PEOPLE v. CORNETT








Filed 12/6/10




CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CORNETT, Defendant and Appellant.

A123957 (Sonoma County Super. Ct. No. SCR-504048)

STORY CONTINUE FROM PART I….


B. The Videotaped Recording Of Jane Doe 2’s Interview at RCC Was Properly Admitted*
Defendant’s next argument, set forth as three separate arguments in his brief, asserts that admission of the videotape of Jane Doe 2’s RCC interview violated his Sixth Amendment right to confront the witnesses against him. Defendant argues that because the videotaped interview was improperly admitted, it was error for the trial court to instruct the jury that the interview constituted affirmative evidence. Finally, defendant argues that his counsel failed to object when the trial court ruled the videotape admissible, but that (1) no objection was required to preserve this issue for appellate review because such objection would have been futile; and (2) if an objection was required, his counsel provided ineffective assistance by failing to make one. We disagree that the trial court erred in admitting the videotaped interview.
Evidence Code section 1360 provides that, “[i]n a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another. . . is not made inadmissible by the hearsay rule” provided the statement is not otherwise inadmissible, the court finds that the time, content, and circumstances of the statement provide sufficient indicia of reliability, and the child either testifies at the proceeding or is unavailable but there is corroborating evidence of the abuse.[1] Pursuant to this section, the prosecutor filed motions in limine seeking to introduce prior, out-of-court statements made by Jane Doe 1 and Jane Doe 2.[2] The court granted the motions, permitting introduction of the prior statements “in general” to the extent they were not duplicative of other evidence introduced at trial, but reserving further ruling on the issue. At this point, defendant’s counsel did not voice any objection to introduction of the statements.
When the prosecutor was preparing to introduce at trial a videotaped recording of Jane Doe 2’s RCC interview, the court inquired of defendant his position on introduction of the videotape. Without stating any basis, defense counsel objected to its admission. When the court indicated that it would allow the nonduplicative portions of the interview to be played, defense counsel responded that if the court was going to allow Jane Doe 2’s interview to be shown, it should be shown in its entirety. The court then ruled that the prosecutor could show the entire video. After further discussion between the prosecutor and defense counsel, the prosecutor submitted an excerpted version of the videotape, and defense counsel consented to the edits. The excerpted recording was then played for the jury, the 10-page transcript of which is part of the record before us.
Defendant now contends that admission of the videotaped recording of Jane Doe 2’s RCC interview violated his Sixth Amendment right to confront the witnesses against him. This contention fails in light of Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford), where, overruling prior cases, the United States Supreme Court held that out-of-court statements that are testimonial in nature cannot constitutionally be admitted against a criminal defendant unless the declarant is unavailable to testify and the defendant had a previous opportunity to cross-examine the witness. Significantly for our purposes, in so ruling the court also confirmed that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements.” (Id. at pp. 59-60, fn. 9.) Here, Jane Doe 2 testified at trial and was subject to cross-examination by defense counsel. There was, we conclude, no confrontation clause violation.
People v. Eccleston (2001) 89 Cal.App.4th 436, the one Court of Appeal opinion that addressed a similar issue, also supports this conclusion. There, our colleagues in Division Four considered whether evidence admitted in accordance with Evidence Code section 1360 violates the accused’s right to confront the witnesses against him, and held that it does not because the procedure required by Evidence Code section 1360 establishes the particularized guarantees of trustworthiness that satisfy the requirements of the confrontation clause. [3] (People v. Eccleston, supra, 89 Cal.App.4th at pp. 438, 445.)
Defendant concedes that his confrontation clause argument is undermined by “the clear statutory language and the lack of legal support . . . .” He nevertheless urges that “the principles” of Crawford compelled exclusion of the interview. This is so, he submits, because he had no opportunity to conduct a meaningful cross-examination of Jane Doe 2 because of the passage of time since the molestation and her immaturity. Further, defendant contends he had no opportunity to cross-examine her at the time of the RCC interview or at the preliminary hearing.
The confrontation clause does not, however, guarantee defendant a “meaningful cross-examination,” but merely the opportunity for cross-examination. Indeed, the United States Supreme Court has explained that the confrontation clause “includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination . . . .” (Delaware v. Fensterer (1985) 474 U.S. 15, 21-22; see also United States v. Owens (1988) 484 U.S. 554, 555-556 [no confrontation clause violation occurs if a trial court admits into evidence a prior out-of-court identification by a witness who, because of memory problems, cannot explain the basis for it].) Here, defendant had an opportunity to cross-examine Jane Doe 2 at trial—and did. The videotaped recording of Jane Doe 2’s RCC interview was properly admitted.[4]
C. Defendant Forfeited Objection to Sentencing Under The Habitual Sexual Offender Statute By Failing To Challenge It Below*
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] punish[able] by imprisonment in the state prison for 25 years to life.” (§ 667.71, subd. (b).) Defendant was sentenced under section 667.71, receiving a sentence of 25 years to life, doubled by the strike to 50 years to life, on all counts. He contends that it was improper to so sentence him, however, because section 667.71, subdivision (f) requires that defendant’s “status as a habitual sexual offender [be] alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the trier of fact.”
Here, as to each of the seven counts alleged against defendant, the information stated: “It is further alleged, pursuant to Penal Code section 667.71, that the defendant, was previously convicted of the crime of lewd act upon child in violation of Penal Code section 288(A) on 25th day of April 1996 in the Superior Court of Marin County.” And the verdict form on this allegation read: “We, the jury, further find that pursuant to Penal Code Section 667.71 and Penal Code Section 1203.06(a)(5), that the defendant was previously convicted of the crime of lewd act upon child in violation of Penal Code Section 288(a) on the 25th Day of April 1996 in the Superior Court of Marin County.”
Notwithstanding that section 667.71 is entitled “ ‘Habitual Sexual Offender’ Defined; Punishment,” and that the verdict form confirmed that the jury found that defendant had been convicted of a predicate act under the section, defendant contends that this does not satisfy section 667.71, subdivision (f). The People respond that defendant forfeited this argument on appeal by failing to object below. (People v. Bright (1996) 12 Cal.4th 652, 671 [where defendant failed to object at trial to the adequacy of notice of the charges against him, objection on appeal was forfeited].) In reply, defendant offers no explanation as to why he should be exempt from the forfeiture rule. And we are aware of none. Indeed, we conclude that this is the paradigmatic setting for application of the forfeiture rule, and thus express no opinion on defendant’s claim as to the inadequacy of the information or verdict form.
The California Supreme Court detailed the well-established forfeiture rule in People v. Saunders, supra, 5 Cal.4th at pages 589-590, where it explained: “ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’ [Citation.] ‘ “The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .” ’ [Citation.]” (Accord, People v. Vera (1997) 15 Cal.4th 269, 275-276.)
While, as defendant points out, certain claims are exempted from the forfeiture rule,[5] the claim presented by defendant here is not one for which an exemption exists. To the contrary, the instant situation is a perfect example of why the forfeiture rule exists: Had defendant challenged what he claims is the inadequacy of the habitual sexual offender allegation in the information, the district attorney could readily have amended the information if the section 667.71 allegations were in fact deficient. Likewise, had defendant timely objected to the jury verdict form, it could, if need be, have been modified.
Moreover, defendant cannot claim that he lacked adequate notice that he was subject to sentencing under section 667.71. As noted, the information “alleged, pursuant to Penal Code section 667.71, that the defendant, was previously convicted of the crime of lewd act upon child in violation of Penal Code section 288(A) on 25th day of April 1996 in the Superior Court of Marin County.” As also noted, section 667.71 is entitled “ ‘Habitual Sexual Offender’ Defined; Punishment.” The motion in limine also set forth section 667.71 as a basis for introduction of the 1996 conviction.
The probation department’s presentencing report recommended sentencing defendant pursuant to section 667.71 because it provided for “greater punishment” and was “the most punitive and best fits the type of repeat sex offender the defendant is.” Indeed, defendant’s own sentencing memoranda urged the court to sentence defendant pursuant to section 667.61 “as opposed to the more punitive section 667.71 as chosen by the Probation Officer in writing their recommendation.” And at the time of sentencing, the court stated it was “going to sentence [defendant] under 667.71 and designate him a habitual sexual offender.” Despite all this, defendant never once voiced an objection. The forfeiture rule applies.
D. Defendant Was Not Properly Charged With and Convicted of Violating Section 288.7 Because Jane Doe 1 Was Not “10 Years of Age or Younger”
As noted, count 6 of the information charged defendant with a violation of section 288.7, subdivision (b), for orally copulating Jane Doe 1 on January 9, 2007. That subdivision provides, “Any person 18 years of age or older who engages in oral copulation or sexual penetration as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life.” The jury convicted defendant on that count, but the court stayed the sentence on it pursuant to section 654. Defendant now contends that the conviction must be reversed and the count dismissed because, applying the rules of construction applicable to penal statutes, Jane Doe 1—who was 10 years 11 months at the time of the molestation—cannot be deemed to have been “10 years of age or younger” at the time of the offense.
No California court has yet interpreted the phrase “10 [or some other number] years of age or younger” despite the use of such language in several California statutes. (See, for example, sections 273i [“14 years of age or younger”]; 417.27 [“17 years of age or younger”]; 701.5 [“12 years of age or younger”]; 861.5 [“10 years of age or younger”]; 1127f [“10 years of age or younger”]; 1170.72 [“11 years of age or younger”]; 1347 [“13 years of age or younger”]; 12088.2 [“17 years of age or younger”]; and 12088.5 [18 years of age or younger”].) [6]
While courts in other jurisdictions have construed the same or similar language, they are very divided. Some courts have construed the language to include children who have passed the particular birthday but not yet reached the next birthday. (See, e.g., State v. Christensen (Utah 2001) 20 P.3d 329, 330 [“ ‘17 years of age or older but not older than 17’ ” includes a person who is 17 years old until he or she attains 18th birthday]; State v. Shabazz (N.J.Super.App.Div. 1993) 622 A.2d 914, 915 [“ ‘17 years of age or younger’ includes a juvenile who has attained the age of 17 but has not yet reached his 18th birthday”]; State v. Joshua (Ark. 1991) 818 S.W.2d 249, 251, overruled on other grounds in Kelly v. Kelly (Ark. 1992) 835 S.W.2d 869 [“ ‘twelve years of age or younger’ ” includes children who “have reached and passed their twelfth birthday but have not reached their thirteenth”]; State v. Carlson (Neb. 1986) 394 N.W.2d 669, 674 [“fourteen years of age or younger” means children who have “passed their 14th birthday but have not yet reached their 15th]; State v. Hansen (Fla.Ct.App. 1981) 404 So.2d 199, 200 [“11 years of age or younger” includes children who have passed their 11h birthday but not yet reached their 12th]; Phillips v. State (Tex.Crim.App. 1979) 588 S.W.2d 378, 380 [“14 years of age or younger” includes all children who have not attained their 15th birthday].)
However, courts in other jurisdictions have construed the same or similar language to include only children who have not passed the specified birthday date. (See, e.g., State v. Collins (R.I. 1988) 543 A.2d 641, 645, overruled on other grounds in State v. Rios (R.I. 1997) 702 A.2d 889 [“thirteen (13) years of age or under” applies to “persons under thirteen years of age and to those who are exactly thirteen years old”]; State v. Jordan (R.I. 1987) 528 A.2d 731, 734 [“thirteen (13) years of age or under” includes “only those victims who had reached the day prior to their thirteenth birthday or were under that age”]; State v. McGaha (N.C. 1982) 295 S.E.2d 449, 450 [“the age of 12 years or less” excludes a child who has passed his or her 12th birthday]; Knott v. Rawlings (Iowa 1959) 96 N.W.2d 900, 901-902 (Knott) [“a child of the age of sixteen years, or under” does not include a child who has passed his or her 16th birthday]; People v. O’Neill (Sup.Ct. 1945) 53 N.Y.S.2d 945, 947 [“ten years or under” excludes children who have passed their 10th birthday]; Gibson v. People (Colo. 1908) 99 P. 333, 334-335 [“sixteen (16) years of age or under” excludes children who have passed beyond the first day of their 16th birthday].)
In some cases courts have been able to resolve the issue on the basis of an illuminating legislative history[7] (see, e.g., State v. Munoz (Az. 2010) 228 P.3d 138; People[ ex rel. Makin] v. Wilkins (1965) 257 N.Y.S.2d 288), while others have relied upon the practical consequences of competing interpretations, rejecting those that would have absurd results. (See, e.g., State v. Shabazz, supra, 622 A.2d 914, 917; State v. Collins, supra, 543 A.2d 641.) Unfortunately, neither of these factors provides assistance in this case.
The legislative history of section 288.7, which has never been amended, sheds no light on the issue before us. The only substantive change to the provision during the legislative process was the addition of oral copulation and sexual penetration as proscribed activities. (Compare Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as introduced Jan. 9, 2006 and Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 9.) Nor are the consequences of the competing constructions instructive. It would be as reasonable to limit the age of the children section 288.7 seeks to protect by confining it to those who have not passed the 10th anniversary of their birth as to those who have not reached the 11th anniversary. (See State v. Hansen, supra, 404 So.2d 199, 200.)
Due to the absence of any useful extrinsic information or any absurdity resulting from the application of the competing constructions, we must rely exclusively on the language of the statute, and the only useful guidelines are those provided by the applicable rules of statutory construction.
In California a criminal defendant “ ‘is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute . . . .’ ” (People v. Gutierrez (1982) 132 Cal.App.3d 281, 284, quoting Ex parte Rosenheim (1890) 83 Cal. 388, 391; People v. Davis (1981) 29 Cal.3d 814, 828; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; People v. Forbes (1996) 42 Cal.App.4th 599, 603-604.) Thus, “when language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted.” (In re Tartar (1959) 52 Cal.2d 250, 256; accord, People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312; Bowland v. Municipal Court (1976) 18 Cal.3d 479, 487-488.) The foregoing principles reflect “the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit . . . .” (Keeler v. Superior Court, at p. 631; People v. Garcia (1999) 21 Cal.4th 1, 10; People v. Alberts (1995) 32 Cal.App.4th 1424, 1427.) This principle is often referred to as the rule of strict construction but it is also known as the “rule of ‘lenity.’ ” (People ex rel. Lungren v. Superior Court, at p. 312)
While, as the Attorney General says, courts should always give words and phrases “a plain and commonsense meaning,” common parlance is not always indicative of “commonsense,” a highly ambiguous, subjective and somewhat tendentious concept, and as this case shows, a word or phrase may have more than one “commonsense meaning.” This is particularly true with respect to the subject of the phrase we must decipher. The concepts of time and its measurements are peculiarly illusive. “The basic difficulty lies in trying to find demarcations in a homogenous indivisibility. Time is without natural units; its so-called divisions are but incidental, independent, repetitious events, such as the swings of a pendulum or rotations of the earth. And he who seeks to fix the ever approaching or receding, never pausing, points in time, essays to shoe a running horse.” (Martin, Inclusion or Exclusion of the Day of Birth in Computing One’s Age, 5 A.L.R.2d 1143, 1144-1145, § 2) Although the Legislature could easily have provided the necessary certainty—as by specifying that a qualifying offense must be committed on a victim who is either “under 10 [or 11] years age”—the ambiguity cannot be eliminated by resort to inference or implication arising from common sense, popular parlance, or any other extrinsic factor. (See Keeler v. Superior Court, supra, 2 Cal.3d at pp. 631-632.)
People v. Gutierrez, supra, 132 Cal.App.3d 281 is instructive on this point. Gutierrez involved a statute precluding a grant of probation to a defendant possessing more than one-half ounce of heroin. The term “ounce” could refer to either an avoirdupois ounce or an apothecaries’ ounce, and the 14.3 grams of the substance the defendant possessed was less than the number of grams in one-half of an apothecaries’ ounce, but more than the number of grams that constitute one-half of an avoirdupois ounce. The question presented was whether, as the statute did not specify, an “ounce” should be measured by the avoirdupois or apothecaries’ weight standard. (Id. at pp. 283-284.) Even though the average person would understand the word “ounce” to refer only to an avoirdupois ounce, and few would even be aware another type of ounce existed, the court rejected the idea that the meaning of the word “ounce” in a penal statute could be made certain by its common usage. In adopting the uncommon use of an apothecaries’ ounce as the weight standard, the court relied upon “ ‘a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no way implies that language in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved . . . [against the government.]’ ” (Id. at p. 285, quoting Bell v. United States (1955) 349 U.S. 81, 83-84.)
The interpretation of section 288.7 urged by the Attorney General is clearly not the only “commonsense” interpretation. As previously pointed out, state courts are almost evenly divided about the proper interpretation of statutes applicable to persons of a designated age “and under.” (State v. Jordan, supra, 528 A.2d 731, 732.) Knott, supra, 96 N.W.2d 900 is illustrative of the line of cases defendant relies upon. The petitioner in that case was charged with committing lascivious acts with “ ‘a child of the age of sixteen years, or under.’ ” (Id. at p. 900.) The question presented was whether “one who is sixteen years, six months and three days old [is] ‘a child of the age of sixteen years, or under,’ ” within the meaning of the penal statute. (Id. at p. 901.) The Iowa Supreme Court answered the question in the negative, stating as follows: “A child is one year old on the first anniversary of his birth and is sixteen years old on the sixteenth anniversary. Before the sixteenth anniversary he is under the age of sixteen years and after that anniversary he is over the age of sixteen. Sixteen years is an exact and definite period of time. It does not mean or include sixteen years and six months. We should be realistic and not read something into the statute which is not there and which clearly was not intended to be there. This is a criminal statute and cannot be added to by strained construction.” [¶] Of the age of sixteen years’ must be construed to mean just what it says, i.e., sixteen years and not sixteen years, six months and three days.” (Ibid., italics added.)
Like the California court in People v. Gutierrez, supra, 132 Cal.App.3d 281, the Knott court explicitly refused to be guided by “common parlance.” As here, the state emphasized the fact “that when one is asked to state his age he gives only the age at the latest anniversary of his birth and does not add the additional months and days which a completely correct statement would require . . . .” Pointing out that “it is commonly accepted that one is sixteen until his seventeenth birthday anniversary,” the state argued that the statute should be seen as reflecting this common understanding. (Knott, supra, 96 N.W.2d at p. 901) The court rejected the argument as “unsound,” stating as follows: “When the legislature wrote ‘sixteen years’ into the statute it intended the words to be construed according to their ordinary meaning. It is contended that when the legislature used the words ‘a child of the age of sixteen years, or under’ it intended such words to mean ‘a child under seventeen years of age.’ That contention is answered by the fact that it chose the words ‘sixteen years, or under’ in preference to the words, ‘under seventeen years’ which it would have used had it intended what the State maintains it intended.” (Ibid.) We find this reasoning compelling, as have other courts. (See, e.g., State v. McGaha, supra, 295 S.E.2d 449: State v. Jordan, supra, 528 A.2d 731; Gibson v. People, supra, 99 P. 333; State v. Maxson (Ohio 1978) 375 N.E.2d 781; People v. O’Neill, supra, 53 N.Y.S.2d 945.)
Conceding that many cases have construed the phrase “__ years of age or younger” to be limited to persons who had not passed the birthday indicated by the statute, the Attorney General contends that the more reasonable cases, which reflect the “modern trend,” are those which include persons who have reached and passed the age designated by the statute but have not reached the subsequent birthday. Many of the cases relied upon by the Attorney General are distinguishable.
State v. Shabazz, supra, 622 A.2d 914, involved a statute criminalizing the use or employment of a person “ ‘17 years of age or younger’ ” to participate in a drug distribution scheme. The court noted that a subsequent provision in the statute barred a mistake of age defense for persons “ ‘18 years of age or older’ ” and pointed out that this language “would make no sense” if the statute excluded juveniles after their 17th birthday. (Id. at p. 917) Other cases reaching the result the Attorney General urges turned on extrinsic evidence of a sort not present in this case. For example, in People [ex rel Makin] v. Wilkins, supra, 257 N.Y.S.2d 288, the 1950 statute before the court was clearly intended to legislatively overrule a 1945 judicial decision construing the phrase “ten years or under” as excluding persons who had passed their 10th birthday. (Id. at p. 290.) As the court observed, the 1950 amendment “forcefully indicates that the [1945] judicial decision did not correspond with legislative intent, and that a different interpretation should be had.” (Id. at p. 291; see also State ex rel. Morgan v. Trent (W.Va. 1995) 465 S.E.2d 257.)
Most of the other cases supporting the interpretation urged on us by the Attorney General do not follow or ignore the rule of strict construction applicable in California. For example, in State v. Christiansen, supra, 20 P.3d 329, the defendant had argued that the victim, who was between her 17th and 18th birthdays, was “older than 17” and therefore not protected by the statute. The Supreme Court of Utah rejected the cases the defendant relied upon because most of them “relied in part on the rule that criminal statutes are to be construed strictly against the state and liberally in favor of the defendant” (id. at p. 330), a rule which “does not obtain in Utah.” (Ibid.)
State v. Carlson, supra, 394 N.W.2d 669 and State v. Joshua, supra, 818 S.W.2d 249 are simply indifferent to the rule of strict construction. The statute in Carlson protected victims “fourteen years of age or younger” and that in Joshua victims “twelve (12) years of age or younger.” The reasoning of Carlson, which was adopted in Joshua, is as follows: “If ‘less than fourteen years of age’ or ‘under fourteen years of age’ had been used in [the statute], the protection of that statute would terminate when a child reached the 14th birthday. Because ‘less than’ or ‘under’ is absent from [the statute],while ‘fourteen years of age or younger’ appears in the statute, the compelled logical conclusion is that the statute’s protection extends into and throughout the year immediately following a person’s 14th birthday. When the plain and unambiguous language of [the statute] is considered, [citations], to the ordinary person ‘fourteen years of age’ means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, ‘fourteen years of age’ is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of ‘fourteen years of age’ would be a perversion of popular parlance.” (State v. Carlson supra, at p. 673, italics added; State v. Joshua, at p. 251, italics added.) Far from a “compelled logical conclusion,” the italicized sentence is no more than an ipse dixit. Moreover, the inference that an otherwise ambiguous provision of a penal statute must have been intended to adopt “popular parlance” makes a mockery of the rule of strict construction, the purpose of which is to ensure that crimes are not “ ‘ “ ‘built up by courts with the aid of inference, implication, and strained interpretation’ [citation] . . . . ‘[P]enal statutes must be construed to reach no further than their words; no person can be made subject to them by implication.’ [Citation.]” ’ ” (Gayer v. Whelan (1943) 59 Cal.App.2d 255, 262-263, quoting Ex parte McNulty (1888) 77 Cal. 164, 168 and Ex parte Twing (1922) 188 Cal. 261, 265.) Without ever referring to the rule of strict construction, Carlson relies instead on the “pertinent” rule “ ‘that a statute should be construed so that an ordinary person reading it would get from it the usual, accepted meaning’ ” (id. at pp. 671-672), a rule more frequently applied to civil than to penal statutes.
As Chief Justice Marshall pointed out almost 200 years ago, “[t]he rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.” (United States v. Wiltberger (1820) 18 U.S. 76, 95) The strength of this “time-honored interpretive guideline” (Liparota v. United States (1985) 471 U.S. 419, 427), at least in this jurisdiction, is worth discussing. Along with those of several other states, the California Legislature nominally abrogated the rule of lenity in 1872 by enacting section 4, which states: “The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.” The rule of strict construction or, as it is also called, the rule of lenity, has, however, survived the statute. The reason a higher degree of certainty is still required of a penal than a civil statute (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60) is that the rule of strict construction possesses a constitutional dimension. As Professor Packer said, the rule of strict construction and the constitutional vagueness doctrine “have an intimate connection and may most usefully be thought of as contiguous segments of the same spectrum.” (Packer, The Limits of the Criminal Sanction (1968) 79, 93; see also Jeffries, Legality, Vagueness, and the Construction of Penal Statutes (1985) 71 Va. L.Rev. 189, 198-201 (1985).) In effect, the rule of strict construction may be seen “as something of a junior version of the vagueness doctrine.” (Packer, supra, The Limits of the Criminal Sanction, at p. 95.) The rule of lenity may also be seen as a means of avoiding constitutional issues by making it unnecessary to address potential due process concerns. (Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking (1992) 45 Vand. L.Rev. 593, 600.)
The rule of lenity also serves the purposes of minimizing the risk of selective or arbitrary enforcement, and maintaining the proper balance between the Legislature, prosecutors and the courts. (United States v. Kozminski (1988) 487 U.S. 931, 951-952.) Courts defer to the legislative responsibility to define criminal liability and the appropriate penalty but require clear directives. As has been said, “[l]enity is an appropriate background principle in the penal context because it maintains the judicial-legislative balance while protecting the rights of individuals. It has survived so long in the common law system precisely because it allays concerns with separation of powers and due process and provides interpretive consistency. When the legislature fails to speak clearly, considerations of lenity avoid the dilemma of how to derive a legitimate interpretation without ‘legislating’ by choosing a priori the stance the court will take. Considerations of lenity therefore create a presumption against criminal liability by assuming that the legislature only intended what was readily apparent.” (Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, supra, 29 Harv. C.R. & C.L. L.Rev. 197, 206-207, fns. omitted.)
United States v. Bass (1971) 404 US. 336 articulates two other policies that inform the rule of strict construction. The first, the Supreme Court explained, is that “ ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.’ ” (Id. at p. 348) This much quoted statement was originally made by Justice Holmes in McBoyle v. United States (1931) 283 U.S. 25, 27. As noted in United States v. Bass, Holmes prefaced this statement with the observation that “ ‘it is not likely that a criminal will carefully consider the text of the law before he murders or steals,’ ” but the Bass court pointed out that in the case of gun acquisition and possession, which was the issue in United States v. Bass, it is not unreasonable to imagine a citizen attempting to” ‘[steer] a careful course between violation of the statute [and lawful conduct]. [Citation.]’ ” (United States v. Bass, at p. 348, fn. 15, quoting United States v. Hood (1952) 343 U.S. 148, 151.) United States v. Bass thus implicitly acknowledges that, ordinarily, persons contemplating the commission of criminal acts do not first consult the appropriate penal statute.[8] It may also be noted that the need to provide fair warning would seem unnecessary with respect to crimes, such as the one that here concerns us, that are malum in se rather than malum prohibitum.
TO BE CONTINUED AS PART III….

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