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Name: People v. White
Case #: D060969
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/18/2015
Subsequent History: Review granted 9/30/2015: S228049
Summary

Defendant could not be convicted of rape of an intoxicated person and rape of an unconscious person based on one act of intercourse. White was found guilty of rape of an intoxicated person (Pen. Code, § 261, subd. (a)(3) [count 1]), and rape of an unconscious person (Pen. Code, § 261, subd. (a)(4)(A) [count 2]) based on a single act of intercourse. In his first appeal, the court requested supplemental briefing on whether White’s convictions on counts 1 and 2 should be consolidated under People v. Craig (1941) 17 Cal.2d 453 and its progeny, which stand for the proposition that section 261, subdivision (a) sets forth one crime. The court concluded that White was improperly convicted of both counts. The California Supreme Court granted the People’s petition for review, deferring action until disposition of a related issue in People v. Gonzalez (2014) 60 Cal. 4th 533. After Gonzalez was decided, the court transferred the matter to the appellate court to reconsider its decision in light of that opinion. Held: Judgment modified to strike count 2. Based on the text and structure of Penal Code section 288a, Gonzalez held that a defendant could be convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person based on a single act. However, the court in Gonzalez also reaffirmed and distinguished Craig’s interpretation of former section 261. Here, the Court of Appeal concluded that the version of section 261 under which White was charged was more similar to the former version of section 261 interpreted by the court in Craig than it was to the version of 288a that the court interpreted in Gonzalez. Thus, White could not be convicted of both rape of an intoxicated person and rape of an unconscious person based on a single act of intercourse under section 261.