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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED December 29, 2016

v No. 328060
Berrien Circuit Court LUCAS DANIEL GONZALES, LC No. 2014-003822-FC

Defendant-Appellant.

Before: S HAPIRO , P.J., and H OEKSTRA and S ERVITTO , JJ.

S HAPIRO

, P.J. ( concurring in part and dissenting in part ).

I concur with the majority as to defendant’s two convictions o f CSC I based on two different incidents of penetra tion, one at a neighbor’s home an d one at his own home. I dissent from the majority’s conclusion that defendant’s convictions of CSC I and assault with intent to commit sexual penetration for a single sexual act do not violat e double jeopardy. 1

Defendant was originally charged only with CSC I for his actio ns in the incident that occurred at his home. However, because the victim could not re call if defendant actually penetrated her during that incid ent, the prosecution, with leav e from the court, added the charge
of assault with intent to comm it sexual penetration. The purpo se of doing so was plainly to assure that even if the jury f ound reasonable doubt as to the e lement of penetration, the jury would have an option to convict on another, albeit, lesser char ge. However, the charges were not

1 Defendant’s CSC I conviction was for engaging in sexual penetr ation with a person under the age of 13 while being 17 years of age or older contrary to MCL 750.520b(1)(a) & (2)(b). MCL 750.520b(1)(a) provides, “A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if . . . (a) [t]hat other person is under 13 years of age.” MCL 750.520b(2)(b) provides, “Criminal sexual conduct in the first degree is a felony punishable as follows . . . (b) [f]or a viol ation that is committed by an individual 17 years of age or older against an individual less than 13 years of age by imprisonment for life or any term of years, but not less than 2 5 years.” Defendant’s assault with intent to commit sexual penetrat ion conviction stems from MCL 7 50.520g, which states, “Assault with intent to commit sexual conduct involving sexual penetration shall be a felony punishable by imprisonment for not more than 10 years.”-2- made in the alternative, and de fendant was convicted of both. He was sentenced to a 29 month minimum sentence for the assault with intent to commit sexual p enetration count to be served

consecutive to his 25 year minimum sentence for the CSC I count.

The prosecution argues that thi s does not cons titute double je opardy because assault with intent to commit sexual penetrati on contains an element, i.e. a ssault, that is not contained within the subject CSC I charge, which was based on the element of the victim’s age. 2 However, the Supreme Court has addressed with specificity how double jeopard y principles are to be applied in sexual assault cases. First, in People v Johnson , 406 Mich 320, 331; 279 NW2d 534 (1979), the Supreme Court held that a si ngle sexual pene tration, even i f accompanied by more than one of the CSC I special circumstances, “may give rise to only one criminal charge for purposes of trial, conviction and sentencing.” Second, in People v Nickens , 470 Mich 622, 632; 685 NW2d 657 (2004) the Supreme Court held t hat “assault with intent to commit CSC involving sexual penetration . . . is a necessarily lesser included offense of C SC-I involving the use of force or coercion to accomplish sexual penetration.” The majority’s ana lysis creates an anomaly. It
concludes that a defendant can be convicted twice for the same sexual act, once for the victim’s age and once for force or coercion so long as the latter is cha rged as a lesser included offense of
CSC I rather than CSC I itself . If defendant cannot be convict ed of a second count of CSC I
based on the additional element of force then I do not see how he can be convicted of a lesser
included offense of CSC I on that basis. 3 Accordingly, I would vacate defendant’s assault with intent to commit sexual pe netration conviction.

/s/ Douglas B. Shapiro

2 People v Smith , 478 Mich 292; 733 NW2d 351 (2007).

3 This case is distinguishable from People v Garland , 286 Mich App 1; 777 NW2d 732 (2009) on which the majority relies. I n that case, defendant was conv icted of CSC I and CSC III for each sexual penetration. Id. at 4, 6. We noted that the basis for the CSC III charge was t hat the victim was physically helpless, id. at 5, a factor that cannot serve as the basis for CSC I. In t he instant case, assault , i.e. the use of for ce, is a factor that can serve as the basis for CSC I.