Filed 1/19/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S228049
           v.                        )
                                     )                       Ct.App. 4/1 D060969
BILLY CHARLES WHITE,                 )
                                     )                        San Diego County
           Defendant and Appellant.  )                    Super. Ct. No. SCD228290
____________________________________)


        We must decide whether a jury properly convicted defendant Billy Charles
White of both rape of an intoxicated person under Penal Code section 261,
subdivision (a)(3), and rape of an unconscious person under Penal Code section
261, subdivision (a)(4)(A), when the convictions were based on the same act.1
Consistent with our recent holding involving oral copulation, we conclude that
―the two statutory subdivisions at issue here describe different offenses, and
defendant may properly be convicted of, although not punished for, both.‖
(People v. Gonzalez (2014) 60 Cal.4th 533, 535 (Gonzalez).)
                       I. FACTS AND PROCEDURAL HISTORY
        During the night of February 14-15, 2010, defendant had sexual intercourse
with a woman in a hotel room after she drank a large amount of vodka with him
and others in a bar. She testified she had no memory of leaving the bar; her next

1       All further statutory citations are to the Penal Code.



                           SEE DISSENTING OPINION.
memory after being in the bar was waking up in a bed in the hotel room with
defendant beside her. The evidence supported jury findings that at the time of the
intercourse, an intoxicating substance prevented the woman from resisting, that
she was unconscious of the nature of the act, and that these circumstances were
known to defendant.
       Based on these facts, a jury found defendant guilty of violating section 261,
subdivision (a)(3) (rape of an intoxicated person; count 1), and section 261,
subdivision (a)(4)(A) (rape of an unconscious person; count 2). The trial court
sentenced him to state prison for the lower term of three years on count 1 and
stayed the sentence on count 2 under section 654. On defendant‘s appeal, the
Court of Appeal held that defendant could not be convicted of both counts. It
vacated the conviction on count 2 and otherwise affirmed the judgment. Justice
Benke dissented in part, arguing that defendant was properly convicted of both
counts.
       We granted the Attorney General‘s petition for review to decide whether
defendant could be convicted of both counts.
                                  II. DISCUSSION
       Section 261, subdivision (a), begins: ―Rape is an act of sexual intercourse
accomplished with a person not the spouse of the perpetrator, under any of the
following circumstances . . . .‖ Then several parts follow. Section 261,
subdivision (a)(3), provides: ―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.‖
Section 261, subdivision (a)(4), provides: ―Where 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
because the victim meets any one of the following conditions: [¶] (A) Was

                                         2
unconscious or asleep.‖2 For convenience, we refer to the circumstance described
in section 261, subdivision (a)(3), as rape of an intoxicated person, and the

2       In its entirety, section 261, subdivision (a), provides: ―Rape is an act of
sexual intercourse accomplished with a person not the spouse of the perpetrator,
under any of the following circumstances:
        ―(1) Where a person is 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. Notwithstanding
the existence of a conservatorship pursuant to the provisions of the Lanterman-
Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the
Welfare and Institutions Code), the prosecuting attorney shall prove, as an element
of the crime, that a mental disorder or developmental or physical disability
rendered the alleged victim incapable of giving consent.
        ―(2) Where it is accomplished against a person‘s will by means of force,
violence, duress, menace, or fear of immediate and unlawful bodily injury on the
person or another.
        ―(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. As used in this paragraph, ‗unconscious of the
nature of the act‘ means incapable of resisting because the victim meets any one of
the following conditions:
        ―(A) Was unconscious or asleep.
        ―(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
        ―(C) Was not aware, knowing, perceiving, or cognizant of the essential
characteristics of the act due to the perpetrator‘s fraud in fact.
        ―(D) Was not aware, knowing, perceiving, or cognizant of the essential
characteristics of the act due to the perpetrator‘s fraudulent representation that the
sexual penetration served a professional purpose when it served no professional
purpose.
        ―(5) Where a person submits under the belief that the person committing
the act is someone known to the victim other than the accused, and this belief is
induced by any artifice, pretense, or concealment practiced by the accused, with
intent to induce the belief.
        ―(6) 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. As used in this
                                                           (footnote continued on next page)


                                          3
circumstance described in section 261, subdivision (a)(4)(A), as rape of an
unconscious person.
        We must decide whether defendant was properly convicted of both rape of
an intoxicated person and rape of an unconscious person.
        ―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.‖ (Gonzalez, supra, 60 Cal.4th at pp. 536-537.)




(footnote continued from previous page)

paragraph, ‗threatening to retaliate‘ means a threat to kidnap or falsely imprison,
or to inflict extreme pain, serious bodily injury, or death.
        ―(7) 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. As use in this paragraph, ‗public official‘ means a person employed by a
governmental agency who has the authority, as part of that position, to incarcerate,
arrest, or deport another. The perpetrator does not actually have to be a public
official.‖



                                          4
        In Gonzalez, supra, 60 Cal.4th 533, the defendant was convicted of oral
copulation of an unconscious person under section 288a, subdivision (f), and oral
copulation of an intoxicated person under section 288a, subdivision (i), based on
the same act. The defendant there, like defendant here, contended that he could
not be convicted of both subdivisions. Disagreeing, we held that the separate
subdivisions of section 288a described different offenses, and thus the defendant
was properly convicted of two of those offenses. We said that the question ―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.‖ (Gonzalez, at p.
537.)
        To ascertain legislative intent, we began by examining the statute‘s words.
(Gonzalez, supra, 60 Cal.4th at p. 537.) We noted that the offenses stated in
subdivisions (f) and (i) of section 288a ―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 in the other.‖ (Gonzalez, at p. 539.)
        We also distinguished People v. Craig (1941) 17 Cal.2d 453 (Craig) which,
as discussed further below, held that the different subdivisions of former section
261 do not define different offenses. We explained that ―[s]ection 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



                                          5
impediment to a defendant‘s conviction under more than one such subdivision for
a single act.‖ (Gonzalez, supra, 60 Cal.4th at p. 539.)
       Relying primarily on Craig, supra, 17 Cal.2d 453, the Court of Appeal
concluded that the subdivisions of section 261 do not state different offenses. As
we explained in Gonzalez, the defendant in Craig ―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 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.)‖ (Gonzalez,
supra, 60 Cal.4th at pp. 538-539.)
       Because of the differences between section 288a and former section 261
that we identified in Gonzalez, we did not have to address whether Craig, supra,
17 Cal.2d 453, remains good law as applied to rape. (Gonzalez, supra, 60 Cal.4th
at p. 540.) We must do so now.
       The Legislature has changed the structure of the precise crimes at issue in
Craig, supra, 17 Cal.2d 453. It removed the crime of statutory rape on a child
under the age of 18 from section 261 entirely and, renaming it ―[u]nlawful sexual
intercourse‖ with a person under the age of 18, placed the crime in section 261.5.
(See Johnson v. Department of Justice (2015) 60 Cal.4th 871, 884-885.) ―[I]n

                                          6
separating and renaming the offense of unlawful sexual intercourse, the
Legislature sought to eliminate, for section 261.5 offenses, the social stigma
associated with the rape label . . . .‖ (Id. at p. 885.) However, although section
261 no longer contains one of the specific subdivisions involved in Craig, that
section still contains separate subdivisions defining how one can be guilty of rape.
The legislative change regarding what had been called statutory rape, and is now
called unlawful sexual intercourse, does not itself invalidate Craig‘s general
pronouncement that the different subdivisions of section 261 do not state different
offenses. However, other circumstances cause us to conclude that today the
different subdivisions of section 261, like the different subdivisions of section
288a, do define separate crimes.
       When Craig, supra, 17 Cal.2d 453, was decided, the courts did not
distinguish between multiple punishment and multiple conviction as clearly as
courts do today. Indeed, Craig itself conflated the two concepts. It stated: ―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. We conclude that
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 section 261 of the Penal Code.‖ (Id.
at p. 458, italics added.) A later case explained that Craig‘s statement that section
261‘s different subdivisions do not state different offenses ―must be read in light
of the problem then before the court, that is, whether the defendant could be
doubly punished for a single act. Under section 654 of the Penal Code it is clear
that double punishment would be improper [citations], regardless of whether there



                                          7
is but one offense or six different offenses of rape.‖ (In re Hess (1955) 45 Cal.2d
171, 174.)
       The problem identified in In re Hess, supra, 45 Cal.2d 171, no longer
exists. We explained the relevant history in People v. Pearson (1986) 42 Cal.3d
351: ―This court has long struggled with the problem of permitting multiple
convictions while protecting the defendant from multiple punishment. 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. [Citation.] 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. [Citations.] 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. [Citation.] [¶] Our later cases, however,
reaffirmed that section 654 bars multiple punishment, not multiple conviction.
[Citations.]‖ (Id. at p. 359.)
       As we further explained in People v. Pearson, today, when section 654 bars
multiple punishment, but section 954 permits multiple convictions, rather than
reverse the additional conviction, courts simply stay the punishment for that
conviction. (People v. Pearson, supra, 42 Cal.3d at p. 360.) Thus, to the extent
the result in Craig, supra, 17 Cal.2d 453 — reversing the second rape
conviction — was driven by the need to avoid multiple punishment, that need no
longer exists. For this reason, in Gonzalez, supra, 60 Cal.4th 533, we were able to
uphold multiple convictions for the different subdivisions of the oral copulation
statute while avoiding multiple punishment. Because Craig was based on a legal
landscape that is now changed, its rule does not necessarily govern today.
Although we have no reason to question whether Craig was correct when decided,

                                          8
subsequent events have made it no longer authoritative regarding today‘s section
261. A fresh look is warranted at whether the different subdivisions of section 261
are separate statements of the same offense, or whether, like the analogous
subdivisions of section 288a, they state different offenses.
       Taking this fresh look, we conclude that the same rule should apply to the
different subdivisions of section 261, regarding rape, as applies to the different
subdivisions of section 288a, regarding oral copulation. There are, indeed, some
structural differences between the two statutes, as we explained in Gonzalez,
supra, 60 Cal.4th 533. The main difference is that the subdivisions of section
288a are self-contained; that is, each subdivision refers separately to a person who
commits an act of oral copulation. The structure of the other two major sex
offenses — sodomy under section 286 and sexual penetration under section 289 —
is similar in this regard. Section 261‘s subdivisions are not self-contained in this
way. Section 261, subdivision (a), defines and uses the word ―[r]ape‖ but once.
The descriptions in the various parts of that subdivision of the different ways in
which rape may be committed do not repeat the word ―rape‖ but refer back to that
original definition.
       Although section 261 is different from section 288a — and sections 286
and 289 — in this respect, we do not believe the repetition of the term ―oral
copulation‖ in the various subdivisions of section 288a — or ―sodomy‖ in section
286 or ―sexual penetration‖ in section 289 — and the single use of the word
―rape‖ in section 261, indicates a legislative intent to permit multiple convictions
for the various subdivisions concerning oral copulation, sodomy, or sexual
penetration while forbidding multiple convictions for the otherwise analogous
provisions of rape. Substantively, the provisions regarding the four major sex
crimes parallel each other. The conduct and mental state of the perpetrator and the
characteristics of the victim that, when accompanying the acts of intercourse, oral

                                          9
copulation, sodomy, and sexual penetration, transform these sexual acts into
crimes are essentially identical. The precise forms of rape at issue here and of oral
copulation at issue in Gonzalez are identical except that the former involve sexual
intercourse and the latter involve oral copulation. We see no suggestion that the
Legislature intended, and no reason it might have intended, a different rule for
rape than exists for oral copulation (and, presumably, for sodomy and sexual
penetration).
       What we said in Gonzalez, supra, 60 Cal.4th at page 539, about the
elements of the two forms of oral copulation being different applies equally to the
two forms of rape. An act of rape ―may be committed with a person who is
unconscious but not intoxicated, and also with a person who is intoxicated but not
unconscious[;] neither offense is included in the other.‖
       Moreover, different sections of the Penal Code provide sentencing
consequences that are different for some forms of rape than for others. For
example, section 667.5 enhances a sentence for a violent felony for prior prison
terms served for other violent felonies. Section 667.5, subdivision (c)(3), defines a
violent felony for this purpose as including ―[r]ape as defined in paragraph (2) or
(6) of subdivision (a) of Section 261 . . . .‖ Thus, this enhancement applies to
some forms of rape but not others. Similarly, section 667.6 enhances a sentence
for specified sex offenses for prior convictions of those offenses. Section 667.6,
subdivision (e) (1), provides that these specified offenses include ―[r]ape, in
violation of paragraph (2), (3), (6), or (7) of subdivision (a) of Section 261.‖ Thus,
this enhancement also applies to some forms of rape but not others; indeed, it
applies to different forms than section 667.5. We also note that, although the
change would not apply to defendant, who committed his crime in February 2010,




                                         10
section 264 was amended later that year to increase the punishment for one form
of rape of persons under certain ages, but not for the other forms of rape.3
       A jury verdict finding a defendant guilty of a single umbrella crime of rape
under section 261 would not include a finding regarding which form of rape was
involved. Because of this, providing differing sentencing consequences for some,
but not all, of the forms of rape suggests they state different offenses. (See
Gonzalez, supra, 60 Cal.4th at p. 539.)
       The statutes concerning the major sex offenses of rape, sodomy, oral
copulation, and sexual penetration (§§ 261, 286, 288a, 289) have been amended
often over the years. Both parties cite legislative history materials regarding
various amendments to support their positions. But nothing cited indicates the
Legislature ever considered, or expressed an intent regarding, whether a person
may suffer multiple convictions of the separate subdivisions of the various sex
offenses. However, strong indications exist that the Legislature intended the rule
to be consistent for each of these major sex crimes. As a result of the amendments
over the years, today, the elements of the various ways the crimes can be
committed (i.e., the various subparts of the statutes) are similar.
       This circumstance is no coincidence. It appears that was the Legislature‘s
intent. For example, a 1986 enactment made changes in all four of these sections
that helped to bring about this conformity. (Stats. 1986, ch. 1299, §§ 1, 3, 5, 6, pp.

3      Today, section 264, subdivision (c), provides in pertinent part: ―(1) Any
person who commits rape in violation of paragraph (2) of subdivision (a) of
Section 261 upon a child who is under 14 years of age shall be punished by
imprisonment in the state prison for 9, 11, or 13 years.
       ―(2) Any person who commits rape in violation of paragraph (2) of
subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall
be punished by imprisonment in the state prison for 7, 9, or 11 years.‖ (Stats.
2010, ch. 219, § 4, eff. Sept. 9, 2010.)



                                          11
4592-4599.) A Senate committee report on the Assembly bill behind this
enactment stated that the ―bill would conform the criteria used to determine the
commission of each of the four major sex offenses: rape, sodomy, oral copulation,
and foreign object rape; thus, the elements of these crimes relating to force,
consent, and violence would be consistent.‖ (Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 3485 (1985-1986 Reg. Sess.) as amended June 30, 1986, p. 2.)
Neither this committee report, the bill itself, nor the resulting statutory
amendments specifically address the question of multiple convictions of the
various subdivisions of section 261, 286, 288a, or 289. But the intent to achieve
conformity among these sex offenses strongly indicates a legislative intent that
rape be treated similarly to the other sex crimes in this regard.
       For these reasons, we agree with Justice Benke‘s dissent in the Court of
Appeal that the Legislature did not intend ―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.‖ Accordingly, we overrule People v. Craig, supra, 17
Cal.2d 453, to the extent it held that the different subdivisions of former section
261 ―merely define the circumstances under which an act of intercourse may be
deemed an act of rape; they are not to be construed as creating several offenses of
rape based upon that single act.‖ (Craig, at p. 455.)
       Defendant argues that the existence of section 263 militates against this
conclusion. That section provides: ―The essential guilt of rape consists in the
outrage to the person and feelings of the victim of the rape. Any sexual
penetration, however slight, is sufficient to complete the crime.‖ Nothing in this
section suggests the intent to prohibit multiple convictions of section 261‘s
separate subdivisions or to treat rape differently from the other sex offenses.

                                          12
Indeed, the statutes defining the other two sex offenses for which the concept of
penetration is relevant contain similar provisions regarding the extent of the
required penetration. (§§ 286, subd. (a) [―Any sexual penetration, however slight,
is sufficient to complete the crime of sodomy.‖], 289, subd. (k)(1) [― ‗Sexual
penetration‘ is the act of causing the penetration, however slight, of the genital or
anal opening of any person . . . .‖].)
       Defendant also argues that legislative inaction in the decades since Craig,
supra, 17 Cal.2d 453, was decided indicates the Legislature‘s intent to ratify that
decision. We disagree. ―In some circumstances, legislative inaction might
indicate legislative approval of a judicial decision. [Citation.] ‗However,
legislative inaction alone does not necessarily imply legislative approval. ―The
Legislature‘s failure to act may indicate many things other than approval of a
judicial construction of a statute: the sheer pressure of other and more important
business, political considerations, or a tendency to trust to the courts to correct
their own errors . . . .‖ ‘ ‖ (People v. Whitmer (2014) 59 Cal.4th 733, 741.) The
courts, not the Legislature, have generally interpreted, applied, and reconciled
sections 654 and 954. Legislative inaction in this regard most likely indicates a
willingness to let the courts continue to do so.
       Defendant argues that the rule of lenity requires us to interpret the statute in
his favor. ― ‗[W]e have repeatedly stated that when a statute defining a crime or
punishment is susceptible of two reasonable interpretations, the appellate court
should ordinarily adopt that interpretation more favorable to the defendant.‘
(People v. Avery (2002) 27 Cal.4th 49, 57, italics added.) The purpose of this rule
is to ensure that criminal statutes provide fair warning of what behavior is
considered criminal and what the punishment for that behavior will be. (Ibid.)‖
(People v. Story (2009) 45 Cal.4th 1282, 1294.) But our interpretation of section
261 ―defines neither a crime nor punishment.‖ (Story, at p. 1294.) The definition

                                          13
of the crimes of which defendant was convicted predated his committing them,
and everyone agrees that he cannot be punished for both offenses. ―Moreover,
‗although true ambiguities are resolved in a defendant‘s favor, an appellate court
should not strain to interpret a penal statute in defendant‘s favor if it can fairly
discern a contrary legislative intent.‘ (People v. Avery, supra, at p. 58.) Here we
can fairly discern a legislative intent to‖ treat section 261 similarly to section 288a
regarding multiple convictions. (Story, at p. 1294.)
       Finally, defendant argues that applying this interpretation of section 261 to
him would violate the prohibition against ex post facto laws. A statute violates the
prohibition against ex post laws if it punishes as a crime an act that was innocent
when done or increases the punishment for a crime after it is committed. (Collins
v. Youngblood (1990) 497 U.S. 37, 41-42; In re Rosenkrantz (2002) 29 Cal.4th
616, 638-639.) ―Correspondingly, an unforeseeable judicial enlargement of a
criminal statute, applied retroactively, operates in the same manner as an ex post
facto law.‖ (People v. Davis (1994) 7 Cal.4th 797, 811; accord, People v. Blakeley
(2000) 23 Cal.4th 82, 91.) But our construction of section 261 has no ex post
facto effect. It neither makes criminal an act innocent when committed nor
increases the punishment for that act. No rule prohibits applying our interpretation
of section 261 to this case.
                                  III. CONCLUSION
       We reverse the judgment of the Court of Appeal and remand the matter to
that court for further proceedings consistent with this opinion.
                                                           CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
CUÉLLAR, J.

                                           14
                      DISSENTING OPINION BY LIU, J.

       The rape statute, Penal Code section 261, says: ―(a) Rape is an act of
sexual intercourse accomplished with a person not the spouse of the perpetrator,
under any of the following circumstances: [¶] . . . .‖ (Pen. Code, § 261, subd. (a)
(hereafter section 261(a); all further statutory references are to this code.) The
statute then lists seven circumstances under which an act of intercourse constitutes
rape, including, as relevant here, ―(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,‖ and
―(4) Where a person is at the time unconscious of the nature of the act, and this is
known to the accused. . . .‖ (Id., subd. (a)(3) & (4).)
       In People v. Craig (1941) 17 Cal.2d 453 (Craig), we held that the different
circumstances of former section 261 do not define different offenses; the statute
instead defines only one offense. In People v. Gonzalez (2014) 60 Cal.4th 533
(Gonzalez), we distinguished section 261, as construed by Craig, in the course of
holding that the subdivisions of the oral copulation statute, section 288a, each
define a different offense. In this case, defendant Billy Charles White was
charged and convicted of two counts of rape — one for having sex with an
intoxicated person (§ 261(a)(3)), the other for having sex with an unconscious
person (§ 261(a)(4)) — based on a single act against a single victim. The Court of
Appeal, applying Craig, held that White‘s one act of sexual intercourse could not
sustain two rape convictions. The court today reaches the opposite conclusion,
overruling Craig.
       What concerns me about today‘s decision is not the result; whether the
various circumstances under which sexual intercourse constitutes rape should
define a single offense or multiple offenses is a policy question on which I express
no view. What concerns me is the dubious methodology that today‘s decision
employs. The court overrules Craig, a precedent that has stood undisturbed for 75
years, even though ― ‗[c]onsiderations of stare decisis have special force in the
area of statutory interpretation . . . .‘ ‖ (People v. Latimer (1993) 5 Cal.4th 1203,
1213 (Latimer).) In order to cast doubt on Craig, the court ascribes to Craig a
rationale that Craig did not adopt, even though ― ‗we are not aware of any legal
principle by which a court, years after rendering a decision, can retroactively alter
its ratio decidendi.‘ ‖ (Fashion Valley Mall, LLC v. National Labor Relations Bd.
(2007) 42 Cal.4th 850, 880 (dis. opn. of Chin, J.).) And the court cites shards of
legislative history to speculate that ―the Legislature intended the rule to be
consistent for [the four] major sex crimes‖ (maj. opn., ante, at p. 11), even though
― ‗ ―statutory language is usually the most reliable indicator of legislative
intent‖ ‘ ‖ (People v. Albillar (2010) 51 Cal.4th 47, 55) and the text of section 261
is relevantly different from the text of the statutes criminalizing sodomy, oral
copulation, and sexual penetration (§§ 286, 288a, 289).
       A straightforward reading of section 261 and application of Gonzalez lead
to the conclusion that the rape statute defines a single offense. Because today‘s
contrary decision strays from important principles of judicial methodology, I
respectfully dissent.
                                          I.
       As noted, section 261(a) provides that rape is as ―an act of sexual
intercourse accomplished with a person not the spouse of the perpetrator, under

                                           2
any of the following circumstances,‖ and then lists seven clauses that begin with
the word ―Where,‖ such as ―(3) Where a person is prevented from resisting by any
intoxicating or anesthetic substance . . . .‖ (The full text of the statute is printed as
an appendix at the end of this opinion.) In Craig, the defendant was convicted of
both forcible rape and rape of a minor, which at the time were separate
circumstances under section 261. (Craig, supra, 17 Cal.2d at p. 454.) The trial
court sentenced the defendant to two prison sentences, one for each rape
conviction, to run concurrently. (Ibid.) We held that the ―Where‖ clauses of
section 261 ―merely define the circumstances under which an act of intercourse
may be deemed an act of rape; they are not to be construed as creating several
offenses of rape based upon that single act.‖ (Craig, at p. 455.) In light of our
holding, we modified the judgment to consolidate the two convictions, although
the consolidated conviction indicated that the defendant committed a rape in
violation of two different circumstances of section 261. (Craig, at p. 459.)
       Today‘s decision overrules Craig without acknowledging that
― ‗[c]onsiderations of stare decisis have special force in the area of statutory
interpretation‘ ‖ because the Legislature ― ‗remains free to alter what we have
done.‘ ‖ (Latimer, supra, 5 Cal.4th at p. 1213, quoting Patterson v. McLean
Credit Union (1989) 491 U.S. 164, 172–173.) ― ‗It is, of course, a fundamental
jurisprudential policy that prior applicable precedent usually must be followed
even though the case, if considered anew, might be decided differently by the
current justices.‘ ‖ (Latimer, at p. 1212.) Something more is needed to overrule
precedent. In statutory cases, we typically consider whether the precedent has
proven unworkable, contrary to public policy, inconsistent with the express
language of other statutes, or inconsistent in application. (People v. Morante
(1999) 20 Cal.4th 403, 430.)



                                            3
       Since Craig, the Legislature has amended section 261 in a number of ways.
For instance, the Legislature has abrogated Craig‘s immediate holding by defining
statutory rape as its own offense. (§ 261.5.) But this change ―does not . . .
invalidate Craig‘s general pronouncement that the different subdivisions of
section 261 do not state different offenses.‖ (Maj. opn., ante, at p. 7.) The
Legislature has also updated the substantive elements of the circumstances. For
example, when Craig was decided, rape of an intoxicated victim occurred where
the victim was ―prevented from resisting . . . by any intoxicating narcotic, or
anaesthetic, substance, administered by or with the privity of the accused.‖
(Former § 261, subd. (4), as amended by Stats. 1913, ch. 122, § 1, p. 213.) Today
the victim must have been ―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.‖ (§ 261(a)(3).)
       But section 261‘s structure has remained essentially unchanged. Whereas
section 261(a) used to provide that a rape occurred under ―either of the following
circumstances‖ (former § 261, as amended by Stats. 1913, ch. 122, § 1, p. 212),
the statute now says a rape occurs under ―any‖ of the listed circumstances
(§ 261(a)). In addition, the semicolons separating the circumstances have been
replaced by periods, while the word ―she‖ has been replaced by ―a person‖ in all
the circumstances. None of these changes indicates a legislative intent to change
what we said in Craig about the number of offenses section 261 defines. Nor are
the changes significant enough to distinguish former section 261 from the current
version; the court does not suggest otherwise. Because Craig is a statutory
precedent, and because the statute it construed has not changed in any relevant
way, stare decisis applies to Craig with ― ‗special force.‘ ‖ (Latimer, supra, 5
Cal.4th at p. 1213.)



                                          4
       The court‘s sole justification for overruling Craig is its theory that Craig
was motivated by avoiding multiple punishment, a concern that in the court‘s view
has since been laid to rest with the stay procedure developed under section 654.
(Maj. opn., ante, at pp. 7–9.) But section 654 was already in force during Craig‘s
time. Like section 261, section 654 was part of the first Penal Code enacted in
1872 and remains largely unchanged to this day. Thus, courts have long been
aware that one act cannot result in multiple punishments, no matter the number of
convictions. As today‘s opinion recognizes, the practice at Craig‘s time was to
run sentences concurrently (maj. opn., ante, at p. 8, citing People v. Pearson
(1986) 42 Cal.3d 351, 359, which in turn cited People v. Kynette (1940) 15 Cal.2d
731, 761–762), as the trial court did in Craig itself (Craig, supra, 17 Cal.2d at
p. 455).
       Although I agree that the stay procedure is a better way of giving effect to
section 654 than concurrent sentences (In re Wright (1967) 65 Cal.2d 650), our
adoption of the stay procedure did not change the legal landscape in any way that
justifies overruling Craig. There is no indication that the result in Craig would
have been different had the stay procedure been available then. And although
Craig did say that one act of rape could result in only one ―punishable offense‖
(Craig, supra, 17 Cal.2d at p. 458) — a truism in light of section 654 — our
decision nowhere said that avoiding multiple punishments was part of the rationale
for construing section 261 as we did. Indeed, Craig never mentioned section 654
and instead relied on cases that had nothing to do with punishment. (See Craig, at
pp. 455–457, discussing People v. Vann (1900) 129 Cal. 118 and People v. Jailles
(1905) 146 Cal. 301.) It is simply not accurate to say that Craig was primarily
concerned with multiple punishment or that Craig ―conflated‖ conviction with
punishment. (Maj. opn., ante, at p. 7.)



                                          5
       It is true that this court in In re Hess (1955) 45 Cal.2d 171, 174, described
Craig as being motivated by multiple punishment. But we have clarified that Hess
did not disturb Craig‘s validity. (People v. Collins (1960) 54 Cal.2d 57, 59
[―[Hess] do[es] not . . . impliedly overrule [Craig].‖].) More fundamentally, this
court does not have authority to alter our precedent by declaring, after the fact, that
the ―real‖ ground of a decision was something other than what the court said in its
published opinion. Just as ―[p]ost-enactment legislative history (a contradiction in
terms) is not a legitimate tool of statutory interpretation‖ (Bruesewitz v. Wyeth
LLC (2011) 562 U.S. 223, 242), post hoc rationalization of a judicial decision is
not a legitimate approach to reading precedent. A hallmark of our adjudicatory
tradition is that courts do not merely announce holdings or dispositions; they also
provide reasoning that furthers the orderly and transparent development of the law.
Litigants are entitled to rely on such reasoning without wondering what the court
will later posit as the ―real‖ motivation for a given decision. (See Consumers
Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902
[―The doctrine of stare decisis applies . . . to the ratio decidendi or actual ground
of decision of a case . . . .‖].)
       In sum, the court overrules Craig by creating a straw man and knocking it
down. There is no basis to conclude that Craig was motivated by outdated
concerns about multiple punishment. Indeed, just recently we said that Craig
―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.‖
(Gonzalez, supra, 60 Cal.4th at p. 539, italics added, fn. omitted.) Today‘s
opinion nowhere suggests that Craig is unworkable, contrary to the express



                                           6
language of other statutes, or out of step with public policy. I would affirm the
rule we established in Craig on stare decisis grounds alone.
                                         II.
       Even if we were justified in taking a ―fresh look‖ at the issue presented
(maj. opn., ante, at p. 9), I would find today‘s opinion erroneous. Our recent
opinion in Gonzalez points the way.
       In Gonzalez, we addressed whether the subdivisions of the oral copulation
statute, section 288a, each define a separate offense or describe different means of
committing one offense. The Court of Appeal in that case had relied on Craig to
find that the defendant, who had been convicted of performing oral copulation on
a victim who was both intoxicated and unconscious, had committed only one
violation of section 288a. (Gonzalez, supra, 60 Cal.4th at p. 538.) But, as we
explained, ―[s]ection 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 . . . .‖ (Id.
at p. 539.) We thus distinguished Craig and concluded that section 288a defines
multiple offenses. (Gonzalez, at p. 540.) (I have also attached the full text of
section 288a at the end of this opinion, for ease of comparison with section 261.)
       But we did not merely distinguish Craig in Gonzalez. As noted, we said
that Craig‘s statutory holding ―flowed naturally from the wording and structure of
former section 261.‖ (Gonzalez, supra, 60 Cal.4th at p. 539.) Moreover, among
all the reasons we gave for concluding that section 288a defines multiple offenses
— the relationship between the definitional subdivision and the operative

                                          7
subdivisions, the self-contained nature of the operative subdivisions, the way the
punishments are defined, and the fact the punishments are not all the same — none
applies to section 261.
       The initial text of section 261(a) does not by itself define what conduct
constitutes an act of rape. Instead, section 261(a) must be read in conjunction with
one of the individual circumstances — (1) through (7) — to form a definition of
rape. The circumstances of section 261(a) do not each ―set forth all the elements
of a crime,‖ as the operative subdivisions of section 288a do. (Gonzalez, supra, 60
Cal.4th at p. 539.) Rather, the circumstances are organized and numbered as
inferior clauses of subdivision (a). The text and structure of section 261(a) suggest
it defines only one offense: ―Rape is an act of sexual intercourse accomplished
with a person not the spouse of the perpetrator, under any‖ one of seven
circumstances.
       In the oral copulation statute, by contrast, the operative subdivisions
(§ 288a, subds. (b)–(k)) that follow the definitional subdivision (§ 288a, subd. (a))
are all complete sentences; each stands on its own as a description of an oral
copulation offense. (E.g., § 288a, subd. (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 . . . .‖].) As noted, Gonzalez relied on the fact that each operative
subdivision of section 288a is ―self-contained,‖ in contrast to the text and structure
of section 261, as support for the conclusion that section 288a defines multiple
offenses. (Gonzalez, supra, 60 Cal.4th at p. 539.)
       The way punishments are prescribed also suggests that section 261 defines
one offense. In Gonzalez, we noted that each operative subdivision of section
288a defines its own punishment and that the punishments are not all the same.
(Gonzalez, supra, 60 Cal.4th at p. 539.) By contrast, the individual circumstances

                                          8
of section 261(a) do not define their own punishments. The punishment for
violating section 261 is defined in a different Penal Code provision. (§ 264.) And
at the time of White‘s offense, the punishment was the same for all the
circumstances. (Former § 264, subd. (a), as amended by Stats. 1999, ch. 853,
§ 11, p. 6121.) The structure of section 264 also supports viewing rape as one
offense: In order to change the punishment for rape, the Legislature at the time of
White‘s offense would have needed to amend section 264, subdivision (a) only
once; to do the same for oral copulation, the Legislature at the time of the offense
in Gonzalez would have needed to amend section 288a twelve times (see former
§ 288a, as amended by Stats. 2002, ch. 302, § 4, p. 1204).
       The court notes that two other provisions of the Penal Code — sections
667.5 and 667.6 — can provide different penal consequences for some forms of
rape. (Maj. opn., ante, at p. 10.) I doubt that statutes enacted in 1976 and 1979
tell us much about the intent of the Legislature that enacted the original rape
statute in 1872 or the intent of the Legislature that amended section 261 along with
the other major sex crimes in 1986. (Maj. opn., ante, at p. 11.) In any event,
neither section 667.5 nor section 667.6 has the import the court suggests.
       Section 667.5 is a violent felony enhancement provision that is not specific
to rape. (§ 667.5, subd. (c) [defining violent felony to include 23 types of
offenses].) For example, the statute enhances the penalty for ―[a]ny burglary of
the first degree, as defined in subdivision (a) of Section 460, wherein it is charged
and proved that another person, other than an accomplice, was present in the
residence during the commission of the burglary.‖ (§ 667.5, subd. (c)(21).)
Surely the court does not mean to imply that first degree burglary of an occupied
residence is a different offense from ordinary first degree burglary. As this
example demonstrates, section 667.5 is best understood as enhancing the
punishment for particularly reprehensible forms of conduct during the commission

                                          9
of specified offenses. In this regard, section 667.5 is no different from any other
sentencing enhancement, such as personal use of a firearm under section 12022,
and sheds no light on how many offenses are defined by the statutes listed in
section 667.5, subdivision (c).
       The Legislature had the same intent when it enacted section 667.6. Section
667.6 provides a sentencing enhancement when the defendant is convicted of
certain sex offenses in specified circumstances. (§ 667.6, subds. (a)–(d).) When
section 667.6 was first enacted in 1979, the enhancement applied to any person
convicted of ―violating subdivision (2) or (3) of Section 261 . . . , or of committing
sodomy or oral copulation in violation of Section 286 or 288a by force, violence,
duress, menace or threat of great bodily harm‖ for the second time. (§ 667.6,
subd. (a), as enacted by Stats. 1979, ch. 944, § 10, p. 3258, italics added.) The
italicized language indicates that, as with section 667.5, the Legislature‘s intent
was to enhance the punishment for particularly reprehensible forms of conduct
during the commission of the specified offenses. In that light, section 667.6‘s
reference to specific circumstances of section 261 is best understood as shorthand
for the forms of rape that involve ―force, violence, duress, menace or threat of
great bodily harm,‖ not as a delineation of different offenses. (See former § 261,
as amended by Stats. 1970, ch. 1301, § 1, p. 2405 [―2. Where she resists, but her
resistance is overcome by force or violence; [¶] 3. Where she is prevented from
resisting by threats of great and immediate bodily harm . . . .‖].) The Legislature
amended section 667.6 to its present form in 2006, which now lists both the
individual circumstances of section 261 and the individual subdivisions of sections
286 and 288a that involve use of force or threatened use of force. (§ 667.6, subd.
(e).) But this change does not indicate that the Legislature changed its view of
section 261.



                                          10
       In sum, none of the reasons we gave in Gonzalez for concluding that
section 288a defines multiple offenses applies to section 261. All of the factors
point in the other direction. Today‘s opinion applies Gonzalez‘s holding without
applying its reasoning. In so doing, the court not only overrules Craig, it also
empties Gonzalez of its analytical content. What remains of Gonzalez‘s reasoning
to guide lower courts, prosecutors and defense counsel, the Legislature, and the
public as to how this court interpreted the criminal statutes at issue? I would
follow the high court‘s admonition that ―[w]hen an opinion issues for the Court, it
is not only the result but also those portions of the opinion necessary to that result
by which we are bound.‖ (Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44,
67.) Applying the reasoning of Gonzalez, I would conclude, as Craig concluded,
that section 261 defines one offense.
                                         III.
       At the heart of today‘s opinion is the court‘s view that there is ―no
suggestion that the Legislature intended, and no reason it might have intended, a
different rule for rape than exists for oral copulation (and, presumably, for sodomy
and sexual penetration).‖ (Maj. opn., ante, at p. 10.) But the Legislature wrote the
statutes differently, and we said in Gonzalez that those differences are relevant to
whether each statute defines one crime or multiple crimes. What more does the
court need?
       The best indication of the Legislature‘s intent are the words of the statute
the Legislature enacted. (See, e.g., Barker v. Workers’ Comp. Appeals Bd. (2011)
52 Cal.4th 434, 442; Tonya M. v Superior Ct. (2007) 42 Cal.4th 836, 844.) The
Legislature knows how to write statutes that define multiple offenses. (§ 288a.) It
also knows how to draft two sex offense statutes to be identical in every regard
except for the sex act. (Compare § 288a with § 286.) The court hypothesizes that
the ― ‗ ― ‗sheer pressure of other and more important business, political

                                          11
considerations, or a tendency to trust to the courts to correct their own errors‘ ‖ ‘ ‖
may have prevented the Legislature from correcting Craig. (Maj. opn., ante, at
p. 13.) But the Legislature has repeatedly amended section 261 since Craig‘s
time. (Maj. opn., ante, at pp. 11–12.) It has had ample opportunity to ensure
conformity between section 261 and sections 286, 288a, and 289, but it has not
done so. We should take the statutes‘ differences at face value instead of imputing
a consistency that the Legislature never adopted.
       The court observes that the Legislature in 1986 sought to conform the
substantive elements of the four ―major sex offenses of rape, sodomy, oral
copulation, and sexual penetration.‖ (Maj. opn., ante, at pp. 11–12.) I agree that
the Legislature sought to criminalize the same conduct across each offense. (Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 3485 (1985–1986 Reg. Sess.) as
amended June 30, 1986, p. 2 [noting that the ―bill would conform the criteria used
to determine the commission of each of the four major sex offenses‖ (italics
added)].) As a result, whether or not an act is criminal does not turn on which sex
act was involved. But that is as far as we can fairly say the Legislature‘s intent
goes. There is no evidence that the Legislature intended the four offenses to be
treated similarly beyond the similarities the Legislature wrote into the statutes.
       The court says it is unable to conjure why the Legislature might have
wanted sections 261, 286, 288a, and 289 to be treated differently. (Maj. opn.,
ante, at p. 10.) But the four statutes were not written at the same time, nor do they
share a common heritage. The lineages of the statutes criminalizing sodomy, oral
copulation, and sexual penetration differ from the lineage of the rape statute — a
difference the court elides by labeling ―rape, sodomy, oral copulation, and sexual
penetration‖ as the four ―major sex offenses.‖ (Maj. opn., ante, at p. 11.) Only
―rape‖ is a sex offense. The other terms — ―sodomy,‖ ―oral copulation,‖ and
―sexual penetration‖ — are neutral descriptors of sex acts, like the term ―sexual

                                          12
intercourse‖; they are not sex offenses in and of themselves. This terminological
difference is a tip-off that the latter three offenses are different from rape.
       Rape was a crime at common law, defined as ―the carnal knowledge of a
woman forcibly and against her will.‖ (4 Blackstone, Commentaries 210.)
Although this definition would appear to describe only forcible rape, it was
understood that rape could be committed by other means, such as by having sex
with an underage victim, using threats of violence to coerce the victim into having
sex, administering an intoxicating agent to the victim, or having sex with an
unconscious victim. (People v. Snyder (1888) 75 Cal. 323, 324, overruled by
People v. Collins, supra, 54 Cal.2d 57.) As we recognized in Snyder, the
Legislature in 1872 codified the common law of rape by enumerating these means
in the original version of section 261 and did not intend to change how rape was
pleaded or proven. (Snyder, at pp. 324–325.) The information in that case alleged
that the defendant ― ‗feloniously did ravish‘ ‖ the victim and raped her ― ‗by force,
violence and against her will and resistance,‘ ‖ but the evidence showed only that
the victim was intoxicated. (Id. at p. 323.) We upheld the conviction, explaining
that the way the defendant had been charged was the way he would have been
charged at common law, and at common law such a charge would have been
sufficient in the circumstances. (Id. at pp. 324–325.) We subsequently overruled
Snyder on due process grounds to provide adequate notice to the defendant of the
criminal acts alleged. (Collins, at p. 60.) But this did not affect the common law
roots of the rape statute.
       There were no analogous common law antecedents for sodomy, oral
copulation, or sexual penetration. At common law, any act of sodomy — the
―infamous crime against nature‖ — was criminal. (4 Blackstone, Commentaries
215.) It therefore would have been unnecessary, and indeed meaningless, to have
specified the means or circumstances of committing sodomy. Reflecting the

                                           13
common law, the 1872 Penal Code contained a blanket prohibition on all sodomy.
(§ 286, as enacted by Pen. Code of 1872, § 286.) And when the Legislature
enacted the first oral copulation statute in 1921, that statute also criminalized all
acts of oral copulation. (§ 288a, as enacted by Stats. 1921, ch. 848, § 2, p. 1633.)
       The Legislature did not decriminalize sodomy and oral copulation until
1975, when in accordance with contemporary sexual mores the Legislature
amended sections 286 and 288a to criminalize sodomy and oral copulation in only
three specified circumstances: where the victim was underage, where the victim
was compelled by force or threats of force, and where the perpetrator acted in
concert with another and against the victim‘s will. (Stats. 1975, ch. 71, §§ 7,
10, pp. 133–134.) These circumstances were not the same as the circumstances
then in effect for rape (see former § 261, as amended by Stats. 1970, ch. 1301, § 1,
p. 2405), indicating that the Legislature at the time did not have rape in mind and
did not intend sodomy or oral copulation to be treated the same way as rape. The
Legislature added the sexual penetration statute in 1978 and modeled that statute
on the recently amended sodomy and oral copulation statutes. (§ 289, as enacted
by Stats. 1978, ch. 1313, § 1, p. 4300.)
       In addition to specifying different criminal circumstances for oral
copulation and sodomy in 1975 than for rape, the Legislature took a different
approach to defining those circumstances: Each was given its own self-contained
subdivision. (See former §§ 286, 288a, as amended by Stats. 1975, ch. 71, §§ 7,
10, pp. 133, 134.) When the Legislature amended the statutes to criminalize
additional circumstances, it gave the new circumstances their own self-contained
subdivisions too. (See, e.g., Stats. 1977, ch. 490, §§ 1–2, p. 1614 [criminalizing
sodomy and oral copulation where victim was unconscious]; Stats. 1981, ch. 896,
§§ 1–3, pp. 3414–3416 [criminalizing sodomy, oral copulation, and sexual
penetration where victim was of unsound mind].) This compartmentalization

                                           14
reflects the fact that each of the three original criminal circumstances of sodomy
and oral copulation reflected a different type of wrong (underage victim, act
committed by force, and act committed with another), each meriting a different
punishment. In contrast to the rape statute, there was no common law heritage on
which the Legislature could draw to provide conceptual unity to the sodomy and
oral copulation statutes.
       It is thus clear that the Legislature in 1975 intended each subdivision of
sections 286 and 288a to define a separate new sodomy or oral copulation offense,
just as it is clear that the Legislature in 1872 intended section 261 to codify the
common law offense of rape. The Legislature has never amended section 261 to
express a different intent.
       In reaching today‘s holding, the court imposes its own sense of order where
none was intended. It is not our role to rewrite statutes, especially criminal
statutes, to conform to the court‘s sensibilities. This is so even if the text and
structure of a statute may seem anomalous in the context of related statutes
enacted later in time. (See In re Estate of Calhoun (1955) 44 Cal.3d 378, 380–
387; cf. Palermo v. Stockton Theatres (1948) 32 Cal.2d 53, 63 [―[I]n the absence
of a constitutional objection it is generally held that the courts have no right to
declare a statute obsolete by reason of a supervening change in the conditions
under which it was enacted.‖].)
                                    CONCLUSION
       It may or may not be good policy to have a rape statute that defines
multiple offenses, as the other sex crimes statutes do. But such policy decisions
are the province of the Legislature. Our court is guided by different
considerations. Among them is that we should overrule a statutory precedent only
when there is an exceptionally persuasive reason to do so. Another is that the
bench, the bar, and the public are entitled to rely on the rationales of our

                                          15
precedents as much as our holdings. And finally, it is not our role to update an old
statute in lieu of giving its text and structure a natural construction. Because
today‘s opinion is inconsistent with these principles, I respectfully dissent.
                                                  LIU, J.
I CONCUR:
KRUGER, J.




                                          16
                                     APPENDIX
       Section 261 in 1941 provided:
       ―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 any 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 immediate and
           great bodily harm, accompanied by apparent power of execution, or by
           any intoxicating narcotic, or anaesthetic 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.‖ (§ 261, as amended by Stats. 1913, ch. 122, § 1, p. 212.)


       Today, as at the time of White‘s offense, section 261 provides:
―(a) Rape is an act of sexual intercourse accomplished with a person not the
     spouse of the perpetrator, under any of the following circumstances:
     ―(1) Where a person is 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. . . .


                                         17
      ―(2) Where it is accomplished against a person‘s will by means of force,
            violence, duress, menace, or fear of immediate and unlawful bodily
            injury on the person or another.
      ―(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. . . .
      ―(5) Where a person submits under the belief that the person committing the
            act is someone known to the victim other than the accused, and this
            belief is induced by any artifice, pretense, or concealment practiced by
            the accused, with intent to induce the belief.
      ―(6) 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. . . .
      ―(7) 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. . . . ‖ (§ 261.)


        Section 288a, in relevant part, provides:
―(a) Oral copulation is the act of copulating the mouth of one person with the
      sexual organ or anus of another person. [¶] . . . [¶]
―(c) (1) . . . .
      ―(2) (A) 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

                                             18
                  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. [¶] . . .
            [¶]
―(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. . . . [¶] . . . [¶]
―(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 someone known to the
     victim other than the accused, and this belief is induced by any artifice,
     pretense, or concealment practiced by the accused, with intent to induce the

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     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.‖ (§ 288a.)




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

Name of Opinion People v. White
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 237 Cal.App.4th 1087
Rehearing Granted

__________________________________________________________________________________

Opinion No. S228049
Date Filed: January 19, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Frank A. Brown

__________________________________________________________________________________

Counsel:

Raymond Mark DiGuiseppe, under appointment by the Supreme Court, and Theresa Osterman Stevenson,
under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys
General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Lise Jacobson, Melissa Mandel,
Meredith S. White and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Raymond Mark DiGuiseppe
Post Office Box 10790
Southport, NC 28461
(910) 713-8804

Meredith S. White
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9069
