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Name: People v. Gonzalez
Case #: S207830
Court: CA Supreme Court
District CalSup
Opinion Date: 10/20/2014

Defendant may be convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person based on the same act. Carolyn H. passed out on a curb next to Gonzalez after drinking a pint of vodka. While Carolyn was unconscious, Gonzalez put his penis in her mouth. He was convicted of (1) oral copulation of an unconscious person (Pen. Code, § 288a, subd. (f)), and (2) oral copulation of an intoxicated person (Pen. Code, § 288a, subd. (i)). He appealed, contending that he could not be convicted of both counts based on a single act of oral copulation. The Court of Appeal reversed one of the convictions, reasoning that People v. Craig (1941) 17 Cal.2d 453, precluded multiple convictions. The People appealed. Held: Reversed. Penal Code section 954 permits a defendant to be convicted of multiple offenses based on a single criminal act. In Craig, the court analyzed the wording and structure of former Penal Code section 261 and concluded that the statute set forth only one offense (rape) that could be committed under several different circumstances. As a result, the defendant in Craig could not be convicted of both statutory rape and rape by force for the same act of intercourse with a 16-year-old because, under former section 261, only one punishable offense of rape results from a single act of intercourse. Here, the court distinguished Craig because the text and structure of section 288a supports the conclusion that each subdivision in the statute describes an independent offense. Subdivisions (b) through (k) define various ways that the act of oral copulation may be criminal. Each subdivision sets forth the elements of the crime and prescribes a specific punishment. Gonzalez’s conviction under more than one subdivision for a single act was permitted.