Rape of an unconscious person and rape of an intoxicated person are separate offenses and defendant may be convicted of both based on the same act. Defendant had sex with a woman in a hotel room after she drank a large amount of alcohol with him at a bar. The woman did not remember leaving the bar and her next memory after being at the bar was waking up in a bed with defendant beside her. A jury convicted defendant of both rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3)) and rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)(A)). The Court of Appeal vacated the latter conviction on the ground that defendant could not be convicted of both counts based on the same act. The Supreme Court granted review. Held: Reversed. While the same act can support multiple convictions unless one offense is necessarily included in the other (Pen. Code § 954), multiple punishment for the same act is prohibited (Pen. Code, § 654). In the analogous case of People v. Gonzalez (2014) 60 Cal.4th 533, the court upheld the defendant’s convictions for 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 the same act, finding that the separate subdivisions of section 288a described different offenses. Applying Gonzalez, the court determined that the two sections of section 261, subdivisions (a)(3) and (a)(4)(A), like the two sections of 288a, describe separate offenses, and neither offense is necessarily included in the other. Although section 261 is structurally different from section 288a, the statutes are substantively similar, and there is no indication the Legislature intended that multiple convictions be permitted for oral copulation but not for rape. The court overruled People v. Craig (1941) 17 Cal.2d 453 to the extent it held that the different subdivisions of former section 261 could not be construed as creating separate offenses of rape based on the same act.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S228049.PDF