People v. Medelez

TANGEMAN, J.

Certified for Partial Publication.

Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.

TANGEMAN, J. and neither crime is the lesser included offense of the other.

Medelez appeals judgment after conviction by jury of three sex offenses against his adult roommate and two sex offenses against a minor. (§§ 288a, subds. (f) & (i), 243.4, subd. (e)(1), 288.3, subd. (a), 664, 288a, subd. (b)(1).) The trial court sentenced Medelez to six years eight months in prison, including two consecutive sentences of four months each for attempt to orally copulate a minor (§§ 664, 288a, subd. (b)(1)) and luring the minor with intent to orally copulate (§ 288.3, subd. (a) ).

We stay the four-month sentence for attempted oral copulation (§ 654), correct the abstract of judgment to delete a dismissed count, and otherwise affirm.

In the unpublished portion of the opinion, we consider and reject Medelez's contention that all his convictions must be reversed because the trial court dismissed a juror during trial without good cause. (§ 1089.)

BACKGROUND

In August 2013, Medelez drugged and orally copulated his unconscious adult male roommate. (§§ 288a, subds. (f) & (i), 243.4, subd. (e)(1).) Two months later, he tried to orally copulate a minor. Medelez met 16–year–old A.P. at work. Medelez offered him a job, and A.P. returned that evening to learn more about it. Medelez drove A.P. to a remote place and offered him money in exchange for oral sex. When A.P. refused, Medelez told A.P. to take off his pants. A.P. did because he was afraid. Medelez showed A.P. pornographic pictures. Medelez “was about to lean in,” but A.P. pulled up his pants and stopped Medelez.

[[/]]

DISCUSSION

Medelez contends he cannot be convicted of both attempted oral copulation of a minor (§§ 664, 288a, subd. (b)(1)) and luring a minor with intent to orally copulate (§ 288.3 ) because the Legislature intended the luring statute to supplant attempted oral copulation with a minor. (In re Williamson (1954) 43 Cal.2d 651, 654, 276 P.2d 593 (Williamson ).) His argument lacks merit because the statutes cover different conduct.

If a general statute covers the same conduct as a specific (“special”) statute, courts generally infer that the Legislature intended the conduct to be prosecuted only under the special statute. (People v. Murphy (2011) 52 Cal.4th 81, 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216 ; Williamson , supra , 43 Cal.2d at p. 654, 276 P.2d 593.) This rule applies if “(1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) ... ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ [Citation.]” (People v. Murphy , supra , at p. 86, 127 Cal.Rptr.3d 78, 253 P.3d 1216.) It does not apply “if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute.” (Id . at p. 87, 127 Cal.Rptr.3d 78, 253 P.3d 1216.)

Here, the “general” statute (attempt) contains an element that is not contained on the face of the more recently enacted “special” statute (luring). Attempt requires a direct but ineffectual act that goes beyond Luring may be committed by a “contact or communication” that is preparatory or indirect. (§ 288.3, subd. (b) [“communication” includes “indirect contact or communication ... by use of an agent or agency”]; see, e.g., People v. Sigur (2015) 238 Cal.App.4th 656, 659, 189 Cal.Rptr.3d 460 [luring by means of Internet chat]; People v. Keister (2011) 198 Cal.App.4th 442, 445, 129 Cal.Rptr.3d 566 [luring by means of sexually explicit notes].) In contrast, an “attempt” must be more than preparatory; the defendant must unequivocally put his plan into action so that it will be carried out if it is not interrupted. (People v. Clark , supra , 52 Cal.4th at p. 948, 131 Cal.Rptr.3d 225, 261 P.3d 243.) The Legislature did not intend luring to supplant prosecutions for attempt; it was casting a wider net. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006) text of Prop. 83, p. 127 [purpose of Proposition 83 is “to strengthen and improve the laws that punish and control sexual offenders”].) Medelez engaged in preparatory communication and a direct act. He is guilty of both crimes.

Medelez's multiple convictions for luring with intent to orally copulate a minor and attempt to orally copulate a minor are authorized because neither crime is a necessarily included offense of the other.

Multiple convictions based on necessarily included offenses are prohibited. (People v. Sanders (2012) 55 Cal.4th 731, 736, 149 Cal.Rptr.3d 26, 288 P.3d 83.) An offense is necessarily included if the statutory elements of one crime include all the statutory elements of another, such that the first cannot be committed without necessarily committing the second. (Id . at p. 737, 149 Cal.Rptr.3d 26, 288 P.3d 83.)

Attempt is not a necessarily included offense of luring, because luring can be committed without a “direct ... act,” as we have explained. (Cf. §§ 21a, 288.3.)

Luring is not a lesser included offense of attempted oral copulation, because attempt can be committed without contacting or communicating with the victim. (See, e.g., People v. Bonner (2000) 80 Cal.App.4th 759, 763, 95 Cal.Rptr.2d 642 [sufficient evidence of attempt to rob where defendant never came near to, or spoke to, his victims but lay in wait with a pistol].)

Medelez cannot be punished for both attempted oral copulation and luring because the crimes were based on a single intent and objective, as the People concede. (§ 654.) We modify the sentence to stay imposition of the attempted oral copulation conviction, because the sentences for attempt and luring are of equal duration. (People v. Butler (1996) 43 Cal.App.4th 1224, 1248, 51 Cal.Rptr.2d 150.)

[[/]]

The abstract of judgment incorrectly states Medelez was convicted of exhibiting harmful material to a minor under section 288.2, subdivision (a)(2) (count 4 of the information). We correct it to reflect that this charge was dismissed after the jury was unable to reach a verdict on it. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 109 Cal.Rptr.2d 303, 26 P.3d 1040.) DISPOSITION

The verdict is modified to stay the four-month sentence for attempted oral copulation of a minor (count 5, Pen. Code, §§ 654, 288a, subd. (b)(1) ) pending service of the sentence for luring (count 3, Pen. Code, § 288.3, subd. (a) ). The superior court is directed to amend the abstract of judgment to reflect the modification and to reflect dismissal of count 4 (Pen. Code, § 288.2, subd. (a)(2) ), and to forward a certified copy to the Department of Correction and Rehabilitation. As modified, the judgment is affirmed.

We concur:

GILBERT, P.J.

PERREN, J.