People v. Madera

In People v. Madera (1991) 231 Cal.App.3d 845, the Court of Appeal found that sexually fondling or rubbing the victim's penis before orally copulating him was not subject to section 654 because the specific offense of oral copulation was capable of commission without the rubbing. (People v. Madera, supra, at p. 855.) The court applied section 654 where the "undefined sex act directly facilitates or is merely incidental to the commission of a defined lewd act." (People v. Madera, supra, at p. 855.) The example it used was where lubricant was applied to the area to be copulated. In such a situation the commission of the undefined act would have directly facilitated the commission of the defined act. (Ibid.) The court stated: "Section 654 does not apply where, as here, the undefined act is 'preparatory' only in the general sense that it may be intended to sexually arouse either the perpetrator or the victim." (Ibid.) The fondling in that case was neither necessary nor incidental to the oral copulation.