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Name: People v. Soria
Case #: C070238
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/03/2015
Subsequent History: Review granted 10/21/2015: S228653
Summary

Defendant may not be convicted of two counts of rape for a single act of intercourse, and the two convictions must be consolidated. Soria was convicted of rape of an intoxicated person and rape of an unconscious person (Pen. Code, § 261, subds. (a)(3) & (a)(4)), both based on one sexual act. On appeal, Soria argued that he could not be convicted of two counts of rape based upon one act of intercourse and asked that one count be stricken. Respondent concurred in part, but argued that the appropriate remedy is to consolidate the two counts, not strike one of them. The Court of Appeal held the counts should be consolidated. Respondent requested rehearing, changing its position in light of the opinion in People v. Gonzales (2014) 60 Cal.4th 533 [upholding convictions for oral copulation of an unconscious person and oral copulation of an intoxicated person under Penal Code section 288a, based on same act], and arguing that Soria could be convicted of two counts. Soria, relying on People v. White (2015) 237 Cal.App.4th 1087 [distinguishing Gonzales and finding that a defendant could not be convicted of two counts of rape charged under different subdivisions of section 261, based on single act], asked that one count be stricken. On rehearing the appellate court adhered to the California Supreme Court decision in People v. Craig (1941) 17 Cal.2d 453, concluding that Soria could not be convicted of two counts of rape for a single act of intercourse, and that the two counts must be consolidated.