Filed 12/30/14 P. v. Vital CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039160
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS110805A)

         v.

DAVID VITAL,

         Defendant and Appellant.


         Following a jury trial, David Vital was found guilty of forcible sodomy (Pen.
Code, § 286, subd. (c)(2)(A))1 (count one) and sodomy while confined in state prison
(§ 286, subd. (e)) (count three) based upon a single act of sodomy upon a cellmate. The
jury also found true three strike allegations (§ 1170.12, subd. (c)(2)) for prior convictions
of mayhem with use of a deadly weapon (§§ 203, 12022, subd. (b)), attempted voluntary
manslaughter with use of a deadly weapon (§§ 192, subd. (a), 664, 12022, subd. (b)), and
torture with the use of a deadly weapon (§§ 206, 12022, subd. (b)). The trial court
sentenced defendant to 25 years to life on count one under the Three Strikes law and it
imposed the same sentence on count two but stayed execution of that sentence pursuant
to section 654.
         On appeal, defendant raises a number of contentions, none of which we find
meritorious.



1
         All further statutory references are to the Penal Code unless otherwise specified.
                                         Discussion
A. Marsden Motion
       Defendant asserts that the judgment must be reversed because the trial court
abused its discretion by not substituting counsel following his November 5, 2012
Marsden motion and hearing (see People v. Marsden (1970) 2 Cal.3d 118 (Marsden)).
Defendant contends (1) the trial court failed to conduct an adequate Marsden inquiry and
(2) the breakdown in communications between himself and defense counsel compelled a
substitution of counsel.
1. Background
       On July 18, 2012, Judge Julie Culver heard and denied a Marsden motion brought
by defendant.
       At a hearing before Judge Mark E. Hood on August 8, 2012, the court continued
the case to September 5, 2012 for trial setting. Defendant told the court that he could no
longer communicate with his attorney. The court told defendant that “we’ll be back on
September 5th and your attorney will have an opportunity to meet with you.”
       During the hearing before Judge Culver on September 5, 2012, the court urged
defendant to speak with defense counsel and let him know of any problems. Defendant
responded, “I don’t trust him, period.” The court explained defendant’s refusal to speak
with his counsel was an insufficient basis for relieving counsel. Defendant threatened
that, if defense counsel came near, defendant would “snatch him,” “[t]ear his ass up,” and
“assault him, period.”2
       On November 5, 2012, the day scheduled for trial, defendant appeared with
defense counsel before Judge Hood. In light of what had occurred at the September 5,


2
       Defendant has not asserted in this appeal that the court abused its discretion by
refusing to substitute counsel on July 18, 2012 or prejudicially erred in failing to hold a
Marsden hearing on August 8, 2012 or September 5, 2012.

                                              2
2012 hearing, the trial court inquired whether, at that time, defendant was asking the
court to relieve counsel and appoint another attorney. Defendant indicated he was asking
for his counsel to be removed. After a closed hearing, Judge Hood denied defendant’s
Marsden motion.
2. Governing Law
       “[A]t any time during criminal proceedings, if a defendant requests substitute
counsel, the trial court is obligated, pursuant to [the Supreme Court’s] holding in
Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction
with the current appointed attorney. (Marsden, supra, 2 Cal.3d at p. 126.) In turn, if the
defendant makes a showing during a Marsden hearing that his right to counsel has been
‘ “ ‘substantially impaired’ ” ’ (Marsden, supra, at p. 123), substitute counsel must be
appointed as attorney of record for all purposes. ([People v. Smith (1993)] 6 Cal.4th 684,
695-696.)” (People v. Sanchez (2011) 53 Cal.4th 80, 90.)
       “[A] trial court cannot discharge its duty [under Marsden] without hearing the
reasons for the defendant’s belief that his or her attorney has not afforded adequate
representation. (Id. at pp. 123-124.)” (People v. Martinez (2009) 47 Cal.4th 399,
417-418.) Rather, it must “listen to [a] defendant’s reasons for requesting different
counsel.” (Marsden, supra, 2 Cal.3d at p. 126.) The court must give a defendant “an
opportunity to present argument or evidence . . . . [Citation.]” (Id. at p. 124.)
       “A trial court is required to substitute counsel ‘ “in a situation where the record
clearly shows that the first appointed counsel is not adequately representing the
accused.” ’ [Citation.] Alternatively the trial court must substitute counsel where it is
demonstrated that counsel and defendant are embroiled in an irreconcilable conflict.
(People v. Abilez (2007) 41 Cal.4th 472, 488 . . . .) The decision to substitute counsel is
within the discretion of the trial court; this court will not find an abuse of discretion
unless the trial court’s failure to substitute counsel would ‘ “ ‘substantially impair’ the


                                               3
defendant’s right to effective assistance of counsel.” ’ (Ibid.)” (People v. Gutierrez
(2009) 45 Cal.4th 789, 803.)
3. Adequate Inquiry by the Court
       Defendant asserts that “the trial court failed to discharge its duty to inquire into the
nature of, or reasons for, the communication breakdown or to take other steps to ease
[his] concerns.”
       On November 5, 2012, defendant indicated that he had not communicated with his
defense counsel in six months. He represented that he had told the judge who heard his
prior Marsden motion, which was denied on July 18, 2012, that he had given defense
counsel the real names and CDC numbers of witnesses but his counsel had falsely stated
that defendant had provided only their nicknames and counsel had been required to
search for their real names. Defendant said, “[W]hen he lied in court, that was the
clencher right there. There is no reason for that.”
       Defendant also complained that he had told defense counsel that this was a
“fraudulent case” and he was not making a “deal” in this case. Nevertheless, his counsel
had presented a plea deal to him.
       The court recapped that defendant believed that defense counsel had not spent
enough time communicating with him about the case and he had not “followed up on
suggested witnesses.”
       Defendant brought up that he had told his defense counsel that they needed to get
his medical file, which would show that he had a problem with his right foot and the foot
had required surgery; defendant asserted that it was impossible for him to have lifted “the
plaintiff.” Defendant also mentioned that “the plaintiff” had two other similar prison
cases in which “the plaintiff” was supposedly the victim. Defendant indicated that “a lid”
had been put on “the medical records of the plaintiff.”




                                              4
       The court asked defense counsel to describe his legal background. Defense
counsel mentioned, among other things, that he had been a police officer before going to
law school.
       As to the lack of communication, defense counsel indicated that he had twice tried
to see defendant at the CTF3 without success. Counsel had written a letter to defendant
after his first attempt to see defendant. Counsel had tried to see defendant again.
Counsel was told by a correctional officer that defendant was refusing to attend his
attorney visit. Counsel acknowledged that defendant and he had been out of contact for
awhile but he asserted that it was not because he had not tried.
       In response to questioning by the court, defense counsel indicated that he had
followed up with witnesses or potential witnesses. As to the victim’s medical file,
defense counsel had attempted to get that information.
       When the court asked defendant whether there was anything else, defendant
indicated that he would like Judge Hood to rehear his prior Marsden motion. Defendant
also complained that defense counsel was dealing with too many cases. In addition, he
declared that he never would have accepted defense counsel to begin with if he had
known that counsel had been a police officer.
       The trial court gave defendant ample opportunity to disclose and elaborate upon
his grievances with defense counsel. Defendant spoke at length and defense counsel was
allowed to respond. The court ascertained the nature of the defendant’s dissatisfaction
with his counsel; its inquiry was sufficient.
4. November 5, 2012 Marsden Motion Properly Denied
       Defendant argues that the trial court abused its discretion by not substituting
counsel because there had been “a complete breakdown in communication [between


3
       We presume defense counsel was referring to the Correctional Training Facility.

                                                5
defense counsel and him], for an extended period, at a critical juncture . . . .” He does not
claim that his defense counsel had performed incompetently prior to the motion.
        “A defendant ‘cannot simply refuse to cooperate with his appointed attorney and
thereby compel the court to remove that attorney.’ [Citations.]” (People v. Clark (2011)
52 Cal.4th 856, 918.) “[A] defendant may not force the substitution of counsel by his
own conduct that manufactures a conflict. [Citation.]” (People v. Smith, supra, 6 Cal.4th
at pp. 696-697.) “A ‘ “ ‘lack of trust in, or inability to get along with, an appointed
attorney’ ” ’ is an inadequate basis on which to substitute counsel. [Citations.]” (People
v. Clark, supra, at p. 918.) “If a defendant’s claimed lack of trust in, or inability to get
along with, an appointed attorney were sufficient to compel appointment of substitute
counsel, defendants effectively would have a veto power over any appointment, and by a
process of elimination could obtain appointment of their preferred attorneys, which is
certainly not the law. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1246.)
Moreover, “ ‘[a] trial court is not required to conclude that an irreconcilable conflict
exists if the defendant has not made a sustained good faith effort to work out any
disagreements with counsel . . . .’ [Citation.]” (People v. Clark, supra, at p. 913.)
        A defendant’s complaint that his appointed counsel rarely visits him does not
justify substitution of counsel. (People v. Myles (2012) 53 Cal.4th 1181, 1208.) “[T]he
number of times one sees his attorney, and the way in which one relates with his attorney,
does not sufficiently establish incompetence.” (People v. Silva (1988) 45 Cal.3d 604,
622.)
        Although on November 5, 2012, defendant expressed that he was upset with his
counsel because counsel had allegedly lied at the earlier Marsden hearing, defendant
raised the issue of lying during the July 18, 2012 Marsden hearing and Judge Culver
denied the motion. Instead of speaking with counsel and attempting to work out any
problems, defendant threatened his counsel at the September 5, 2012 hearing. On
November 5, 2012, Judge Hood impliedly did not find defendant credible with respect to
                                               6
his allegation that his counsel had previously lied to the court. Defense counsel indicated
that their lack of contact was due to defendant’s recalcitrant refusal to see him. “To the
extent there was a credibility question between defendant and counsel at the hearing, the
court was ‘entitled to accept counsel’s explanation.’ [Citation.]” (People v. Smith, supra,
6 Cal.4th at p. 697.)
       “[N]ew counsel should not be appointed without a proper showing. . . . The court
should deny a request for new counsel at any stage unless it is satisfied that the defendant
has made the required showing. This lies within the exercise of the trial court’s
discretion, which will not be overturned on appeal absent a clear abuse of that
discretion.” (People v. Smith, supra, 6 Cal.4th at p. 696.) Defendant has failed to
establish that the court abused its discretion by denying his November 5, 2012 Marsden
motion.4
B. Alleged Ineffective Assistance of Counsel in Cross-examination
       On direct examination, Aaron F. testified that, on the day he moved into
defendant’s cell, he told defendant that he was “straight” and he was “ ‘not into males.’ ”
He stated that, prior to the sodomy incident, he told defendant that he was “straight,” not
bisexual. He testified that he told defendant, “ ‘Whatever that you’re into, I’m not into
that kind . . . .’ ” Aaron F. described defendant as “well-over” 200 pounds and estimated
defendant’s height to be a little over six feet, one inch. Aaron F. indicated that, before
defendant put his penis in Aaron F.’s anus, defendant moved to Aaron F.’s bunk, the
lower bunk, and trapped Aaron F. there. Defendant threatened to kill Aaron F. and put
his arm around Aaron F.’s neck, and he told Aaron F. what he was going to do to him.
When defendant told Aaron F. that either Aaron F. could take off his boxers or defendant



4
        The fact that defendant subsequently voluntarily absented himself from trial does
not alter our conclusion.

                                              7
could do it for him, Aaron F. pulled down his boxers because he was afraid and
intimidated.
       On cross-examination of witness Aaron F., defense counsel asked whether he
remembered telling Sergeant Ledesma that he was a homosexual. Aaron F. replied, “No
I do not.” Defense counsel inquired, “Are you saying you never said that?” Aaron F.
answered, “I’m saying I don’t recall saying it, and I probably did not. I did not say that.
That’s what I’m saying.”
       Sergeant Ledesma subsequently testified for the prosecution. On May 9, 2010, the
sergeant was working at the Correctional Training Facility (CTF) in Soledad. Sometime
around 7:00 a.m., he helped transport defendant to the Natividad Medical Center for
SART testing to find out if a sexual assault had occurred.
       On cross-examination, Sergeant Ledesma indicated that the same morning, before
transporting defendant, he had interviewed Aaron F. about the alleged sexual assault.
The sergeant testified that he had asked, “ ‘Have you ever engaged in sexual activity with
an individual of the same sex before” and Aaron F. had answered “yes.”
       On redirect examination, Sergeant Ledesma indicated that he had asked Aaron F.
questions on a sexual assault questionnaire. The sergeant confirmed that he had asked
Aaron F., “ ‘Have you ever engaged in sexual activity with another individual of the
same sex before,’ ” and Aaron F. had told him, “Yes.” The sergeant had checked the
“yes” box.
       Defendant now argues that defense counsel should have asked Aaron F. about his
affirmative answer to Sergeant Ledesma’s actual question. Defendant complains that
defense counsel tried to impeach Aaron F. with his “prior inconsistent statement” but
“got its substance wrong, thereby fumbling the [impeachment] opportunity . . . .”
       Defendant maintains that defense counsel’s deficient performance undermines
confidence in the outcome of the trial since the prosecution’s case turned on the
credibility of the complaining witness and the prior inconsistent statement went to
                                             8
Aaron F.’s general credibility and his defense of consent. He points out the jury asked
for a read back of “Officer Ledesma’s testimony, specifically with respect to Ferguson’s
prior homosexual activity.”
       To prevail on an ineffective assistance of counsel claim, a defendant must satisfy
Strickland’s two-part test by establishing both counsel’s deficient performance and
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052]
(Strickland).) As to deficient performance, a defendant “must show that counsel’s
representation fell below an objective standard of reasonableness” measured against
“prevailing professional norms.” (Id. at p. 688.) “Judicial scrutiny of counsel’s
performance must be highly deferential,” a court must evaluate counsel’s performance
“from counsel’s perspective at the time” without the “the distorting effects of hindsight,”
and “a court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” (Id. at p. 689.)
       The prejudice prong requires a defendant to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra, 466 U.S. at p. 694.) “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.)
       “In assessing prejudice under Strickland, the question is not whether a court can be
certain counsel’s performance had no effect on the outcome or whether it is possible a
reasonable doubt might have been established if counsel acted differently. [Citations.]
Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been
different. [Citation.] This does not require a showing that counsel’s actions ‘more likely
than not altered the outcome,’ but the difference between Strickland’s prejudice standard
and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’
[Citation.] The likelihood of a different result must be substantial, not just conceivable.
[Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, __ [131 S.Ct. 770, 791-792].)


                                              9
       Defendant now insists defense counsel should have asked Aaron F. whether he
had answered “yes” to the sergeant’s actual question because a person’s sexual
orientation is a different issue than the person’s willingness to engage in sexual conduct
with a member of the same sex. While technically true, those two circumstances are
closely related. If Aaron F. had viewed his answer to the sergeant’s question about prior
same-sex conduct as an admission of homosexuality and answered “yes” to the defense
counsel’s question on cross-examination, such potential testimony would have aided the
defense’s consent argument more than a “yes” answer to the cross-examination question
now proposed by defendant. It is mere speculation to suppose that Aaron F. would have
denied answering “yes” to the sergeant’s actual question and thereby opened himself to
impeachment of his credibility. Further, defense counsel’s follow-up question elicited a
somewhat equivocal answer from Aaron F. regarding what he had told the sergeant.
Defendant has not established his trial counsel rendered ineffective assistance by his
manner of questioning the witness. Moreover, by later eliciting the sergeant’s testimony,
defense counsel was able to present the very evidence of Aaron F.’s answer to the
sergeant’s question about same-sex activity, which arguably tended to undercut
Aaron F.’s testimony indicating that he told defendant that he was “straight” and the
sodomy was forcible.
       “[N]ormally the decision to what extent and how to cross-examine witnesses
comes within the wide range of tactical decisions competent counsel must make.
[Citation.]” (People v. Cleveland (2004) 32 Cal.4th 704, 746; see People v. McDermott
(2002) 28 Cal.4th 946, 993 [manner of cross-examination is matter within counsel’s
discretion and rarely implicates ineffective assistance of counsel].) “On direct appeal, a
conviction will be reversed for ineffective assistance only if (1) the record affirmatively
discloses counsel had no rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or (3) there simply could be
no satisfactory explanation. All other claims of ineffective assistance are more
                                             10
appropriately resolved in a habeas corpus proceeding. [Citations.]” (People v. Mai
(2013) 57 Cal.4th 986, 1009.) The appellate record does not affirmatively establish that
defense counsel’s manner of questioning of Aaron F. was not a reasonable tactical choice
and counsel acted deficiently.
       Defendant also fails to demonstrate prejudice. The appellate record indicates that
the court complied with the juror’s request to hear Sergeant Ledesma’s testimony again
and shortly thereafter the jury returned with their verdicts. The sergeant fully testified
about Aaron F.’s answer to the question about prior same-sex sexual activity and the jury
appears to have been well aware of that testimony. In addition, as indicated, Aaron F.’s
reply to defense counsel’s follow-up question concerning his statement to the sergeant
was somewhat equivocal. It is not reasonably probable that a defendant would have
obtained a more favorable result had defense counsel directly cross-examined Aaron F.
about his answer to the sergeant’s specific question.
C. Two Convictions Based upon Single Act of Sodomy
       Defendant asserts that dual convictions for a single act of sodomy are contrary to
state law and violate his constitutional rights to equal protection and against double
jeopardy. He also claims that defense counsel rendered ineffective assistance by failing
to object to the dual convictions on those grounds. We find no merit in these contentions.
1. State Law
a. Sections 954 and 654
       Defendant first suggests that section 954 allows a prosecutor to charge alternate
theories of criminal liability but ultimately precludes more than one conviction for a
single offense. Section 954 states in part: “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
                                             11
convicted of any number of the offenses charged, and each offense of which the
defendant is convicted must be stated in the verdict or the finding of the court . . . .”
(Italics added.)
       “In general, a person may be convicted of, although not punished for, more than
one crime arising out of the same act or course of conduct. ‘In California, a single act or
course of conduct by a defendant can lead to convictions “of any number of the offenses
charged.” (§ 954, italics added; People v. Ortega (1998) 19 Cal.4th 686, 692 . . . .)’
(People v. Montoya (2004) 33 Cal.4th 1031, 1034 . . . .) Section 954 generally permits
multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits
multiple punishment for the same ‘act or omission.’ When section 954 permits multiple
conviction, but section 654 prohibits multiple punishment, the trial court must stay
execution of sentence on the convictions for which multiple punishment is prohibited.
(People v. Ortega, supra, at p. 692; People v. Pearson (1986) 42 Cal.3d 351,
359-360 . . . .)”5 (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227.)
       The law with respect to multiple conviction has evolved. In People v. Pearson,
supra, 42 Cal.3d 351, the California Supreme Court stated with regard to section 654:
“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.
(See, e.g., People v. Kynette (1940) 15 Cal.2d 731, 761-762 . . . .) In other cases,
however, we refused to affirm multiple convictions because of the possibility that such



5
       “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.” (§ 654, subd. (a).)

                                              12
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
[(1961)] 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 . . . .)” (Id. at p. 359.)
       “A judicially created exception to the general rule permitting multiple conviction
‘prohibits multiple convictions based on necessarily included offenses.’ (People v.
Montoya, supra, 33 Cal.4th at p. 1034.) ‘[I]f a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 . . . .)” (People v. Reed, supra, 38
Cal.4th at p. 1227.) “When a defendant is found guilty of both a greater and a necessarily
lesser included offense arising out of the same act or course of conduct, and the evidence
supports the verdict on the greater offense, that conviction is controlling, and the
conviction of the lesser offense must be reversed. [Citations.]”6 (People v. Sanders
(2012) 55 Cal.4th 731, 736.)


6
         “The question whether one offense is necessarily included in another arises in
various contexts. A common one is deciding whether a defendant charged with one
crime may be convicted of a lesser uncharged crime.” (People v. Reed, supra, 38
Cal.4th. 38 Cal.4th at p 1227.) “Two tests have traditionally been applied in determining
whether an uncharged offense is necessarily included within a charged offense—the
statutory or legal ‘elements’ test and the ‘accusatory pleading’ test. ‘Under the elements
test, if the statutory elements of the greater offense include all of the statutory elements of
the lesser offense, the latter is necessarily included in the former. Under the accusatory
pleading test, if the facts actually alleged in the accusatory pleading include all of the
elements of the lesser offense, the latter is necessarily included in the former. [Citation.]’
(Reed, supra, at pp. 1227-1228.)” (People v. Sloan (2007) 42 Cal.4th 110, 116-117.)
(continued)
                                                 13
       Assuming that forcible sodomy as defined by section 286, subdivision (c)(2), and
sodomy in a correctional facility as defined by section 286, subdivision (e) are separate
offenses, neither is a necessarily included offense of the other based on their elements.
Therefore, the dual convictions in this case do not fall within the judicial exception to the
general statutory rule permitting multiple convictions.
       Consequently, the pivotal question, not answered by section 954, is whether the
types of criminal conduct described in subdivisions of section 286 are merely different
statements of the “same offense” or different offenses. It is clear that a defendant may
not suffer multiple convictions of the same offense for a single act. (See, e.g., People v.
Coyle (2009) 178 Cal.App.4th 209, 217-218 [defendant improperly convicted of three
counts of murder for killing one person]; People v. Ryan (2006) 138 Cal.App.4th 360,
364-371 [defendant improperly conviction of more than one offense of forgery with
respect to a single instrument because various subdivisions of section 470 described
different ways of committing the same offense].) On the other hand, as a general rule, a
person may be convicted of distinct and separate crimes based on the same conduct.
(See, e.g., People v. Benavides (2005) 35 Cal.4th 69, 97-98 [upholding conviction for
lewd conduct with a child based on same evidence that defendant raped and sodomized
the child].) We discuss below whether, as a matter of statutory construction, section 286
states a unitary statutory crime of sodomy.
b. People v. Craig
       Defendant invokes People v. Craig (1941) 17 Cal.2d 453 (Craig), which held that
a defendant could not be convicted of multiple rapes based on one act of sexual


The California Supreme Court has held that “[c]ourts should consider the statutory
elements and accusatory pleading in deciding whether a defendant received notice, and
therefore may be convicted, of an uncharged crime, but only the statutory elements in
deciding whether a defendant may be convicted of multiple charged crimes.” (People v.
Reed, supra, at p. 1231.)

                                              14
intercourse under former section 261. At that time, statutory rape was described by a
subdivision of the rape statute rather than by a separate statute. Defendant Craig was
convicted of two counts of rape based upon “a single act of intercourse committed
without the consent and against the will of a sixteen year old girl.” (Craig, supra, at
p. 454.) The first count charged forcible rape under former section 261, subdivision 3,
and the second count charged statutory rape under former section 261, subdivision 1.7
(Craig, supra, at pp. 454-455.) The issue as framed 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.” (Id. at
p. 455.)
       The Supreme Court in Craig stated: “Section 264 of the Penal Code prescribes a
punishment of ‘not more than fifty years’ in the state prison for rape committed in
violation of any of the subdivisions of section 261. In the case of statutory rape (subd. 1,
sec. 261), it also provides for an alternative county jail punishment. The trial court,
however, by its ‘judgments’ has sentenced defendant on both counts of the information to
the state prison.”8 (Craig, supra, 17 Cal.2d at p. 458.) The court determined: “The


7
       Former section 261 described six means of committing rape. It provided in
pertinent part: “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; . . . 3. Where she resists, but her resistance is
overcome by force or violence . . . .” (Stats. 1913, ch. 122, § 1, pp. 212-213.)
8
       As amended in 1923, former section 264 stated: “Rape is punishable by
imprisonment in the state prison for not more than fifty years, except where the offense is
under subdivision one of section two hundred six-one of the Penal Code [unlawful sexual
intercourse with minor], in which case the punishment shall be either by imprisonment in
the county jail for not more than one year or in the state prison for not more than fifty
years, and in such case the jury shall recommend by their verdict whether the punishment
shall be by imprisonment in the county jail or in the state prison; provided, that when the
defendant pleads guilty of an offense under subdivision one of section 261 of the Penal
Code the punishment shall be in the discretion of the trial court, either by imprisonment
(continued)
                                             15
‘judgments’ entered by the trial court should be modified to the extent of consolidating
them into a single judgment. . . . Such modification will serve to preclude the dual
judgments of the trial court from hereafter working any possible disadvantage or
detriment to the defendant in the later fixing of his definite term by the State Board of
Prison Terms and Paroles.” (Id. at pp. 458-459.)
       Although Craig did not mention section 654, its reasoning was as follows: “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.’ [Citation.] Where, as here, the charge and proof disclose a
single act of intercourse resulting from force employed upon a minor, but one punishable
rape is consummated, for the proof, though dual in character, necessarily crystallizes into
one ‘included’ or identical offense.” (Craig, supra, 17 Cal.2d at p. 457.)
       In People v. Smith (1950) 36 Cal.2d 444, 448, the California Supreme Court cited
Craig in discussing section 654: “Section 654 prohibits double punishment for the
commission of a single act [citations], but it does not prohibit convictions for different
offenses arising out of a single act unless one is necessarily included within the other.
(Pen. Code §§ 954, 1023; People v. Craig, 17 Cal.2d 453, 457 . . . ; People v. Kynette, 15
Cal.2d 731, 761-762 . . . .)” (People v. Smith, supra, at p. 448.) In In re Hess (1955) 45
Cal.2d 171, the Supreme Court stated with respect to Craig: “Although it was stated in
the Craig case that the six subdivisions of section 261 of the Penal Code ‘merely define


in the county jail for not more than one year or in the state prison for not more than fifty
years.” (Stats. 1923, ch. 130, § 1, pp. 271-272.)

                                              16
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’
[citation], that statement 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 is but one offense or six different offenses of rape.” (In re
Hess, supra, 45 Cal.2d. at p. 174.) In a subsequent case, the court recognized that “[t]he
rule that concurrent sentences for crimes based on one act or indivisible transaction do
not constitute multiple punishment [citations] has been rejected by many decisions,
commencing as early as People v. Craig, (1941) 17 Cal.2d 453, 458 . . . , that modify
judgments or reverse them in part to remove the effect of such concurrent sentences.
[Citations.]” (In re Wright (1967) 65 Cal.2d 650, 652.)
       Nevertheless, Craig has not been regarded as merely an early section 654 case but
as in effect a case of statutory construction of the former rape statute. The California
Supreme 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. Craig, 17 Cal.2d 453, 455
110 P.2d 403.” (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 different circumstances under which
an act of intercourse may constitute the crime of rape. [Citation.]”].)
       Courts have continued to apply Craig’s remedy of consolidating multiple
convictions of the same crime committed in various ways against one victim. (See, e.g.,
People v. Coyle, supra, 178 Cal.App.4th at p. 218 [consolidating three murder
convictions].) In People v. Smith (2010) 191 Cal.App.4th 199, the defendant was
“charged with, and the jury found him guilty of, two counts of rape—rape of an
intoxicated woman and rape of an unconscious woman” based upon a single act sexual
                                             17
intercourse. (Id. at p. 205.) The court modified the judgment to strike a rape count,
stating that “[b]oth convictions cannot 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
section 261 of the Penal Code.’ (People v. Craig, (1941) 17 Cal.2d 453, 458 . . . .)”9
(Ibid.)
c. Continuing Viability of People v. Craig
          Craig may survive as a case of statutory interpretation. Where the Legislature
enacts a law defining a unitary crime and its subdivisions merely describe various
alternative means of committing that crime, the subdivisions do not state separate crimes.
A different result obtains, however, when the Legislature intends the subdivisions of a
criminal law to state separate crimes. (See, e.g., People v. Phillips (2010) 188
Cal.App.4th 1383, 1396-1397 [“section 647.6, subdivisions (a)(1) and (2) have the same
goal to protect children from sexual predators who are motivated by an unnatural or
abnormal sexual interest in children” but “they are clearly separate crimes”]; People v.
Ledesma (1997) 16 Cal.4th 90, 97 [1982 amendments to § 245 created “additional




9
        We question but do not resolve the continued validity of Craig, supra, 17 Cal.2d
453 with respect to current rape law in light of People v. Gonzalez (2014) 60 Cal.4th 533
(Gonzalez). We note that the language and structure of section 264 is different than the
language and structure of former 264 in effect at the time Craig was decided.
Section 264 now provides in part: “(a) Except as provided in subdivision (c), rape, as
defined in Section 261 or 262, is punishable by imprisonment in the state prison for three,
six, or eight years. [¶] . . . [¶] (c)(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.”

                                              18
categories of felonious assault, including separate crimes of assault with a firearm and
assault on a peace officer with a firearm”].)
       Recently, in Gonzalez, supra, 60 Cal.4th at page 535, the California Supreme
Court considered a similar question to the one presented in this case, namely “whether a
defendant may, consistently with Penal Code 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.” (Ibid., fn. omitted.) The
appellate court in Gonzalez had understood Craig as precluding multiple convictions for
offenses under section 288a. (Gonzalez, supra, at p. 535.) The Supreme Court
concluded: “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. [Citations.]” (Ibid.)
       The Supreme Court began its analysis by recognizing that legislative intent
controls whether a statute states a single or multiple offenses. “ ‘In California all crimes
are statutory and there are no common law crimes. Only the Legislature and not the
courts may make conduct criminal.’ [Citations.] 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.” (Gonzalez, supra, 60 Cal.4th at p. 537.)
       The Supreme Court indicated that the holding in Craig, supra, 17 Cal.2d 453 was
limited: “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, Craig
acknowledged that ‘ “[a] defendant may be convicted of two separate offenses arising out
                                                19
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.)
       The Supreme Court in Gonzalez contrasted section 288a with former section 261.
“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.” (Gonzalez, supra, 60
Cal.4th at p. 539.) These differences are also true for section 286.
       The language of section 286 does not parallel the language of former section 261.
Moreover, when Craig was decided, a violation of former section 261 was punishable
under indeterminate sentencing law so defining a unitary offense of rape made sense. In
contrast, section 286’s language does not describe a unitary offense of sodomy that is
committed under any of variously described circumstances. Rather, section 286 defines
the act of sodomy in subdivision (a) and then describes, in various other subdivisions, the
elements of criminal conduct involving the act of sodomy and the applicable determinate
punishments.10

10
        At oral argument, defendant pointed, for the first time, to uncodified statutory
language contained in the 1991 statute amending section 286 as support for his argument
that there is a unitary crime of sodomy. That legislative declaration stated: “[I]t is the
Legislature’s intent in enacting this act to include all of the elements of the crime of
sodomy in one code section.” (Stats. 1991, ch. 144, § 3, p. 1353.) Section 1 of that 1991
statute amended section 286 by adding the second sentence to subdivision (a), which
language previously had been set forth in section 287, and making other nonsubstantive
(continued)
                                             20
       “ ‘As in any case involving statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s purpose.’ [Citation.] ‘We
begin with the plain language of the statute, affording the words of the provision their
ordinary and usual meaning and viewing them in their statutory context, because the
language employed in the Legislature’s enactment generally is the most reliable indicator
of legislative intent.’ [Citations.] The plain meaning controls if there is no ambiguity in
the statutory language. [Citation.]” (People v. Cornett (2012) 53 Cal.4th 1261, 1265.)
“When the Legislature uses materially different language in statutory provisions
addressing the same subject or related subjects, the normal inference is that the
Legislature intended a difference in meaning. [Citation.]” (People v. Trevino (2001) 26
Cal.4th 237, 242.)
       We conclude that each subdivision of section 286 describing the elements of
criminally punishable conduct constitutes a separate and distinct crime of which a



changes. (Stats. 1991, ch. 144, § 1, pp. 1351-1353; see Stats. 1975, ch. 71, § 9, p. 134
[former § 287]; former § 287 as enacted in 1872.) As amended in 1991, subdivision (a)
of section 286 provided (and still provides): “Sodomy is sexual conduct consisting of
contact between the penis of one person and the anus of another person. Any sexual
penetration, however slight, is sufficient to complete the crime of sodomy.” (Stats. 1991,
ch. 144, § 1, p. 1351.) Section 2 of that 1991 statute repealed section 287. (Stats. 1991,
ch. 144, § 2, p. 1353.) Defendant places undue emphasis on the declaration of legislative
intent in enacting the 1991 statute in that the Legislature’s focus was on clarifying and
consolidating the definition of the act of sodomy and not on whether or not the
subdivisions of section 286 proscribing various conduct involving an act of sodomy each
stated a separate crime. (See Legis. Counsel’s Dig., Assem. Bill No. 419 (1991-1992
Reg. Sess.) 4 Stats. 1991, Summary Dig., pp. 73-74.) Before the 1975 amendments of
former section 286, the section had criminalized “the infamous crime against nature,
committed with mankind or with any animal.” (Stats. 1952, 1st Ex. Sess., ch. 23, p. 286;
see former § 287 as enacted in 1872.) After the 1975 amendments, sodomy between
consenting adults who were not incarcerated was not a crime but forcible sodomy and
other proscribed conduct involving an act of sodomy were criminal and subject to various
punishments. (See Stats. 1975, ch. 877, § 1, pp. 1957-1958; Stats. 1975, ch. 71, §§ 7, 9,
pp. 133-134.)

                                             21
defendant may be convicted. Of course, section 654 continues to protect defendants
against multiple punishment. In this case, defendant was not subjected to multiple
punishment. The trial court stayed execution of the sentence on count two (§ 286,
subd. (e)) pursuant to section 654.
       In light of our conclusion that dual convictions did not violate California statutory
law, we find it unnecessary to resolve the People’s contention that Craig, supra, 17
Cal.2d 453 “created an exception to Penal Code section 954 that conflicts with its express
language.”
2. Equal Protection
       Defendant asserts that, as a matter of equal protection, section 286 must be
construed to parallel section 261 and state only a single offense. He argues that there is
“no rational basis for greater culpability to attach to a single act of unlawful anal
intercourse than to a single act of unlawful vaginal intercourse.”
       “The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
which is essentially a direction that all persons similarly situated should be treated alike.
Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).” (City of
Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439 [105 S.Ct. 3249].)
But “the equal protection clause does not prevent the legislature from recognizing
‘degrees of evil’ [citation]” and “ ‘the Constitution does not require things which are
different in fact or opinion to be treated in law as though they were the same.’
[Citation.]” (Skinner v. Oklahoma (1942) 316 U.S. 535, 540 [62 S.Ct. 1110]; see People
v. Guzman (2005) 35 Cal.4th 577, 591.) “It is both the prerogative and the duty of the
Legislature to define degrees of culpability and punishment, and to distinguish between
crimes in this regard. [Citation.] . . . Equal protection analysis does not entitle the
judiciary to second guess the wisdom, fairness, or logic of the law. (Heller v. Doe (1993)
509 U.S. 312, 319, 113 S.Ct. 2637 . . . .)” (People v. Turnage (2012) 55 Cal.4th 62, 74.)
                                              22
“When conducting rational basis review, [courts] must accept any gross generalizations
and rough accommodations that the Legislature seems to have made. A classification is
not arbitrary or irrational simply because there is an ‘imperfect fit between means and
ends.’ (Heller, supra, 509 U.S. 312, 321.)” (Id. at p. 77.)
       “ ‘The first prerequisite to a meritorious claim under the equal protection clause is
a showing that the state has adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ [Citations.]” (Cooley v. Superior Court (2002)
29 Cal.4th 228, 253.) We have already observed that general language and structure of
the former rape statute and the sodomy statue are not analogues. We also question the
continued validity of Craig with respect to current rape law. (See fn. 9, ante.)
       In any case, there is no counterpart to section 286, subdivision (e), in section 261,
criminalizing the participation in an act of sodomy while confined in any state prison. A
person convicted of forcible sodomy under section 286, subdivision (c)(2)(A), and
sodomy in prison under section 286, subdivision (e), based on one sexual act cannot be
similarly situated to a person convicted of rape based on a single act of sexual intercourse
because there is no analogous crime of rape committed by means of sexual intercourse
while confined in prison. Moreover, under the rational-basis test, “a classification ‘must
be upheld against equal protection challenge if there is any reasonably conceivable state
of facts that could provide a rational basis for the classification.’ [Citations.]” (Heller,
supra, 509 U.S. at p. 320 [113 S.Ct. 2637].) The legislative choice of making an
inmate’s participation in sodomy, regardless of consent, a separate crime is rationally
related to the legitimate state purpose of maintaining institutional safety and order. (See
People v. West (1991) 226 Cal.App.3d 892, 898-899; see also People v. Santibanez
(1979) 91 Cal.App.3d 287, 291.)
       Defendant has failed to demonstrate any equal protection violation.




                                              23
3. Double Jeopardy
       Defendant again insists that “the subdivisions of Penal Code section 286 must be
read as encompassing alternative theories or circumstances of a single statutory offense,
unlawful sodomy.” Based on this premise, he argues that “[d]ual convictions for forcible
sodomy and sodomy in a correctional facility . . . violate the sate and federal prohibitions
on double jeopardy” even if a conviction is stayed pursuant to section 654.
       The double jeopardy prohibition of the Fifth Amendment to United States
Constitution, which applies to the States through the Fourteenth Amendment (Benton v.
Maryland (1969) 395 U.S. 784, 794 [89 S.Ct. 2056]), protects against, among other
things, multiple criminal punishment for the same offense in a single proceeding. (Jones
v. Thomas (1989) 491 U.S. 376, 381 [109 S.Ct. 2522]; North Carolina v. Pearce (1969)
395 U.S. 711, 717 [89 S.Ct. 2072], overruled on another ground in Alabama v. Smith
(1989) 490 U.S. 794, 803 [109 S.Ct. 2201].) California’s constitutional protection
against double jeopardy (Cal. Const., art. I, § 15) likewise bars multiple punishment for
the same offense. (People v. Seel (2004) 34 Cal.4th 535, 542.)
       “[W]here 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.
[Citation.]” (Blockburger v. United States (1932) 284 U.S. 299, 304 [52 S.Ct. 180].) The
Blockburger test nevertheless yields to contrary legislative intent to impose cumulative
punishment in a single prosecution. (See Missouri v. Hunter (1983) 459 U.S. 359,
368-369 [103 S.Ct. 673].) The purpose of the constitutional protection against multiple
punishments under the double jeopardy clause is “to ensure that sentencing courts do not
exceed, by the device of multiple punishments, the limits prescribed by the legislative
branch of government, in which lies the substantive power to define crimes and prescribe
punishments. [Citatition.]” (Jones v. Thomas, supra, 491 U.S. at p. 381.) “Because the
substantive power to prescribe crimes and determine punishments is vested with the
                                             24
legislature [citation], the question under the Double Jeopardy Clause whether
punishments are ‘multiple’ is essentially one of legislative intent [citation].” (Ohio v.
Johnson (1984) 467 U.S. 493, 499, fn. omitted [104 S.Ct. 2536].) “With respect to
cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing greater punishment than the
legislature intended.” (Missouri v. Hunter, supra, at p. 366.)
       Defendant’s double jeopardy argument rests on a faulty premise. Subdivisions
(c)(2)(A) and (e) of section 286 do not, as a matter of statutory construction, define the
same crime merely committed by different means. Those separate offenses do not meet
Blockburger’s same elements test. Moreover, defendant was not subjected to multiple
punishment for a single act of sodomy because the trial court’s stayed punishment on the
conviction of sodomy in prison. (See People v. Osband (1996) 13 Cal.4th 622, 731.)
Consequently, we find defendant’s double jeopardy claim to be meritless.
4. Alleged Ineffective Assistance of Counsel
       Defendant raises an ineffective assistance of counsel claim based upon his
counsel’s failure to object to the dual convictions on statutory, equal protection, and
double jeopardy grounds. Having rejected defendant’s challenges to dual conviction, we
now reject his related ineffective assistance of counsel claim. Defendant has failed to
meet his burden of demonstrating both deficient performance and prejudice to establish
such claim. (Strickland, supra, 466 U.S. at pp. 687-689, 694.)
D. Alleged Victim’s Prison Medical File
       The defense sought discovery of Aaron F.’s prison medical file based on the
information and belief that the inmate had made prior complaints of sexual assault and
had received treatment for mental health issues. Following an in camera review of that
medical file, the trial court found that three of its pages, one of which was minimally
redacted, were responsive to defendant’s discovery request and not protected by


                                             25
privilege.11 It ordered that the parties receive copies of those documents under a
protective order. The released documents relate to only the May 8, 2010 incident.
         “Under the Fourteenth Amendment’s due process clause, prosecutors must
disclose evidence to a criminal defendant when it is ‘ “both favorable to the defendant
and material on either guilt or punishment.” [Citations.] Evidence is “favorable” if it
hurts the prosecution or helps the defense. [Citation.] “Evidence is ‘material’ ‘only if
there is a reasonable probability that, had [it] been disclosed to the defense, the result . . .
would have been different.’ ” ’ (People v. Earp (1999) 20 Cal.4th 826, 866 . . . ; see also
Brady[v. Maryland (1963)] 373 U.S. 83, 87, 83 S.Ct. 1194.) Evidence probative of a
testifying witness’s credibility, including the potential for bias, is evidence favorable to
the accused. (See United States v. Bagley (1985) 473 U.S. 667, 676, 105 S.Ct. 3375, 87
L.Ed.2d 481.)” (People v. Morrison (2004) 34 Cal.4th 698, 713, 714.)
         Here, there is no disagreement that the trial court properly reviewed Aaron F.’s
prison medical file in camera. (See Pennsylvania v. Ritchie (1987) 480 U.S. 39, 58 [107
S.Ct. 989].) Defendant asks this court to independently review the sealed records. The
People have no objection to defendant’s request.
         We have reviewed the relevant record, including sealed documents, and find no
error.
                                        DISPOSITION
         The judgment is affirmed.




11
      This court ordered the trial court to reconstruct and settle the record regarding its
in camera review of the alleged victim’s medical file. The settled record was filed under
seal.

                                               26
                                  _________________________________
                                  ELIA, Acting P. J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.
