People v. White

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.)Relying primarily on Craig , supra , 17 Cal.2d 453, 110 P.2d 403, the Court of Appeal concluded that the subdivisions of section 261 do not state different offenses. As we explained in Gonzalez , the defendant in Craig "was found guilty of two counts of rape based on a single act of intercourse committed without the consent and against the will of a 16-year-old girl. The first count alleged the rape was committed with force and violence, in violation of former section 261, subdivision 3. The second count, after alleging that it was ‘ "a different statement of the same offense" ’ (Craig , at p. 454, 110 P.2d 403 ) charged statutory rape of a child below the age of consent, in violation of former section 261, subdivision 1. This court held that ‘[u]nder this section, but one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the foregoing subdivisions. These subdivisions 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.)" (Gonzalez , supra , 60 Cal.4th at pp. 538–539, 179 Cal.Rptr.3d 1, 335 P.3d 1083.)

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 of section 261 do not state different offenses. However, other circumstances cause us to conclude that today the different subdivisions of section 261, like the different subdivisions of section 288a, do define separate crimes.

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 "There has been a violation of but one statute—section 261 of the Penal Code. And, while the proof necessarily varies with respect to the several subdivisions of that section under which the charge may be brought, the sole punishable offense under any and all of them is the unlawful intercourse with the victim. We conclude that only one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id . at p. 458, 110 P.2d 403, italics added.) A later case explained that Craig 's statement that section 261's different subdivisions do not state different offenses "must be read in light of the problem then before the court, that is, whether the defendant could be doubly punished for a single act. Under section 654 of the Penal Code it is clear that double punishment would be improper [citations], regardless of whether there is but one offense or six different offenses of rape." (In re Hess (1955) 45 Cal.2d 171, 174, 288 P.2d 5.)

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 different subdivisions of section 261 are separate statements of the same offense, or whether, like the analogous subdivisions of section 288a, they state different offenses.

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 which rape may be committed do not repeat the word "rape" but refer back to that original definition.

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."rape but not others; indeed, it applies to different forms than section 667.5. We also note that, although the change would not apply to defendant, who committed his crime in February 2010,section 264 was amended later that year to increase the punishment for one form of rape of persons under certain ages, but not for the other forms of rape.

A jury verdict finding a defendant guilty of a single umbrella crime of rape under section 261 would not include a finding regarding which form of rape was involved. Because of this, providing differing sentencing consequences for some, but not all, of the forms of rape suggests they state different offenses. (See Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1, 335 P.3d 1083.)

The statutes concerning the major sex offenses of rape, sodomy, oral copulation, and sexual penetration (§§ 261, 286, 288a, 289 ) have been amended often over the years. Both parties cite legislative history materials regarding various amendments to support their positions. But nothing cited indicates the Legislature ever considered, or expressed an intent regarding, whether a person may suffer multiple convictions of the separate subdivisions of the various sex offenses. However, strong indications exist that the Legislature intended the rule to be consistent for each of these major sex crimes. As a result of the amendments over the years, today, the elements of the various ways the crimes can be committed (i.e., the various subparts of the statutes) are similar.

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, §§ 1, 3, 5, 6, pp. 4592-4599.) A Senate committee report on the Assembly bill behind this enactment stated that the "bill would conform the criteria used to determine the commission of each of the four major sex offenses: rape, sodomy, oral copulation, and foreign object rape; thus, the elements of these crimes relating to force, consent, and violence would be consistent." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3485 (1985-1986 Reg. Sess.) as amended June 30, 1986, p. 2.) Neither this committee report, the bill itself, nor the resulting statutory amendments specifically address the question of multiple convictions of the various subdivisions of section 261, 286, 288a, or 289. But the intent to achieve conformity among these sex offenses strongly indicates a legislative intent that rape be treated similarly to the other sex crimes in this regard.

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 subdivisions of former 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.)

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, legislative inaction alone does not necessarily imply legislative approval. "The Legislature's failure to act may indicate many things other than approval of a judicial construction of a statute: the sheer pressure of other and more important business, political considerations, or a tendency to trust to the courts to correct their own errors...." ’ " (People v. Whitmer (2014) 59 Cal.4th 733, 741, 174 Cal.Rptr.3d 594, 329 P.3d 154.) The courts, not the Legislature, have generally interpreted, applied, and reconciled sections 654 and 954. Legislative inaction in this regard most likely indicates a willingness to let the courts continue to do so.

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 is considered criminal and what the punishment for that behavior will be. (Ibid . )" (People v. Story (2009) 45 Cal.4th 1282, 1294, 91 Cal.Rptr.3d 709, 204 P.3d 306.) But our interpretation of section 261"defines neither a crime nor punishment." (Story , at p. 1294, 91 Cal.Rptr.3d 709, 204 P.3d 306.) The definition of the crimes of which defendant was convicted predated his committing them, and everyone agrees that he cannot be punished for both offenses. "Moreover, ‘although true ambiguities are resolved in a defendant's favor, an appellate court should not strain to interpret a penal statute in defendant's favor if it can fairly discern a contrary legislative intent.’ (People v. Avery , supra , at p. 58 [115 Cal.Rptr.2d 403, 38 P.3d 1].) Here we can fairly discern a legislative intent to" treat section 261 similarly to section 288a regarding multiple convictions. (Story , at p. 1294, 91 Cal.Rptr.3d 709, 204 P.3d 306.)

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

We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion.

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 .(Latimer ).) In order to cast doubt on Craig , the court ascribes to Craig a rationale that Craig did not adopt, even though " ‘we are not aware of any legal principle by which a court, years after rendering a decision, can retroactively alter its ratio decidendi.’ " (Fashion Valley Mall, LLC v. National Labor Relations Bd. (2007) 42 Cal.4th 850, 880, 69 Cal.Rptr.3d 288, 172 P.3d 742 (dis. opn. of Chin, J.).) And the court cites shards of legislative history to speculate that "the Legislature intended the rule to be consistent for [the four] major sex crimes" (maj. opn., ante , 212 Cal.Rptr.3d at p. 383, 386 P.3d at p. 1177), even though " ‘ "statutory language is usually the most reliable indicator of legislative intent" ’ " (People v. Albillar (2010) 51 Cal.4th 47, 55, 119 Cal.Rptr.3d 415, 244 P.3d 1062 ) and the text of section 261 is relevantly different from the text of the statutes criminalizing sodomy, oral copulation, and sexual penetration (§§ 286, 288a, 289 ).

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.

I.

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.’ " (People v. Morante (1999) 20 Cal.4th 403, 430, 84 Cal.Rptr.2d 665, 975 P.2d 1071.)

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 section 261 do not state different offenses." (Maj. opn., ante , 212 Cal.Rptr.3d at pp. 380–381, 386 P.3d at p. 1175.) The Legislature has also updated the substantive elements of the circumstances. For example, when Craig was decided, rape of an intoxicated victim occurred where the victim was "prevented from resisting ... by any intoxicating narcotic, or anaesthetic, substance, administered by or with the privity of the accused." (Former § 261, subd. (4), as amended by Stats. 1913, ch. 122, § 1, p. 213.) Today the victim must have been "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." (§ 261(a)(3).)

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 view has since been laid to rest with the stay procedure developed under section 654. (Maj. opn., ante , 212 Cal.Rptr.3d at pp. 380–382, 386 P.3d at pp. 1175–1177.) But section 654 was already in force during Craig 's time. Like section 261,section 654 was part of the first Penal Code enacted in 1872 and remains largely unchanged to this day. Thus, courts have long been aware that one act cannot result in multiple punishments, no matter the number of convictions. As today's opinion recognizes, the practice at Craig 's time was to run sentences concurrently (maj. opn., ante , 212 Cal.Rptr.3d at p. 381, 386 P.3d at p. 1176, citing People v. Pearson (1986) 42 Cal.3d 351, 359, 228 Cal.Rptr. 509, 721 P.2d 595, which in turn cited People v. Kynette (1940) 15 Cal.2d 731, 761-762, 104 P.2d 794 ), as the trial court did in Craig itself (Craig , supra , 17 Cal.2d at p. 455, 110 P.2d 403 ).

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" (Craig , supra , 17 Cal.2d at p. 458, 110 P.2d 403 )—a truism in light of section 654 —our decision nowhere said that avoiding multiple punishments was part of the rationale for construing section 261 as we did. Indeed, Craig never mentioned section 654 and instead relied on cases that had nothing to do with punishment. (See Craig , at pp. 455–457, 110 P.2d 403, discussing People v. Vann (1900) 129 Cal. 118, 61 P. 776 and People v. Jailles (1905) 146 Cal. 301, 79 P. 965.) It is simply not accurate to say that Craig was primarily concerned with multiple punishment or that Craig "conflated" conviction with punishment. (Maj. opn., ante , 212 Cal.Rptr.3d at p. 381, 386 P.3d at p. 1176.)

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 entitled to rely on such reasoning without wondering what the court will later posit as the "real" motivation for a given decision. (See Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, 160 Cal.Rptr. 124, 603 P.2d 41 ["The doctrine of stare decisis applies ... to the ratio decidendi or actual ground of decision of a case...."].)

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.

II.

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. But we did not merely distinguish Craig in Gonzalez . As noted, we said that Craig 's statutory holding "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.) Moreover, among all the reasons we gave for concluding that section 288a defines multiple offenses—the relationship between the definitional subdivision and the operative subdivisions, the self-contained nature of the operative subdivisions, the way the punishments are defined, and the fact the punishments are not all the same—none applies to section 261.

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 of section 288a do. (Gonzalez , supra , 60 Cal.4th at p. 539, 179 Cal.Rptr.3d 1, 335 P.3d 1083.) Rather, the circumstances are organized and numbered as inferior clauses of subdivision (a). The text and structure of section 261(a) suggest it defines only one offense: "Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any" one of seven circumstances.

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), Legislature at the time of White's offense would have needed to amend section 264, subdivision (a) only once; to do the same for oral copulation, the Legislature at the time of the offense in Gonzalez would have needed to amend section 288a twelve times (see former § 288a, as amended by Stats. 2002, ch. 302, § 4, p. 1204).

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 does not indicate that the Legislature changed its view of section 261.