Filed 2/5/15 P. v. McClurkin CA2/ 8
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                            B250172

                   Plaintiff and Respondent,                           (Los Angeles County
                                                                       Super. Ct. No. MA045288)
         v.

CALVERT McCLURKIN,

                   Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Lisa M. Chung, Judge. Affirmed with modifications.

         Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and
Appellant.

         Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney
General, Keith H. Borjon and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff
and Respondent.


                                                  **********
       Defendant was convicted of first degree murder (count 1) and of seven separately
charged felony sex crimes. The jury found true two felony murder special
circumstances, that in the commission of the murder, the defendant committed the
crimes of a lewd or lascivious act on a child under the age of 14, and of oral copulation
of a person under the age of 18. (Defendant’s DNA was found inside the mouth of the
13-year-old victim and also on her breasts and external genital area.) Two of the seven
sex crime counts of which defendant was separately convicted were lewd act upon a
child (count 2) and oral copulation of a person under the age of 18 (count 3), and
involved the same victim as the murder count.
       The trial court sentenced defendant to the prescribed term of life without the
possibility of parole as to count 1. The court also imposed consecutive sentences on
counts 2 and 3. Defendant’s sole argument on appeal is that the sentences on counts 2
and 3 should be stayed pursuant to Penal Code section 654. Respondent concedes the
error. We agree.
       Given the limited scope of this appeal, we dispense with a summary of the
factual and procedural background and a recitation of the standard of review, neither of
which requires discussion here.
       Penal Code section 654 bars separate punishment for the underlying offenses that
form the basis for a felony murder conviction. (People v. Hensley (2014) 59 Cal.4th
788, 828; People v. Harris (1989) 47 Cal.3d 1047, 1102-1103; People v. Williams
(1984) 157 Cal.App.3d 145, 157-158.) Respondent tell us, “In the instant case, there is
no dispute the sex crimes charged in counts 2 and 3 were also the same predicate
felonies relied upon by the prosecution to prove that appellant was guilty of felony
murder and that the special circumstance allegations were true.” The prosecution did
not rely exclusively on a felony murder theory of first degree murder, but instead argued
the facts supported a finding of intention to kill with premeditation. “Nevertheless,”
respondent tells us, “the jury also found true the special circumstance allegations that, in
the commission of the murder charged in count 1, appellant was engaged in the crimes
of oral copulation and lewd acts. Based on the evidence, the prosecutor’s closing


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arguments, and the trial court’s instructions, the jury necessarily found that the lewd act
and oral copulation charged in counts 2 and 3 were not divisible from the special
circumstances of murder in the commission of lewd acts and oral copulation charged in
count 1.”
       Finding that respondent’s concession is well taken, we remand with instructions
to stay the sentences on counts 2 and 3 and, as so modified, we affirm the judgment.
                                     DISPOSITION
       The judgment is affirmed, as modified. The superior court is directed to stay the
sentences on counts 2 and 3 under Penal Code section 654, and to prepare an amended
abstract of judgment, and forward a certified copy of the same to the Department of
Corrections and Rehabilitation.

                                                         GRIMES, J.
       We concur:
                     BIGELOW, P. J.




                     RUBIN, J.




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