Opinion
Introduction
Ramiro Guerra Madera stands convicted of two counts of burglary (Pen. Code, § 460, subd. I), 1 five counts of lewd and lascivious acts with a child under the age of fourteen (§ 288, subd. (a)), two counts of oral copulation (§ 288a, subd. (c)) and three counts of sodomy (§ 286, subd. (c)). The convictions stem from conduct involving Madera and several minor males between September of 1987 and November of 1989. Madera was sentenced to state prison for a total fixed term of 23 years.
III.
Did the Trial Court Violate Section 654 by Punishing Madera for “Undefined Lewd Acts” Underlying the Convictions in Counts XI and XIV?
The Issue
Eleven-year-old Josh W. testified to three separate incidents or specific time periods in which Madera engaged in one or more of the following types of conduct: touching or rubbing Josh’s penis, engaging Josh in oral copulation with him, and sodomizing Josh. As to the last incident (between Oct. 23, 1989, and Oct. 27,1989), the jury convicted Madera of a lewd and lascivious act (count VIII) but acquitted him of oral copulation and sodomy (counts IX and X, respectively). As to the other two incidents or series of incidents (between Sept. 1, 1988, and Sept. 15, 1989, and between Sept. 1, 1987, and June 15, 1988), the jury convicted him of—and the court imposed consecutive sentences on—all three counts (counts XI through XVI). Madera now contends that section 654 precludes separate punishment on the lewd and lascivious convictions in counts XI and XIV.
Madera reasons that Josh “described a continuing course of conduct in which the appellant proceeded from touching or rubbing his penis to oral copulation and sodomy. ... In such a case, the touching is merely incidental and preparatory to the commission of the defined sexual crimes [oral copulation and sodomy] and must be viewed as part and parcel of those crimes, . . .” Respondent counters that “[although a touching of a victim’s body in the course of removing a victim’s underwear properly could be considered necessary or incidental to an act of oral copulation or sodomy, appellant’s acts of placing his hand on Josh’s penis or rubbing Josh’s penis were not acts that were either necessary or incidental to oral copulation or sodomy. . . .”
The Statute
Section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under
As noted by the Supreme Court in
People
v.
Harrison
(1989)
“It is well settled that section 654 protects against multiple punishment, not multiple conviction. [Citation.] The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the ‘same act or omission.’ [Citation.] However, because the statute is intended to ensure that defendant is punished ‘commensurate with his culpability’ [citation], its protection has been extended to cases in which there are several offenses committed during ‘a course of conduct deemed to be indivisible in time.’ [Citation.]
“It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.]
“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.’ [Citation.] . . .”
Application to Sex Crimes
In
People
v.
Perez
(1979)
The trial court in Perez found the stayed crimes were committed pursuant to the same intent and objective as the rape, i.e., to obtain sexual gratification. The Supreme Court rejected this rationale:
“Such an intent and objective is much too broad and amorphous to determine the applicability of section 654. Assertion of a sole intent and objective to achieve sexual gratification is akin to an assertion of a desire for wealth as the sole intent and objective in committing a series of separate thefts. To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statute’s purpose to insure that a defendant’s punishment will be commensurate with his culpability. [Citation.] It would reward the defendant who has the greater criminal ambition with a lesser punishment. [Citation.]
“A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act. [Citations.]” (People v. Perez, supra, 23 Cal.3d at pp. 552-553.)
In
People
v.
Harrison, supra,
The court also held that section 654 did not preclude imposition of consecutive sentence on two of the convictions. (People v. Harrison, supra, 48 Cal.3d at pp. 334-338.) Calling Perez “the touchstone in determining how these general principles are to be applied to sex offenses” (id. at p. 336), the court rejected defendant’s attempt to distinguish his case because “his three sex acts were part of a continuous ‘violent’ transaction” and were “wholly identical sex offenses . . . committed in sequence.” (Ibid.).
The court reasoned “no special treatment is to be afforded to a defendant under section 654 simply because he chose to repeat, rather than to diversify or alternate, his many crimes. [Citations.]”
(People
v.
Harrison, supra,
Section 288: Defined and Undefined Lewd Acts
Section 288, subdivision (a) applies to “[a]ny person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of the child, . . .”
As noted in
People
v.
Bothuel
(1988)
“Conceptually it is helpful to distinguish two categories of acts which can serve as the basis for a section 288 charge. First, subdivision (a) specifically provides that acts constituting separate crimes punishable under other sections may also be charged as violations of section 288. Thus, acts of unlawful sexual intercourse ([§] 261.5), sodomy ([§] 286, oral copulation ([§] 288a) and penetration by object ([§] 289) accomplished with a minor under the age of 14 will support a conviction under section 288. In addition, various other forms of touching and fondling are also actionable under section 288. This latter category has sometimes been referred to as ‘undefined lewd acts.’ [Citation.]”
The cases reveal seemingly endless permutations of defined and undefined lewd acts committed in a single course of conduct.
Some cases involve only defined acts, which, in turn, may result in multiple section 288 convictions, multiple other section convictions, or a combination. (E.g.,
People
v.
Slobodion
(1948)
Other cases involve only undefined acts, which, in turn, may result in one or more section 288 convictions. (E.g.,
People
v.
Bevan
(1989)
A third category of cases combines defined acts with undefined acts.
(People
v.
Blevins
(1984)
The undefined act surfaces in two main settings: multiple conviction and multiple punishment. Thus, in
People
v.
Bevan, supra,
The Undefined Lewd Act Interfaces With Section 654
The instant case involves the other main problem area: the interface between sections 654 and 288, when the defendant commits defined and undefined lewd acts in a single course of conduct. Here, the cases diverge.
In
People
v.
Bright, supra,
The Instant Case
Facts
Madera was an acquaintance of Josh’s sister, and occasionally visited Josh’s home. Construing the evidence in the light most favorable to the prosecution, when Josh was in third grade (Sept. 1, 1987-June 15, 1988), he was awakened in his bedroom one night by Madera, who had his hand inside Josh’s shorts. He was rubbing Josh’s penis. Madera put his mouth on Josh’s penis and Josh then orally copulated Madera, at Madera’s direction. Finally, Madera put lotion he had brought into the room on his (Madera’s) penis and placed it in Josh’s butt.
During the summer of 1988, between third and fourth grade, Madera awakened Josh one night and led him to a camper parked a few doors away. Madera touched Josh’s penis, orally copulated Josh and sodomized him.
Josh testified that about a week before Halloween in 1989 (Oct. 23, 1989-Oct. 27, 1989) he was awakened one night by Madera, who was rubbing Josh’s penis. Madera had pulled down Josh’s shorts to around his ankles. Madera asked Josh if it felt good; Josh did not reply. Josh pushed Madera’s hand away, cuddled under the covers and refused to allow Madera to get his hands under the covers. Madera finally left.
Discussion
Unlike
Bevan,
the instant case does not involve fragmentation of undefined acts into multiple section 288, subdivision (a) convictions. As to each incident or series of incidents prior to Halloween of 1989, Madera was convicted of only one section 288 violation. The case does involve one undefined lewd act (touching or rubbing Josh’s penis) committed in the same course of conduct as one or more defined code violations (oral copulation and/or sodomy).
People
v.
Harrison, supra,
The question boils down to Madera’s intent, i.e., whether his touching of Josh’s penis was to commit a separate base criminal act or to facilitate the oral copulations and sodomies that shortly followed.
People
v.
Kirk, supra,
Another approach appears in
People
v.
Bothuel, supra,
In the instant case, according to Josh, every incident or series of incidents involved one undefined lewd touching, but not all incidents involved sodomy or oral copulation. The rubbing of Josh’s penis was frequently the method Madera used to awaken the child. The fact that the touching or rubbing of Josh’s penis preceded the oral copulation and/or sodomy, on the occasions when such additional violations occurred, does not establish that the touching of Josh’s penis was merely incidental to or facilitative of the later acts. Certainly the acts denounced by sections 288a and 286 are capable of commission without an initial touching or rubbing of the victim’s penis.
In our view, section 654 applies where the undefined sex act directly facilitates or is merely incidental to the commission of a defined lewd act. {People v. Perez, supra, 23 Cal.3d at pp. 553-554.) For example, section 654 would bar separate punishment for applying lubricant to the area to be copulated. In such a situation, the commission of the undefined act would have directly facilitated the commission of the defined act. In contrast, section 654 does not apply where, as here, the undefined act is “preparatory” only in the general sense that it may be intended to sexually arouse either the perpetrator or the victim.
Otherwise stated, the probability that an undefined sex act may occur in the same transaction as a defined sex act does not render it “incidental,” nor does it insulate the undefined sex act from separate punishment. The distinction for punishment purposes between undefined acts designed generally to arouse and those intended directly to facilitate defined sex acts recognizes the relatively greater culpability of the defendant who commits the former. The reason for the distinction is readily evident. The undefined act is a separate insult to the body—and the spirit—of an unwilling victim or a victim who is statutorily protected by law because of his or her minority, or both. The culpability of the perpetrator is not diminished by the fact the intrusion is “undefined” in the law.
Disposition
The judgment is affirmed.
Vartabedian, J., and Thaxter, J., concurred.
A petition for a rehearing was denied July 9,1991, and appellant’s petition for review by the Supreme Court was denied September 19, 1991.