Lead Opinion
Opinion
The “Three Strikes” law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)
We granted review in this case to consider the following sentencing issues under these statutes: (1) whether a conviction for oral copulation with a child who is less than 14 years old and more than 10 years younger than the perpetrator (§ 288a, subd. (c)(1)) is a strike under the Three Strikes law; (2) whether a defendant with a qualifying prior conviction under the habitual sexual offender statute who sustains two new qualifying convictions in one proceeding may receive a separate prison term under section 667.71 for each of the new convictions; and (3) whether a court should apply both the Three Strikes law and the habitual sexual offender statute in determining the sentence of a defendant who meets the criteria of both statutes. We conclude that defendant’s prior conviction under section 288a constitutes a strike, that section 667.71 authorizes imposition of a term for each of his new qualifying convictions, and that his sentence for each new conviction should be determined by applying the provisions of both the Three Strikes law and the habitual sexual offender statute.
Facts
As relevant here, an information filed July 2, 1996, charged defendant Floyd E. Murphy, Jr., with two counts of violating section 288, subdivision (a)—committing a “lewd or lascivious act” on a child who is less than 14 years old, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child. As to each count, the information alleged that in May 1980 defendant sustained two qualifying prior convictions under the Three Strikes law, one for “oral copulation with child under 14 years, in violation of Section 288a[, subdivision] (c),” and the other for a “Lewd Act with child under 14 years, in violation of Section 288[, subdivision] (a).” The information also alleged that these prior convictions rendered defendant a habitual sexual offender under section 667.71. Finally, the information alleged that the prior conviction under section 288, subdivision (a), constituted a “serious felony” conviction for enhancement purposes under section 667, subdivision (a).
After hearing the evidence, the jury returned a guilty verdict on both counts. Defendant waived trial on the alleged prior convictions and admitted that he had previously been convicted under section 288a, subdivision (c), of
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On appeal, defendant argued in part that the trial court committed the following sentencing errors: (1) treating his prior conviction under section 288a, subdivision (c), as a strike under the Three Strikes law; (2) relying on section 667.71 to impose a consecutive term for each of his new convictions; and (3) sentencing him under both section 667.71 and the Three Strikes law. The Court of Appeal rejected all of these arguments, finding that defendant’s prior conviction under section 288a, subdivision (c), constituted a strike under the Three Strikes law, that section 667.71 authorized a consecutive term of 25 years to life for each of defendant’s new convictions, and that each of those terms had to be tripled under the Three Strikes law (§ 667, subd. (e)(2)(A)(i)) because defendant had two prior strikes. For several reasons, however, it vacated defendant’s sentence and remanded for resentencing, directing the trial court to consider various sentencing issues.
We then granted defendant’s petition for review.
Discussion
I. Defendant’s Section 288a Conviction Is a Strike
A strike under the Three Strikes law is a prior conviction for any offense that, as of June 30, 1993 (§ 667, subd. (h)), was “defined in subdivision (c) of Section 667.5 as a violent felony or . . . defined in subdivision (c) of Section 1192.7 as a serious felony in this state.” (§ 667, subd. (d)(1).) (la) In arguing that defendant’s prior conviction under section 288a, subdivision (c), for oral copulation with a child under 14 years of age is a strike, the Attorney General relies principally on subdivision (c)(6) of section 1192.7 (section 1192.7(c)(6)). Under section 1192.7(c)(6), a “lewd or lascivious act on a child under the age of 14 years” is a “serious” felony. Citing People v. Henderson (1987)
Defendant disagrees, arguing that the language of section 1192.7(c)(6)— “lewd or lascivious act on a child under the age of 14 years”—is an “obvious
As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. (White v. Ultramar, Inc. (1999)
Applying these principles, we disagree with defendant. We first observe that defendant’s argument is inconsistent with the plain language of
In resisting the statute’s plain language, defendant relies in part on the Legislature’s 1986 revision of section 1192.7(c)(6). As originally enacted in
We find defendant’s analysis unpersuasive. Defendant is correct that the amended version of section 1192.7(c)(6) precisely matched some of the language of section 288, subdivision (a): the single phrase, “lewd or lascivious act.” However, it did not match all of section 288, subdivision (a)’s language; as relevant here, it omitted the requirement that the perpetrator acted “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child . . . .” (§ 288, subd. (a).) By contrast, the same 1986 legislation also reworded subdivision (c)(18) of section 1192.7 to completely “duplicated the definition of first degree burglary in effect at the time . . . .” (People v. Cruz (1996)
Defendant’s argument fails to recognize that in prior decisions construing section 1192.7 we “ ‘rejected the view that sectionf] . . . 1192.7 consists] only of specific statutory offenses and enhancements. In so doing, [we] noted that although Proposition 8’s serious felony enhancement provisions appear to be largely based upon section 12021.1, subdivision (b)’s list of violent offenses, they also include items describing nonviolent criminal conduct which do not precisely correspond to the elements of any preexisting criminal offense. [Citations.] [We] reasoned [that] the inclusion of these items evidenced the voter’s intention to deter certain criminal conduct regardless of whether it refers to specific criminal offenses because it is perceived as dangerous and deserving of additional punishment when committed by recidivists. [We] therefore concluded [that] the enhancement provisions enacted by Proposition 8 refer to the criminal conduct described therein, not to specific criminal offenses and thus these provisions apply whenever the prosecution pleads and proves the specified conduct. [Citation.]’ (Italics in original.) [Citation.]” (People v. Equarte (1986)
Defendant also relies on our decision in Martinez, supra,
Defendant misconstrues Martinez. There, the defendant argued that section 288’s express terms—“any lewd or lascivious act” committed “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [the perpetrator] or the child”—require proof of both an “inherently” lewd or lascivious act and the specified “sexual ‘intent.’ ” (Martinez, supra,
Defendant’s argument takes this statement out of context. As our opinion explained, we granted review in Martinez “for the limited purpose of determining the acts necessary to sustain a conviction under . . . section 288.” (Martinez, supra,
Understood in this context, the statement defendant cites from Martinez, supra,
Indeed, our decision in People v. Pearson (1986)
In contrast, defendant’s construction of section 1192.7(c)(6) would produce a result inconsistent with what he maintains was the voters’ intent in enacting section 1192.7: “to distinguish between those felony charges that were deemed ‘serious,’ and those that were not, and to prohibit plea bargaining for the former.” Defendant fails to explain how this purpose would be served by excluding from the statute’s reach an act of oral copulation on a child under 14 years of age by a person more than 10 years older than the child. Such an act, with its destructive impact on the child, is no less serious under the theoretical circumstance defendant suggests, i.e., the perpetrator’s intent is “sadistic” rather than “sexual.” The same is true of an act of sodomy on a child under 14 years of age by a person more than 10 years older than the child (§ 286, subd. (c)(1)); “[a] child victim suffers no less from . . . sodomy undertaken for the purpose of punishment than he or she does from . . . sodomy performed for the purpose of sexual gratification.” (People v. Whitham (1995)
Finally, we reject defendant’s suggestion that our construction of section 1192.7(c)(6) “renders the statute ambiguous in the extreme” and “unconstitutionally vague.” Defendant argues that a criminal “whose victim is under 14 is left to guess at whether a conviction he suffers will be treated as a ‘strike’ in the future.” We need only respond that defendant acted under no
Thus, we conclude that the trial court correctly found defendant’s prior conviction under section 288a, subdivision (c), to be a strike under the Three Strikes law.
II. Section 667.71 Permits a Separate Term for Each New Conviction
Section 667.71, subdivision (a), defines a “habitual sexual offender” as “a person who has been previously convicted of one or more of’ certain specified offenses “and who is convicted in the present proceeding of one of those offenses.” A person who meets this statutory definition “is punishable by imprisonment in the state prison for 25 years to life.” (§ 667.71, subd. (b).)
Defendant maintains, contrary to the Court of Appeal, that section 667.71 does not authorize imposition of a separate prison term for each of
In People v. Jenkins (1995)
Among the issues we addressed in Jenkins was “whether a defendant, who is convicted of a number of serious felonies, each of which separately qualifies the defendant for a life sentence under section 667.7, may be sentenced to only a single life sentence under section 667.7, or may be sentenced to consecutive life sentences.” (Jenkins, supra,
Our reasoning in Jenkins applies equally to section 667.71, which is a recidivist punishment statute like section 667.7. Contrary to defendant’s assertion that “the statutory scheme in section 667.7 is very different from that set forth in section 667.71,” we agree with the Court of Appeal that the two statutes operate similarly. Both prescribe an indeterminate sentence for a defendant who is convicted of a listed offense after having been previously convicted of those listed offenses (and, under § 667.7, having served at least two prior separate prison terms for the prior convictions). Thus, although, as defendant argues, his status as a habitual sexual offender invokes the increased sentence under section 667.71, it is his new criminal conduct—and in particular one or more specific felony convictions—for which he presently is being punished. Defendant can point to nothing in section 667.71’s language that precludes imposition of additional terms consecutive to the habitual sexual offender indeterminate term when those additional terms arise from separate, independent counts of current substantive crimes. And section 669 explicitly provides, in relevant part, that “[l]ife sentences, whether with or without the possibility of parole, may be imposed to run consecutively with one another . . . .” Following Jenkins, we therefore conclude that section 667.71 authorizes separate consecutive sentences of 25 years to life for each of defendant’s new convictions.
We reject defendant’s claim that this conclusion “does not comport with [section 667.7l’s] legislative history.” In making this argument, defendant cites the Legislative Counsel’s description of the 1994 legislation that enacted the applicable version of the statute. The Legislative Counsel’s Digest for that legislation states in relevant part: “Under existing law, a habitual sexual offender, as defined, is punishable by 25 years in the state prison or, under certain circumstances, 25 years to life . . . . HQ This bill would, instead, specify that a habitual sexual offender is punishable by imprisonment in state prison for 25 years to life . . . .” (Legis. Counsel’s Dig., Sen. Bill No. 26 (1993-1994 1st Ex. Sess.) 5 Stats. 1994, Summary
Defendant also contends that in construing section 667.71, we should not “analogiz[e] to section 667.7,” but instead “should look at section 667.72.” He asserts that the latter statute, which was “enacted at the same time as section 667.71 [citation], provides for a single determinate term of 25 years” for a “ ‘habitual child molester,’ ” i.e., someone who “has previously served a prior prison term for a forcible child molestation conviction and ‘is convicted in the present proceeding of the same offense against at least two separate victims.’’ [Citation.]” Defendant then argues that if section 667.71 authorizes a consecutive life term for each new conviction, a defendant with a qualifying prior conviction “gets less time for two new violations against separate victims (under § 667.72) than he does for two new violations against the same victim. (§ 667.71.)”
For a number of reasons, we reject defendant’s argument. First, section 667.72 is no longer effective; the Legislature repealed it in October 1999, noting that the conduct it punished is “subject to greater punishment under Section 667.71 . . . .” (Stats. 1999, ch. 706, §§ 9, 17.) Thus, the Legislature clearly recognized and intended that section 667.71’s application would result in greater punishment than would application of former section 667.72.
Second, defendant errs in suggesting that even before the repeal, a defendant who committed two new qualifying offenses against separate victims would necessarily be sentenced under former section 667.72 instead of 667.71. Subdivision (c) of former section 667.72 provided: “At the request of the prosecutor and in lieu of the punishment specified in subdivision (b), the court shall instead order the defendant be punished according to Sections 1170.1 and 677.6, or according to Section 677.7 or 667.71, if applicable.” (Stats. 1993, ch. 558, § 1, p. 2797, italics added.) The relevant legislative history explains that in enacting former section 667.72, the Legislature recognized that “persons could be sentenced to a longer term of imprisonment under” other statutes and included subdivision (c) to enable prosecutors to “incapacitate] certain contemptible criminals for as long as possible . . . (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 526 (1993-1994 Reg. Sess.) June 22, 1993, p. 4.) Thus, the Legislature intended that
Third, defendant cites nothing to support his assertion that under former section 667.72, a defendant committing two new qualifying offenses against separate victims would receive only a “single” determinate term of 25 years, rather than a term for each offense. Nothing in that section expressly provided for only a single term, and we have found no reported case addressing that (or any other) question under former section 667.72.
In any event, the evolution of section 667.7l’s language shows that the Legislature did not intend the applicable version of section 667.71 to operate like former section 667.72. In language similar to former section 667.72, section 667.71 originally defined a habitual sexual offender as a person who had served at least one prior prison term for a listed offense and who was “[c]onvicted in the present proceeding” of either “two separate [listed] offenses . . . against two separate victims” or “at least three separate [listed] offenses . . . against at least three separate victims.” (Stats. 1993, ch. 590, § 2, p. 3096.) In 1994, the Legislature amended the definition of a habitual sexual offender to its current form, i.e., “a person who has been previously convicted of one or more of the [listed] offenses . . . and who is convicted
Thus, we conclude section 667.71 authorizes a separate term of 25 years to life for each of defendant’s new convictions.
II. Sentencing Under Both the Three Strikes Law and Section 667.71 Is Proper
Defendant also contends that the Court of Appeal erred in concluding that the trial court could determine his sentence by applying both the Three Strikes law and section 667.71. Primarily, he argues that section 654 “is applicable in this circumstance to limit the trial court to one sentencing scheme.” Section 654, subdivision (a), provides in relevant part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Defendant asserts that applying both section 667.71 and the Three Strikes law violates this provision.
Defendant’s claim fails under People v. Coronado (1995)
We reject defendant’s assertion that a different analysis applies here because “the issue” in this case “is not an ‘enhancement’ of [his] sentence,” but “the applicability of two separate and distinct methods by which [his] minimum indeterminate term could be calculated.” As we have explained, in Coronado we quoted and endorsed Rodriguez, which found section 654 inapplicable to section 666 because the latter section applies to the fact of a defendant’s recidivist status, not to an act or omission within the meaning of section 654. (Coronado, supra,
The cases defendant cites do not hold to the contrary. In People v. Jones (1993)
We also reject defendant’s related claim, based on section 1170, subdivision (b), and California Rules of Court, former rule 420(c) (renumbered rule 4.420, eff. Jan. 1, 2001), that sentencing under both the Three Strikes law and section 667.71 violates “the various proscriptions against dual use of facts for sentencing purposes.” Defendant forfeited this argument by failing to raise it in the Court of Appeal. (Associated Builders and Contractors, Inc. v. San Francisco Airports Com. (1999)
Defendant also contends that application of both the Three Strikes law and section 667.71 is contrary to the Legislature’s intent. In his view, the Three Strikes law and section 667.71 establish entirely separate and alternative sentencing schemes that “serve[] the same purpose . . . , which is to punish recidivism.” Defendant argues that if someone “is subject to sentencing as a ‘habitual sexual offender’ [under section 667.71], it is almost certain he will also be subject to sentencing under the Three Strikes law. Had the Legislature intended that a habitual sexual offender’s sentence be doubled or tripled in every case under the Three Strikes law, it would have so provided.” Thus, defendant asserts, “it is clear” that section 667.71 and the Three Strikes law “were intended to operate independently of one another.” Because “the Legislature, in enacting the Three Strikes law, intended for [it] to operate in lieu of section 667.71,” a defendant “may be sentenced under either of the two sentencing schemes, but not both.”
Unlike defendant, we find that the statutes disclose a legislative intent that the Three Strikes law apply in addition to section 667.71. Subdivision (f)(1) of section 667 provides that “[notwithstanding any other law,” the Three Strikes law “shall be applied in every case in which a defendant has a prior felony conviction as defined in subdivision (d).” (Italics added.) Moreover, subdivision (e) of section 667 provides that “in addition to any other enhancement or punishment provisions which may apply,” the sentencing provisions of the Three Strikes law “shall apply where a defendant has a prior felony conviction.” (Italics added.) Through this section, the Three Strikes law “declares itself to ‘apply’ not exclusively, but rather ‘in addition to any other . . . punishment provisions which may apply’ [citations] . . . .” (People v. Alvarez (1996)
Under the guise of legislative intent, in his reply brief defendant argues for the first time that the Court of Appeal did not perform the correct sentence calculation under the provisions of the Three Strikes law. The Court of Appeal held that section 667, subdivision (e)(2)(A)(i), requires tripling of the sentence section 667.71 prescribes, so that defendant should receive a sentence of 75 years to life for each of his current offenses. Section 667, subdivision (e)(2)(A)(i), sets the minimum term of a third strike defendant’s indeterminate life sentence under the Three Strikes law at “[t]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions.” Defendant now contests the Court of Appeal’s calculation, arguing that it “fail[s] to consider that the term to be tripled is the term otherwise provided for the current felony conviction subsequent to the prior convictions.” “In other words,” defendant asserts, “the term to be tripled ... is the term to which [he] otherwise would have been sentenced without consideration of his prior convictions,” i.e., “the principal term referred to in section 1170.1, without reference to the prior convictions.” Thus, defendant argues that for
Although we need not address this untimely argument (Cal. Rules of Court, rule 29(b)(1)), we reject it for its lack of merit. First, the plain language of the statute does not support defendant’s statutory construction. As commonly understood, the statutory language in question—“subsequent to the two or more prior felony convictions”—simply identifies the relevant convictions whose terms are to be tripled and distinguishes them from the “two or more prior felony convictions” that trigger application of the third strike sentencing provision. (§ 667, subd. (e)(2)(A)(i).) It does not, as defendant suggests, direct that the punishment for the identified convictions be determined “without consideration of’ or “reference to” the prior convictions. Indeed, in other sentencing statutes, the Legislature has shown that when it wants a sentence calculated without consideration of some circumstance, it knows how to use language clearly expressing that intent. (See § 1170.2 [length of imprisonment for certain inmates shall be determined “without consideration of good-time credit”].) The Three Strikes law’s far different language suggests a different legislative intent. Second, defendant’s argument is inconsistent with our decision in People v. Nguyen (1999)
We therefore conclude that the Court of Appeal did not err in holding that the trial court could apply both the Three Strikes law and section 667.71 in sentencing defendant.
At oral argument, the Attorney General asserted that the Three Strikes law mandates consecutive sentencing for defendant’s new crimes because he sustained in this proceeding “a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts . . . .” (§ 667, subd. (c)(6).) We leave it to the trial court
Disposition
The judgment of the Court of Appeal is affirmed, and the case is remanded to that court for further proceedings consistent with the views expressed in this opinion.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
Unless otherwise stated, all further statutory references are to the Penal Code. In their briefs, the parties cite and discuss the legislative version of the Three Strikes law (§ 667, subds. (b)-(i)). For convenience, we will do the same in the rest of our opinion. However,
The dissent errs in asserting that in People v. Martinez (1995)
The dissent makes the same error as defendant in reasoning that the 1986 amendment “rendered” section 1192.7(c)(6)’s language “virtually identical to” that of section 288. (Dis. opn. of Mosk, J., post, at p. 162.) Moreover, unlike the dissent, we find the legislative history of the 1986 amendment inconclusive at best. The dissent cites several legislative reports that state the amendment’s purpose was to “conform” section 1192.7, subdivision (c), to “ ‘the appropriate Penal Code section provisions.’ ” (Dis. opn. of Mosk, J., post, at pp. 162-163.) However, as the dissent also notes, one of those reports also explained that after the amendment, the statute, which originally applied only to “ ‘[specified lewd acts’ . . . would apply as well to ‘ “lascivious” acts per P.C. Sec. 288.’ ” (Dis. opn. of Mosk, J., post, at p. 162.) These statements can reasonably be read as indicating a legislative intent simply to expand section 1192.7(c)(6) to include all section 288 violations, not to restrict it only to such violations. Given the absence of a reference to section 288 in section 1192.7(c)(6), the significant difference we have identified in the language of the two statutes, and the anomalous consequences of the dissent’s interpretation (see post, p. 148), we therefore do not believe the legislative history of the 1986 amendment justifies reading section 288’s express and detailed sexual intent requirement into the more broadly worded section 1192.7(c)(6).
Responding to one of the defendant’s arguments in Martinez, we cited section 1192.7, subdivision (c), as one of the many statutes into which section 288 “has been incorporated by reference . . . .” (Martinez, supra,
Given our conclusion, we need not address the Attorney General’s alternative contention that defendant’s section 288a conviction is a strike under section 1192.7, subdivision (c)(5), which defines “serious felony” to include “oral copulation by . . . duress . . . .” Defendant also contends in his briefs that his prior convictions cannot be considered because, before he admitted them, the trial court failed to advise him of the admission’s penal consequences. We decline to address this issue because defendant did not mention it in his petition for review, it is not fairly included in the issues the petition stated, and the Attorney General did not file an answer to the petition. (See Cal. Rules of Court, rules 28(e)(2), 29.2(b), 29.3(c); People v. Venegas (1998)
This lack of case authority apparently stems from the statute’s nonuse. A committee analysis of the legislation repealing section 667.72 stated: “According to the author’s background material obtained from the Department of Corrections (the sponsor of this bill), the habitual child molester statute has never been used.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1236 (1999-2000 Reg. Sess.) as amended Apr. 5,1999, p. 3.) We grant defendant’s request that we take judicial notice of this analysis and another committee report discussing the legislation that repealed former section 667.72.
As defendant notes, subdivision (g) of section 667.61 provides that the specified life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified . . . shall be imposed on the defendant once for each separate victim.” The cases that we have cited construing section 667.61 considered a factual context this subdivision does not address—multiple victims on separate occasions—and hold that a separate term for each victim is proper under these circumstances.
The repealed provision was operative when defendant committed the offenses and was sentenced in this case. However, the prosecution did not request that the trial court impose sentence under one of the alternative statutes the repealed provision specified; in both the information and a postconviction sentencing memorandum, the prosecution requested sentencing under the Three Strikes law and section 667.71. Nor did the trial court mention the specified alternative sentencing statutes. Thus, we disagree with the Court of Appeal’s conclusion that sentencing under section 667.71 was discretionary in this case.
Defendant does not contend more generally that section 667, subdivision (e)(2)(A)(i), does not apply to indeterminate terms. We express no opinion on that issue, which is related to an issue currently pending before us in People v. Cornelius (2000)
Dissenting Opinion
I dissent.
Notwithstanding any other law or provision of law, the “Three Strikes” law (Stats. 1994, ch. 12, § 1, p. 71, adding Pen. Code, § 667, subds. (b)-(i)); Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994), adding Pen. Code, § 1170.12) governs when a defendant is convicted of a felony or “strike” of any kind, and was previously convicted of one or more felonies or strikes defined as serious or violent (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (a); see id., §§ 667, subds. (d), (e), (f), 1170.12, subds. (b), (c), (d)).
Appellant had previously been convicted of, among other felonies, oral copulation with a person under 14 years of age in violation of Penal Code section 288a.
For purposes of the Three Strikes law, one of the felonies defined as serious (Pen. Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1)) is a “lewd or lascivious act on a child under the age of 14 years” as enumerated in Penal Code section 1192.7, subdivision (c)(6) (Penal Code section 1192.7(c)(6)).
The question here is this: Is oral copulation with a person under 14 years of age in violation of Penal Code section 288a a “lewd or lascivious act on a child under the age of 14 years” within the meaning of Penal Code section 1192.7(c)(6)?
The majority answer, Yes, and proceed to affirm the judgment of the Court of Appeal, which gave the same answer below. They are wrong to do so.
What Penal Code section 1192.7(c)(6) means by a “lewd or lascivious act on a child under the age of 14 years” is also clear.
Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” undoubtedly covers a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288. In People v. Martinez (1995)
But, to my mind, Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288. If it did in fact extend further, it would not carry any determinate sense in such part. And if it did indeed carry any such sense, it would not denote an objectively sexual act without regard to any subjectively sexual intent.
That Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288 is supported by its language. The phrase in the former provision is virtually identical to the phrase in the latter.
That Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288 is confirmed by its history.
As originally enacted by the voters through their approval of Proposition 8 at the Primary Election of June 8, 1982, Penal Code section 1192.7(c)(6)
As amended by the Legislature in 1986, Penal Code section 1192.7(c)(6) was made to refer to “lewd or lascivious acts on a child under the age of 14 ■ years” (Stats. 1986, ch. 489, § 1, p. 1809, italics added), since changed from the plural to the singular.
Although without express citation, Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” was intentionally, and not coincidentally, rendered virtually identical to Penal Code section 288’s “lewd or lascivious act” on “a child who is under the age of 14 years.”
For example, one legislative report accompanying Assembly Bill No. 3733 (1985-1986 Reg. Sess.), the measure that would effect the amendment in question, stated as follows; “The . . . sponsor of this bill. . . claims that the differences in wording between Proposition 8 and related provisions of the Penal Code have led to confusion and may, in some cases, require special findings in order to apply Proposition 8 enhancements. Thus the proposed amendments are intended to conform Penal Code section 1192.7(c) ... to the appropriate Penal Code section provisions. According to the sponsor, this would end any confusion caused by the differences in language, while keeping true to the intent of the electorate.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, p. 2; accord, Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4,. 1986, p. 2 [stating that the bill’s purpose is “to conform” Pen. Code, § 1192.7(c) “to the appropriate Penal Code provisions”]; Assem. Com. on Pub. Safety, Republican Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) Apr. 25, 1986, p. 1 [stating that the bill is “intended to conform the Prop. 8 serious felonies to the definitions of the crimes listed elsewhere in the Penal Code”].)
The same legislative report went on to state of Assembly Bill No. 3733 and its effect: As it then stood, Penal Code section 1192.7(c)(6) applied to “[specified lewd acts”; as amended, it would apply as well to “ ‘lascivious’ acts per P.C. Sec. 288.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, p. 3.)
Another legislative report was similar: Assembly Bill No. 3733 would amend Penal Code section 1192.7(c)(6) from “[l]ewd acts” to “[l]ewd or lascivious acts per Penal Code Section 288.” (Assem. 3d reading analysis of
Yet another legislative report was to the same effect: Assembly Bill No. 3733 would amend Penal Code section 1192.7(c)(6) from “lewd acts” to “lewd or lascivious acts per Penal Code § 288.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) May 5, 1986, p. 1, underscoring in original.)
In a word, as we recognized in Martinez, Penal Code section 1192.7(c)(6) “incorporated” Penal Code section 288 “by reference.” (People v. Martinez, supra,
Next, if Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” did in fact extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288, it would not carry any determinate sense in such part. The language of Penal Code section 1192.7(c)(6) points to Penal Code section 288 and only to Penal Code section 288. The same is true of its history.
Finally, if Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” did indeed carry any determinate sense beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288, it would not denote an objectively sexual act without regard to any subjectively sexual intent. If we were right to conclude in Martinez that Penal Code section 288’s “lewd or lascivious act” on “a child who is under the age of 14 years” indicates a subjectively sexual intent without regard to any objectively sexual act, it is hard for us to conclude here that Penal Code section 1192.7(c) (6)’s “lewd or lascivious act on a child under the age of 14 years” indicates precisely the opposite—an objectively sexual act without regard to any subjectively sexual intent.
It follows, then, that the answer to the question posed above is this: Oral copulation with a person under 14 years of age in violation of Penal Code section 288a—which requires an objectively sexual act but not any subjectively sexual intent—is not a “lewd or lascivious act on a child under the age of 14 years” within the meaning of Penal Code section 1192.7(c)(6)—which requires a subjectively sexual intent but not any objectively sexual act.
In giving a contrary answer, the majority rely on the “plain language” (maj. opn., ante, at pp. 142, 143) of Penal Code section 1192.7(c)(6)’s “lewd
In conclusion, I would reverse the judgment of the Court of Appeal as to sentence and remand the cause to that court for proceedings not inconsistent with the views expressed herein.
Appellant’s petition for a rehearing was denied June 20, 2001.