Sexual Penetration Conviction in California
In People v. Harrison (1989) 48 Cal.3d 321, the accused was convicted of three acts of sexual penetration on the same victim based upon three digital insertions occurring during the assault. (Harrison, supra, 48 Cal.3d 321at pp. 325-326.) He argued there should be only one conviction because, in his view, only one indivisible act of penetration occurred even though he reinserted his finger two times when it became dislodged as a result of the victim's resistance. (Id. at pp. 327-329.)
The Court of Appeal disagreed with the defendant's position, noting that prolonged or deep insertion was not required in penetration cases and that any penetration, no matter how slight, was sufficient. Therefore, despite the similar nature of the acts and the fact that they were committed in rapid succession, the accused properly was convicted of three counts based upon the three insertions of his finger. (Harrison, supra, 48 Cal.3d at pp. 329-330.) The Court established the test to determine whether the course of conduct is indivisible for purposes of applying section 654: "It is the defendant's intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. " (Id. at p. 335.) The Harrision court went on to explain that while offenses committed to facilitate a single objective may be punished only once, if a defendant harbored multiple independent criminal objectives, "he may be punished for each statutory violation committed in pursuit of each objective, 'even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.'" (Ibid.)
It emphasized that in the context of sex crimes, "a 'defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.'" (Harrison, supra, 48 Cal.3d at p. 336)
In People v. Harrison (1989) over the course of seven to ten minutes, the defendant had put his finger in the victim's vagina three times. (Id. at p. 325-326.) As a result, he was charged with, and found guilty of, three violations of section 289, subdivision (a).
The California Supreme Court upheld the three separate convictions. (Id. at p. 334.) The Court also determined that section 654 did not require the trial court to stay two of the sentences imposed for the defendant's violations of section 289, subdivision (a). The Court explained "it is well settled that section 654 protects against multiple punishment, not multiple conviction. . . . We have traditionally observed that if all of the offences were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once." (Id. at p. 335.)The California Supreme Court held that in connection with sex offenses, each sexual assault may be viewed as a separately punishable criminal act even if the defendant claims that all the offenses were committed to obtain sexual gratification.
The Supreme Court observed "that such a 'broad and amorphous' view of the single 'intent' or 'objective' needed to trigger section 654 would impermissibly 'reward the defendant who has the greater criminal ambition with a lesser punishment.' Rather, in keeping with the statute's purpose, the proper view is to recognize that a 'defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act.'" (Harrison, supra, 48 Cal.3d at pp. 335-336.)
The Harrison rule has been extended to sequential crimes of violence.