People v. Madera

Decision Date25 June 1991
Docket NumberNo. F013783,F013783
Citation231 Cal.App.3d 845,282 Cal.Rptr. 674
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Ramiro Guerra MADERA, Defendant and Appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Shirley A. Nelson and Stan Cross, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ARDAIZ, Acting Presiding Justice.

INTRODUCTION

Ramiro Madera stands convicted of two counts of burglary (Pen.Code, § 460, subd. 1), 1 five counts of lewd and lascivious acts with a child under the age of 14 (§ 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.

I.-II. **

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 October 23, 1989 and October 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 September 1, 1988, and September 15, 1989, and between September 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 "[a]lthough 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 either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."

As noted by the Supreme Court in People v. Harrison (1989) 48 Cal.3d 321, 335, 256 Cal.Rptr. 401, 768 P.2d 1078:

"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) 23 Cal.3d 545, 153 Cal.Rptr. 40, 591 P.2d 63, the defendant committed rape, sodomy, and two oral copulations during a continuous 45-to-60-minute attack. (Id., at p. 549, 153 Cal.Rptr. 40, 591 P.2d 63.) The trial court stayed execution of sentence on the oral copulation and sodomy convictions. The Supreme Court reversed: "None of the sex offenses was committed as a means of committing any other, none facilitated commission of any other, and none was incidental to the commission of any other. We therefore conclude that section 654 does not preclude punishment for each of the sex offenses committed by defendant." (Id., at pp. 553-554, 153 Cal.Rptr. 40, 591 P.2d 63.)

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, 153 Cal.Rptr. 40, 591 P.2d 63.)

In People v. Harrison, supra, 48 Cal.3d 321, 256 Cal.Rptr. 401, 768 P.2d 1078, the defendant forcibly inserted his finger into the victim's vagina three times, with each insertion lasting only a few seconds and the entire incident lasting only a few minutes. (Id., at pp. 325-326, 256 Cal.Rptr. 401, 768 P.2d 1078.) The Supreme Court held 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...." (Id., at p. 334, 256 Cal.Rptr. 401, 768 P.2d 1078, fn. omitted.)

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, 256 Cal.Rptr. 401, 768 P.2d 1078.) Calling Perez "the touchstone in determining how these general principles are to be applied to sex offenses" (id., at p. 336, 256 Cal.Rptr. 401, 768 P.2d 1078), 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, 48 Cal.3d at p. 337, 256 Cal.Rptr. 401, 768 P.2d 1078.) In essence, the court rejected the defendant's attempt to subsume his crimes under one criminal intent--"to achieve sexual gratification by forcibly penetrating the victim's vagina with his finger." (Id., at p. 336, 256 Cal.Rptr. 401, 768 P.2d 1078.) "[I]t is defendant's intent to commit a number of separate base criminal acts upon his victim, and not the precise code section under which he is thereafter convicted, which renders section 654 inapplicable." (Id., at pp. 337-338, 256 Cal.Rptr. 401, 768 P.2d 1078.)

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) 205 Cal.App.3d 581, 590, 252 Cal.Rptr. 596:

"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 ( [s] 261.5), sodomy ( [s] 286), oral copulation ( [s] 288a) and penetration by object ( [s] 289) accomplished with a minor under the age of 14 will support a conviction under section 288. In addition, various other forms of touching...

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