People v. White

In Gonzalez , supra , 60 Cal.4th 533 , 179 Cal.Rptr.3d 1 , 335 P.3d 1083 , the defendant was convicted of oral copulation of an unconscious person under section 288a, subdivision (f), and oral copulation of an intoxicated person under section 288a, subdivision (i), based on the same act. The defendant there, like defendant here, contended that he could not be convicted of both subdivisions. Disagreeing, we held that the separate subdivisions of section 288a described different offenses, and thus the defendant was properly convicted of two of those offenses. We said that the question "turns on the Legislature's intent in enacting these provisions, and if the Legislature meant to define only one offense, we may not turn it into two." ( Gonzalez , at p. 537, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 .)

To ascertain legislative intent, we began by examining the statute's words. (

Because of the differences between section 288a and former section 261 that we identified in Gonzalez , we did not have to address whether Craig , supra , 17 Cal.2d 453 , 110 P.2d 403 , remains good law as applied to rape. ( Gonzalez , supra , 60 Cal.4th at p. 540, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 .) We must do so now.

The Legislature has changed the structure of the precise crimes at issue in Craig , supra , 17 Cal.2d 453 , 110 P.2d 403 . It removed the crime of statutory rape on a child under the age of 18 from section 261 entirely and, renaming it "[u]nlawful sexual intercourse" with a person under the age of 18, placed the crime in section 261.5. (See Johnson v. Department of Justice (2015) 60 Cal.4th 871 , 884-885, 183 Cal.Rptr.3d 96 , 341 P.3d 1075 .) "[I]n separating and renaming the offense of unlawful sexual intercourse, the Legislature sought to eliminate, for section 261.5 offenses, the social stigma associated with the rape label...." ( Id . at p. 885, 183 Cal.Rptr.3d 96 , 341 P.3d 1075 .) However, although section 261 no longer contains one of the specific subdivisions involved in Craig , that section still contains separate subdivisions defining how one can be guilty of rape. The legislative change regarding what had been called statutory rape, and is now called unlawful sexual intercourse, does not itself invalidate Craig 's general pronouncement that the different subdivisions

The problem identified in In re Hess , supra , 45 Cal.2d 171 , 288 P.2d 5 , no longer exists. We explained the relevant history in People v. Pearson (1986) 42 Cal.3d 351 , 228 Cal.Rptr. 509 , 721 P.2d 595 : "This court has long struggled with the problem of permitting multiple convictions while protecting the defendant from multiple punishment. Some of our earlier decisions held that the imposition of concurrent sentences sufficiently protected the defendant from multiple punishment because he would be serving each of his sentences simultaneously. [Citation.] In other cases, however, we refused to affirm multiple convictions because of the possibility that such convictions would disadvantage the defendant when the Adult Authority fixed the date he would ultimately be released from prison. [Citations.] In Neal v. State of California [ (1960) ] 55 Cal.2d 11 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ], we went so far as to indicate that multiple convictions were invalid per se. [Citation.] [¶] Our later cases, however, reaffirmed that section 654 bars multiple punishment, not multiple conviction. [Citations.]" ( Id . at p. 359, 228 Cal.Rptr. 509 , 721 P.2d 595 .)

As we further explained in People v. Pearson , today, when section 654 bars multiple punishment, but section 954 permits multiple convictions, rather than reverse the additional conviction, courts simply stay the punishment for that conviction. ( People v. Pearson , supra , 42 Cal.3d at p. 360, 228 Cal.Rptr. 509 , 721 P.2d 595 .) Thus, to the extent the result in Craig, supra , 17 Cal.2d 453 , 110 P.2d 403 -reversing the second rape conviction-was driven by the need to avoid multiple punishment, that need no longer exists. For this reason, in Gonzalez , supra , 60 Cal.4th 533 , 179 Cal.Rptr.3d 1 , 335 P.3d 1083 , we were able to uphold multiple convictions for the different subdivisions of the oral copulation statute while avoiding multiple punishment. Because Craig was based on a legal landscape that is now changed, its rule does not necessarily govern today. Although we have no reason to question whether Craig was correct when decided, subsequent events have made it no longer authoritative regarding today's section 261. A fresh look

Taking this fresh look, we conclude that the same rule should apply to the different subdivisions of section 261, regarding rape, as applies to the different subdivisions of section 288a, regarding oral copulation. There are, indeed, some structural differences between the two statutes, as we explained in Gonzalez , supra , 60 Cal.4th 533 , 179 Cal.Rptr.3d 1 , 335 P.3d 1083 . The main difference is that the subdivisions of section 288a are self-contained; that is, each subdivision refers separately to a person who commits an act of oral copulation. The structure of the other two major sex offenses-sodomy under section 286 and sexual penetration under section 289-is similar in this regard. Section 261's subdivisions are not self-contained in this way. Section 261, subdivision (a), defines and uses the word "[r]ape" but once. The descriptions in the various parts of that subdivision of the different ways in

For these reasons, we agree with Justice Benke's dissent in the Court of Appeal that the Legislature did not intend "to treat the sex crimes of rape and oral copulation differently, such that a defendant who commits oral copulation of an intoxicated and unconscious person can be guilty of two offenses, whereas a defendant who commits rape of an intoxicated and unconscious person can be guilty of only one offense." Accordingly, we overrule People v. Craig , supra , 17 Cal.2d 453 , 110 P.2d 403 , to the extent it held that the different

Defendant argues that the rule of lenity requires us to interpret the statute in his favor. " '[W]e have repeatedly stated that when a statute defining a crime or punishment is susceptible of two reasonable interpretations, the appellate court should ordinarily adopt that interpretation more favorable to the defendant.' ( People v. Avery (2002) 27 Cal.4th 49 , 57 [ 115 Cal.Rptr.2d 403 , 38 P.3d 1 ], italics added.) The purpose of this rule is to ensure that criminal statutes provide fair warning of what behavior

We Concur:

Cantil-Sakauye, C. J.

Werdegar, J.

Corrigan, J.

Cuéllar, J.

DISSENTING OPINION BY LIU, J.

Liu, J.

The rape statute, Penal Code section 261, says: "(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶]...." (Pen. Code, § 261, subd. (a) (hereafter section 261(a) ; all further statutory references are to this code.)) The statute then lists seven circumstances under which an act of intercourse constitutes rape, including, as relevant here, "(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused," and "(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused...." ( Id . subd. (a)(3) & (4).)

In People v. Craig (1941) 17 Cal.2d 453 , 110 P.2d 403 ( Craig ), we held that the different circumstances of former section 261 do not define different offenses; the statute instead defines only one offense. In People v. Gonzalez (2014) 60 Cal.4th 533 , 179 Cal.Rptr.3d 1 , 335 P.3d 1083 ( Gonzalez ), we distinguished section 261, as construed by Craig , in the course of holding that the subdivisions of the oral copulation statute, section 288a, each define a different offense. In this case, defendant Billy Charles White was charged and convicted of two counts of rape-one for having sex with an intoxicated person (§ 261(a)(3) ), the other for having sex with an unconscious person (§ 261(a)(4) )-based on a single act against a single victim. The Court of Appeal, applying Craig , held that White's one act of sexual intercourse could not sustain two rape convictions. The court today reaches the opposite conclusion, overruling Craig .

A straightforward reading of section 261 and application of Gonzalez lead to the conclusion that the rape statute defines a single offense. Because today's contrary decision strays from important principles of judicial methodology, I respectfully dissent.

As noted, section 261(a) provides that rape is as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances," and then lists seven clauses that begin with the word "Where," such as "(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance...." (The full text of the statute is printed as an appendix at the end of this opinion.) In Craig , the defendant was convicted of both forcible rape and rape of a minor, which at the time were separate circumstances under section 261. ( Craig , supra , 17 Cal.2d at p. 454, 110 P.2d 403 .) The trial court sentenced the defendant to two prison sentences, one for each rape conviction, to run concurrently. ( Ibid. ) We held that the "Where" clauses of section 261"merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." ( Craig , at p. 455, 110 P.2d 403 .) In light of our holding, we modified the judgment to consolidate the two convictions, although the consolidated conviction indicated that the defendant committed a rape in violation of two different circumstances of section 261. ( Craig , at p. 459, 110 P.2d 403 .)

Today's decision overrules Craig without acknowledging that " '[c]onsiderations of stare decisis have special force in the area of statutory interpretation' " because the Legislature " 'remains free to alter what we have done.' "

Although I agree that the stay procedure is a better way of giving effect to section 654 than concurrent sentences ( In re Wright (1967) 65 Cal.2d 650 , 56 Cal.Rptr. 110 , 422 P.2d 998 ), our adoption of the stay procedure did not change the legal landscape in any way that justifies overruling Craig . There is no indication that the result in Craig would have been different had the stay procedure been available then. And although Craig did say that one act of rape could result in only one "punishable offense"

In sum, the court overrules Craig by creating a straw man and knocking it down. There is no basis to conclude that Craig was motivated by outdated concerns about multiple punishment. Indeed, just recently we said that Craig "simply concluded, based on the wording and structure of the statute , that former section 261 set forth only one offense that could be committed under several different circumstances, as described in its several subdivisions. This conclusion flowed naturally from the wording and structure of former section 261. " ( Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 , italics added, fn. omitted.) Today's opinion nowhere suggests that Craig is unworkable, contrary to the express language of other statutes, or out of step with public policy. I would affirm the rule we established in Craig on stare decisis grounds alone.

Even if we were justified in taking a "fresh look" at the issue presented (maj. opn., ante , 212 Cal.Rptr.3d at pp. 381-382, 386 P.3d at p. 1176), I would find today's opinion erroneous. Our recent opinion in Gonzalez points the way.

In Gonzalez , we addressed whether the subdivisions of the oral copulation statute, section 288a, each define a separate offense or describe different means of committing one offense. The Court of Appeal in that case had relied on Craig to find that the defendant, who had been convicted of performing oral copulation on a victim who was both intoxicated and unconscious, had committed only one violation of section 288a.

The initial text of section 261(a) does not by itself define what conduct constitutes an act of rape. Instead, section 261(a) must be read in conjunction with one of the individual circumstances-(1) through (7)-to form a definition of rape. The circumstances of section 261(a) do not each "set forth all the elements of a crime," as the operative subdivisions

The court notes that two other provisions of the Penal Code-sections 667.5 and 667.6 -can provide different penal consequences for some forms of rape. (Maj. opn., ante , 212 Cal.Rptr.3d at pp. 382-383, 386 P.3d at p. 1177.) I doubt that statutes enacted in 1976 and 1979 tell us much about the intent of the Legislature that enacted the original rape statute in 1872 or the intent of the Legislature that amended section 261 along with the other major sex crimes in 1986. (Maj. opn., ante , at p. 383, 386 P.3d at pp. 1177-1178.) In any event, neither section 667.5 nor section 667.6 has the import the court suggests.

Section 667.5 is a violent felony enhancement provision that is not specific to rape. (§ 667.5, subd. (c) [defining violent felony to include 23 types of offenses].) For example, the statute enhances the penalty for "[a]ny burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." (§ 667.5, subd. (c)(21).) Surely the court does not mean to imply that first degree burglary of an occupied residence is a different offense from ordinary first degree burglary. As this example demonstrates, section 667.5 is best understood as enhancing the punishment for particularly reprehensible forms of conduct during the commission of specified offenses. In this regard, section 667.5 is no different from any other sentencing enhancement, such as personal use of a firearm under section 12022, and sheds no light on how many offenses are defined by the statutes listed in section 667.5, subdivision (c).

The Legislature had the same intent when it enacted section 667.6. Section 667.6 provides a sentencing enhancement when the defendant is convicted of certain sex offenses in specified circumstances. (§ 667.6, subds. (a) -(d).) When section 667.6 was first enacted in 1979, the enhancement applied to any person convicted of "violating subdivision (2) or (3) of Section 261..., or of committing sodomy or oral copulation in violation of

The court observes that the Legislature in 1986 sought to conform the substantive elements of the four "major sex offenses of rape, sodomy, oral copulation, and sexual penetration." (Maj. opn., ante , 212 Cal.Rptr.3d at pp. 383-384, 386 P.3d at pp. 1177-1178.) I agree that the Legislature sought to criminalize the same conduct across each offense. (Sen. Com. on Judiciary, Analysis of

There were no analogous common law antecedents for sodomy, oral copulation, or sexual penetration. At common law, any act of sodomy-the "infamous crime against nature"-was criminal. (4 Blackstone, Commentaries 215.) It therefore would have been unnecessary, and indeed meaningless, to have specified the means or circumstances of committing sodomy. Reflecting the common law, the 1872 Penal Code contained a blanket prohibition on all sodomy. (§ 286, as enacted by Pen. Code of 1872, § 286.) And when the Legislature enacted the first oral copulation statute in 1921, that statute also criminalized all acts of oral copulation. (§ 288a, as enacted by Stats. 1921, ch. 848, § 2, p. 1633.)

The Legislature did not decriminalize sodomy and oral copulation until 1975, when in accordance with contemporary sexual mores the Legislature amended sections 286 and 288a to criminalize sodomy and oral copulation in only three specified circumstances: where the victim was underage, where the victim was compelled by force or threats of force, and where the perpetrator acted in concert with another

It is thus clear that the Legislature in 1975 intended each subdivision of sections 286 and 288a to define a separate new sodomy or oral copulation offense, just as it is clear that the Legislature in 1872 intended section 261 to codify the common law offense of rape. The Legislature has never amended section 261 to express a different intent.

In reaching today's holding, the court imposes its own sense of order where none was intended. It is not our role to rewrite statutes, especially criminal statutes, to conform to the court's sensibilities. This is so even if the text and structure of a statute may seem anomalous in the context of related statutes enacted later in time. (See In re Estate of Calhoun (1955) 44 Cal.2d 378 , 380-387, 282 P.2d 880 ; cf. Palermo v. Stockton Theatres (1948) 32 Cal.2d 53 , 63, 195 P.2d 1 ["[I]n the absence of a constitutional objection it is generally held that the courts have no right to declare a statute obsolete by reason of a supervening change in the conditions under which it was enacted."].)

CONCLUSION

It may or may not be good policy to have a rape statute that defines multiple offenses, as the other sex crimes statutes do. But such policy decisions are the province of the Legislature. Our court is guided by different considerations. Among them is that we should overrule a statutory precedent only when there is an exceptionally persuasive reason to do so. Another is that the bench, the bar, and the public are entitled to rely on the rationales of

Section 261 in 1941 provided:

"Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances:

"1. Where the female is under the age of eighteen years;

"2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent;

"3. Where she resists, but her resistance is overcome by force or violence;

"4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anaesthetic substance,

"(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused....

"(5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

"(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat....

"(7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official...." (§ 261.)

Section 288a, in relevant part, provides:

"(a) Oral copulation is the act of copulating the mouth of one person with the sexual organ or anus of another person. [¶] ... [¶]

Based on these facts, a jury found defendant guilty of violating section 261, subdivision (a)(3) (rape of an intoxicated person; count 1), and section 261, subdivision (a)(4)(A) (rape of an unconscious person; count 2). The trial court sentenced him to state prison for the lower term of three years on count 1 and stayed the sentence on count 2 under section 654. On defendant's appeal, the Court of Appeal held that defendant could not be convicted of both counts. It vacated the conviction on count 2 and otherwise affirmed the judgment. Justice Benke dissented in part, arguing that defendant was properly convicted of both counts.

We granted the Attorney General's petition for review to decide whether defendant could be convicted of both counts.

S

ection 261, subdivision (a), begins: "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances...." Then several parts follow. Section 261, subdivision (a)(3), provides: "Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused." Section 261, subdivision (a)(4), provides: "Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, 'unconscious of the nature of the act' means incapable of resisting because the victim meets any one of the following

We also distinguished People v. Craig (1941) 17 Cal.2d 453 , 110 P.2d 403 ( Craig ) which, as discussed further below, held that the different subdivisions of former section 261 do not define different offenses. We explained that "[s]ection 288a is textually and structurally different from former section 261. Subdivision (a) of section 288a defines what conduct constitutes the act of oral copulation. Thereafter, subdivisions (b) through (k) define various ways the act may be criminal. Each subdivision sets forth all the elements of a crime, and each prescribes a specific punishment. Not all of these punishments are the same. That each subdivision of section 288a was drafted to be self-contained supports the view that each describes an independent offense, and therefore section 954 is no impediment to a defendant's conviction under more than one such subdivision for a single act." ( Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 .)

When Craig , supra , 17 Cal.2d 453 , 110 P.2d 403 , was decided, the courts did not distinguish between multiple punishment and multiple conviction as clearly as courts

Defendant argues that the existence of section 263 militates against this conclusion. That section 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." Nothing in this section suggests the intent to prohibit multiple convictions of section 261's separate subdivisions or to treat rape differently from the other sex offenses. Indeed, the statutes defining the other two sex offenses for which the concept of penetration is relevant contain similar provisions regarding the extent of the required penetration. (§§ 286, subd. (a) ["Any sexual penetration, however slight, is sufficient to complete the crime of sodomy."], 289, subd. (k)(1) [" 'Sexual penetration' is the act of causing the penetration, however slight, of the genital or anal opening of any person...."].)

Defendant also argues that legislative inaction in the decades since Craig , supra , 17 Cal.2d 453 , 110 P.2d 403 , was decided indicates the Legislature's intent to ratify that decision. We disagree. "In some circumstances, legislative inaction might indicate legislative approval of a judicial decision. [Citation.] 'However,

Since Craig , the Legislature has amended section 261 in a number of ways. For instance, the Legislature has abrogated Craig 's immediate holding by defining statutory rape as its own offense. (§ 261.5.) But this change "does not ... invalidate Craig 's general pronouncement that the different subdivisions of

It is true that this court in In re Hess (1955) 45 Cal.2d 171 , 174, 288 P.2d 5 , described Craig as being motivated by multiple punishment. But we have clarified that Hess did not disturb Craig 's validity. ( People v. Collins (1960) 54 Cal.2d 57 , 59, 4 Cal.Rptr. 158 , 351 P.2d 326 ["[ Hess ] do [es] not ... impliedly overrule [ Craig ]."].) More fundamentally, this court does not have authority to alter our precedent by declaring, after the fact, that the "real" ground of a decision was

In sum, none of the reasons we gave in Gonzalez for concluding that section 288a defines multiple offenses applies to section 261. All of the factors point in the other direction. Today's opinion applies Gonzalez 's holding without applying its reasoning. In so doing, the court not only overrules Craig , it also empties Gonzalez of its analytical content. What remains of Gonzalez 's reasoning to guide lower courts, prosecutors and defense counsel, the Legislature, and the public as to how this court interpreted the criminal statutes at issue? I would follow the high court's admonition that "[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound." ( Seminole Tribe of Fla. v. Florida (1996) 517 U.S. 44 , 67, 116 S.Ct. 1114 , 134 L.Ed.2d 252 .) Applying the reasoning of Gonzalez , I would conclude, as Craig concluded, that section 261 defines one offense.

At the heart of today's opinion is the court's view that there is "no suggestion that the Legislature intended, and no reason it might have intended, a different rule for rape than exists for oral copulation (and, presumably, for sodomy and sexual penetration)." (Maj. opn., ante , 212 Cal.Rptr.3d at p. 382, 386 P.3d at p. 1177.) But the Legislature wrote the statutes differently, and we said in Gonzalez that those differences are relevant to whether each statute defines one crime or multiple crimes. What more does the court need?

The best indication of the Legislature's intent are the words of the statute the Legislature enacted. (See, e.g., Barker v. Workers' Comp. Appeals Bd. (2011) 52 Cal.4th 434 , 442, 129 Cal.Rptr.3d 133 , 257 P.3d 738 ;

The court says it is unable to conjure why the Legislature might have wanted sections 261, 286, 288a, and 289 to be treated differently. (Maj. opn., ante , 212 Cal.Rptr.3d at pp. 382-383, 386 P.3d at p. 1177.) But the four statutes were not written at the same time, nor do they share a common heritage. The lineages of the statutes criminalizing sodomy, oral copulation, and sexual penetration differ from the lineage of the rape statute-a difference the court elides by labeling "rape, sodomy, oral copulation, and sexual penetration" as the four "major sex offenses." (Maj. opn., ante , at p. 383, 386 P.3d at p. 1177.) Only "rape" is a sex offense. The other terms-"sodomy," "oral copulation," and "sexual penetration"-are neutral descriptors of sex acts, like the term "sexual intercourse"; they are not sex offenses in and of themselves. This terminological difference is a tip-off that the latter three offenses are different from rape.

Rape was a crime at common law, defined as "the carnal knowledge of a woman forcibly and against her will." (4 Blackstone, Commentaries 210.) Although this definition would appear to describe only forcible rape, it was

Kruger, J.

"(2) (A) Any person who commits an act of oral copulation 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 shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] ... [¶]

"(3) Any person who commits an act of oral copulation where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years. [¶] ... [¶]

"(f) Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.... [¶] ... [¶]

"(g) Except as provided in subdivision (h), any person who commits an act of oral copulation, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal

We must decide whether defendant was properly convicted of both rape of an intoxicated person and rape of an unconscious person.

"As relevant here, section 954 provides: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts.... The

Although section 261 is different from section 288a-and sections 286 and 289-in this respect, we do not believe the repetition of the term "oral copulation" in the various subdivisions of section 288a-or "sodomy" in section 286 or "sexual penetration" in section 289-and the single use of the word "rape" in section 261, indicates a legislative intent to permit multiple convictions for the various subdivisions concerning oral copulation, sodomy, or sexual penetration while forbidding multiple convictions for the otherwise analogous provisions of rape. Substantively , the provisions regarding the four major sex crimes parallel each other. The conduct and mental state of the perpetrator and the characteristics of the victim that, when accompanying the acts of intercourse, oral copulation, sodomy, and sexual penetration, transform these sexual acts into crimes are essentially identical. The precise forms of rape at issue here and of oral copulation at issue in Gonzalez are identical except that the former involve sexual intercourse and the latter involve oral copulation. We see no suggestion that the Legislature intended, and no reason it might have intended, a different rule for rape than exists for oral copulation (and, presumably, for sodomy and sexual penetration).

What we said in Gonzalez , supra , 60 Cal.4th at page 539, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 , about the elements of the two forms of oral copulation being different applies equally to the two forms of rape. An act of rape "may be committed with a person who is unconscious but not intoxicated, and also with a person who is intoxicated but not unconscious[;] neither offense is included in the other."

This circumstance is no coincidence. It appears that was the Legislature's intent. For example, a 1986 enactment made changes in all four of these sections that helped to bring about this conformity. (Stats. 1986, ch. 1299,

Finally, defendant argues that applying this interpretation of section 261 to him would violate the prohibition against ex post facto laws. A statute violates

But section 261's structure has remained essentially unchanged. Whereas section 261(a) used to provide that a rape occurred under "either of the following circumstances" (former § 261, as amended by Stats. 1913, ch. 122, § 1, p. 212), the statute now says a rape occurs under "any" of the listed circumstances (§ 261(a) ). In addition, the semicolons separating the circumstances have been replaced by periods, while the word "she" has been replaced by "a person" in all the circumstances. None of these changes indicates a legislative intent to change what we said in Craig about the number of offenses section 261 defines. Nor are the changes significant enough to distinguish former section 261 from the current version; the court does not suggest otherwise. Because Craig is a statutory precedent, and because the statute it construed has not changed in any relevant way, stare decisis applies to Craig with " 'special force.' " ( Latimer , supra , 5 Cal.4th at p. 1213, 23 Cal.Rptr.2d 144 , 858 P.2d 611 .)

The court's sole justification for overruling Craig is its theory that Craig was motivated by avoiding multiple punishment, a concern that in the court's

In the oral copulation statute, by contrast, the operative subdivisions (§ 288a, subds. (b) -(k) ) that follow the definitional subdivision (§ 288a, subd. (a) ) are all complete sentences; each stands on its own as a description of an oral copulation offense. (E.g., § 288a, subd. (f) ["Any person who commits an act of oral copulation, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act, shall be punished by imprisonment...."].) As noted, Gonzalez relied on the fact that each operative subdivision of section 288a is "self-contained," in contrast to the text and structure of section 261, as support for the conclusion that section 288a defines multiple offenses. ( Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 .)

The way punishments are prescribed also suggests that section 261 defines one offense. In Gonzalez , we noted that each operative subdivision of section 288a defines its own punishment and that the punishments are not all the same. ( Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1 , 335 P.3d 1083 .) By contrast, the individual circumstances of section 261(a) do not define their own punishments. The punishment for violating section 261 is defined in a different Penal Code provision. (§ 264.) And at the time of White's offense, the punishment was the same for all the circumstances. (Former § 264, subd. (a),

administered by or with the privity of the accused;

"5. Where she is at the time unconscious of the nature of the act, and this is known to the accused;

"6. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief." (§ 261, as amended by Stats. 1913, ch. 122, § 1, p. 212.)

Today, as at the time of White's offense, section 261 provides:

"(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

"(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act....

"(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

"(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.

"(j) Any person who commits an act of oral copulation, where the victim submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.

"(k) Any person who commits an act of oral copulation, where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight years." (§ 288a.)