People v. Pearson

• Decision Date: 07 August 1986
• Docket Number: Cr. 24299
• Citation: 228 Cal.Rptr. 509,42 Cal.3d 351,721 P.2d 595
• Court: California Supreme Court
• Parties: , 721 P.2d 595 The PEOPLE, Plaintiff and Respondent, v. Lawrence D. PEARSON, Defendant and Appellant.

Page 509

228 Cal.Rptr. 509

42 Cal.3d 351, 721 P.2d 595

The PEOPLE, Plaintiff and Respondent, v. Lawrence D. PEARSON, Defendant and Appellant.

Cr. 24299.

Supreme Court of California.

Aug. 7, 1986.

Rehearing Denied Oct. 2, 1986.

Frank O. Bell, Jr., State Public Defender, Gabriel C. Vivas and Michael Pescetta, Deputy State Public Defenders, as amici curiae for defendant and appellant.

John K. Van de Kamp, Atty. Gen., W. Scott Thorpe and Shirley A. Nelson, Deputy Attys. Gen., for plaintiff and respondent.

Brian DeAmicis, Sacramento, for defendant-appellant.

MOSK, Justice.

This case raises the questions (1) whether a defendant may be convicted of both statutory sodomy and lewd conduct for the commission of a single act of sodomy and (2) whether the use of both such convictions to enhance future sentences would constitute impermissible double punishment.

Defendant committed an act of sodomy on each of two children. For each act he was convicted of two offenses: sodomy with a child under 14 (Pen.Code, § 286, subd. (c)) ¹ and lewd conduct ( § 288, subd. (a)). The court imposed sentence for the lewd conduct convictions but stayed sentence on the sodomy convictions so that defendant would not be punished twice for the same act. ( § 654.) As will appear, we conclude that the judgment should be affirmed.

I

Defendant contends the court erred in convicting him of two distinct offenses--statutory sodomy and lewd conduct--for each act of sodomy he committed. His position is that we must reverse one of the two convictions associated with each act.

Section 954 sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct. It provides in relevant part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense.... The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, ..." (Italics added.)

It is undisputed that defendant was properly charged with statutory sodomy and lewd conduct for each act; such charges clearly constitute "different statements of the same offense" and thus are authorized under section 954. It also appears the court was authorized to convict defendant of both offenses for each act; the statute clearly provides that the defendant may be convicted of "any number of the offenses charged." Moreover, this court has often affirmed multiple convictions for a single act or indivisible course of conduct. (See, e.g., People v. Miller (1977) 18 Cal.3d 873, 884-885, 135 Cal.Rptr. 654, 558 P.2d 552; People v. Beamon (1973) 8 Cal.3d 625, 639- 640, 105 Cal.Rptr. 681, 504 P.2d 905.) Nonetheless, defendant claims that the court was not authorized to convict him of statutory sodomy and lewd conduct for the same act.

1. Multiple Convictions For Necessarily Included Offenses

For two alternative reasons, defendant maintains that multiple conviction is improper in this case. The first is in two steps: he contends (1) that a defendant may not be convicted of both a greater and lesser included offense, and (2) that statutory sodomy ( § 286, subd. (c)) necessarily includes the lesser offense of lewd conduct ( § 288, subd. (a)). Thus defendant claims his convictions of lewd conduct must be reversed.

The first step in defendant's argument is apparently correct. Although the reason for the rule is unclear, this court has long held that multiple convictions may not be based on necessarily included offenses. (See, e.g., People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763 ["If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed"]; People v. Bauer (1969) 1 Cal.3d 368, 375, 82 Cal.Rptr. 357, 461 P.2d 637 ["double conviction" is prohibited "where one offense is necessarily included in another"]; People v. Smith (1950) 36 Cal.2d 444, 448, 224 P.2d 719; People v. Greer (1947) 30 Cal.2d 589, 604, 184 P.2d 512.) We recently affirmed this policy in People v. Cole (1982) 31 Cal.3d 568, 183 Cal.Rptr. 350, 645 P.2d 1182, in which the defendant was convicted of robbery and grand theft for the same act. We held the grand theft conviction must be reversed "because it is a lesser necessarily included offense of the crime of robbery." (Id. at p. 582, 183 Cal.Rptr. 350, 645 P.2d 1182.)

Assuming arguendo that defendant correctly states the rule prohibiting multiple convictions based on necessarily included offenses, his contention must still fail because its second step is unsupported. "The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." (People v. Greer, supra, 30 Cal.2d at p. 596, 184 P.2d 512; In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5; People v. West (1970) 3 Cal.3d 595, 612, 91 Cal.Rptr. 385, 477 P.2d 409; In re Robert G. (1982) 31 Cal.3d 437, 441, 182 Cal.Rptr. 644, 644 P.2d 837.) Although the issue is not free of doubt, we believe that under this test the offense of lewd conduct is not a lesser included offense of statutory sodomy.

The lewd conduct statute ( § 288, subd. (a)) provides in relevant part: "Any person who shall willfully and lewdly commit any lewd or lascivious act ... 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 such person or of such child, shall be guilty of a felony...." (Italics added.) This provision can be violated only when a lewd act is committed with the required specific intent. In contrast, statutory sodomy is a general intent crime: the sodomy provision ( § 286, subd. (c)) makes punishable "[a]ny person who participates in an act of sodomy with another person who is under 14 years of age and more than 10 years younger than he or she," and section 286, subdivision (a), defines "sodomy" as "sexual conduct consisting of contact between the penis of one person and the anus of another person."

Defendant argues that "it is inconceivable that a person can engage in sodomy on a child without at the same time committing a lewd and lascivious act on that child." Although this may be accurate in a moral sense, it is not true that every such act is committed with the specific intent required in section 288. For example, an act of sodomy can be committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent.

Defendant relies on People v. Memro (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446, in which we observed that: "It is true that appellant confessed to committing an act of sodomy on Carl Jr.'s body--an act which constitutes a violation of section 286 [sodomy] as well as section 288 [lewd conduct]." (Id. at p. 697, fn. 47, 214 Cal.Rptr. 832, 700 P.2d 446.) In Memro, however, the defendant admitted that the offenses he planned to inflict on his victim were "to be done to achieve sexual satisfaction." (Id. at p. 697, 214 Cal.Rptr. 832, 700 P.2d 446.) Thus, we knew on the facts of the case that the defendant had the intent required under section 288, and our comment cannot be interpreted to hold that all acts of sodomy necessarily constitute lewd conduct. Other cases cited by defendant also fail to consider the precise question before us--whether sodomy must in all cases be committed "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires" of the perpetrator or his victim. ²

2. Multiple Convictions for Specifically Included Offenses

Defendant's second contention is in some ways the inverse of the first. If we refuse to set aside his lewd conduct convictions on the theory that the offense of lewd conduct is "necessarily included" in statutory sodomy, he maintains we must reverse his sodomy convictions because sodomy is "specifically included" in the offense of lewd conduct. He relies primarily on language in People v. Greer, supra, 30 Cal.2d at pages 601-604, 184 P.2d 512.

In Greer this court first considered the defendant's claim of double jeopardy. He had previously been convicted of contributing to the delinquency of a minor (former Welf. & Inst.Code, § 702) in a separate trial. (Id. at p. 595, 184 P.2d 512.) In the Greer case itself he was charged with statutory rape (former § 261, subd. (1)) and lewd conduct (former § 288), but he claimed the charges were based on the same act that served as the basis for his conviction in the earlier trial. (Ibid.) The trial court, however, refused his offer to prove those facts. The defendant argued that the refusal to allow him to offer evidence of double jeopardy was reversible error, and this court agreed (id. at p. 601, 184 P.2d 512).

Realizing that on remand the defendant might not be able to prove that his rape and lewd conduct charges were based on the same act as his earlier conviction, and thus that he might not obtain a dismissal of those charges, the court addressed a final issue: whether the defendant could be convicted of rape and lewd conduct if both charges were based on the same act. The defendant claimed he could not be so convicted, and we concluded he was correct. (Id. at pp. 601-604, 184 P.2d 512.) While recognizing that statutory rape and lewd conduct were not necessarily included offenses, this court apparently believed they were analogous because the wording of the lewd conduct statute (former § 288) specifically included the offense of statutory rape as a type of lewd conduct; this statute prohibited "any lewd or lascivious act including any of the acts constituting other crimes provided...