Can a Defendant Be Convicted Twice for One Sexual Act?

No. In People v. Soria (2015) _Cal.App.4th_, Case No. C070238, ("Soria"), decided on August 3, 2015, the Court of Appeal held that the two counts must be consolidated.

In Soria, supra, defendant was convicted twice for one sexual act at trial. He was convicted of rape with an unconscious person in violation of Penal Code section 261, subdivision. (a)(4) , (count one). Additionally, he was convicted of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), (count two). In this appeal, defendant argued he can only be convicted once for one sexual act and the Court of Appeal agreed.

The court explained that it was following the California Supreme Court's decision in People v. Craig (1941) 17 Cal.2d 453 (Craig), and concluded that defendant cannot be convicted of two counts of rape for a single act of intercourse. In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only "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 . . . 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." (Id. at p. 455.). [O]nly 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.)

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