Culbreth rule in California

1986(People v. Cardenas (1982) 31 Cal.3d 897, 913-914 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Edwards (1981) 117 Cal.App.3d 436, 447-448 [ 172 Cal.Rptr. 652 ],) 2 Today the Culbreth rule remains at least as ambiguous as its heritage.

1986(People v. Cardenas (1982) 31 Cal.3d 897, 913-914 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Edwards (1981) 117 Cal.App.3d 436, 447-448 [ 172 Cal.Rptr. 652 ],) 2 Today the Culbreth rule remains at least as ambiguous as its heritage.

1993First, in 1979, the Legislature added subdivision (h) (now (i)) to Penal Code section 1170.1, which provides, "For any violation" of specified sex offenses, "the number of enhancements which may be imposed shall not be limited, regardless of whether such enhancements are pursuant to this or some other section of law." In People v. Cardenas (1982) 31 Cal.3d 897, 913-914 , and footnote 9 [ 184 Cal. Rptr. 165 , 647 P.2d 569 ], we recognized that the 1979 amendment to Penal Code section 1170.1 created a "possible" exception to the Culbreth rule.

1993First, in 1979, the Legislature added subdivision (h) (now (i)) to Penal Code section 1170.1, which provides, "For any violation" of specified sex offenses, "the number of enhancements which may be imposed shall not be limited, regardless of whether such enhancements are pursuant to this or some other section of law." In People v. Cardenas (1982) 31 Cal.3d 897, 913-914 , and footnote 9 [ 184 Cal. Rptr. 165 , 647 P.2d 569 ], we recognized that the 1979 amendment to Penal Code section 1170.1 created a "possible" exception to the Culbreth rule.

1993Nevertheless, a defendant committing two murders, e.g., on a `single occasion' may be convicted and punished for both of them. [Citation.] So also may the punishment for each of the murders be enhanced under section 12022.5." ( Culbreth, supra, 17 Cal.3d at p. 336 (dis. opn. of Clark, J.), italics in original.) Subsequent Court of Appeal opinions have not been kind to the Culbreth rule.

1993Nevertheless, a defendant committing two murders, e.g., on a `single occasion' may be convicted and punished for both of them. [Citation.] So also may the punishment for each of the murders be enhanced under section 12022.5." ( Culbreth, supra, 17 Cal.3d at p. 336 (dis. opn. of Clark, J.), italics in original.) Subsequent Court of Appeal opinions have not been kind to the Culbreth rule.

1992Subsequent decisions have applied the Culbreth rule to armed allegations (People v. Jordan (1984) 155 Cal.App.3d 769, 785, fn. 5 [ 203 Cal.Rptr. 172 ]; People v. Nguyen (1988) 204 Cal.App.3d 181, 194 [ 251 Cal.Rptr. 40 ]) and use of a dangerous or deadly weapon allegations (People v. Amerson (1984) 151 Cal.App.3d 165, 171 [ 198 Cal.Rptr. 678 ]).

1992Subsequent decisions have applied the Culbreth rule to armed allegations (People v. Jordan (1984) 155 Cal.App.3d 769, 785, fn. 5 [ 203 Cal.Rptr. 172 ]; People v. Nguyen (1988) 204 Cal.App.3d 181, 194 [ 251 Cal.Rptr. 40 ]) and use of a dangerous or deadly weapon allegations (People v. Amerson (1984) 151 Cal.App.3d 165, 171 [ 198 Cal.Rptr. 678 ]).

1986In his view that multiple enhancement violates the rule of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ], which prohibits enhancement on more than one offense where “all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, . . .” (Id., at p. 333; accord People v. *630 Cardenas (1982) 31 Cal.3d 897, 913 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Chavez (1980) 26 Cal.3d 334, 335 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ]; People v. Miller (1977) 18 Cal.3d 873, 887 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ].) With respect to th

1986In his view that multiple enhancement violates the rule of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ], which prohibits enhancement on more than one offense where “all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, . . .” (Id., at p. 333; accord People v. *630 Cardenas (1982) 31 Cal.3d 897, 913 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Chavez (1980) 26 Cal.3d 334, 335 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ]; People v. Miller (1977) 18 Cal.3d 873, 887 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ].) With respect to th

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1993Even if that subdivision (or Penal Code section 12022.3, which the parties do not cite but which creates firearm enhancements applying specifically to sex offenses) contains an implied exception to the Culbreth rule (see People v. Ramirez (1987) 189 Cal. App.3d 603, 628-629 [ 233 Cal. Rptr. 645 ]), we see no evidence of an intent to endorse the rule in other cases.

1993Even if that subdivision (or Penal Code section 12022.3, which the parties do not cite but which creates firearm enhancements applying specifically to sex offenses) contains an implied exception to the Culbreth rule (see People v. Ramirez (1987) 189 Cal. App.3d 603, 628-629 [ 233 Cal. Rptr. 645 ]), we see no evidence of an intent to endorse the rule in other cases.

1992(See In re Culbreth (1976) 17 Cal.3d 330 .. . .)”]; People v. Moringlane (1982) 127 Cal.App.3d 811, 817 [ 179 Cal.Rptr. 726 ] [“And we are persuaded that section 654 as interpreted prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.”]; compare with People v. McElrath (1985) 175 Cal.App.3d 178, 188-190 [ 220 Cal.Rptr. 698 ] [the Culbreth rule is not applicable to the great bodily injury inflicted in the course of certain sex offenses enhancement within the meaning of Pen.

1992(See In re Culbreth (1976) 17 Cal.3d 330 .. . .)”]; People v. Moringlane (1982) 127 Cal.App.3d 811, 817 [ 179 Cal.Rptr. 726 ] [“And we are persuaded that section 654 as interpreted prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person.”]; compare with People v. McElrath (1985) 175 Cal.App.3d 178, 188-190 [ 220 Cal.Rptr. 698 ] [the Culbreth rule is not applicable to the great bodily injury inflicted in the course of certain sex offenses enhancement within the meaning of Pen.

1988The reason the court could attach the great bodily injury and weapons use enhancement to each sex offense is that neither the Culbreth rule (In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ]) nor section 654 prohibits the imposition of multiple enhancements for weapons use under section 12022.3 (People v. Blevins (1984) 158 Cal.App.3d 64, 68 [ 204 Cal.Rptr. 124 ]; see generally People v. Ramirez (1987) 189 Cal.App.3d 603, 627-630 [ 233 Cal.Rptr. 645 ]) or great bodily injury under section 12022.8 (People v. McElrath, supra, 175 Cal.App.3d 178, 188 ).

1988The reason the court could attach the great bodily injury and weapons use enhancement to each sex offense is that neither the Culbreth rule (In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ]) nor section 654 prohibits the imposition of multiple enhancements for weapons use under section 12022.3 (People v. Blevins (1984) 158 Cal.App.3d 64, 68 [ 204 Cal.Rptr. 124 ]; see generally People v. Ramirez (1987) 189 Cal.App.3d 603, 627-630 [ 233 Cal.Rptr. 645 ]) or great bodily injury under section 12022.8 (People v. McElrath, supra, 175 Cal.App.3d 178, 188 ).

1986In his view that multiple enhancement violates the rule of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ], which prohibits enhancement on more than one offense where “all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, . . .” (Id., at p. 333; accord People v. *630 Cardenas (1982) 31 Cal.3d 897, 913 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Chavez (1980) 26 Cal.3d 334, 335 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ]; People v. Miller (1977) 18 Cal.3d 873, 887 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ].) With respect to th

1986In his view that multiple enhancement violates the rule of In re Culbreth (1976) 17 Cal.3d 330 [ 130 Cal.Rptr. 719 , 551 P.2d 23 ], which prohibits enhancement on more than one offense where “all the charged offenses are incident to one objective and effectively comprise an indivisible transaction, . . .” (Id., at p. 333; accord People v. *630 Cardenas (1982) 31 Cal.3d 897, 913 [ 184 Cal.Rptr. 165 , 647 P.2d 569 ]; People v. Chavez (1980) 26 Cal.3d 334, 335 [ 161 Cal.Rptr. 762 , 605 P.2d 401 ]; People v. Miller (1977) 18 Cal.3d 873, 887 [ 135 Cal.Rptr. 654 , 558 P.2d 552 ].) With respect to th

2004Culbreth had construed section 12022.5 as permitting only one enhancement, “even if there are multiple counts involving multiple victims of violent crime, ... ‘if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction . . . .’ [Citation.]” (King, supra, 5 Cal.4th at p. 63 .) In King , we overruled Culbreth , finding that its construction “finds no support in the statutory language.” (King, supra, 5 Cal.4th at p. 77 .) As relevant here, we also explained: “To the extent [the] defendant contends that [section 654’s] prohibition against multiple

2004Culbreth had construed section 12022.5 as permitting only one enhancement, “even if there are multiple counts involving multiple victims of violent crime, ... ‘if all the charged offenses are incident to one objective and effectively comprise an indivisible transaction . . . .’ [Citation.]” (King, supra, 5 Cal.4th at p. 63 .) In King , we overruled Culbreth , finding that its construction “finds no support in the statutory language.” (King, supra, 5 Cal.4th at p. 77 .) As relevant here, we also explained: “To the extent [the] defendant contends that [section 654’s] prohibition against multiple

1998(See People v. Loeun (1997) 17 Cal.4th 1, 11-12 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; cf. People v. Davis (1994) 7 Cal.4th 797, 812 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ] [fact that several Courts of Appeal had erroneously held murder of a fetus required viability meant Supreme Court’s contrary holding could not apply retroactively]; People v. King, supra, 5 Cal.4th at p. 80 [fact that Culbreth rule had been “law of this state since 1976” meant Supreme Court’s contrary holding could not apply retroactively].) The analogous cases on which we rely, dealing with child endangerment and the exigent

1998(See People v. Loeun (1997) 17 Cal.4th 1, 11-12 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; cf. People v. Davis (1994) 7 Cal.4th 797, 812 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ] [fact that several Courts of Appeal had erroneously held murder of a fetus required viability meant Supreme Court’s contrary holding could not apply retroactively]; People v. King, supra, 5 Cal.4th at p. 80 [fact that Culbreth rule had been “law of this state since 1976” meant Supreme Court’s contrary holding could not apply retroactively].) The analogous cases on which we rely, dealing with child endangerment and the exigent

1984The court in People v. Bergman (1984) 154 Cal.App.3d 30 [ 201 Cal.Rptr. 54 ] recently relied on that analysis to specifically hold “that in enacting subdivision (i), the Legislature created an exception to or exclusion from the single-occasion rule promulgated in In re Culbreth, supra, 17 Cal.3d 330 .” (Id., at p. 35.) As the Bergman court explained: “Neither Edwards nor Cardenas is dispositive of the question whether subdivision (i) of section 1170.1, in fact, creates an exception to the Culbreth rule.

1984The court in People v. Bergman (1984) 154 Cal.App.3d 30 [ 201 Cal.Rptr. 54 ] recently relied on that analysis to specifically hold “that in enacting subdivision (i), the Legislature created an exception to or exclusion from the single-occasion rule promulgated in In re Culbreth, supra, 17 Cal.3d 330 .” (Id., at p. 35.) As the Bergman court explained: “Neither Edwards nor Cardenas is dispositive of the question whether subdivision (i) of section 1170.1, in fact, creates an exception to the Culbreth rule.

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1998“Certainly, it cannot be said that in light of these prior decisions that [our holding] was ‘unexpected.’ All that could be said is that the law was ‘unsettled,’ and where the law is unsettled, ‘. . . we do not believe a defendant can be said to have reasonably relied on a particular outcome.’ [Citations.]” (People v. Superior Court (Clark) (1994) 22 Cal.App.4th 1541, 1550 [ 28 Cal.Rptr.2d 46 ], quoting People v. Rhoden (1989) 216 Cal.App.3d 1242, 1256-1257, fn. 21 [ 265 Cal.Rptr. 355 ] and People v. Carr (1988) 204 Cal.App.3d 774, 779 [ 251 Cal.Rptr. 458 ].) Finally, it is significant that, a

1998(See People v. Loeun (1997) 17 Cal.4th 1, 11-12 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; cf. People v. Davis (1994) 7 Cal.4th 797, 812 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ] [fact that several Courts of Appeal had erroneously held murder of a fetus required viability meant Supreme Court’s contrary holding could not apply retroactively]; People v. King, supra, 5 Cal.4th at p. 80 [fact that Culbreth rule had been “law of this state since 1976” meant Supreme Court’s contrary holding could not apply retroactively].) The analogous cases on which we rely, dealing with child endangerment and the exigent

1998(See People v. Loeun (1997) 17 Cal.4th 1, 11-12 [ 69 Cal.Rptr.2d 776 , 947 P.2d 1313 ]; cf. People v. Davis (1994) 7 Cal.4th 797, 812 [ 30 Cal.Rptr.2d 50 , 872 P.2d 591 ] [fact that several Courts of Appeal had erroneously held murder of a fetus required viability meant Supreme Court’s contrary holding could not apply retroactively]; People v. King, supra, 5 Cal.4th at p. 80 [fact that Culbreth rule had been “law of this state since 1976” meant Supreme Court’s contrary holding could not apply retroactively].) The analogous cases on which we rely, dealing with child endangerment and the exigent

1992Subsequent decisions have applied the Culbreth rule to armed allegations (People v. Jordan (1984) 155 Cal.App.3d 769, 785, fn. 5 [ 203 Cal.Rptr. 172 ]; People v. Nguyen (1988) 204 Cal.App.3d 181, 194 [ 251 Cal.Rptr. 40 ]) and use of a dangerous or deadly weapon allegations (People v. Amerson (1984) 151 Cal.App.3d 165, 171 [ 198 Cal.Rptr. 678 ]).

1992Subsequent decisions have applied the Culbreth rule to armed allegations (People v. Jordan (1984) 155 Cal.App.3d 769, 785, fn. 5 [ 203 Cal.Rptr. 172 ]; People v. Nguyen (1988) 204 Cal.App.3d 181, 194 [ 251 Cal.Rptr. 40 ]) and use of a dangerous or deadly weapon allegations (People v. Amerson (1984) 151 Cal.App.3d 165, 171 [ 198 Cal.Rptr. 678 ]).

1995(See People v. Freeman (1979) 95 Cal.App.3d 917, 924-925 [ 157 Cal.Rptr. 454 ]; People v. Robinson (1977) 66 Cal.App.3d 624, 629-630 [ 136 Cal.Rptr. 127 ].) In People v. Jordan (1984) 155 Cal.App.3d 769, 786 [ 203 Cal.Rptr. 172 ], we applied the rule in a case involving both armed and use enhancements.

1995(See People v. Freeman (1979) 95 Cal.App.3d 917, 924-925 [ 157 Cal.Rptr. 454 ]; People v. Robinson (1977) 66 Cal.App.3d 624, 629-630 [ 136 Cal.Rptr. 127 ].) In People v. Jordan (1984) 155 Cal.App.3d 769, 786 [ 203 Cal.Rptr. 172 ], we applied the rule in a case involving both armed and use enhancements.

1995(See People v. Freeman (1979) 95 Cal.App.3d 917, 924-925 [ 157 Cal.Rptr. 454 ]; People v. Robinson (1977) 66 Cal.App.3d 624, 629-630 [ 136 Cal.Rptr. 127 ].) In People v. Jordan (1984) 155 Cal.App.3d 769, 786 [ 203 Cal.Rptr. 172 ], we applied the rule in a case involving both armed and use enhancements.

1995(See People v. Freeman (1979) 95 Cal.App.3d 917, 924-925 [ 157 Cal.Rptr. 454 ]; People v. Robinson (1977) 66 Cal.App.3d 624, 629-630 [ 136 Cal.Rptr. 127 ].) In People v. Jordan (1984) 155 Cal.App.3d 769, 786 [ 203 Cal.Rptr. 172 ], we applied the rule in a case involving both armed and use enhancements.

1993(See Culbreth, supra, 17 Cal.3d at p. 332, fn. 1 .) [5] In People v. Hernandez (1988) 46 Cal.3d 194, 205 [ 249 Cal. Rptr. 850 , 757 P.2d 1013 ], a case dealing with the pleading and proof requirements for enhancements, we erroneously described People v. Cardenas, supra, 31 Cal.3d at pages 913-914, as "reaffirming that § 654 applies to enhancements." The portion of Cardenas cited in Hernandez concerned the Culbreth rule.

1993(See Culbreth, supra, 17 Cal.3d at p. 332, fn. 1 .) [5] In People v. Hernandez (1988) 46 Cal.3d 194, 205 [ 249 Cal. Rptr. 850 , 757 P.2d 1013 ], a case dealing with the pleading and proof requirements for enhancements, we erroneously described People v. Cardenas, supra, 31 Cal.3d at pages 913-914, as "reaffirming that § 654 applies to enhancements." The portion of Cardenas cited in Hernandez concerned the Culbreth rule.

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been

1993To the extent defendant contends that the Penal Code section 654 prohibition against multiple punishment mandates the Culbreth rule, we note, as did Justice Clark in dissent, that it was (and still is) settled that section 654 does not apply to "crimes of violence against multiple victims." ( Culbreth, supra, 17 Cal.3d at p. 335 (dis. opn. of Clark, J.); see also People v. McFarland (1989) 47 Cal.3d 798, 803 [ 254 Cal. Rptr. 331 , 765 P.2d 493 ].) Here, there were multiple victims.

1993To the extent defendant contends that the Penal Code section 654 prohibition against multiple punishment mandates the Culbreth rule, we note, as did Justice Clark in dissent, that it was (and still is) settled that section 654 does not apply to "crimes of violence against multiple victims." ( Culbreth, supra, 17 Cal.3d at p. 335 (dis. opn. of Clark, J.); see also People v. McFarland (1989) 47 Cal.3d 798, 803 [ 254 Cal. Rptr. 331 , 765 P.2d 493 ].) Here, there were multiple victims.

1993Appeals Bd., supra, 30 Cal.3d at p. 404 .) “Thus, although the Legislature has not affirmatively disapproved the court’s analysis in [ Culbreth, supra, 17 Cal.3d 330 ] neither has it expressly or impliedly endorsed it.” (People v. Escobar, supra, 3 Cal.4th at p. 751 ; see also id. at p. 751, fn. 5.) In short, this court created the Culbreth rule; this court can reexamine it.

1993Appeals Bd., supra, 30 Cal.3d at p. 404 .) "Thus, although the Legislature has not affirmatively disapproved the court's analysis in [ Culbreth, supra, 17 Cal.3d 330 ] neither has it expressly or impliedly endorsed it." ( People v. Escobar, supra, 3 Cal.4th at p. 751 ; see also id. at p. 751, fn. 5.) In short, this court created the Culbreth rule; this court can reexamine it. ( Ibid. ) Upon reexamination, we agree with the Courts of Appeal which have criticized the rule.

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been

1993(People v. Escobar, supra, 3 Cal.4th at p. 752 ; People v. Wharton (1991) 53 Cal.3d 522, 586 [ 280 Cal.Rptr. 631 , 809 P.2d 290 ].) Thus, “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. [Citation.]” (Bouie v. City of Columbia (1964) 378 U.S. 347, 354 [ 12 L.Ed.2d 894, 900 , 84 S.Ct. 1697 ]; see also People v. Escobar, supra, 3 Cal.4th at p. 752 and In re Baert (1988) 205 Cal.App.3d 514, 518 [ 252 Cal.Rptr. 418 ].) The Culbreth rule has been