. After considering the supplemental briefing of the parties, 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.

8 All statutory references are to the Penal Code. 2 Our high court granted the People's petition for review, but deferred further action on the

matter pending consideration and disposition of a 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 reconsider the case in light of

Gonzalez. We have complied with the Supreme Court's direction and affirm the

judgment as modified. Specifically, we conclude that Gonzalez does not hold that White

can be convicted of both rape of an intoxicated person and rape of an unconscious person

based on a single act of intercourse under section 261. As such, we strike the second

count for rape. We otherwise affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On February 14, 2010, White asked the victim to go out for Valentine's Day.

White knew the victim from a local bar White frequented, where the victim worked as a

bartender. White and the victim in the past had participated in some group activities,

including taking a trip to Las Vegas with other employees and patrons of the bar.

Although the victim refused to go out alone with White on Valentine's Day, she agreed to

go out in a group that included White.

That night, 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 the victim

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 where the victim worked. The victim

dropped off White at a hotel where White planned to stay. However, the victim had not

3 intended to stay the night at the hotel. After the victim parked her car in the hotel parking

lot, they headed downtown to some clubs but found the lines to enter too long and the

cover charge for admission too expensive. The victim next contacted a friend who

worked at a "gentlemen's club" (club).

The three of them went to the club at about 10:30 p.m., sat in the "V.I.P." section and

purchased a bottle of vodka 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" dance at the club.

With the exception of the victim's former boyfriend, the group stayed at the club until it

closed at about 2:00 a.m. The victim testified she consumed at least four vodka drinks

while at the club. The victim also testified she did not remember leaving the club;

instead, her last memory that night was being told by club employees that the club was

closing. Her next memory was waking up at 5:30 a.m. in the hotel room after "somebody

roll[ed] off of [her]."

The victim testified that on the night of the attack, she dreamt she was being touched and

kissed. The victim also testified that when she awakened she looked at 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."

4 The victim testified she saw John sleeping on a bed to her left. The victim still had on

her dress and sweater but her dress was "scrunched up" like a shirt, her underwear was

missing and her bottom half was exposed. The victim saw White in bed next to her,

wearing an undershirt with his pants down. White appeared to be sleeping.

The victim got up from the bed, found her underwear and frantically went over to John.

The victim shook John to wake him. The victim next grabbed a few of her belongings

and ran out of the room into the hallway, where she sat crying.

John came to the victim's assistance. The victim told John she had been raped. Because

of the 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 not tell security she

had been raped because she was embarrassed. John drove the victim home.

The victim testified that once home she felt "completely lost" emotionally. She could not

remember going to the hotel the night before or how she ended up sleeping in the hotel

room. The day after the attack, the victim told her roommate what had happened, who

called police. The victim was taken to a clinic for an evidentiary examination.

The examination revealed abrasions on the peri-hymenal area of the victim, both left and

right, and lacerations on the victim's posterior fourchette and the fossa navcularis. The

findings were consistent with the victim being asleep or unconscious and not physically

aroused at the time of sexual penetration.

The victim's roommate testified she could hear the victim crying inside her room most of

the day following the attack, and the victim appeared scared and shaken up. The victim's

5 roommate also testified that more than a day after the attack, the victim was still crying

and was wearing the same clothes she had worn on the night of the assault.

Jamey testified 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 because in his opinion she was "totally

wasted."

As the club closed, White and the victim left in a cab and returned to the hotel. Joey and

Jamey were outside the club talking when they saw White and the victim leave. Joey and

Jamey were surprised the victim and White left 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 and around the hotel after returning from the club.

In addition, the footage shows the victim at one point veering off and stumbling away

from White after she dropped her purse on the floor.

Once at 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 and he testified 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

and put the victim on one of the two beds. White and John left to find more alcoholic

6 beverages. Joey, Jamey, and the victim remained in the room. Joey testified that one

minute the victim appeared "kind of fine" and the next minute she was "kind of like

passing out." As they talked, Joey saw the victim lying on the floor of the hotel room, in

between the two beds, "kind of out of it." 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 about that 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 "sleep it off." Joey then drove to a restaurant where he and Jamey

dropped off John and White. Joey and Jamey then drove home to Joey's house.

John testified that he and White went back to the club after they finished eating in an

attempt to retrieve White's cell phone, which White had left at the club. John and White

returned to the hotel at about 3:40 a.m. The victim was sleeping on one of the two beds.

While John was using the bathroom, White climbed on the bed where the victim was

sleeping. John turned out the light and went to sleep in the other bed.

John testified he was awakened by the victim. She appeared "very scared" and was

crying. Outside the room in the hallway, the victim told 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 under the 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 the victim "had been begging [White] for it."

7 Photos from the hotel security camera showed the 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 of the Evidence in Counts 1 and 2

White does not contest that he engaged in sexual intercourse with the victim. He also

does not contest the victim had been "partying and drinking" on the night of the alleged

assault and was "drunk" when the group reached the hotel at about 2:30 a.m.

However, White contends there is insufficient evidence he knew or should have known

that the victim was prevented from or unable to resist the act 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 sexual intercourse occurred, including evidence of whether she was awake

or sufficiently conscious at the time such that White would know or reasonably know she

was unable to resist.

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 whether it discloses evidence that is reasonable,

credible, and of solid value such that a reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We

resolve all conflicts in the evidence and questions of credibility in favor of the verdict,

and indulge every reasonable inference the jury could draw from the evidence. (People v.

8 Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless "

'upon no hypothesis whatever is there sufficient substantial evidence to support [the

conviction].' " (Bolin, supra, at p. 331; see also People v. Mendez (2010) 188

Cal.App.4th 47, 56.) This standard of review 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 "knew or reasonably should have known that the effect of an intoxicating

substance prevented the woman from resisting." (CALCRIM No. 1002, as modified.)

The jury was also instructed that a "person is prevented from resisting if he or she is so

incapacitated that he or she cannot give legal consent. In order to give legal consent, a

person must be able to exercise reasonable judgment. In other words, the person must be

able to understand and weigh the physical nature of the act, its moral character and

probable consequences. Legal consent is consent that'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 was capable of consenting to sexual intercourse, as a defense to the crime of rape:

"The defendant is not guilty of this crime if he actually and reasonably believed that the

woman was capable of consenting to sexual intercourse, even if that belief was wrong.

The People have the burden of proving beyond a reasonable doubt that the defendant did

not actually and reasonably believe that the woman was capable of consenting. If the

9 People have not met this burden, then you must find the defendant not guilty."

(CALCRIM No. 1002.)

2. Analysis

Substantial evidence in the record supports the jury's finding that White knew or

reasonably should have known that the victim was incapable of resisting due to

intoxication. Indeed, the record shows that the victim consumed at least four alcoholic

beverages between 10:30 p.m. and 2:00 a.m.; that the victim's last memory on the night

of the attack was club employees telling 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 the victim was having trouble walking 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 some later point inside the hotel room, the victim fell off the bed and slept on

the floor between the 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 for the 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 realized that she was not wearing

any underwear, although she still had her dress on, that somebody had been touching and

kissing her while she was in a "dream state" and that somebody had penetrated her

vagina.

10 We conclude this evidence -- and the inferences that can be drawn from it (see People v.

Wader (1993) 5 Cal.4th 610, 640) -- amply supports the finding of the jury that White

knew or should have known the victim was incapable of resisting 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

pretended to be asleep as 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 posterior fourchette 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 could also support one or more different findings,

including that the victim allegedly consented to sexual intercourse with White while she

was in a "dream state," as White contended, does not as a matter of law change our

conclusion in this case. White made this contention, and aggressively argued it, at trial.

As the fact finder, the jury was entitled to accept White's version of events; however by

the same logic, the jury also was entitled to reject it, as clearly turned out to be the case

here. (See People v. Smith (2005) 37 Cal.4th 733, 739 [a court of review is bound to

accept the factual and credibility determinations of the trier of fact]; see also People v.

Ochoa (1993) 6 Cal.4th 1199, 1206 [" 'Although we must ensure the evidence is

reasonable, credible, and of solid value, nonetheless it is the exclusive province of the . . .

11 jury to determine the credibility of a witness and the truth or falsity of the facts on which

that determination depends.' "].)

As a court of review, we are not at liberty to make findings different from those made by

the jury 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 finding is supported

by substantial evidence, we must accord due deference to the trier of fact].) Moreover,

White does not contend any of the witnesses' testimony was physically impossible or

inherently improbable. (See People v. Ennis (2010) 190 Cal.App.4th 721, 725 [a court of

review must accept the testimony believed by the jury unless it was physically impossible

or inherently improbable, meaning "that the challenged evidence is 'unbelievable per se' .

. . . [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 unable to

resist sexual intercourse with him because she was unconscious. We conclude there is

substantial evidence in the record, as summarized ante, also supporting this finding.

B. Consideration of Convictions on Counts 1 and 2

As noted ante, White was convicted in count 1 of rape of an intoxicated person

(§ 261, subd. (a)(3)) and in count 2 of rape of an unconscious person (§ 261,

subd. (a)(4)(A)). There is no dispute that both convictions under section 261 are based

on a single act of intercourse.

Previously, we determined that under Craig, supra, 17 Cal.2d 453, White could

not be convicted of both rape of an intoxicated person and rape of an unconscious person

12 as two separate counts based on a single act of intercourse. Put differently, we concluded

that Craig stands for the proposition that section 261, subdivision (a) sets forth one crime.

On remand from our high court, we must determine if Gonzalez, supra, 60 Cal.4th 533

changes our analysis of this issue.

In Gonzalez, the California Supreme Court held a defendant could be convicted of

both oral copulation of an unconscious person 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 of the statute, that former section 261 set forth only one offense

that could be committed under several different circumstances, as described in its several

subdivisions." (Gonzalez, supra, at p. 539.) "Section 288a is textually and structurally

different from former section 261. Subdivision (a) of section 288a defines what conduct

constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define

various ways the act may be criminal. Each subdivision sets forth all the elements of a

crime, and each prescribes a specific punishment. Not all of these punishments are the

same. That each subdivision of section 288a was drafted to be self-contained supports

the view that each describes an independent offense . . . ." (Gonzalez, supra, at p. 539.)

We also observe that, in Gonzalez, supra, 60 Cal.4th 533, the Supreme Court

declined to address the People's argument that Craig, supra, 17 Cal.2d 453 was wrongly

decided. Instead, it distinguished Craig. (Gonzalez, supra, at p. 539.) In other words,

13 we read 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 of the interpretation of the former section 261, we must determine if the

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 of section 288a9 that the court

interpreted in Gonzalez, supra, 60 Cal.4th 533.

9 Former section 288a in 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 who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not 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 of age is guilty of a felony. [¶] (c)(1) Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] (2) Any person who commits an act of oral copulation when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] (3) Any person who commits an act of oral copulation where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] (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 of immediate and unlawful bodily injury on the victim or another person, or (2) where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (3) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the 14 Section 261 in effect at the time White was charged provided in pertinent part:

"(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the

perpetrator, under any of the following circumstances: [¶] . . . [¶] (3) Where a person is

prevented from resisting by any intoxicating or anesthetic substance, or any controlled

act, shall be punished by imprisonment in the state prison for five, seven, or nine years. . . . [¶] (e) Any person who participates 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 imprisonment in the state prison, or in a county jail for a period of not more than one year. [¶] (f) Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. . . . [¶] . . . [¶] (g) Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, shall be punished by imprisonment in 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 of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act, and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. . . . [¶] (i) Any person who commits an act of oral copulation, where the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years. [¶] (j) Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in 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 against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years."

15 substance, and this condition was known, or reasonably should have been known by the

accused. [¶] (4) Where a person is at the time unconscious of the nature of the act, and

this is known to the accused. . . ." (§ 261 [effective Jan. 1, 2003 to Sept. 8, 2013].)10

In reviewing the applicable section 261, it is clear it shares more in common with

the former section 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 under several different circumstances, as described in its several subdivisions.

Stated differently, the primary elements of rape, under the applicable section 261, remain

the same as the former section 261: (1) an act of sexual intercourse (2) with a person not

the spouse of the perpetrator (3) without the consent of the victim. The various

subdivisions of the applicable section 261 (subd. (a)(1)-(7)) merely describe the ways in

which lack of consent can be shown. Unlike the subdivisions of section 288a, these

subdivisions under section 261, subdivision (a) do not contain all the elements of a crime.

(See Gonzalez, supra, at p. 539.) They are not self-contained. (Ibid.) To the contrary,

subdivisions 1 through 7 of the applicable section 261 only make sense within the context

10 For clarity, we refer to the section 261 that the Supreme Court interpreted in Craig, supra, 17 Cal.2d 453 as "former section 261." We refer 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 is not structurally different than the applicable section. Textually, the only change of note from the applicable statute to the current statute was to subdivision (5) of section 261, rape by artifice, pretense, or concealment, where the crime was expanded from the victim submitting under the belief that the person committing the act was the victim's spouse to the belief that the person was "someone known to the victim other than the accused." 16 of subdivision (a). Read by themselves, subdivisions 1 through 7 describe a lack of

consent. For example, the two subdivisions at 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 known by the accused. [¶] (4) Where a person is at the time

unconscious of the nature 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 being unable to resist some act, but does

describe that act. A reader will only understand subdivision (3) after reading subdivision

(a). It does not set forth all the elements of the 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 of the crime. In fact, they do not

mention intercourse or rape whatsoever. This is markedly different than the subdivisions

of section 288a as interpreted by our Supreme Court in Gonzalez, supra, 60 Cal.4th at

p. 539.)

In addition, the punishment for rape is set forth in a separate section of the Penal

Code, which specifies that all forms of rape 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 of oral

copulation. (See Gonzalez, supra, 60 Cal.4th at p. 539.)

Simply put, section 261 as 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 the version

17 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.

The statute 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 to list six different ways rape could be committed. (Ibid.) The version

of the statute at issue here defines rape as "an act of sexual intercourse accomplished with

a person not the spouse of the perpetrator, under any of the following

circumstances . . . ." (§ 261 [effective Jan. 1, 2003 to Sept. 8, 2013].) The People place

great emphasis on the deletion of the word "either" and addition of the word "any." They

claim that "any," as used in 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

made clear that the subdivisions of section 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 the term "any" shows that the Legislature

had changed section 261 to provide a different crime for each subdivision that was

violated. We are not persuaded.

We view the change of the word "either" to the term "any" to be nothing more

than correction of a poor grammatical choice in drafting the older version of the statute.

We agree that the word "either" indicates that there will be a choice between two options.

18 However, the former section 261 that contained the word "either" provided six different

options. As such, the word "either" was not grammatically correct in that context as the

statute did not present two options, but six. Therefore, the replacement of the word

"either" with the word "any" simply renders the statute grammatically correct. We are

not persuaded by the People's leap of logic that the word "any" somehow transforms the

statute. Even by replacing the word "either" with "any," the subdivisions of the

applicable version of section 261 do not set forth all the elements of the crime of rape,

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. The issue before our high court was "the propriety of entering separate

judgments and sentences for both forcible and statutory rape, charged under separate

counts, when but a single act of sexual intercourse has been committed." (Ibid.) The

court in Craig observed: "There has been a violation of but one statute -- section 261 of

the Penal Code. And, while the proof necessarily varies with respect to the several

subdivisions of that section under which the charge may be brought, the sole punishable

offense under any and all of them is the unlawful intercourse with the victim." (Craig,

supra, at p. 458.)

On this basis, the court in Craig concluded, "[O]nly one punishable offense of rape

results from a single act of intercourse, though it may be chargeable in separate counts

19 when accomplished under the 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 judgment to state that the defendant had been "found guilty of the crime of Rape, a

felony, as defined and proscribed in subdivisions 1 and 3 of section 261 of the Penal

Code, and as charged in counts 1 and 2 of the 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 the identity of the transactions from which they arise. A defendant

may be convicted of two separate offenses arising out of the same transaction when each

offense is stated in a separate count and when the two offenses differ in their necessary

elements and one is not included within the other.' " (Craig, supra, 17 Cal.2d at p. 457.)

The rule permitting multiple convictions for a single act is based on section 954, which

states that " '[a]n accusatory pleading may charge . . . different statements of the same

offense' " and " 'the defendant may be convicted of any number of the offenses

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

have asserted that their convictions fall within the exception for lesser included offenses.

(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

20 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 element not required of the

other and neither crime was the lesser included offense of the other.

The People argue that, 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 not hold that a single Penal Code section could never comprise multiple offenses; it

simply concluded, based on the wording and structure of the statute, that former section

261 set forth only one offense that could be committed under several different

circumstances, as described in its several subdivisions. This conclusion flowed naturally

from the wording and structure of former section 261. Indeed, the court in Craig

acknowledged that ' "[a] defendant may be convicted of two separate offenses arising out

of the same transaction when each offense is stated in a separate count and when the two

offenses differ in their necessary elements and one is not included within the other." '

(Craig, supra, 17 Cal.2d at p. 457.)" (Gonzalez, supra, 60 Cal.4th at p. 539.) Even

considering the Supreme Court's discussion of the scope of the holding in Craig, it

remains a case of statutory construction of the former rape statute. Further, our high

court has reiterated in various contexts that "[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 of rape." (People v. Collins (1960) 54 Cal.2d 57, 59; see

People v. Maury (2003) 30 Cal.4th 342, 427 ["[R]ape by means of violence is not a

different offense from rape by means of force or fear; these terms merely describe

21 different circumstances under which an act of intercourse may constitute the crime of

rape."]; italics omitted.)

Further, at least one other recent case has followed Craig, supra, 17 Cal.2d 453. In a

situation identical to the case at bar, the Court of Appeal reached the same conclusion. In

People v. Smith (2010) 191 Cal.App.4th 199, the defendant was convicted of two counts

of rape -- rape of an intoxicated woman, and rape of an unconscious woman. The

evidence demonstrated only one act of sexual intercourse. (Id. at p. 205.) Following

Craig, the court in Smith concluded that the defendant could stand convicted of only a

single count of rape based on the single act of intercourse. (Smith, supra, at p. 205.)

During oral argument, the People made the rather remarkable argument that we should

further limit or otherwise distinguish Craig, supra, 17 Cal.2d 453. They contend the

Supreme Court was telling us to do so in Gonzalez, supra, 60 Cal.4th 533. Nevertheless,

the People were unable to point to any portion of the opinion in Gonzalez 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.) Further, we observe

the Supreme Court again refrained from overruling Craig when it granted review of this

matter. Instead of addressing Craig, the Supreme Court remanded this matter to us to

reconsider in light of Gonzalez. Thus, our high court has recently declined to overrule

Craig on two occasions. We doubt very much that the Supreme Court needs our help 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,

22 however, we must follow Craig. (See Auto Equity Sales, Inc. v. Superior Court (1962)

57 Cal.2d 450, 455.)

We also are 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, section 954 allows pleading of multiple offenses, including separate

statements of the same offense. We think the People's analysis is flawed at its starting

point. The People approach this 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

crime of rape. Although the section has been amended a number of times 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 of rape can be committed under section 261. Section

261, subdivisions (a)(3) and (a)(4) do not define separate crimes and do not contain

separate punishments. Rather, section 264 provides the punishment for rape under

section 261, without reference to the various subdivisions, which establish the

circumstances in which sexual intercourse can be proved to be rape.11

The People's reliance on case law that allows conviction of multiple offenses from

a single act, subject to section 654 limitations is misplaced. Those cases address different

11 Section 264 does provide for increased punishment for forcible rape (§ 261, subd. (a)(2)) where the victim is a minor, a matter not relevant to this case.

23 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 of the 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 statements of the same 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.)12

In summary, this case is controlled by Craig, supra, 17 Cal.2d 453, which requires

that we strike one of the rape counts, leaving a single conviction for the single act. (See

Smith, supra, 191 Cal.App.4th at p. 205.) We therefore will modify the judgment to

strike the second rape count.

C. Mistake of Fact

White next contends the trial court prejudicially erred when it refused to instruct the jury

on mistake of fact, CALCRIM No. 3406, in connection with count 2 for rape of an

12 Similarly, in People v. Ryan (2006) 138 Cal.App.4th 360, 368, the court held 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 People v. Muhammed (2007) 157 Cal.App.4th 484, 492-494, the court found a single stalking 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 unconscious person.13 Specifically, he contends that because a key issue in this case was

his mistaken belief regarding whether the victim consented to sexual intercourse, the trial

court erred when it refused to give CALCRIM 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 not

available to a charge of rape 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 knew or

reasonably should have known the victim was unable to resist sexual intercourse because

the victim was unconscious. This finding also went to the issue of consent: if the jury

believed that White did not actually know, or that a reasonable person would not have

known, the victim was unable to resist the act of sexual intercourse because, for example,

the victim consented to sex, as White aggressively argued at trial, then it would have

acquitted him of rape. Thus, the issue of White's intent and the victim's consent was

already before the jury and therefore, we conclude under any standard of review that any

potential error in failing to instruct the jury with CALCRIM No. 3406 was harmless.

13 CALCRIM No. 3406 provides: "The defendant is 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 a fact or [reasonably and] mistakenly believed a fact. [¶] If the defendant's conduct would have been lawful under the facts as (he/she) [reasonably] believed them to be, (he/she) did not commit . [¶] If you find that the defendant believed that [and if you find that belief was reasonable], (he/she) did not have the specific intent or mental state required for . [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for , you must find (him/her) not guilty of (that crime/those crimes)." 25 (See People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386

U.S. 18, 24.)

D. Juror Misconduct

White next contends the trial court erred when it denied his new trial motion based on

juror misconduct.

1. Brief Additional 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 experienced drinker in the group, yet she's incapacitated

at hotel and the next day. [¶] Defendant went in cab with only [the victim], without cell

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]. [¶] What's the clearance

time of a 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?"

After advising counsel, the prosecutor suggested the court reread the stipulation of the

parties regarding the victim's negative drug test and re-admonish the jury that it should

only consider the evidence presented. Defense counsel also recommended the court

admonish the jury that it was merely at the listening stage of the trial.

When the trial resumed, the court reread the stipulation about the negative drug test and

both counsel reiterated 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

26 court exhibit number 5, 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 of

Juror 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 pronouncement of the

verdict, admitted to conducting research on the bar where the victim worked and reading

a flattering comment potentially involving the victim.

The court in response questioned Juror No. 5 outside the presence of the 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 deliver it, but told the

court that research "had nothing to do with the deliberations at all. Nothing." Juror No.

10 explained, "There wasn't any reason for it. I just kind of looked up . . . the bar, and

then was reading the reviews." Juror No. 10 admitted that during trial she spent a few

minutes looking up the bar where the victim worked, but said "that was it." 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 worked at the bar, but the

review did not mention the bartender by name. In response to the court's question

whether the research affected her deliberations, Juror No. 10 answered, "Absolutely not."

27 Juror No. 10 further explained that when she learns of a new restaurant she looks them up

"online," that her doing so was not unique to this case and after she apologized to the

court and counsel, that her doing so in this case "[h]onestly . . . was the most innocent

thing."

The defense subsequently filed a motion for new trial based on Juror No. 10's alleged

misconduct.14 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 not credible concerning her

motivations for looking up online the bar where the victim worked and that the

compliment of the victim was inherently prejudicial.

In opposing the new trial motion, the prosecution noted the research done by Juror No. 10

was not disclosed to other jurors and was, in any event, irrelevant to the issue of guilt or

innocence, particularly because there was evidence that another person with the same

first name as the victim also worked at the bar. The prosecutor also noted the alleged

misconduct did not compare to a juror viewing a crime scene. The trial court agreed with

the prosecution and thus denied the defense's new trial motion.

14 The mistrial motion did not address the alleged misconduct by Juror No. 12 in connection with the jury question. Although White ostensibly forfeited this claim of alleged misconduct when he failed to object to it in the trial court (see People v. Russell (2010) 50 Cal.4th 1228, 1250 [noting that a claim of misconduct is forfeited "when the defendant fails 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 of ineffective assistance of counsel. 28 2. Governing Law and Analysis

Section 1181, subdivision 3, provides that the trial court may grant a new trial when "the

jury has . . . 'been guilty of any misconduct by which a fair and due consideration of the

case has been prevented [citation].' [¶] We first determine whether there was any juror

misconduct. Only if we answer that question affirmatively do we consider whether the

misconduct was prejudicial." (People v. Collins (2010) 49 Cal.4th 175, 242.)

Juror misconduct raises a presumption of prejudice. (People v. Page (2008) 44 Cal.4th 1,

59.) Unless the presumption is rebutted by the prosecution, a new trial should be granted.

(Ibid.) As noted by one court, " '[t]his does not mean that every insignificant infraction

of the rules by a juror calls for a new trial. Where the misconduct is of such trifling

nature that it could not in the nature of things have prevented either party from having a

fair trial, the verdict should not be set aside.' " (People v. Calles (2012) 209 Cal.App.4th

1200, 1211.)

In determining whether juror misconduct occurred we accept the trial court's credibility

findings and findings of historical facts if supported by substantial evidence. (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.) " 'Whether prejudice arose from juror misconduct . . . is a mixed

question of law and fact subject to an appellate court's independent determination.' "

(People v. Danks (2004) 32 Cal.4th 269, 303.)

29 Turning first to the question posed by Juror No. 12, we conclude there was no

misconduct when that juror asked the question about the "clearance time of a date rape

drug." Our high court and Courts of Appeal 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. McAlister (1985) 167 Cal.App.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 shows all agreed the best way to respond to the question was to

reread the stipulation of the parties regarding the negative drug screen performed on the

victim and to re-admonish the jury. The record shows the court did exactly that when it

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 of that screen was negative for all substances. We thus conclude

there was no misconduct with respect to Juror No. 12.

30 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 counsel she did so

for no apparent reason other than when she hears about a new place she "always" looks

them up and in this instance she looked up the name of the bar where the victim worked

and read a few reviews about the 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 done so after the jury had

completed its deliberations and reached a 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 presume was prejudicial, 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.)

Indeed, "[w]hen juror misconduct involves the receipt of information from extraneous

sources, a substantial likelihood of juror bias 'can appear in two different ways. First, we

will find bias if the extraneous material, judged objectively, is inherently and

substantially likely to have influenced the juror. [Citations.] Second, we look to the

nature of the misconduct and the surrounding circumstances to determine whether it is

substantially likely the juror was actually biased against the defendant. [Citation.]'

[Citation.] . . . 'In an extraneous-information case, the "entire record" logically bearing

31 on a circumstantial finding of likely bias includes the nature of the juror's conduct, the

circumstances under which the information was obtained, the instructions the jury

received, the nature of the evidence and issues at trial, and the strength of the evidence

against the defendant.' " (People v. Thomas, supra, 53 Cal.4th at p. 819.)

We conclude from the entire record that there is no substantial likelihood that White

suffered actual harm when Juror No. 10 went online 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 of the issues in the case, to wit: whether the victim consented to sexual

intercourse with White at the hotel, after the victim had become intoxicated while out

with a group that included White.

That one of the reviews read by Juror No. 10 mentioned an attractive brunette that

worked at the bar does not change our conclusion: the jury saw the victim for itself,

heard her testimony and it decided whether to accept her version of what happened or

White's.

In addition, the review read by Juror No. 10 regarding the atmosphere in the bar where

the victim worked was already in evidence, as several witnesses testified it was a

neighborhood bar 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 reviews online about the bar (not from the bar's website) was

information already before the jury.

Moreover, we reject 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

32 Cal.4th 561, 582-583 [actual bias occurs when a juror 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 evidence at trial].) We note from the record that the trial

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 her testimony that her actions did not in

any way influence the jury's deliberations.

Thus, although Juror No. 10 engaged in misconduct, given the nature of the misconduct,

the circumstances surrounding the misconduct and the issues in the case, and given the

strength of the evidence against White reviewed ante, we independently conclude the

presumption of prejudice has been rebutted because that misconduct was fleeting and was

neither inherently and substantially likely to have influenced Juror No. 10 or the other

members of the jury nor was Juror No. 10 actually biased against White.

E. Denial of Probation

Lastly, White contends the trial court abused its 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 whether to grant or deny

probation. A defendant who is denied probation bears a heavy burden to show the trial

court has abused its discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120;

People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) " 'In reviewing [a trial court's

determination whether to grant or deny probation], it is not our function to substitute our

33 judgment for that of the trial court. Our function is to determine whether the trial court's

order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of

reason considering all the facts and circumstances.' " (Ibid.)

Here, the record shows that during the sentencing hearing the court fully considered the

facts and circumstances of the case. The court heard from the victim, who made a

lengthy statement asking the court to sentence White to prison for the rape that the victim

claimed "forever changed [her] life." The record shows that 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 low risk to reoffend; the probation report, which, after identifying various mitigating

factors including White's lack of significant criminal history, nonetheless recommended

White be sentenced to state prison for three years; and the lengthy argument of counsel.

Although there were various factors favorable to White, which the record shows the court

carefully considered and which at one point appeared to sway the court to consider

granting probation, in the end the record also shows the 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 impact of that crime on the victim. On this record,

we conclude the court's order denying White probation was not " 'arbitrary or

capricious' " or " 'exceed[ed] the bounds of reason considering all the facts and

circumstances' " of the case. (People v. Weaver, supra, 149 Cal.App.4th at p. 1311.)

34 DISPOSITION

The judgment is modified to: (1) strike count 2; and (2) vacate the conviction on

count 2, together with the sentence imposed but stayed on that count. The judgment is

otherwise affirmed. The trial court is directed to prepare an amended abstract of

judgment and minute order to reflect these modifications and forward a certified copy to

the Department of Corrections and Rehabilitation.

HUFFMAN, J.

I CONCUR:

McDONALD, J.

35 BENKE, J., Concurring and Dissenting.

As noted 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 of this 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).1 The majority now

reaffirms its previous holding in light of, or despite, 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 of rape can be committed under section 261." (Maj. opn. ante, at p. 23.)

I dissent to part B of the majority's opinion, which holds that counts 1 and 2 must be

consolidated. First, based on Gonzalez and its discussion of Blockburger 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 proof of 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 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 then-existing

1 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 of the Penal Code at 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. In addition, all further statutory references are to the Penal Code. cultural views of rape, which have since been abandoned, and that, 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 of statutory rape, with a

separate sentencing scheme. (Stats. 1970, ch. 1301, § 2.)

Finally, I conclude Craig's consolidation of two 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 requiring application of a stay where a defendant has been convicted of multiple

In summary, because Craig was bound by cultural views and sentencing concerns

that no longer exist, I conclude the modern and primary importance of Craig is its clear

support for use of the 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 sentence on that offense.

A. Because each count requires proof of at least one different element, defendant

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

2 Craig to preclude multiple convictions under former section 288a.2 (Ibid.)

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 "acknowledged that '"[a] defendant may be convicted of two separate offenses

arising out of the same transaction when each offense is stated in a separate count and

when the two offenses differ in their necessary elements and one is not included within

the other."'" (Gonzalez, supra, 60 Cal.4th at p. 539, quoting Craig, supra, 17 Cal.2d at

p. 457.) Although the court in Gonzalez examined the structure 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

independent offense, and therefore section 954 is 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

of section 288a, it did not by this statement create a requirement that a separate

punishment must be prescribed in each subdivision in order to charge and convict a

defendant of multiple subdivisions that already require different elements. Holding, as

my colleagues do, that Gonzalez imposes an additional requirement of separate

punishment for each such subdivision creates an inconsistency in Gonzalez that is not

2 Section 288a was amended effective September 9, 2013. (Stats. 2013, ch. 282, § 1.) The amendment did not alter subdivisions (f) or (i) under which the defendant in Gonzalez was charged and convicted. For clarity, I will refer to the version of section 288a under which the defendant in Gonzalez was convicted as "former section 288a." 3 there and marginalizes or perhaps eliminates altogether the elements test that is clearly

In concluding Gonzalez applies an elements test 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

count 3 with selling eight grains of morphine "not in or from the original stamped

package" and in count 5 with the sale (as charged in count 3) of that drug not made

pursuant to a "written order of the purchaser," as was required. (Blockburger, at p. 301.)

The defendant there argued there was but one sale 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

same act or transaction constitutes a violation of two distinct statutory provisions, the test

to be applied to determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not." (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 concluded there

were two offenses, despite the fact counts 3 and 5 involved only one sale of morphine.

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 a

criminal statute are violated. All that is required for separate charging and conviction is

4 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 and instead relies exclusively on a "structure test" in concluding that applicable

section 261 more closely resembles former section 261 than former section 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 consent of the victim." (Maj. opn. ante, at p. 16.) According

to 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 purposes of rape. (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) 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 because I note that 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 of one person with the sexual organ or

anus of another person." (Former § 288a, subd. (a).) Subdivisions (b) through (k) of

former section 288a then rely on that definition to define the various circumstances under

which the crime of oral copulation can be committed. This is not unlike subdivisions (1)

through (7) of subdivision (a) of applicable section 261, which must be read and

considered in connection with subdivision (a), defining rape.

5 Nor do I find persuasive the case law relied upon by the majority.

In support of its 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 of an unconscious person. (Id. at p. 201.) Relying on

Craig, the Smith court summarily concluded both of the defendant's convictions could not

stand "because 'only one punishable offense of rape results from a single act of

intercourse, though it may be chargeable in separate counts when accomplished under the

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 rule it applied. Moreover,

it is important to note that Smith modified the judgment to 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.

As I discuss in more depth post, this resulting state of confusion and inconsistency of

sentences is one of the main reasons why I 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 defendant stands convicted of multiple

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

6 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 process rights 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 of rape if he

accomplished the sexual intercourse with the victim "'by means of force, 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 means of

violence is not a different offense from rape by means of 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 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 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 of rape and oral copulation differently, such that a defendant who commits

oral copulation of an intoxicated and unconscious person can be guilty of two offenses,

7 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 elements test consistently to both statutes prevents this disparity. Because

we can assume the Legislature was aware of this test and its settled application in the law,

we need not challenge the Legislature to make itself more clear on this point or solve a

problem that does not exist.

Applying the elements test here, I conclude that White committed two separate

offenses when he was found guilty in counts 1 and 2 of rape 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 of rape was

committed.3 I find the majority's abandonment of the elements test and exclusive

reliance on a "structure test" not only confusing and likely to cause mischief,4 but also

3 Under applicable 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 spouse of the perpetrator] by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused." (§ 261, subd. (a)(3).) However, under subdivision (a)(4) of applicable section 261, the crime of rape occurs "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting [the act of sexual intercourse accomplished with a person not the spouse of the perpetrator] because the victim meets any one of the following conditions: [¶] (A) Was unconscious or 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.

4 I note our high court recently granted the People's petition for review in People v. Vidana, review granted April 1, 2015, S224546, which involved the issue of whether larceny and embezzlement were separate and distinct offenses under Gonzalez. 8 B. Penal Code section 654 and the post-Craig jurisprudential development of that

As indicated, I believe that Gonzalez, Blockburger, and Craig require use of the

elements test; 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 of two counts into one. My colleagues view this

disposition in Craig as support for their conclusion that Craig requires there be a

conviction of only one count of rape in this case.

In my view, Craig is a case with a particularly complex identity. I would not

conclude it 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 of multiple punishment it then faced has long since been resolved. I am left with

the conclusion, discussed ante in section A, that Craig's significance is its application of

1. The culture and law regarding the crime of rape at the time of Craig

At the time of Craig, the then-prevailing view of rape was that of a single form of

"outrage" to the person and feelings of the victim, and, as such, a victim could not be

Similarly, the Court of Appeal 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) 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 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 by the majority, in circumstances such as those presented in the instant case. 9 "doubly outraged, once by force and once because of her 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 of rape teaches that in

enacting separate subdivisions in applicable section 261, each with its own elements, the

Legislature has recognized each subdivision as a separate and distinct "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 "under either of the following circumstances." (Former § 261, italics added.)

The term "either" connotes the choice between "one or the 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" 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 of the

enumerated acts. The term "any" connotes "one or more." (Random House Unabridged

Dict., supra, at p. 96.) Significantly, this change was made by the same bill 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 main rape statute, should be interpreted as the Legislature's

abandonment of antiquated views represented in the law of rape as it existed when Craig

was decided and, hence, at the time of the narrow holding of the court in that case. I find

no rational reason to accept the majority's revival of those abandoned views.

2. The sentencing process at the time of Craig

10 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 convictions

arising out of a single act. At the time of Craig, the State Board of Prison Terms and

Paroles (Board) was responsible for fixing the definite sentence term of defendants. The

defendant in Craig was faced with two judgments for the same offense. The court sought

to eliminate potential confusion and the prejudice of multiple punishment to 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 6545 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 former version of that

statute precluded multiple punishment, and while section 654, subdivision (a) now

5 Former section 654, which was applicable when Craig was decided, provided: "An act or omission which is made punishable in different ways by different provisions of this Code may be punished under either of such 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 and found by the jury." Section 654 was amended in 1976 to reflect the current version of the statute: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of 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 same act or omission under any other."

11 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

punishment for 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 sentencing tool that

would consistently avoid multiple punishment for the same act.

In understanding the resolution of the sentencing problem facing our courts at the time of

Craig, I find particularly useful the decision of our high court in People v. 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: "Some of our earlier decisions held that the imposition of

concurrent sentences sufficiently protected the defendant from multiple punishment

because he would be serving each of his sentences simultaneously. (See, e.g., People v.

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

v. Logan [(1953)] 41 Cal.2d 279, 290–291; cases cited in People v. Smith [(1950)] 36

Cal.2d 444, 448.) In Neal v. State of California [(1960)] 55 Cal.2d 11, we went so far as

to indicate that multiple convictions were invalid per se. (Id. at p. 19 ['If only a single act

is charged as the basis of the multiple convictions, only one conviction can be

12 "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 v.

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

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 of the statute

may result in initial conviction of both crimes, only one of which, the more serious

offense, may be punished. [Citation.] The appropriate procedure, therefore, is to

eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is

"In People v. Niles (1964) 227 Cal.App.2d 749, 756 [(Niles)], the Court of Appeal

determined that the proper method of eliminating the punitive consequences of multiple

convictions was to stay execution of sentence for all but one conviction arising out of

each act or indivisible course of conduct. This procedure was developed to avoid the

potentially unfair consequences to 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

"Soon after Niles, this court decided In re Wright (1967) 65 Cal.2d 650, in which we

approved of the 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. We reasoned that concurrent sentences

still amounted to punishment under more than one provision, prohibited under section

13 654, and could prejudice the defendant in 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 not listed in the habitual

criminal statute . . . . [¶] 'Erroneous concurrent sentences for petty theft, with a

maximum term of six months in 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 by Penal Code section 666 for

one who has been previously convicted of petty theft and "served a term therefor in any

penal institution."' (Id. at p. 654, fn. 2, italics added.)

"In Wright we therefore balanced the potential windfall to the defendant of reversing

multiple convictions against the prejudice to him of allowing 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 of both 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 plagued our

courts 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

14 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 result of the placing of a bomb in the

automobile of the victim." (See Kynette, supra, 15 Cal.2d at pp. 761-762, overruled on

another ground as stated in People v. Snyder (1958) 50 Cal.2d 190, 197.) In reaching 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 punishment

for an act 'punishable in different ways by different provisions of this code,' if the court

below had caused all three sentences to run concurrently rather than two of them, with the

third running consecutively." (Kynette, 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 was to consolidate the multiple convictions.6

Once Niles was decided in 1964, which introduced the concept of staying sentence and

punishment for convictions otherwise appropriate under former section 654, clearly it

was no 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, I view Craig and Kynette

as cases that are part of the history of inconsistency so meticulously set forth in Pearson.

6 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 statement of the same 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 Kynette as a result of how the defendant in Craig was charged. 15 As I have noted, it is not an inconsistency I believe merits any argument that Craig

should be overturned; rather, it is inconsistency attributable to a sentencing concern that

Unfortunately, the consolidation approach now employed by the majority, and the option

to strike presented in Smith, negate much of the historical progress noted in Pearson and

deliver us back to the inconsistency and confusion that existed before implementation of

the 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 disapproved of in 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 of consolidating and/or striking multiple rape offenses that are based

on a single act, we are compelled to follow the rule set forth by our Supreme Court and a

very long line of authority 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 punishment for the same

act.

C. Section 954 permits multiple convictions for different statements of an offense.

Even assuming subdivisions (a)(3) and (a)(4)(A) of section 261 are not independent

offenses, I would still conclude White was properly convicted of counts 1 and 2 in the

instant case because section 954 permits conviction of "any number of the offenses

charged" under that statute, including "different statements of the same offense or two or

more different offenses of the same class of crimes or offenses."

16 My colleagues give scant regard to the plain language of section 954, yet it clearly allows

for the charging that took place in this case. Giving the words in section 954 their

"'"plain and commonsense meaning"'" (Gonzalez, supra, 60 Cal.4th at p. 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 conduct on a child and sodomy based on the singular act of sodomy because "such

charges clearly constitute 'different statements of the same offense' and thus are

authorized under section 954"].)

17 In sum, I conclude White was properly convicted in counts 1 and 2 of rape 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