Convictions for both luring a minor with intent to engage in oral sex (Pen. Code, § 288.3) and attempted oral copulation of a minor (Pen. Code, §§ 664, 288, subd. (b)(1)) are proper; luring is not a special statute that supplants attempted oral copulation. Among other offenses, Medelez was convicted of attempted oral copulation of a minor and luring a minor with intent to orally copulate. On appeal he argued that he could not be convicted of both offenses because the Legislature intended that the luring statute supplant attempted oral copulation with a minor. Held: Affirmed on this ground. When a general statute covers the same conduct as a specific/special statute, it is inferred that the Legislature intended for the conduct to be prosecuted under the special statute only. (People v. Murphy (2011) 52 Cal.4th 81, 86.) However, that rule only applies if “(1) each element of the general statute corresponds to an element on the face of the special statute or (2) it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.” (Ibid.) Attempt, the general statute at issue here, requires a direct but ineffectual step that goes beyond mere preparation. Luring, by contrast, can be committed by contact or communication that is preparatory. “The Legislature did not intend luring to supplant prosecutions for attempt; it was casting a wider net.” Since Medelez engaged in preparatory conduct and a direct act, he is guilty of both crimes.

Luring is not a lesser included offense of attempted oral copulation, and attempted oral copulation is not a lesser included offense of luring. Medelez also argued that convictions for luring and attempted oral copulation were improper because they are lesser included offenses of each other. The Court of Appeal disagreed. “Multiple convictions based on necessarily included offenses are prohibited. An offense is necessarily included if the statutory elements of one crime include all the statutory elements of another, such that the first cannot be committed without necessarily committing the second.” Attempt is not a necessarily included offense of luring because luring can be committed without a direct but ineffectual step that goes beyond mere preparation. Nor is luring a lesser included offense of attempted oral copulation because attempt can be committed without contacting or communicating with the victim (an essential element of luring). Nevertheless, punishing Medelez for both luring and attempted oral copulation when those crimes were based on the same intent and objective violates Penal Code section 654. The court modified the sentence to stay imposition of the attempted oral copulation conviction.

The full opinion is on the court’s website here: http://www.courts.ca.gov/opinions/documents/B262429.PDF