Lead Opinion
Opinion
We granted review in this case to consider (1) whether a criminal defendant may be convicted of multiple statutory violations (Pen. Code, § 289, subd. (a))
The first issue focuses on the language of section 289, a relative newcomer in the legislative scheme governing sex crimes. At all pertinent times, this section has proscribed certain “penetration[s], however slight, of the genital or anal openings of another person” by “any foreign object, substance, instrument, or device.” In light of preexisting legislative and judicial treatment of similar language elsewhere in the same scheme, we conclude that the offense described by section 289 may be deemed complete the moment “penetration” occurs. We also conclude, in keeping with a near-unanimous line of appellate authorities, that each similar sexual “penetration” which occurs during a continuous sexually assaultive encounter may constitute a separate statutory violation. Here, defendant’s three convictions under section 289, subdivision (a), were properly affirmed on appeal.
The second question concerns the manner in which we have applied section 654 to multiple sex offenses arising out of a single course of
We will therefore affirm the judgment of the Court of Appeal.
Facts
Approximately 5:15 a.m. on June 12, 1985, Virginia N., who lived alone and was legally blind, was awakened by a noise in her apartment. Hearing footsteps, she put on her eyeglasses, sat up in bed, and started to reach for the phone. As she did so, defendant rushed through the bedroom door towards the bed.
Virginia immediately started to scream and raised her arms to protect her face. Defendant grasped her shoulders and began hitting her in the face and upper arms. He then reached inside her underwear and inserted his finger into her vagina. While he was doing so, Virginia continued to struggle and ended up standing on the bed. She eventually pulled away and dislodged defendant’s finger, which had been in her vagina for four seconds.
Virginia continued to scream and defendant continued to hit her. He then pushed her so that she was lying on the bed, and he was in a kneeling position beside her. He placed his hand over her mouth and again inserted his finger into her vagina. Meanwhile, Virginia pried defendant’s hand away from her mouth, and he hit her in the face. She rolled to the other side of the bed, tried to kick defendant, and again dislodged his finger from her vagina. This second penetration lasted approximately five seconds.
Virginia then stood up and started to run for the door. Defendant grabbed her by the hair, pulled her towards him, and punched her in the throat. He then inserted his finger into her vagina a third time. She continued to struggle and the two ended up on the floor with defendant on top, still hitting her. While they were in this position, Virginia told defendant, “If you’ll just stop this, we can do it.” Virginia felt the pressure of his body lessen, and she scrambled into the bathroom. She locked the door and was able to alert the neighbors with her screams. The third penetration lasted
Defendant was charged with three counts of violating section 289, subdivision (a),
The jury found defendant guilty of all three sex crimes and of burglary. Defendant also admitted the prior conviction.
At the sentencing hearing, defendant insisted, among other things, that section 654 precludes multiple punishment where only one “kind” of crime is committed during a brief sexual assault. However, the court cited sections 1170 and 1170.1, subdivision (a), and various factors in aggravation, and imposed a total seventeen-year sentence as follows: the upper term of eight years on one of the sex crimes; a consecutive sentence of one-third the middle term (i.e., two years) on each of the other two sex crimes; the upper term of six years on the burglary, with execution of that sentence stayed pursuant to section 654;
On appeal, defendant reiterated that only one violation of section 289, subdivision (a), had occurred and, alternatively, that he could be punished for only one such conviction under section 654. The Court of Appeal disagreed, and affirmed the judgment with regard to the sex offense and burglary convictions. However, upon the urging of both defendant and the Attorney General, the court reversed and remanded for resentencing solely on the grounds that there was insufficient evidence to support the five-year enhancement. The enhancement portion of the Court of Appeal’s judgment is not disputed here.
A. Number of Convictions
Defendant renews his argument that multiple digital penetrations, committed during a brief “continuous” assault upon a struggling victim, constitute only a single violation of section 289. In effect, he suggests that, under such circumstances, the statutory offense extends from the initial penetration through final withdrawal, even though multiple penetrations have actually occurred in the interim. As we shall explain, this claim is belied by the plain meaning of section 289, and by the consistent interpretation of sister statutes which use materially similar language.
Preliminarily, we note that since its origin in 1872, the Penal Code has defined and prescribed punishment for the crimes of rape (§§ 261, 263, 264)
However, before 1979, there was no felony proscription per se against nonconsensual contact with, or penetration of, another person’s genitals or anus through the use of an instrument or body part other than the mouth or penis. Such conduct (assuming it did not invoke the various statutes relating to sexual conduct with minors) presumably would have been prosecuted as a battery. Absent serious bodily injury, it could have been punished as a misdemeanor. (See §§ 242, 243, subds. (a), (d); cf. § 243.4 [defining “sexual battery,” added by Stats. 1982, ch. 1111, § 1, p. 4024].)
Apparently perceiving a deficiency in its treatment of sexually assaultive behavior, the Legislature enacted section 289. (Stats. 1978, ch. 1313, § 1,
Using materially similar language, the Legislature has explicitly so provided in the statutes governing rape and sodomy. The section which describes the basic elements and circumstances attending the crime of rape (§ 261) is modified by companion language in section 263, which states, in part: “Any sexual penetration, however slight, is sufficient to complete the crime.'’'’ (Italics added.) Identical language in section 287 accompanies the sodomy statute (§ 286): “Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (Italics added.) Except for minor word changes not pertinent here, sections 263 and 287 have remained unchanged since their enactment. Both were in existence long before section 289 became law, and both relate to the same subject matter—unlawful penetrations of the genitals and anus.
It follows logically that a new and separate violation of section 289 is “completed” each time a new and separate “penetration, however slight” occurs. Here, defendant does not dispute that his finger actually penetrated the victim’s vagina against her will three separate times; that each penetration was accomplished with the statutorily prescribed intent; that the requisite degree of force or fear preceded, and was used to accomplish, each penetration; or that a finger is a foreign object within the meaning of the statute. (See generally, People v. Wilcox (1986)
Defendant acknowledges that section 289 has always defined the crime in terms of “penetration[s].” He suggests, however, that this language was only intended to distinguish between a completed offense and other offenses, such as an attempt, assault with intent to commit the crime, or a battery.
We disagree. Obviously, one purpose of the “slight penetration” language used throughout this family of sex-offense statutes is to make clear that prolonged or deep insertion, or emission or orgasm, is unnecessary to “complete” the crime. (See, e.g., People v. Thomas (1986)
Indeed, defendant concedes that where the acts are of an entirely different nature, they may result in multiple convictions even if committed in rapid succession. Courts have long assumed that no minimum amount of time must separate such acts, nor must they be punctuated by any other significant nonsexual activity. (See, e.g., People v. Slobodion (1948)
Multiple convictions have also been upheld where several identical sex crimes are accompanied by commission of a different one. In some of these cases, the offenses have been separated by some break in time and/or movement of the victim to a new location. (See, e.g., People v. Reeder (1984)
In other cases, it was never questioned that alternating offenses may follow one another in quick, uninterrupted succession. (See, e.g., People v.
Although defendant deemphasizes the point, cases involving wholly identical sexual acts follow the same pattern. In some of these cases, no issue was raised that the defendant could not be separately convicted for each act. (People v. Martinez (1984)
Other “same crime” cases specifically hold that separate convictions are appropriate, finding support in the statutory language deeming the offense complete upon “penetration.” In People v. Clem (1980)
More to the point is People v. Marks (1986)
Cases such as Clem, supra,
Here, however, defendant relies upon People v. Hammon (1987)
An initial observation is that Hammon failed to analyze the sufficiency of the evidence in terms of the particular statutory violations at issue. Although only a few of the charges in that case required proof of “penetration,” the court was troubled by certain sentencing disparities it believed this concept generated under section 654. (See 191 Cal.App.3d at pp. 1097-1098.)
Saving all sentencing questions for later (see Discussion, part B, post), we conclude that Hammon erred by inserting irrelevant factors into the definition of a sex offense. (See People v. Dillon (1983)
Further, we agree with that portion of Presiding Justice Kremer’s opinion for the Court of Appeal in this case which highlights commonsense problems in the Hammon test (supra,
We hold that each of the digital penetrations committed in the course of defendant’s assault upon Virginia N., and highlighted by intervening acts of force, constituted a separate violation of section 289, subdivision (a). Defendant thus properly sustained three separate convictions under that statute.
B. Sentencing
Defendant argues that even if he properly was convicted of each penetration, sentence on two of the convictions must be stayed under section 654.
It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. (In re Hayes (1969)
If, on the other hand, defendant harbored “multiple criminal objectives,” which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, “even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Beamon, supra,
In Perez, supra,
Here, defendant cites various cases applying section 654 in other contexts and makes the general argument that his three sex acts were part of a continuous “violent” transaction. (See, e.g., People v. Bauer (1969)
However, defendant’s reliance on cases dealing with other “violent” crimes is misplaced. Perez acknowledged many of the same principles, but noted that there is “ ‘no universal construction’ ” directing section 654’s application in every instance. (23 Cal.3d at pp. 551-552 [citations omitted] & fn. 4.) Perez itself is the touchstone in determining how these general principles are to be applied to sex offenses. Indeed, the Courts of Appeal have routinely applied Perez to uphold separate sentences for each sex crime committed in a single encounter, even where closely connected in time. (See, e.g., People v. Phillips, supra,
Defendant insists, however, that Perez, supra,
Defendant correctly observes that neither Hicks, supra,
However, the Courts of Appeal have consistently rejected similar attempts to limit the holding of Perez, supra,
We agree. No purpose is to be served under section 654 by distinguishing between defendants based solely upon the type or sequence of their offenses. Such an analysis would dispense punishment on the basis of the sexual taste or imagination of the perpetrator, and would not address the concerns raised in Perez, supra,
Finally, defendant insists that his case is special because only one sexual penetration would have occurred but for a fortuitous break in sexual activity. Fie argues that he is less culpable for section 654 purposes because it was the victim's efforts to defend herself which interrupted the initial vaginal penetration and caused subsequent repenetrations.
Under the facts of this case, we would be hard pressed to view the various breaks in vaginal penetration as “fortuitous.” It is not surprising that a victim would struggle after she has been suddenly awakened from an early morning sleep by an intruder who rushes through the bedroom door, and begins to beat and sexually assault her.
Moreover, there is no legal or logical bar to separate punishment where, as here, each of defendant's “repenetrations” was clearly volitional, criminal and occasioned by separate acts of force. Defendant urges that no greater punishment should befall him simply because the initial offense was interrupted by the victim’s struggle. By the same token, however, defendant should also not be rewarded where, instead of taking advantage of an opportunity to walk away from the victim, he voluntarily resumed his sexually assaultive behavior. As made clear under the Perez-Hicks-McGrew line of cases (cited ante, at p. 337), the nature and sequence of the sexual “penetrations” or offenses defendant commits is irrelevant for section 654 purposes. Whether defendant ends a break in the activity by renewing the same sex act (as here) or by switching to a new one (as in Perez, supra,
We therefore decline to extend section 654 beyond the framework set forth in Perez, supra,
The judgment of the Court of Appeal is affirmed.
Lucas, C. J., Panelli, J., Kaufman, J., and Arguelles, J.,
Broussard, J., concurred in the judgment.
Notes
All further statutory references are to the Penal Code.
The information also alleged three alternative counts of rape (§ 261, subd. (2)), which were dismissed upon defendant’s motion following presentation of the prosecution’s case-in-chief.
In support of its decision to impose the upper term on the principal sex offense and the burglary, the court found that the victim was particularly vulnerable, and that defendant’s pattern of criminal activity indicates that he is a serious danger to society. (See rule 421(a)(3), (b)(1), Cal. Rules of Court.) In support of its decision to impose consecutive sentences on the two subordinate terms, the court found that defendant failed to “cease and desist” when each sexual penetration was interrupted, thereby committing separate acts of violence; that numerous convictions were involved; that the crime displayed a high degree of cruelty; and that defendant was on probation for assault with a deadly weapon when the crime was committed. (See rules 425(a)(2), (5), 421(a)(1), (b)(4), Cal. Rules of Court.)
Section 261 defines rape as “an act of sexual intercourse” accomplished with a nonspouse under certain specified “circumstances,” listed in subdivisions (1) through (7).
Section 263 provides: “The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.” (Italics added.)
Section 264, subdivision (a), provides, in pertinent part, that “[r]ape, as defined in Section 261, is punishable by imprisonment in the state prison for three, six, or eight years."
Section 286, subdivision (a), defines sodomy as “sexual conduct consisting of contact between the penis of one person and the anus of another person.” Subdivisions (b) through (/) provide that participation in, or commission of, the act of sodomy under numerous specified circumstances is subject to the punishment described therein.
Section 287 provides: “Any sexual penetration, however slight, is sufficient to complete the crime of sodomy.” (Italics added.)
Section 288a, subdivision (a), defines oral copulation as “the act of copulating the mouth of one person with the sexual organ or anus of another person.” Subdivisions (b) through (/) provide that participation in, or commission of, the act of oral copulation under certain specified circumstances is subject to the punishment described therein.
At the time of the instant crimes, section 289 made the proscribed “penetrations” criminal under only two basic circumstances—when committed under force or fear, or when the victim was incapable of consenting due to “lunacy or other unsoundness of mind.” (Former § 289, subds. (a), (b).)
Defendant was convicted under former section 289, subdivision (a), which provided: “Every person who causes the penetration, however slight, of the genital or anal openings of another person, by any foreign object, substance, instrument, or device when the act is accomplished against the victim’s will by means offorce, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person for the purpose of sexual arousal, gratification, or abuse, shall be punished by imprisonment in the state prison for three, six, or eight years.” (Italics added.)
Section 289 currently makes it unlawful to commit sexual penetrations-by-object in a far greater number of cirumstances. Briefly summarized, they involve: (a) use of force, fear, or threat of future retaliation; (b) inability to consent due to mental disorder or developmental or physical disability, (c) inability to consent due to mental disorder or developmental or physical disability, and both the victim and defendant are confined in a specified facility for the care of such persons; (d) unconscious victim; (e) inability to resist due to administration of intoxicating or other controlled substance; (f) submission induced by false belief that perpetrator is victim’s spouse; or (g) threatening to use the authority of a public official to incarcerate, arrest, or deport. In addition, subdivisions (h) through (j) proscribe participation in the act where the victim and/or other participant is of a certain age.
An amendment effective January 1, 1989, significantly broadens the circumstances under which a “penetration” may trigger the statute. (Stats. 1988, ch. 404, § 1, No. 3 Deering’s Adv. Legis. Service, pp. 1544-1545; No. 6 West’s Cal. Legis. Service, pp. 1053-1055.) Subdivision (a) now applies to “[e]very person who causes the penetration, however slight, of the genital or anal openings of any person or causes another person to so penetrate the defendant’s or another person’s genital or anal openings. ...” A similar change in language was made in each variation of the crime defined in the statute.
Section 667.6, subdivision (d), requires a full consecutive term for each enumerated “violation” if, among other things, the crimes involve “the same victim on separate occasions.” For purposes of making this determination under this subdivision, “the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.”
As an alternative to his contention that he committed but one sex offense as a matter of law, defendant urges that the trial court should at least have instructed sua sponte on factors similar to those identified in Hammon. We disagree. Defendant’s suggested instruction provides that in order to convict defendant of “multiple counts of the same type of sexual misconduct” the jury must first find that defendant “intended to inflict and the victim did endure additional outrage to her/his person and feelings.” It then goes on to list various “factors” to be used in making such a determination, including time between offenses, changes in location, sexual climax, intervening different sex acts, and the infliction of additional fear, danger or humiliation to the victim with each act.
Obviously, there is no statutory basis for requiring proof that defendant harbored the specific intent to inflict “additional outrage,” and that the victim demonstrably suffered such. This element is not mentioned in section 289, subdivision (a), which instead states that the act must be accomplished “for the purpose of sexual arousal, gratification, or abuse.” It appears that defendant has read too much into introductory language in section 263, regarding
Defendant’s reliance on certain cases which describe the commission of multiple sex acts against one victim as a “single” or “continuous” crime is misplaced. (People v. McIntyre (1981)
These cases discuss the principles to be applied where the evidence reveals numerous crimes on numerous dates, any one of which could be the crime charged. The general rule in such cases is that (1) the prosecutor must elect which act is to support the charges; or (2) the jury must be instructed that it must unanimously agree as to which act defendant committed. (People v. Castro (1901)
The instant case does not implicate the foregoing “election” rule, or the “continuous conduct” exception. Defendant was charged with three counts of violating section 289, subdivision (a), on June 12, 1985, and he was convicted of those three crimes. Moreover, defendant overlooks the fact that McIntyre and Mota applied the continuous-conduct exception so as to allow conviction for multiple sex acts committed within a short space of time.
Section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either such provisions, but in no case
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.
Concurrence Opinion
I concur in the judgment. In my view, defendant was properly convicted of three separate violations of Penal Code section 289 (hereinafter
I cannot concur, however, in the majority’s opinion.
I have serious doubt that the majority’s discussion of section 289 is sound.
I believe that the statutory provision may properly be interpreted to declare that each penetration constitutes a separate offense in the general case. But I find it hard to believe that the provision can be read—as it is read by the majority—to declare that each penetration constitutes a separate offense in all cases and under all circumstances as a matter of law. Certainly, such an interpretation is not supported by the premise relied on: as the relevant language and its history reveal, the phrase, “penetration, however slight,” was intended to distinguish between an attempt and the completed crime, not between one completed crime and another. Moreover, such an interpretation could readily yield untenable results in individual cases.
I also have serious doubt that the majority’s discussion of section 654 is sound.
For the foregoing reasons, although I concur in the majority’s disposition I cannot concur in their reasoning.
At the time relevant here, section 289 provided in pertinent part: “Every person who causes the penetration, however slight, of the genital or anal openings of another person, by any foreign object, substance, instrument, or device when the act is accomplished against the victim’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person for the purpose of sexual arousal, gratification, or abuse, shall be punished by imprisonment in the state prison for three, six, or eight years.” (Former Pen. Code, § 289, subd. (a), Stats. 1982, ch. 1111, § 6, p. 4026.) For purposes here, the provision in its current form is to the same effect.
Section 654 provides in relevant part: “An act or omission which is made punishable in different ways by different provisions of this code [i.e., the Penal Code] may be punished under either of such provisions, but in no case can it be punished under more than one . . . .”