People v. Medelez

Filed 8/17/16 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B262429 (Super. Ct. No. 1446024) Plaintiff and Respondent, (Santa Barbara County)

v.

ANGEL ANTONIO MEDELEZ,

Defendant and Appellant.

Angel Medelez contacted a minor with intent to engage in oral sex (Pen. Code,1 § 288.3, “luring”), and then took a direct but ineffectual act toward his goal (§§ 664, 288a, subd. (b)(1), “attempt”). Here we decide he may be convicted of both crimes because luring is not a special statute intended to preclude prosecution for attempt, 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)).

* Pursuant to rules 8.1105(b) and 8.1110 of the California Rules of Court, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between double brackets, e.g., [[/]]. 1 All further statutory references are to the Penal Code.

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 In the unpublished portion of the opinion, we consider and reject Medelez’s contention that all his convictions must be reversed because the trial court dismissed a juror during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. [[During trial, a juror expressed concern about his own impartiality. He told the court that a testifying detective investigated him one year earlier when a student accused the juror (a college professor) of “inappropriate contact” with her at her residence. The detective’s name was not on the witness list in voir dire because she testified as a substitute witness. The trial court questioned, removed, and replaced the juror.]] DISCUSSION Special vs. General Doctrine 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 (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