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Name: People v. Gonzalez
Case #: D059713
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/27/2012
Subsequent History: Review granted 2/27/2013: S207830

Where defendant was convicted of the same sex offense twice based on a single act, the two offenses must be consolidated into one offense. Appellant was convicted of committing various sex acts on a woman who was unconscious due to intoxication. Appellant alleged he should not have been convicted of both oral copulation of an unconscious person (Pen. Code, § 288a, subd. (f)) and oral copulation of an intoxicated person (Pen. Code, § 288a, subd. (i)) based on a single act. Held: Offenses consolidated. The subdivisions of section 288a specify various circumstances under which oral copulation is unlawful. Appellant was convicted of two counts of unlawful oral copulation based on one act which was committed against a victim who was both intoxicated and unconscious. This resulted in two convictions of the same offense based on a single act. The offenses must be consolidated. [Editor’s Note: Justice Benke strongly dissented, finding application of Penal Code section 654 the appropriate remedy and cautioning the majority opinion provides a sex offender with a windfall.]

The trial court did not err in retaining a juror who said he thought he might know a relative of the victim. At the close of the prosecution case, Juror No. 6 told the court he didn’t think he could stay unbiased because he thought he recognized photographs of the victim as his friend’s relative. Out of the juror’s hearing, the prosecution informed the court that the victim’s son was in prison and that the photographs had never been released to the public, so the victim was likely not the person known to the juror. The court informed Juror No. 6 it was unlikely the victim was the person in the photographs the juror had recalled. The juror stated “That makes everything different.” After the court obtained the name of the juror’s friend and stated the matter would be reviewed, the subject never again arose. Appellant alleged the trial court erred in not excusing the juror. However, the trial court’s inquiry was sufficient and it was able to obtain information which dispelled the juror’s mistaken belief he knew the victim’s relative.