THE PEOPLE, Plaintiff and Respondent, v. FLOYD E. MURPHY, JR., Defendant and Appellant.
No. S075263
Supreme Court of California
Mar. 29, 2001
136
Donald I. Segerstrom, Jr., under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe, Wayne K. Strumpfer and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CHIN, J.-The “Three Strikes” law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (
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 (
FACTS
As relevant here, an information filed July 2, 1996, charged defendant Floyd E. Murphy, Jr., with two counts of violating
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
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 (
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 (
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) 21 Cal.4th 563, 572 [88 Cal.Rptr.2d 19, 981 P.2d 944].) We begin by examining the statute‘s words, giving them a plain and commonsense meaning. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476 [66 Cal.Rptr.2d 319, 940 P.2d 906].) We do not, however, consider the statutory language “in isolation.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) Rather, we look to “the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]” (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608 [86 Cal.Rptr. 793, 469 P.2d 665].) That is, we construe the words in question “‘in context, keeping in mind the nature and obvious purpose of the statute . . . .’ [Citation.]” (Ibid.) We must harmonize “the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.” (Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal.Rptr. 144, 514 P.2d 1224]; see also Woods v. Young (1991) 53 Cal.3d 315, 323 [279 Cal.Rptr. 613, 807 P.2d 455]; Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91 [255 Cal.Rptr. 670, 767 P.2d 1148]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)
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 . . . .” (
Defendant‘s argument fails to recognize that in prior decisions construing section 1192.7 we “‘rejected the view that section[] . . . 1192.7 consist[s] 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) 42 Cal.3d 456, 463-464 [229 Cal.Rptr. 116, 722 P.2d 890].)
Defendant also relies on our decision in Martinez, supra, 11 Cal.4th 434. Citing Martinez, he asserts that “[a]n act with an underage child becomes ‘lewd or lascivious’ depending entirely upon the sexual motivation and intent with which it is committed.” “Accordingly,” defendant asserts, “to constitute a ‘lewd or lascivious act on a child under 14 years’ [within the meaning of section 1192.7(c)(6)], there is a specific intent that must accompany the act. That specific intent element is entirely missing from a violation of section 288a.”
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, 11 Cal.4th at p. 442.) We rejected this argument and reaffirmed the long-held view that “‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child” establishes a
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, 11 Cal.4th at p. 438.) In making this determination, we stressed the “basic purpose” of that statute: “to provide children with ‘special protection’ from sexual exploitation” because they “are ‘uniquely susceptible’ to such abuse” and “suffer profound harm whenever they are perceived and used as objects of sexual desire. [Citation.] . . . [S]uch concerns cannot be satisfied unless the kinds of sexual misconduct that result in criminal liability are greatly expanded where children are concerned.” (Id. at pp. 443-444.) We found this purpose reflected in section 288‘s “broad and amorphous language,” which “differs markedly from other statutes in the same ‘family’ of crimes. [Citation.] In particular, other felony sex offenses prohibit the commission of certain clearly specified acts . . . [and] describe[] the criminal act in precise and clinical terms.” (Martinez, supra, 11 Cal.4th at pp. 442-443.) We concluded that the absence of such precise language in section 288 “was deliberate” and disclosed the Legislature‘s intent “to include sexually motivated conduct not made criminal elsewhere in the scheme. [Citation.]” (Id. at p. 443.) We then explained that although “children are routinely cuddled, disrobed, stroked, examined, and groomed as part of a normal and healthy upbringing,” these “intimate acts may also be undertaken for the purpose of sexual arousal. Thus, depending upon the actor‘s motivation, innocent or sexual, such behavior may fall within or without the protective purposes of section 288.” (Id. at p. 450.) Given all of these considerations, we reaffirmed that “the ‘gist‘” of the crime section 288 defines is “the defendant‘s intent to sexually exploit a child, not the nature of the offending act. [Citation.]” (Id. at p. 444.) We thus concluded that “the lewd character of an activity cannot logically be determined separate and apart from the perpetrator‘s intent. . . . [A]ny other construction could exempt a potentially broad range of sexually motivated and harmful contact from the statute‘s reach. In light of the statutory purpose, we cannot conceive that the Legislature intended such a result. [Fn. omitted.]” (Id. at p. 450.)
Understood in this context, the statement defendant cites from Martinez, supra, 11 Cal.4th at page 450, does not establish that whether an act is “lewd
Indeed, our decision in People v. Pearson (1986) 42 Cal.3d 351 [228 Cal.Rptr. 509, 721 P.2d 595], which defendant cites, is inconsistent with his argument that precisely described criminal acts like oral copulation on a child are not lewd or lascivious where the perpetrator lacks the intent section 288 specifies. In Pearson, we held that the offense section 288 describes “is not a lesser included offense of statutory sodomy” with a child under the age of 14 years (
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 (
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
However, a defendant who falls “squarely within” the reach of a statute lacks standing to challenge its vagueness as it “might be hypothetically applied to the conduct of others . . . .” (Parker v. Levy (1974) 417 U.S. 733, 756 [94 S.Ct. 2547, 2561, 41 L.Ed.2d 439].) We “are not obliged” to consider every conceivable situation that might arise under a statute‘s language if we can give it a “‘reasonable and practical construction‘” that accords with the drafters’ probable intent and encompasses the defendant‘s conduct. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492 [134 Cal.Rptr. 630, 556 P.2d 1081].) Here, because section 1192.7(c)(6) “clearly applies to [defendant‘s] conduct,” and he does not argue that it improperly prohibits a substantial amount of constitutionally protected conduct, he may not challenge it on vagueness grounds. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1095 [40 Cal.Rptr.2d 402, 892 P.2d 1145].)
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.5
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) 10 Cal.4th 234 [40 Cal.Rptr.2d 903, 893 P.2d 1224] (Jenkins), we rejected a similar argument in applying section 667.7. Section 667.7, subdivision (a), defines “a habitual offender” as “[a]ny person convicted of a felony in which the person inflicted great bodily injury as provided in Section 12022.53 or 12022.7, or personally used force which was likely to produce great bodily injury, who has served two or more prior separate prison terms as defined in Section 667.5 for” certain listed offenses. Under the statute as relevant here, a habitual offender who has served two qualifying prior separate prison terms “shall be punished by imprisonment in the state prison for life . . . .” (
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, 10 Cal.4th at p. 254.) We held that the statute permits a consecutive life sentence for each new conviction, explaining: “Section 667.7, like other recidivist punishment statutes that provide for more severe sentences for repeat offenders, specifies the applicable sentence for a present conviction of a qualifying felony committed by a defendant with a recidivist criminal history. Although the defendant‘s status invokes the increased sentence, it is the new criminal conduct—and in particular one or more specific felony convictions—for which the defendant presently is being punished. Nothing in the language of section 667.7 precludes imposition of additional terms consecutive to the habitual
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 667.71‘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. . . . [¶] 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 “incapacitat[e] 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 667.72.6 Moreover, courts have held that similar language in section 667.61, subdivision (e)(5)—which triggers a life term for a defendant “convicted in the present case or cases of committing a[] [specified] offense . . . against more than one victim“—authorizes a separate life term for each victim. (People v. DeSimone (1998) 62 Cal.App.4th 693, 698-700 [73 Cal.Rptr.2d 73] (DeSimone); People v. Murphy (1998) 65 Cal.App.4th 35, 40-41 [76 Cal.Rptr.2d 130]; People v. Jones (1997) 58 Cal.App.4th 693, 719 [68 Cal.Rptr.2d 506].) These decisions undercut the fundamental premise of defendant‘s argument under former section 667.72 (although we express no opinion about their correctness).7
In any event, the evolution of section 667.71‘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.
III. 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) 12 Cal.4th 145 [48 Cal.Rptr.2d 77, 906 P.2d 1232] (Coronado). There, we held in part that section 654 did not prohibit use of a prior conviction and resulting prior prison term both to elevate a driving under the influence charge to a felony under Vehicle Code former section 23175 and to trigger a one-year sentence enhancement under section 667.5, subdivision (b), for service of a prior prison term. (Coronado, supra, 12 Cal.4th at p. 149.) In reaching this result, we first explained that “[b]y its own terms, section 654 applies only to an ‘act or omission’ made punishable in different ways by different statutes.” (Id. at p. 156.) We then discussed People v. Rodriguez (1988) 206 Cal.App.3d 517 [253 Cal.Rptr. 633] (Rodriguez), which “[i]n a closely analogous context . . . reasoned that prior prison term enhancements are not imposed for ‘acts or omissions’ within the meaning of [section 654]: ‘Both sections 666 and 667.5 apply to facts, not acts; they relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself.’ [Citations.]” (Coronado, supra, 12 Cal.4th at p. 157.) Finding this reasoning “persuasive,” we explained: “[P]rior prison term enhancements are attributable to the defendant‘s status as a repeat offender [citations]; they are not attributable to the underlying criminal
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, 12 Cal.4th at p. 157; Rodriguez, supra, 206 Cal.App.3d at p. 519.) In Coronado, we also cited People v. Price (1992) 4 Cal.App.4th 1272, 1277 [6 Cal.Rptr.2d 263], which similarly held that section 654 does not apply to section 666. (Coronado, supra, 12 Cal.4th at p. 157.) Section 666 operates like the Three Strikes law and section 667.71; it does not establish an enhancement, but establishes an alternate and elevated penalty for a petty theft conviction when a recidivist defendant has served a prior term in a penal institution for a listed offense. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517-1518 [56 Cal.Rptr.2d 749] (White Eagle); see also People v. Dotson (1997) 16 Cal.4th 547, 556 [66 Cal.Rptr.2d 423, 941 P.2d 56] [§ 1170.12, subd. (c)(2)(A), does not establish an enhancement, but “prescribes a method by which defendant‘s minimum indeterminate life term is calculated“]; People v. Martin (1995) 32 Cal.App.4th 656, 667 [38 Cal.Rptr.2d 776] [§ 667, subd. (e)(1) does not establish an enhancement, but “defines the term for the crime itself“], disapproved on another ground in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10 [76 Cal.Rptr.2d 255, 957 P.2d 945]; cf. People v. Jefferson (1999) 21 Cal.4th 86, 101 [86 Cal.Rptr.2d 893, 980 P.2d 441] [explaining the difference between an enhancement and
The cases defendant cites do not hold to the contrary. In People v. Jones (1993) 5 Cal.4th 1142, 1144-1152 [22 Cal.Rptr.2d 753, 857 P.2d 1163] (Jones), we held that in enacting what is now subdivision (a) of section 667, the voters did not intend that a defendant‘s sentence would be enhanced for both a prior conviction (under the new statute) and the resulting prison term (under § 667.5). Because we based this conclusion on the relevant statutory language, we expressly declined to discuss section 654‘s impact. (Jones, supra, 5 Cal.4th at p. 1152.) In People v. Flournoy (1994) 26 Cal.App.4th 1695, 1697-1701 [32 Cal.Rptr.2d 188] (Flournoy), the court applied Jones‘s analysis to hold that multiple enhancements for a single prior rape conviction are not permissible under both section 667.6, subdivision (a), and section 667, subdivision (a). As we did in Jones, the Flournoy court reached its conclusion by interpreting the statutes in light of the voters’ intent and therefore expressly declined to discuss section 654‘s effect. (Flournoy, supra, 26 Cal.App.4th at p. 1699.) Thus, neither of these decisions supports defendant‘s section 654 argument.
We also reject defendant‘s related claim, based on
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 “[n]otwithstanding 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) 14 Cal.4th 155, 247 [58 Cal.Rptr.2d 385, 926 P.2d 365].) Thus, the Legislature has expressly indicated that where a defendant has a qualifying prior felony conviction, the sentencing provisions of the Three Strikes law not only must be applied, they must be applied in addition to any other punishment provisions. “‘It is difficult to interpret the language of the statute in any other manner.’ [Citations.]” (People v. Dotson, supra, 16 Cal.4th at p. 554; see also White Eagle, supra, 48 Cal.App.4th at pp. 1517-1518 [single prior conviction requires both alternate sentencing under § 666 for petty theft with a prior and doubling under Three Strikes law].)
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
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 . . . .” (
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.
MOSK, J.—I dissent.
Notwithstanding any other law or provision of law, the “Three Strikes” law (Stats. 1994, ch. 12, § 1, p. 71, adding
Appellant had previously been convicted of, among other felonies, oral copulation with a person under 14 years of age in violation of
For purposes of the Three Strikes law, one of the felonies defined as serious (
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) 11 Cal.4th 434 [45 Cal.Rptr.2d 905, 903 P.2d 1037], we concluded, under what we took to be the common and ordinary meaning of the words in question, that Penal Code section 288 required this: The perpetrator must possess a subjectively sexual intent, but need not engage in any objectively sexual act.
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”
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 “[s]pecified 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, 11 Cal.4th at p. 446 & fn. 9.) Such was its purpose, and such was its effect.
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.