People v. Harrison, S003784

Citation48 Cal.3d 321,256 Cal.Rptr. 401,768 P.2d 1078
Decision Date20 March 1989
Docket NumberNo. S003784,S003784
CourtUnited States State Supreme Court (California)
Parties, 768 P.2d 1078 The PEOPLE, Plaintiff and Respondent, v. Daryl HARRISON, Defendant and Appellant.

E. Stephen Temko, under appointment by the Supreme Court, and Howard C. Cohen, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Janelle B. Davis, Michael B. Wellington and Nancy L. Palmieri, Deputy Attys. Gen., for plaintiff and respondent.

EAGLESON, Justice.

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)) 1 where he commits identical sex acts which are briefly interrupted by his use of force and the victim's struggles and, if so, (2) whether section 654 precludes separate punishment for each conviction.

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 criminal conduct. As we observed in People v. Perez (1979) 23 Cal.3d 545, 552-553, 153 Cal.Rptr. 40, 591 P.2d 63, section 654 does not bar multiple punishment simply because numerous sex offenses are rapidly committed against a victim with the "sole" aim of achieving sexual gratification. Further, there is no basis for distinguishing between defendants solely because of the type or sequence of sex acts committed, or because the victim made continuous sexual "penetration" difficult. In relying on a uniform line of post-Perez cases finding no section 654 bar to multiple punishment for rapidly repeated crimes, the Court of Appeal properly found no reason to disturb the consecutive sentences imposed herein.

We will therefore affirm the judgment of the Court of Appeal.


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 approximately five seconds, and "the entire attack," according to Virginia's testimony, lasted seven to ten minutes.

Defendant was charged with three counts of violating section 289, subdivision (a), 2 and burglary ( § 459). The information also alleged that defendant was "convicted of the felony of assault with a deadly weapon" ( § 245, subd. (a)(1)) in 1983, for which he "received probation." In his ensuing motion under section 995, defendant argued, inter alia, that two of the sex offenses should be dismissed because only one "indivisible" crime had occurred. The motion was denied.

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; 3 plus a consecutive, five-year "serious felony" enhancement for the prior conviction. (See § 667, subd. (a).)

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) 4 and sodomy ( §§ 286, 287). 5 The predecessor to the current section governing oral copulation was enacted in 1915, and completes a basic trilogy of sex crimes. ( § 288a.) 6

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, [48 Cal.3d 328] p. 4300; see also, People v. Kusumoto (1985) 169 Cal.App.3d 487, 491, 215 Cal.Rptr. 347; Review of Selected 1978 California Legislation, Crimes (1979) 10 Pacific L.J. p. 392.) Since its original enactment, the statute has been greatly expanded in scope. 7 However, section 289 has always made clear that the crime is committed simply by causing a proscribed "penetration, however slight. " (Italics added.) From this language, we can only conclude that, assuming all other elements of the offense are present, a violation is complete the moment such "penetration" occurs.

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.

Since the origin of the rape and sodomy statutes, the courts have strictly adhered to the statutory principle that a "penetration," however slight, "completes" the crime. (People v. Chavez (1894) 103 Cal. 407, 408, 37 P. 389; People v. Martinez (1986) 188 Cal.App.3d 19, 22-25, 232...

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