Filed 10/20/14




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                              S207830
           v.                        )
                                     )                        Ct.App. 4/1 D059713
RAMON FULGENCIO GONZALEZ,            )
                                     )                       San Diego County
           Defendant and Appellant.  )                   Super. Ct. No. SCD 228173
____________________________________)


        In this case we are asked to decide whether a defendant may, consistently
with Penal Code section 954,1 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. The Court of Appeal understood our
decision in People v. Craig (1941) 17 Cal.2d 453 (Craig) as precluding multiple
convictions in these circumstances and vacated defendant‘s conviction for oral
copulation of an intoxicated person. We conclude that Craig is distinguishable,
the two statutory subdivisions at issue here describe different offenses, and
defendant may properly be convicted of, although not punished for, both. (§ 654;
see People v. Vargas (2014) 59 Cal.4th 635, 637 [multiple prior convictions
arising out of a single act against a single victim cannot constitute multiple strikes
under ―Three Strikes‖ law].) We therefore reverse the judgment.

1       Further statutory references are to the Penal Code.
                   FACTUAL AND PROCEDURAL BACKGROUND
     In the early evening of June 25, 2010, defendant Ramon Fulgencio Gonzalez
and the victim, Carolyn H., were on the sidewalk near the intersection of 16th
Street and Island Avenue in San Diego. Carolyn, who had passed out after having
drunk a pint of vodka, lay with her head near defendant‘s lap. Witnesses saw
defendant moving Carolyn‘s head up and down with one hand while his penis was
in her mouth. A police officer arrived on the scene and confronted defendant, who
put his penis back in his pants and tried to zip them. When the officer pulled
defendant away from Carolyn, who was unconscious, her head hit the concrete.
The officer handcuffed defendant, and paramedics transported Carolyn to a
hospital.
     An information charged defendant with, among other things and as relevant
here, oral copulation of an unconscious person in violation of section 288a,
subdivision (f) (count 1), and oral copulation of an intoxicated person in violation
of section 288a, subdivision (i) (count 2), based on the same act. A jury convicted
him of both charges. On count 1 the trial court sentenced defendant to the low
term of three years, and on count 2 the court imposed but stayed execution of
sentence pursuant to section 654. On appeal, citing this court‘s decision in Craig,
supra, 17 Cal.2d 453, defendant argued his convictions on counts 1 and 2 could
not both stand because he had committed a single act of oral copulation. A
majority of the Court of Appeal agreed and vacated the conviction on count 2,
reasoning subdivisions (f) and (i) of section 288a delineate different circumstances
under which the statute may be violated but do not set forth distinct offenses of
which defendant could be convicted. A dissenting justice contended (1) that Craig
does not apply when, as in this case, a defendant is charged and convicted under
two provisions of section 288a that require proof of different elements and
prescribe separate punishments, and (2) that the only exception to the rule that

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multiple convictions may arise out of the same act—that a defendant may not be
convicted of both greater and lesser included offenses—is not implicated here.
We granted the People‘s petition for review.
                                      ANALYSIS
     As relevant here, section 954 provides: ―An accusatory pleading may charge
two or more different offenses connected together in their commission, or different
statements of the same offense or two or more different offenses of the same class
of crimes or offenses, under separate counts . . . . The prosecution is not required
to elect between the different offenses or counts set forth in the accusatory
pleading, but the defendant may be convicted of any number of the offenses
charged . . . .‖ We have repeatedly held that the same act can support multiple
charges and multiple convictions. ―Unless one offense is necessarily included in
the other [citation], multiple convictions can be based upon a single criminal act or
an indivisible course of criminal conduct (§ 954).‖ (People v. Benavides (2005)
35 Cal.4th 69, 97.) Section 954 thus concerns the propriety of multiple
convictions, not multiple punishments, which are governed by section 654.
     The People contend that both of defendant‘s convictions are proper because
subdivisions (f) and (i) of section 288a define different offenses, neither of which
is included in the other, and that section 954 permits conviction of different
statements of the same offense in any event. Defendant contends the subdivisions
of section 288a set forth not different offenses but merely different ways of
committing criminal oral copulation, and section 954 does not permit conviction
of different statements of the same offense. Because we conclude that the
subdivisions of section 288a describe different offenses, we need not determine
whether section 954 allows conviction of different statements of the same offense.
     ―In California all crimes are statutory and there are no common law crimes.
Only the Legislature and not the courts may make conduct criminal.‖ (In re

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Brown (1973) 9 Cal.3d 612, 624; see People v. Chun (2009) 45 Cal.4th 1172,
1183; § 6.) It follows that the determination whether subdivisions (f) and (i) of
section 288a define different offenses or merely describe different ways of
committing the same offense properly turns on the Legislature‘s intent in enacting
these provisions, and if the Legislature meant to define only one offense, we may
not turn it into two.
     In addressing this question, ― ‗[w]e begin by examining the statute‘s words,
giving them a plain and commonsense meaning. [Citation.] We do not, however,
consider the statutory language ―in isolation.‖ [Citation.] Rather, we look to ―the
entire substance of the statute . . . in order to determine the scope and purpose of
the provision . . . . [Citation.]‖ [Citation.] That is, we construe the words in
question ― ‗in context, keeping in mind the nature and obvious purpose of the
statute . . . .‘ [Citation.]‖ [Citation.] We must harmonize ―the various parts of a
statutory enactment . . . by considering the particular clause or section in the
context of the statutory framework as a whole.‖ ‘ ‖ (People v. Acosta (2002) 29
Cal.4th 105, 112.) ―If, however, the statutory language is susceptible of more than
one reasonable construction, we can look to legislative history in aid of
ascertaining legislative intent.‖ (People v. Robles (2000) 23 Cal.4th 1106, 1111.)
     Subdivision (a) of section 288a defines oral copulation as ―the act of
copulating the mouth of one person with the sexual organ or anus of another
person.‖ Subdivision (f) provides: ―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. As used in this
subdivision, ‗unconscious of the nature of the act‘ means incapable of resisting
because the victim meets one of the following conditions: [¶] (1) Was
unconscious or asleep. [¶] (2) Was not aware, knowing, perceiving, or cognizant

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that the act occurred. [¶] (3) Was not aware, knowing, perceiving, or cognizant of
the essential characteristics of the act due to the perpetrator‘s fraud in fact.
[¶] (4) Was not aware, knowing, perceiving, or cognizant of the essential
characteristics of the act due to the perpetrator‘s fraudulent representation that the
oral copulation served a professional purpose when it served no professional
purpose.‖ Subdivision (i) provides: ―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.‖
     In concluding subdivisions (f) and (i) of section 288a set forth different
circumstances under which the same offense of oral copulation can be committed,
the Court of Appeal relied largely on the reasoning of our decision in Craig,
supra, 17 Cal.2d 453, and the People devote most of their opening brief in this
court to the argument that Craig was wrongly decided and should be overruled.
As we shall demonstrate, Craig is distinguishable.
     The defendant in Craig, supra, 17 Cal.2d at page 453, was found guilty of
two counts of rape based on a single act of intercourse committed without the
consent and against the will of a 16-year-old girl. The first count alleged the rape
was committed with force and violence, in violation of former section 261,
subdivision 3. The second count, after alleging that it was ― ‗a different statement
of the same offense‘ ‖ (Craig, at p. 454) charged statutory rape of a child below
the age of consent, in violation of former section 261, subdivision 1. This court
held that ―[u]nder this section, but one punishable offense of rape results from a
single act of intercourse, although that act may be accomplished under more than
one of the conditions or circumstances specified in the foregoing subdivisions.
These subdivisions merely define the circumstances under which an act of

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intercourse may be deemed an act of rape; they are not to be construed as creating
several offenses of rape based upon that single act.‖ (Craig, at p. 455.)
     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.2
This conclusion flowed naturally from the wording and structure of former section
261. Indeed, 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.)
     Here, the information charged defendant with violation of section 288a,
subdivision (f) in count 1 and of section 288a, subdivision (i) in count 2. These
offenses differ in their necessary elements—an act of oral copulation may be
committed with a person who is unconscious but not intoxicated, and also with a
person who is intoxicated but not unconscious—and neither offense is included


2       At the time Craig was decided, former section 261 read in full as follows:
―Rape is an act of sexual intercourse, accomplished with a female not the wife of
the perpetrator, under either of the following circumstances: [¶] 1. Where the
female is under the age of eighteen years; [¶] 2. Where she is incapable, through
lunacy or other unsoundness of mind, whether temporary or permanent, of giving
legal consent; [¶] 3. Where she resists, but her resistance is overcome by force or
violence; [¶] 4. Where she is prevented from resisting by threats of great and
immediate bodily harm, accompanied by apparent power of execution, or by any
intoxicating narcotic, or anesthetic, substance, administered by or with the privity
of the accused; [¶] 5. Where she is at the time unconscious of the nature of the act,
and this is known to the accused; [¶] 6. Where she submits under the belief that the
person committing the act is her husband, and this belief is induced by any artifice,
pretense, or concealment [practiced] by the accused, with intent to induce such
belief.‖ (As amended by Stats. 1913, ch. 122, § 1, p. 212.)



                                         6
within the other. (Cf. Blockburger v. United States (1932) 284 U.S. 299, 304
[―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.‖].)
     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, and therefore section 954 is no
impediment to a defendant‘s conviction under more than one such subdivision for
a single act.
     Given these differences between section 288a and former section 261, and in
view of the legislative recasting, subsequent to Craig, of former section 261 into
separate statutes prohibiting rape and unlawful intercourse with a minor (§§ 261
and 261.5, respectively), we need not address the People‘s remaining criticisms of
Craig, supra, 17 Cal.2d 453. Nor, as indicated, need we address whether section
954 allows conviction of different statements of the same offense.
     Lastly, defendant contends that the determinative factor, when the criminal
conduct is not clearly divisible as multiple distinct acts, is whether the charged
offenses were all committed with the same criminal intent and objective. We are
not persuaded. Defendant‘s ―single objective‖ rationale is not supported by the
broad language of section 954. Moreover, none of the cases defendant cites stands
for the proposition that the existence of distinct criminal intents is a prerequisite to



                                           7
multiple convictions; rather, all involve offenses defined by different statutes with
distinct mental state requirements.3
                                   DISPOSITION
       The judgment of the Court of Appeal is reversed and the case is remanded
to the Court of Appeal for further proceedings consistent with this opinion.
                                                  WERDEGAR, J.


WE CONCUR:


CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
NEEDHAM, J.*




3      See People v. Benavides, supra, 35 Cal.4th 69, 98 (lewd acts on a child and
rape and sodomy); People v. Ortega (1998) 19 Cal.4th 686, 693 (carjacking and
grand theft); People v. Pearson (1986) 42 Cal.3d 351, 355–356 (sodomy and lewd
conduct).

*      Associate Justice of the Court of Appeal, First Appellate District, Division
Five, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.



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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzalez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 211 Cal.App.4th 405
Rehearing Granted

__________________________________________________________________________________

Opinion No. S207830
Date Filed: October 20, 2014
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Roger W. Krauel

__________________________________________________________________________________

Counsel:

Raymond M. DiGuiseppe, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Scott C. Taylor, James D. Dutton, Steven T. Oetting and Meredith S. White,
Deputy Attorneys General, for Plaintiff and Respondent.




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Counsel who argued in Supreme Court (not intended for publication with opinion):

Raymond M. DiGuiseppe
Post Office Box 10790
Southport, North Carolina 28461
(910) 713-8804

Meredith S. White
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2297




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