*1 Third Dist. Feb. C004884. 1991.] [No. PEOPLE, and Respondent,
THE Plaintiff CATELLI, and Appellant. Defendant MICHAEL JOSEPH partial publication.*] [Opinion for certified * 976.1, Court, publication opinion is certified for rule this Pursuant to California Rules exception parts through XVI. III with the *4 Counsel Stuetz,
Jeffrey J. under the Court of for Defendant appointment Appeal, and Appellant. General, B. Chief Attorney Iglehart,
John K. Van de Richard Kamp, General, L. Maureen Attorney Carey, Anthony Assistant Joel Dicce and General, Daly, Attorneys for Plaintiff and Deputy Respondent. Opinion
SCOTLAND, J. jury convicted defendant of sex crimes committed A Code, (2); subd. subd. subd. against (Pen. (c); victims. §§ 288a, (b); subd. subd that he used a knife (c), (a).1Allegations during all bodily injury but one of the offenses and inflicted four of the great during 12022.3, were (§§ 12022.8.) crimes found true. The court determined that years defendant was sane when he the offenses. Sentenced to 557 committed in state he raises prison, numerous issues on appeal. of this addresses two issues. We consider published portion opinion
whether defendant’s Sixth Amendment to counsel was violated when right *5 an undercover officer met with him in the room in jail visiting hopes statements obtaining incriminating regarding defendant’s efforts to dissuade the victims from had been an inmate testifying. meeting arranged by who disliked defendant and wanted to obtain evidence damaging against own, enforcement, him. On his and unknown to law the inmate aup set jailhouse encounter so defendant could meet the inmate’s “friend” who would take care job “silencing” the victims. When the inmate attorney’s informed the district officeof the it was decided planned meeting, that an undercover officer would attend as the inmate’s friend. At the defendant made meeting, incriminating statements which were introduced him at trial. against 288a,
We also determine the term in organ” whether “sexual statute, California’s oral includes a man’s scrotum as well as his penis.
Facts 8, 1987, Michelle, May runaway On lured girls, aged defendant two Heather, aged and into his hotel room where he forced them to commit sexual him he numerous acts with and with each other. On June statutory specified. Further references are to the Penal Code unless otherwise Lucille, a room to come hotel runaway girl, aged another enticed arrested, him. After he was sexual acts with her to commit numerous forced was 18 and that she he Lucille an believed defendant told officer acts of they in two engaged him. He to have admitted consented sex staying acknowledged Defendant copulation. and one act of oral intercourse activity oc- and Heather denied sexual with Michelle but hotel defend- analyses detail in our Additional will be discussed in curred. facts contentions. ant’s
Discussion I trial, evidence moved to the introduction of Prior to defendant prevent custody made to an officer while concerning statements he undercover alleged that, charges.2 Defendant because of these statements, Sixth right these violated his Amendment obtaining police A held which by hearing counsel the federal constitution.3 was guaranteed disclosed following: S., states, an in two met
Frank informant for federal other prosecutors Jail. County defendant while both were incarcerated in the Sacramento outset, learning From the S. did not like defendant. After that defendant own, minors, out, custody on S. set his charges raping several on S. to obtain information him. Defendant confessed to incriminating from inmates from dissuading and talked him and other about the victims animals, either testifying, by routine” of using “Godfather-type mutilating threats, Mafia or or whatever it took. Defendant boasted of personal $5,000 the wit- connections offered to for someone intimidate pay nesses. *6 S., testimony sought Defendant also the an to to exclude of Frank inmate and informant testimony conditionally purportedly guilt. whom defendant had confessed his S.’s was taken (§ (a)) charges prior to trial he was extradited to in an subd. because about to be face trial, Asserting testify prosecutor to the intro other state. that S. was unavailable moved to ruling testimony. transcript prior the of taken under A duce S.’s motion was submission. made, bring and the prosecutor was never the effort to this evidence before abandoned his However,
jury. testimony respect S.’s was considered the trial court with to the admissibil discussion, ity (See post.) of defendant’s statements to Officer Simonds. Although referred v. Arizona 384 U.S. defendant’s trial counsel to Miranda ap 974], made on L.Ed.2d 10 A.L.R.3d no Fifth Amendment claim is S.Ct. suspects agents implicate and do not the concerns peal. “Conversations between undercover ingredients atmosphere’ and com underlying ‘police-dominated Miranda. The essential of a freely present person speaks he believes pulsion are not an incarcerated to someone that when empirical assumption suspect inmate no the that a be a fellow .... There is basis for to compelled speak to the fear of speaking to those whom he assumes are not officers will feel remaining hope treatment he confess.” reprisal for or in the of more lenient should silent __ (Illinois __, 110 S.Ct. v. Perkins 495 U.S. L.Ed.2d resolved, S. decided to inform on defendant.
When S.’s were he charges he was he not want it to that appear had not done so earlier because did him. While charged against to crimes seeking leniency respect with that he had to speak S. told a sheriff awaiting deputy court appearance, attempt about defendant’s attorney’s with someone the district office from of the to the attention message brought to intimidate witnesses. This was deter- attorney district to defendant. In order to assigned deputy prosecute been that would any jeopardize mine “whether had set in motion plan and to stop three were the in these cases to be able young girls who victims them,” an any arranged investiga- harm from to for coming prosecutor to about anything meet S. The told not ask investigator tor to with the deal “get defendant’s but to information about pending charges simply for proposal prosecuting protection to silence [the witnesses] victims.” “he deals” informa- being
After that would receive no for the informed tion he had defendant’s effort to convince the victims not concerning testify, S. told that had confessed. investigator According defendant S., stated, I’m I’m guilty. guilty. get defendant “I know You know I have to this, By taken of.” defendant meant the this care pending [defendant’s case] testify. witnesses had or not to At the conclusion persuaded to be “silenced” of the did S. to seek infor- meeting, investigator not instruct additional S., According mation from defendant. “There wasn’t laid game plan it, out for no listen for and look for that that type there was this defendant, fact, as and the thing.” longer S. no was in the same cell district made no for S. closer” to attorney’s arrangements “get office defendant.
Nevertheless, continued on his to talk with defendant about the S. own closer, to deal with the victims. his trial drew defendant be- proposal As “very somebody came adamant about to contact wanting [the victims]” anyone job. asked S. if he do the Unknown to the knew of who could officer, any law S. attorney’s “arranged” district office or enforcement defendant for “friends” care one of S.’s to “take problem.” [defendant’s] When brought attorney’s He then this to the attention the district office. had an investigator why arrangement asked S. made such in view action, fact that the had never such a S. investigator suggested course may “[W]ell, you I we be able to send an officer in or could replied, thought like they my send someone in to were friend.” pretend [szc] *7 When the heard he and undercover prosecutor development, about this had officer Donald Simonds with S. “to find out what spoke [defendant] was concerning told and had told the friend who what [S.] [defendant] [S.] meet with S. he from his Again, to him.” was told would benefit visit that his “friend” would S. he would tell defendant stated cooperation. as this that Simonds would pose on and it was decided defendant October Thereafter, arranged that the previously S. informed defendant friend. 5. would occur on October meeting took in the place defendant and Officer Simonds meeting
The between a brief recorded. After tape room of the and was visiting jail surreptitiously friend he in defendant confirmed that Simonds was the introduction which Si- was a When “cop.” defendant asked whether Simonds expecting, note defendant a handwritten negative, displayed monds replied do, you “All I’ll need for to The note stated: through glass partition. each to (teenaged girls) change would be to convince a witnesses couple stories, you How of their and admit that no crime was comitted [s/c]. they my attorney, convince them is all need to do is contact admit you toup effect, him that a statement to that [svc], sign no crime was comitted I testify jury then in court that crime took when trial arrives. have place, no names, addresses, numbers, to, they family each of their schools phone go names, [sic], members and other parents place employments [sic] [sz'c] I have [s/c], you information. Once contract is fullfilled am certain transaction, 2,500.00 this a fee hand completed you will recieve [sic] delivered from an associate of mine from New York.” (Italics original.) Another note defendant listed certain books which would aid displayed in establishing his bona fides as a member of the Mafia. purported notes,
After Simonds finished he and defendant discussed reading contents, their with Simonds to have defendant ex- repeatedly attempting exactly on what he pand wanted done with the victims. Simonds also ques- defendant tioned about how “bad” he wanted “this favor done” and how Simonds would get the information he needed to track down the victims. conversation, searched, After the defendant was and two torn were papers found. Simonds identified them as the notes defendant to the displayed officer.
Defendant him a him testified that S. told detective would visit private assist his defense.
The trial court denied defendant’s in limine motion to exclude both Officer testimony concerning jail meeting, including Simonds’ house victims, defendant’s efforts to silence the and the of defend- tape recording a police ant’s conversation with officer. court found that S. was not that the agent; of the state’s activities with to these matters “purpose respect safety incriminating was to of these witnesses and not to obtain protect information with respect underlying charges;” respect “[w]ith Simonds, only defendant’s statements to Officer of contact- purpose
1442 fortunately just determining the defendant was a minute ing purpose safety and their was in jeopardy;” whether the witnesses were at risk “[tjhere underlying charges.” was no interrogation concerning Massiah v. United States ill U.S. 201 L.Ed.2d Citing (1964) [12 246, 84 S.Ct. and its defendant contends that the admission progeny, 1199] testimony and Officer violated his Sixth recording Simonds’ tape an knowingly Amendment He that the state rights. argues exploited oppor tunity being to confront him without counsel when present prosecutor took the S. conversation having arrange jailhouse “affirmative step” with Officer Simonds. initiative,
The law is
follows: When on his or her own
rather than
as
behest,
at the
an
information from
incriminating
state’s
informant obtains
accused,
an
Sixth
there is no unlawful interference with a defendant’s
(United
Amendment
free of
intrusion.
right
representation
governmental
264,
115,
Henry
2183];
States v.
447 U.S.
270
100 S.Ct.
(1980)
L.Ed.2d
[65
724,
810,
36
(1984)
v. Whitt
Cal.3d
742-743
685 P.2d
Cal.Rptr.
[205
132, 135-137;
v.
1161]; Thomas Cox
Cir.
708 F.2d
United States
(4th
1983)
1162,
However,
v. Malik (7th
1982)
Cir.
680 F.2d
when a
1165.)
govern
agent,
deliberately
ment
an informant
at the state’s
including
acting
request,
defendant,
elicits
statements from a
this action
incriminating
represented
counsel,
the defendant’s Sixth Amendment
and the “incri
impairs
right
minating
pertaining
pending charges
statements
are inadmissible at the
trial of
. . .”
v.
charges,
(Maine
those
Moulton
474 U.S.
168-
180
477];
Henry,
L.Ed.2d
106 S.Ct.
United States v.
supra,
[88
States,
U.S. at
at
v.
pp.
121-124];
269-273
L.Ed.2d
Massiah United
pp.
[65
supra,
U.S. at
204-207
L.Ed.2d at
This
true
pp. 249-251].)
[12
if
even
information is obtained
incriminating
during
state’s investi
Moulton,
other,
gation of
v.
uncharged
(Maine
crimes.
474 U.S. at
supra,
p.
L.Ed.2d at pp. 498-499].)
[88
occasions,
On several
the United States
Court has reexamined
Supreme
what constitutes a deliberate elicitation of
statements
incriminating
within
Moulton,
meaning Massiah.
court Maine
474 U.S.
broadly
L.Ed.2d
this term. It held that the Sixth
interpreted
[88
481]
Amendment
the state “an affirmative
act in
imposes upon
obligation
a manner that
thereby
circumvents and
dilutes the
afforded
protection
Thus,
to counsel.”
at
L.Ed.2d at
in the
right
(Id.,
p.
p. 493].)
[88
court,
view of Moulton
the Sixth Amendment is violated whenever the
state
to confront the accused
knowingly exploits
opportunity
without
counsel
being present. (Id.,
L.Ed.2d at
Kuhlmann v. Wilson
Thus, view, merely is whether Simonds lis- dispositive our issue elicited them. deliberately tened to defendant’s statements or After a brief following: meeting reveals recording The tape visitor he Simonds was the that Officer in which he confirmed introduction *10 replied, When Simonds “cop.” if Simonds was defendant asked expected, not,” notes on the “No, initiative two displayed I’m defendant on his own that Simonds request detailed defendant’s one of which glass partition, Simonds had stories. to this change Up point, the victims to their convince from defendant. deliberately incriminating statements to elicit nothing done say might for what defendant beyond merely listening He took no action testify. Accordingly, victims not to to convince the concerning the plan testimony defendant’s concerning and Simonds’s both the notes Officer thereof were admissible. and the seizure subsequent of the notes display Wilson, 384- U.S. at L.Ed.2d at v. (Kuhlmann [91 385].) notes,
However, number of Simonds to ask a reading began after In elaborate on his request.4 repeated- to have defendant designed questions victims, including to to defendant about his silence ly proposal querying him, defendant to displayed the contents of the notes concerning questions deliberately designed a course of conduct clearly Officer Simonds undertook so, Simonds doing from defendant. In incriminating elicit statements to Accordingly, Amendment to counsel. right violated defendant’s Sixth of the conversation recording trial erred in to exclude failing tape court with defendant after testimony Officer Simonds’s about his discussion and the notes were displayed. tape transcript in the record. We have listened to the and summarize 4 Thereis no written notes, help he he need because he did not it as follows: After Simonds read the said would replied, “I teenage girls to find them. Defendant who the were and did not know how
know
him,
checking
claiming
everything you
some
on
have
need to know.” He told Simonds to do
got caught.”
Simonds also asked
he
a New Yorker who was here “on a business deal
paper
Defendant
him write down the names. Simonds asked
what the second
meant.
told
to
about,
stated,
you
you
given
that I have
will show
it
all
and defendant
“The names
what was
my family
De
if the names were defendant’s relatives.
who I am and who
is.” Simonds asked
they
girls and indicat
then asked for more information about the
fendant said
were. Simonds
rather,
money
job;
hoping
get
getting
he was
he was not that interested in
for the
ed that
introduction,
arranged.
high-ranking
it
presumably
Mafioso. Defendant said could be
an
get
girls.
replied, “As
he
the information about the
Defendant
Simonds asked when would
certain,
you,
you’re
you
something
more
come back here
as someone delivers
when
soon
were,
say
girls
but defendant did not want to
be
pay
me a visit.” Simonds asked who
White,
girls
thought
being taped. Defendant said the
were
cause he
the conversation was
13,
16,
“flaky”
“gave
up”
was a “hooker.” Si
aged
15 and
and were
kids.
one who
[him]
picked
him
would be
expenses,
was worried about his
but defendant assured
his costs
monds
girls.
get
he
Simonds asked
up and that Simonds would
all the information
needed about
replied,
Defendant
“Convince them to
serious defendant was and what he wanted done.
how
already
story.”
background,
Simonds
change
He
the victims
knew his
so
their
indicated
talking
make much “contact.” When Simonds accused defendant
would not need to
too
discretion,
riddles,
but “elimination is out of the
he was told that the matter was within his
Defendant re
question.”
pressed
specifics
defendant for
and threatened to walk out.
Simonds
Simonds,
get in
and that defendant did not want to
sponded that someone would
touch with
say anything
phone.
else on the
v.
However,
in Chapman
test enunciated
the harmless error
Califor
824, 24 A.L.R.3d
87 S.Ct.
As Simonds, elicit deliberately designed had done nothing notes to the officer Thus, the notes were properly statements from defendant. incriminating testimony officer’s re recording admitted into evidence. The the tape nothing cumulative and added of garding the discussion were subsequent admitted, incriminatory, notes. Ac highly substance to the properly cordingly, recording we conclude that admission of the and Simonds’s tape testimony events which occurred after the notes were concerning displayed beyond a was harmless reasonable doubt.
Even that Officer violated defendant’s assuming, arguendo, Simonds visiting Sixth Amendment to counsel at the room of the right appearing defendant, jail, introduction displayed coupled *12 involving Michelle.
Defendant contends one count of oral and one count of lewd copulation and lascivious conduct must be reversed. His is twofold. argument
First, “merely he asserts that the location of changing that occurs on the same organ, without cannot constitute interruption, contention, separate offenses.” of this defendant “maintains that support a man’s male scrotum and constitute the ‘sexual for penis organ’ purposes any of section 288a. act of different Accordingly, uninterrupted copulating organ’ of a man’s ‘sexual constitutes but a offense.” in parts single (Italics original.)
The flaw in that the argument defendant’s acts were not uninterrupted. Rather, they in time a separated change were and It is now position. may settled that an accused be for convicted nonconsensual sex multiple, acts of an identical nature which follow one another quick, uninterrupted 321, succession. v. Harrison (People Cal.3d 327-334 [256 401, 768 P.2d The initial sex oral Cal.Rptr. 1078].) involving crimes copula tion of defendant’s and the licking of his scrotum were penis completed when defendant ordered Michelle and Heather to and switch stop positions. Therefore, (Id., at pp. 329-330.) sex crimes occurred when defend separate ant forced the and scro girls sucking penis licking to recommence his his separate Heather defendant made her lick at three testified his scrotum on least occasions. turn, new, (Ibid.) them to endure unconsented sex acts. compelling thus may an accused be for sex equally separately punished
It is clear that single (Id., acts of the same nature committed encounter. during 335-338; v. Perez 23 Cal.3d 550-554 Cal.Rptr. “ P.2d Where of the sex offenses was committed as a means ‘[n]one other, other, any committing any none facilitated commission of other, incidental’ multi against none was protects [which 48 Cal.3d at ple punishment6] apply.” (Harrison, supra, [does] Perez, 23 Cal.3d at Such was the case here. quoting supra, pp. 553-554.)
Moreover, that, the trial infer reasonably court could commit victims, ting separate against sex acts defendant had independent objectives many other than his own sexual Over a gratification. period hours, variety defendant compelled degrading victims to do sex acts, including orally them to kiss and each forcing other. copulate “[T]he ‘essential guilt’ of sex offenses lies in ‘the outrage feelings person ....’” victim (Harrison, Cal. 3d at quoting 263.) § here, that, act, Under the facts it can be inferred with each new sex defend ant had the independent objective intent and degrade victims and to further enhance the emotional physical pain, suffering they and humiliation experienced from his their repeated violations of persons. Accordingly, defendant was properly convicted and sentenced each for of these separate Harrison, sex (See acts. supra, at p. 335.) brief,
In his defendant reply takes a different tack in challenging the sufficiency of evidence to support separate convictions and punishment for the oral copulation of his and the penis licking of his scrotum. While *13 to his view adhering that copulation reasonably which penis, “[o]ral 288a, construed includes the scrotum for of . . purposes .’’he takes inconsistent, fallback position the scrotum is not included as “[i]f . . part only . then penis, may constitute ‘the penis organ’ sexual 288a, under section . . .” and “copulation of scrotum could not possi bly be punished under section 288a because it is not sexual organ.” Michelle,
As to defendant’s act of her lick forcing his scrotum was 288, as a charged violation of section (b), subdivision that he alleging wit, committed a lewd and lascivious act “to oral copulation [], a child under the age years, of fourteen . . .” Defendant Michelle does not raise issue of defective as to this pleading charge. Since the act forcing Michelle to lick his scrotum constituted lewd and lascivious 6 provides pertinent part: Section 654 punishable “An act or which omission is made ways by may different provisions punished different pro this code be under either of such visions, punished one; but in no case can it be under than . . .” more
1448 288 or not that act constituted oral copula- conduct under section whether 351, 42 355-356 (1986) v. Pearson Cal.3d (cf. tion under section 288a People 509, 721 the evidence is sufficient to 595]), support P.2d Cal.Rptr. [228 288, (b). conviction under section subdivision defendant’s Heather, charged defendant’s scrotum was as forcible licking As to “the act of copulat- oral Section 288a defines oral as copulation. copulation or anus of another ing organ the mouth of one with the sexual person person.” act of Heather to lick his forcing
To determine whether defendant’s scrotum oral of his “sexual within the mean organ” constituted 288a, statutory ing of section we must fundamental rules of construc apply tion. role as an court is to ascertain the intent of the appellate Our v. Pieters Legislature (People so as to effectuate the of the statute. purpose 894, 918, v. (1991) 420]; Moyer 52 Cal.3d 898 802 P.2d Cal.Rptr. [276 222, Workmen’s Bd. 10 Cal.3d 230 Comp. Appeals (1973) Cal.Rptr. [110 144, intent, 514 In must look to 1224].) ascertaining legislative P.2d court usual, ordinary, of the statute and “accord words their and language common sense based on the used and the evident meaning language purpose 152, (In for which the statute was re 23 Cal.3d 155 adopted.” Rojas (1979) 649, 218 789]; (1990) 588 P.2d Valladares v. Stone Cal.Rptr. [151 362, so, 368 must Cal.App.3d Cal.Rptr. 57]). doing “presume we [267 that the 42 Legislature (In (1986) did not intend absurd results.” re Head 223, 184, Cal.3d 721 P.2d if a 65].) Accordingly, statute Cal.Rptr. [228 to more than susceptible interpretation, one we must the reasonable adopt meaning reject unjust that which would lead to an and absurd result. 583, 399, v. Clark (People (1990) Cal.3d 789 P.2d Cal.Rptr. [268 115, 127];Lungren v. 45 Cal.3d Deukmejian (1988) Cal.Rptr. [248 299]; 755 P.2d see also v. Morris 46 Cal.3d 119, 756 P.2d Even if the unam Cal.Rptr. language of statute is “ biguous, it ‘should not be a literal if so would result given meaning doing ” Legislature absurd which the did not intend.’ consequences (Pieters, 898-899, 21 Cal.3d quoting Younger Court Superior omitted, 1014], 577 P.2d citations internal Cal.Rptr. “Thus, letter, marks intent quotation omitted.) prevails over ‘[t]he ” will, the letter if read the act.’ possible, be so as to conform to spirit *14 899, (Id., Lungren, at at p. quoting supra, p. 735.) mind, With these we conclude that the term “sexual principles organ” (§ 288a), contained in California’s oral statute as applied males, only refers not to the but includes the scrotum. penis, also usual, by
This conclusion is the of the compelled ordinary meaning While mean phrase organ.” “sexual we can envision little over the dispute “sexual,” dictionary the turn to the in the interest of ing word we Dictionary (1986) Webster’s Third New International defines thoroughness. “sexual” as to the male or female sexes or their distinctive “relating organs (Id., Dictionary or . . . .” at Medical p. 2082.) (5th functions Stedman’s Lawyers’ ed. Ed. states that “sexual” means unabridged 1982) “[r]elating Stedman’s, sex; erotic; at An as defined in genital.” (Id., p. 1279.) “organ,” “any body of the a . . . .” part exercising specific (Id., function at p. Similarly, 992.) Webster’s states that an is “a differentiated struc “organ” [i.e., ture . specialization of or in an animal . . for parts organs] adapted of some performance function and with other structures specific grouped sharing a common into systems.” (Webster’s 3d New Internat. function Dict., cit. op. supra, added; at pp. italics see also Webster’s New Collegiate Dict. at “bodily as [defining “organ” parts perform male, ing function or in an cooperating activity,” added].) italics In a alone, sexual function is by performed by but also other penis parts grouped together to comprise system, male reproductive including scrotum. The sex primary glands, i.e. are the gonads, (Stedman’s testes. Dict., 601, Medical 1431; cit. at op. supra, pp. Webster’s Third New Internat. ct., Di cit. op. at supra, 2362.) The scrotum is the cutaneous pouch containing the testes and parts of the spermatic cords which contain the excretory ducts of the testes. One of the important functions of the scrotum in the reproductive process is to regulate temperature - testes for optimum production (See Gray, of sperm. Anatomy of the Hu man Body (30th American ed. 1985) at pp. 1550-1551; Stedman’s Dict., Medical cit. op. supra, at Since p. 1267.) the testes penis, and the scrotum function, function together carry out the reproductive each is considered the aforesaid authorities to be part the male sexual organ. definitions, Even without resort to these dictionary one does not have to be a urogenital expert recognize that the penis only is not the part of sexual organ within the male reproductive system. As a matter of common sense, a penis without the testes and scrotum is like a flintlock rifle without a flint and Thus, flash or a powder bow without a string and arrow. in the male, usual, ordinary meaning of the term organ” “sexual refers to “the scrotum, testicles, and penis.” (Schmidt, Attorneys’ Dict. of Med. and G-35, Word Finder (1990) S-96.; at pp. Gray, see also Anatomy of the Human Body, op. cit. supra, pp. 1548-1552.)
It is this common which meaning courts are compelled law to adopt for, construing of, the legislative purpose re scope (In 288a. Rojas, 155; Cal.3d at Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 767 P.2d Cal.Rptr. Moreover, to do otherwise would result in an absurd construction of the statute, an outcome which are liberty courts not at to reach. (People
1450 45 Pieters, Deukmejian, supra, v. 898-899; Lungren at Cal.3d supra, proscribes 288a that section recognized been 735.) long at It has p. Cal.3d 108 Cal.App.2d v. Harris (1951) oral-genital (People contact. unlawful and harm revulsion is the of the offense gravamen P.2d 158].) [238 to the his or her mouth touch unwillingly forced to by one who is suffered Harrison, To 330.) 3d at p. Cal. supra, v. (Cf. People another. of genitals to proscribe intended Legislature 288a the in section enacting that suggest is, in our a scrotum but not with with a penis of the mouth coupling clearly would view, a construction Such an absurd proposition. the statute. of purpose effectuate claim, usage” in the “historical nothing is the dissent’s there
Contrary to 288a, prede in the of its language or section organ” of the term “sexual intended statute, Legislature to males the that as suggests cessor which to the was added originally 288a only to the Section penis. term to apply “The acts and provided: address “sex perversions” Penal Code in 1915 to to be hereby are declared technically cunnilingus known as fellatio and either thereof shall convicted of the commission felonies and person fifteen for not more than in the state by prison imprisonment be punished 134]; People P. re 179 Cal. Lockett years.” (In In this section declaring P. Carrell Cal.App. “ ‘it no unconstitutional, Court concluded Supreme the California as the crime intended to characterize acts the legislature means certain what ’” Carrell, supra, quoting 179 C. at (Lockett, p. of “fellatio.” the Legislature now be said that In this it cannot 795.) light holding, male on the 288a act of sex perversion intended that a section originally Thereafter, the Legisla the penis. oral body only copulation applied 288a sex “prohibiting a new section this section and enacted ture repealed in the act of “Any copulat person participating perversions” providing: punishable of another is organ with the sexual the mouth of one ing person years.” (Stats. exceeding for not fifteen in the state prison imprisonment that the 1633.) Nothing language suggests this ch. § of the term meaning the common intended to from Legislature depart male, offense, on a to oral limit the as performed and to organ” “sexual intended, have it could If the had so Legislature of the penis. copulation 288a, keep courts must section interpreting said so. mind the organ” “sexual outlawing fact that in oral another, Forcing person sex perversion.” was Legislature “prohibiting of “sex type to us to constitute lick one’s scrotum seems unwillingly by enacting seeking prohibit Legislature that the perversion” 288a.7 “copula licking did not constitute of his scrotum does not contend that 7 Defendant unavailing. As the dis meaning a contention would be of section 288a. Such
tion” within notes, or lick early “copulation” exclude the “mere kiss properly construction sent
1451 The fact that the term Legislature singular used “sexual or anus, gan,” as well as the does not a conclusion that the crime of compel oral on a male copulation performed only to the and anus. applies penis that, Code, Section 7 as to words in the Penal provides used “the singular number includes the and the ...” plural, plural singular; “The rule of construction enunciated in section 7 is no mere rubric—it is the law.” 585, 635, v. Jones 46 (People (1988) Cal.3d 593 758 P.2d Cal.Rptr. [250 Thus, to the extent practicable, we must interpret singular “sexual phrase organ” section 288a to be consistent with the term plural “sexual organs.” (Ibid.) Such a construction is practical appropriate because, as noted in Webster’s Dictionary, Third New International cit. op. at supra, the term pages “sexual organ” often is used in the i.e., plural to refer to the genitalia, “the organs system; of the reproductive esp\ external genital organs.” (Italics in original.) This plural interpreta tion of the term “sexual organ” only is the one which is consistent intent apparent of the Legislature enacting section 288a and does not result in an absurd construction of the statute.
We are mindful of the principle that where a statute is
of two
susceptible
reasonable interpretations,
it must be
construed
favor of defendant.
States,
(Dunn
100,
v. United
743,
442 U.S.
supra,
112
L.Ed.2d
754];
[60
v.
People
1104,
Anderson
43
585,
Cal.3d
1145-1146
Cal.Rptr.
However,
III-XVI*
Disposition to (1) the trial court in directions to is reversed with judgment part The sodomy, for XLVIII) (count attempted sodomy reduce the conviction use ancillary 12022.3 section years, term of three and strike consecutive ancillary to bodily injury enhancement enhancement; great strike the (2) de- setting forth XXXVIII; judgment abstract of new (3) prepare count sentence, forward a certified (4) years state prison; fendant’s all respects, Corrections. In other to the of Department of the abstract copy is affirmed. judgment Sims, J., concurred. in the judg- concur
CARR, Acting J., Dissenting.—I Concurring P. act in II, In defendant’s my I dissent. view ment as to to which except part not constitute oral copulation lick his scrotum does Heather to forcing why 288a. I this explain Penal Code section shall meaning within the result, majority as the holds. not an absurd II, as that organ the male sexual majority undertakes to define part male is of the entire Essentially 288a. that definition term is used in section together and testes scrotum system, comprising penis, reproductive 288a I observe at the outset section workings with the internal thereof. system to define never used the words reproductive since its has inception historical definition withstand majority’s sexual Nor does the organ. scrutiny. 288a, Penal Code section
The
California statute passed
initial
cunnilingus.”
fellatio and
technically known as
criminalized
acts
“[t]he
found to be unconstitu
1022.) This statute was
(Stats.
ch.
§
failed
describe the
conduct
prohibited
because the word fellatio
tional not
article
by
as
former
English language
required
it was not in the
but because
Constitution,
in the
IV,
was not
usage
California
its
meaning
uncertain in
to a person
and it was therefore
common parlance
be
might
expected
those
who
understanding,
persons
common
presumably
(In
P.
134].)
re
While of the times doubtless the prevented the clinically,3 Legis- the crime more such members of defining presumably the lature in 1915 had access to the medical texts and literature available to if not the man It reasonable to assume understanding. courts of common that to avoid the “bald use of the vernacular” (In nastiness involved the Lockett, re Cal. at supra, p. 583), Legislature “euphemistically 179 morality. fellatio to describe this offense In such texts employed” against era, that that meaning and dictionaries of the term itself had a definitive stimulation, oral was of the euphemistically speaking, penis.4 1915, Since its enactment in 288a been original section has amended or 15 reenacted times.5
In 1921 statute was rewritten to sex defined as prohibit perversion, “the act of copulating organ mouth one with sexual person 1921, . . another . .” ch. v. Parsons (Stats. 1633.) p. People § 2 court, concern, unsophisticated Lockett with unusual if somewhat found that some passive definitions of the term un referred to active conduct and others to and this rendered 585, prohibited (179 590.) certain the conduct. Cal. at 3 they squeamish English-speaking people point “So are some on this that have no terms to Becker, designate (2 the ‘nameless crime’ that moves in the dark.” Witthaus & Medical Juris Crimes; prudence, Toxicology (2d 1907) Forensic Medicine and ed. Unnatural Buccal Co itus, p. 750.) fellare, meaning (Webster’s 4 Fellatio is derived from the Latin “to suck.” New Internat. (3d 1971) 836.) Dict. ed. 2, 1633; Extraordinary chapter page 5 Statutes 1921 848 Statutes section Amended First 1950, 1, 1952, 512; Extraordinary chapter page Session of 56 section Statutes First Session of 2, 1975, 1955, 274, 1, 380; 729; chapter page chapter page 23 section Statutes section Statutes 71, 10, 877, 1976, 1139, 178, 2; chapter chapter chapter oper section section section Statutes 1, 1977, 490, 579, 1977; 2; 1978, July chapter chapter ative Statutes section section Statutes 1979, 944, 1980, 915, 1981, 18; 7; 2; chapter chapter Statutes section Statutes section Statutes 949, 896, 1982, 1111, 1983, 2; 5; chapter chapter chapter section Statutes section Statutes sec 1299, 1988, 3; 6; chapter chapter tion Amended Statutes Amended Statutes section 1.
1454 a contention rejected court 212], P. (1927) Cal.App. [255 who Any partici- indefinite. person uncertain or vague, was the new statute offense, as an whether guilty in the conduct proscribed pated con- passive the active thereby rest putting participant, active or passive the Lockett court. cern of 659], P.2d Cal.App.2d v.
Initially, Angier People lick of the narrowly: “A mere kiss or was construed “copulation” the term Code, 288), is not a lewdly (Pen. done though even organ, private [ § ] by assessing meaning at this conclusion The court arrived copulation.” had the has never word stating copulation, of the term “[t]he verb, to always significance It has had of mere contact. meaning is translated Latin which copulare, ... is derived form the which ‘couple’, ” (Id. unite, That view was 419.) tie together.’ band or join, ‘to couple, v. Harris author (People even its own subsequently repudiated holding acknowledging the court 158]), P.2d Cal.App.2d intent of section the legislative did not Angier, comport *19 significance a discussion of the were led into (a). subdivision “[W]e correct it was was philologically While that discourse the word ‘copulate.’ in that the use of the word the erroneous doctrine calculated to lead to the statute is that an offender of 288a intent signifies legislative section Such perversion. the act of sex only repulsive when he has committed guilty A of this court. or the intention not the of the lawmakers purpose his mouth upon statute when he has violating placed is the person guilty (Id. 88.) another.” organ the genital by our Legislature was decriminalized Consensual contact oral-genital by the The conduct now (Stats. 134.) prohibited ch. 1975. § i.e., or minors or prisoners, the status of the participants, statute on depends of force a sexual aggressor. use 288a, statute, definition retains the 1921 The Penal Code section present the mouth copulating Oral is the act of “(a) of oral copulation: (Stats. person.” anus of another organ of one with the sexual or person 1986, ch. p. 4595.) § 288a, made to section amendments and revisions the numerous
Despite undefined in organ leave the word sexual has continued to Legislature contends, that, a male as to implausibly, The defendant such section. argument The in an People, section 288a refers to the organ, penis. sexual genitalia, the statute refers to all external by majority, urge accepted and the scrotum. testicles penis, in lieu term or such similar Legislature “genitalia” was free to use 311.3, section In Penal Code organ” but chose not to do so.
“sexual statute, con- of children sexual the sexual (b)(1), exploitation subdivision conduct, defined, inter- other listed as copiously among duct is “[s]exual oral-anal, course, or oral-genital, anal-genital including genital-genital, statute, 243.4 criminalizes the battery . .” The Penal Code section . sexual is “Intimate part”, of “an intimate of another touching part person.” anus, 243.4, the “sexual (f)(1), organ, section subdivision as defined The term the breast of a female.” any or buttocks of groin, person, in the certainly enough, employed is euphemistic which “private parts” statute, wilfully crime for person indecent which makes it a exposure thereof, in any lewdly parts public his or “[e]xposes person, private Code, I think it reasonable to assume that (Pen. 314). persons place” § If term know what are. were understanding parts common private all- uncertainty there but with an might private parts, be some private part, term, uncertainty. there is no encompassing it can organ genitalia Unless be said that sexual means as used 288a, defendant’s assertion has merit.
The historical derivation of section 288a and the of sexual usage organ male, that section the statute refers to the strongly suggests as to noted, “fellatio,” As statute from the Latin penis. original proscribed suck, fellare, may uncertainty and while there have been some initial as included, to its meaning as to whether both and active conduct was passive the term referred it and was so defined in the dictionaries and penis day
treatises current at the time of enactment as well as original present dictionaries. Nowhere is term defined such to cover oral-scrotal contact. *20 The subsequent statutes describe the conduct as “oral copulation.” Copula- normally tion involves penile-vaginal copulation by contact. Oral its terms the suggests of either the a replacement penis vagina or with mouth. People 417, Angler, v. 44 in supra, focused on the word Cal.App.2d “copulating” determining (at 419) that or the was not licking kissing “private organ” “The proscribed: word has never had the of mere meaning ” contact. It The always significance has had of the verb ‘to couple.’ Angier cases which or criticized did not distinguished expand organs i.e., assaulted, assault, capable being of but the manner of the expanded or v. Cline 2 licking osculating (kissing) proscribed. (See People (1969) were Harris, 989, 992-993, 2, 246]; fn. 996 v. Cal.App.3d Cal.Rptr. People [83 88.) 108 at A man Cal.App.2d does not with his scrotum copulate body, but with his male a penis. referring “Oral” when to the as copulation, sense, matter of common involves oral contact with a penis.
The Legislature has devised an elaborate structure of sanctions for penal types sexually-oriented various conduct. The forcible lick or kiss of 288, conduct, scrotum could violate section if the victim lewd lascivious 243.4, were under the 14 I age battery. or section sexual conclude such 1456
conduct, however, choice of Legislature’s is not oral At best copulation. derivation of the term “sexual is in of the historical organ” ambiguous, light the statute. statutes, The we have certain well-defined rules. construing ambiguous fair according of the Penal Code “are to be construed to the
provisions terms, and to objects promote of their with a view to eifect its import “ words; than their justice.” (§ 4.) They meaning ‘are to reach no further by can and all doubts subject implication; no be made to them person ac- their are to in favor of the concerning interpretation preponderate 104, 104].) v. Tisdale 57 Cal. 107 Cal. Where (People (1880) cused.’” [57 reasonably constructions the language susceptible of a statute is two statute be in favor of defendant. v. Anderson (People (1987) must construed 585, 1104, 43 1145-1146 742 Dunn v. 1306]; Cal.3d P.2d Cal.Rptr. [240 100, United States 442 U.S. 112 L.Ed.2d 99 S.Ct. (1979) [60 construction, Under male 2190].) organ, such sexual within section 288a, refers to the penis. “absurd,”
The
v. Pieters
majority
citing
holds this result is
to People
918,
802
v.
420],
Lungren
Cal.3d 894
P.2d
Cal.Rptr.
[276
The rule summarized in sought majority Jones 1165], Cal.3d 758 P.2d “The rule of Cal.Rptr. page 599: statutory statutes are construed in interpretation ambiguous penal favor of inapplicable defendants is unless two reasonable interpretations i.e., provision same stand relative that resolution of the equipoise, statute’s in a ambiguities convincing impracticable. manner is [Citations.]” (See People v. Alday (1973) also Cal.3d Cal.Rptr. majority P.2d is that it is not reasonable that position *21 “sexual when to a male means But the organ” referring “penis.” Legislature intricate, has byzantine, constructed an almost maze of laws criminalizing (see sexual Witkin & Cal. Criminal Law depradations generally Epstein, Morals, (2d 1988) Decency ed. Crimes 760 et and often Against seq.), § arbitrary. the definitions seem Had the more Legislature sought prohibit statute, “cunninlingus” than “fellatio” and when it enacted the 1921 it easily may could have done so. The fact that reasonable minds differ on this answer, that each of the statute is question suggests interpretation equal ly plausible, and therefore defendant should not have to which is the guess law. Cal.Rptr. Cal.3d v. Harrison majority
The cites is the the offense “The of gravamen at that 1078], P.2d page his touch unwillingly is forced to suffered one who and harm revulsion ante, 1450.) at (Maj. opn., of another.” genitals mouth to the or her hold, digital pene- but involve oral did not Harrison did not so convictions, wholly multiple the propriety and concerned tration offense, nature not the here is the definition different issue. The issue avoided. of the harm be sought When its head. of the statute on majority history turns the Lockett, re holding in 1921 to avoid
Legislature rewrote statute pages” (People to “stain the it no doubt reluctant 179 Cal. supra, Carrell, an California with of the Statutes of p. 795) 31 Cal. App. that era modesty But the to be proscribed. list of the conduct explicit Since it case about: today be a shield to obscure what this cannot used as exactitude the specify Legislature was within the power as he has is entitled to reversal conduct to be the defendant proscribed, statute, alternate, that sexual an construction tendered reasonable only.7 288a denotes the organ penis May denied review the Court was Supreme for Appellant’s petition Mosk, L, granted. should be opinion petition 1991. was of the synonym (Web dictionary organ. “penis” lists as a for expressly 7 1 further that the note *22 (3d 1971) p. 1589.) equivalent reference to ed. There is no ster’s Third New Internat. Dict. testicles. of notes with error be admitting recording testimony, and Officer Simonds’s would still tape The guilt truly harmless. evidence of defendant’s While overwhelming. the victims were somewhat unclear on the number of crimes com- precise mitted, they were definite in their in their identification of defendant and testimony that he committed them. against numerous forcible sex crimes testimony many ways. This was corroborated in For Lucille was example, observed fleeing hyster- half-naked from hotel room. She to be appeared admitted activity ical. Defendant an he had officer that sexual Lucille and had been Heather and Michelle. the hotel room with present A resembling bedsheets bore stains blood and fecal matter. knife was crime, found the scene of that and other knives were found in defendant’s testimony room at another hotel. Medical revealed the genital areas Michelle seriously and Heather had been traumatized with lacerations and vaginal bleeding, injury testimony an consistent with Heather’s including way that defendant “took the knife and he ran it down chin all the [her] her vagina vagina].” down to Moreover, and stabbed down there [her] [her] [in testimony Lucille and the crimes were so distinctive that the each account of Michelle and Heather corroborated other. record, any jailhouse this error to the was harm Upon relating meeting beyond jury It is clear a reasonable that if the had not less. to us doubt the victims the evidence defendant’s effort to dissuade concerning heard have been the same—based on the over from its verdicts would testifying, him, have been convicted of evidence defendant would whelming against v. State appeal. (LePage sex crimes which he now contests on multiple Idaho, eyewitness testimony 851 F.2d at [corroborated harmless].) renders Massiah violation II as to copulation Defendant was convicted of two counts forcible oral Heather and two counts of lewd and lascivious conduct as to Michelle based He forced Michelle to lick his scrotum while he upon following facts: Then, he switch girls made Heather suck his ordered penis. positions orally and forced Heather the lick his scrotum while Michelle his copulated Neither at trial penis.5 specified the information nor the whether prosecutor the victims lick his compelling counts was based on defendant However, scrotum. do defendant’s assertion that this dispute resulted in convictions of two counts of forcible oral episode committed Heather and two counts of lewd and lascivious conduct against