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People v. Madden2/24/1981
>Penal Code section 647, subdivision (a) contains an element which is not necessary to the commission of sodomy, to wit, the act must be "in any public place or in any place open to the public or exposed to public view." A person may violate Penal Code section 286 without violating Penal Code section 647, subdivision (a). Therefore the latter is not a necessarily included offense of the former (People v. Pendleton (1979) 25 Cal. 3d 371, 382 [158 Cal. Rptr. 343, 599 P.2d 649]; see also People v. Tolliver (1980) 108 Cal. App. 3d 171, 173-174 [166 Cal. Rptr. 328] (holding Pen. Code, § 647, subd. (a) is not a necessarily included offense to indecent exposure)). There was no duty here to instruct sua sponte on disorderly conduct.
We conclude that the conviction of Madden on two counts of sodomy should be affirmed.
Each judgment of conviction of appellant Madden on two counts of forcible oral copulation and of appellant Vernacchio on one count of forcible oral copulation is reversed. The conviction of appellant Madden on two counts of sodomy is affirmed.
Disposition
Each judgment of conviction of appellant Madden on two counts of forcible oral copulation and of appellant Vernacchio on one count of forcible oral copulation is reversed. The conviction of appellant Madden on two counts of sodomy is affirmed.
Judges Footnotes
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