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 II….


The second policy reflected in the rule of lenity that was commented on in United States v. Bass is, however, uniformly applicable and has particular relevance to the case at hand. As stated in Bass and reiterated in Liparota v. United States, supra, 471 U.S. 419 at page 427, and People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th 294 at page 313, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ [Citation.]” (United States v. Bass, supra, 404 U.S. at p. 348.) Our own Supreme Court’s opinion more than a century ago in Ex parte Rosenheim, supra, 83 Cal. 388, 391 also recognized that “criminal penalties, because they are serious and opprobrious, merit heightened due process protection for those in jeopardy of being subject to them, including the strict construction of criminal statutes.” (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 313.)
The Attorney General’s construction of section 288.7, subdivision (b), exposes all offenders whose victims have passed the 10th anniversary of their birth to a penalty, 15 years to life, equal to that applicable to a defendant convicted of second degree murder. Imposition of that penalty in this case would not be the result of an unambiguous legislative determination, but the product of a judicial interpretation of a phrase which, as the case law effectively demonstrates, is clearly susceptible of two constructions. As Chief Justice Marshall said, the rule of strict construction is based on the “plain principle[] that the power of punishment is vested in the legislative, not in the judicial department.” (United States v. Wiltberger, supra, 18 U.S. at p. 95.) Our guess, and it is only that, is that the phrase “ten years of age or younger” was probably decided upon by a drafter who erroneously assumed it was no different from the phrase “younger than 10 years of age.” Such a mistake, if that is what it was, provides no basis upon which to expand the application of a serious felony offense to individuals the Legislature did not manifestly intend to include within its scope.
Due to the seriousness of the penalty that would otherwise result, the court in People v. Gutierrez, supra, 132 Cal.App.3d 281 declined to construe the word “ounce” to mean an avoirdupois ounce rather than an apothecaries’ ounce, though most people are almost certainly unaware that there is such a thing as an apothecaries’ ounce. The court left it to the Legislature to clarify the meaning of the word “ounce” if it disagreed with the meaning the court assigned. So, too, should we leave it to the Legislature to clarify the age of the children referred to by subdivision (b) of section 288.7. The penalty in this case is far greater than that at issue in Gutierrez, and the statute we must construe is much more obviously susceptible of two constructions than the one at issue in Gutierrez. Indulging the uncertainty in favor of the state and against the defendant not only conflicts with the rule of lenity but invites rather than discourages statutory ambiguity. If the meaning we attach to the language in question does not reflect the legislative will, the Legislature can easily rectify the problem, as it did in Gutierrez, and such an exercise, if it is necessary, may have the salutary effect of reminding legislators of the heightened need for clarity in criminal statutes.
It is true that the rule in favor of strict construction of criminal statutes “ ‘ “is not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language.” ’ [Citations.] . . . . [T]he rule does not ‘require[] that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that the act be given the “narrowest meaning.” It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislative body].’ ” (People v. Anderson (1987) 43 Cal.3d 1104, 1146.) However, as we have explained, the rule of strict construction can be applied in this case without overriding common sense, or requiring magnified emphasis upon a single ambiguous word. Nor do we need to strain or distort language in order to exclude conduct clearly intended to be within its scope, because in this instance the intent of the legislative body is not at all “evident” from the language it used.
Justice Richman contends that defendant’s interpretation of section 288.7, subdivision (b), would lead to an “illogical result,” because it would apply the provision “to all children from birth through the day of their tenth birthday—but to no other ten year olds[,] [whereas] [c]ommon sense suggests that the statute would apply to all ten-year-old children.” (Conc. & dis. opn., at p. 4.) According to Justice Richman, “[t]here is no rationale for the position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday.” (Ibid.) This odd reasoning assumes that which the argument purports to demonstrate; namely, that for purposes of the statute a person remains “ten years of age or younger” until the 11th anniversary of his or her birth. But that interpretation of “ten years of age” is no more “logical” than one limiting the reference to children who have not passed the 10th anniversary of their birth. Justice Richman’s assertion that “[t]here is no rationale for [defendant’s] position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday” simply ignores the rationale set forth in Knott, supra, 96 N.W.2d 900 and like cases, which is simply that “10 years of age” means just what it says, i.e., 10 years and not 10 years and 11 months. Paraphrasing the opinion in Knott, a child is one year old on the first anniversary of his birth and is ten years old on the tenth anniversary. Before the tenth anniversary he or she is under the age of ten years and after that anniversary the child is over that age. Ten years is an exact and definite period of time. It does not mean or include ten years and two or six or eleven months. As the Knott court emphasized, we should not read something into a criminal statute which is not there. (Id. at p. 901.) Justice Richman may disagree with this reasoning, but it cannot be dismissed as “illogical.”
Justice Richman also emphasizes that the Legislature could easily have restricted the application of section 288.7 to children under the age of 10, if that was indeed its intent, and argues that its failure to do so compels the conclusion it did not intend to do so. (Conc. & dis. opn., at pp. 4-5.) But that argument can just as readily be turned against the interpretation the Attorney General urges us to adopt. While “[t]here are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision” (Smith v. Goguen, supra, 415 U.S. at p. 581), that is not here the case. As earlier indicated, if the Legislature wanted to protect children under the age of 11, as the Attorney General claims, it could easily have said so by using the commonly-accepted phrase “under the age of” eleven. The unusual phrasing the Legislature did employ appears in only 10 sections of the Penal Code (see p. 26, ante). The phrases “under the age of ___” and “under ___ years of age,” by contrast, appear in hundreds of Penal Code provisions, and repeatedly in section 288 itself. It is hard to know whether this was purposeful, but it is as consistent with an intention to define the children referred to in section 288.7 as limited to those who have not passed the 10th anniversary of their birth, which is the literal meaning of the text, as it is to the interpretation urged by the state.
We do not presume to know precisely what the Legislature intended by the words “ten years of age or younger,” nor do we claim that the phrase can have but one meaning, or that the meaning attributed to it by the Attorney General is unreasonable or would have absurd consequences. Putting aside the rule of strict construction, the interpretation of the same or similar language adopted in State v. Carlson, supra, 394 N.W.2d 669 and the other cases the Attorney General relies upon seems to us as reasonable as the different interpretation of such language adopted in Knott, supra, 96 N.W.2d 900 and the other cases relied upon by defendant. All we say is that (1) because section 288.7 is a penal statute, the inquiry into the ambiguity of the phrase “10 years of age or younger” must be undertaken from the perspective of the rule of strict construction; and (2) viewed from that perspective the language is manifestly ambiguous. Indeed, as one court has said, “one is left to conjecture why on earth the legislature did not plainly say ‘under the age of 10’ or, alternatively, ‘under the age of 11’, especially since this very controversy has waxed in other jurisdictions for fifty years. Indeed this very jurisdictional split on the subject is what finally forces us to face the fact that there must be ambiguity, for if there were none there would likewise be no legal controversy.” (State v. Carroll, supra, 378 So.2d 4 at p. 7.) The Legislature should take another look at section 288.7 and amend it if the intention was to include as victims children under the age of 11 in subdivision (b).
For the foregoing reasons, we hold that, as it is employed in section 288.7, subdivision (b), the phrase “10 years of age or younger” excludes victims who have passed their 10th birthday.
E. The Trial Court Properly Imposed Two Five-Year Enhancements for Defendant’s Prior Serious Felony Conviction*
1. Section 667, subdivision (a)(2) did not preclude the trial court from imposing a five-year enhancement even though defendant was sentenced under the three strikes and habitual sexual offender laws*
Section 667, subdivision (a)(1) provides for a five-year enhancement for any defendant convicted of a serious felony who previously has been convicted of a serious felony. Subdivision (a)(2), however, precludes imposition of such an enhancement “when the punishment imposed under other provisions of law would result in a longer term of imprisonment.” Here, the court imposed five-year enhancements on defendant’s sentences on counts 1 and 3. Defendant argues that this violated section 667, subdivision (a)(2) because he was sentenced under the habitual sexual offender statute (§ 667.71) and the three strikes law (§ 667), both of which were alternative sentencing schemes that subjected him to longer terms of imprisonment. We disagree.
In People v. Turner (1995) 40 Cal.App.4th 733 (Turner), overruled on other grounds in People v. DeLoza (1998) 18 Cal.4th 585, 600, footnote 10, defendant was sentenced to a total term of 35 years to life, consisting of 25 years to life under the three strikes law and two consecutive five-year enhancements under section 667, subdivision (a)(1). (Turner, at pp. 736-737, 740.) On appeal, defendant challenged, among other things, the imposition of the enhancements. He argued, like defendant here, that because he was sentenced under an alternative sentencing scheme that resulted in a longer term of imprisonment (i.e., the three strikes law), section 667, subdivision (a)(2) precluded imposition of the enhancements. (Turner, at p. 740.)
The Court of Appeal rejected the argument. It first noted a conflict in the language of the three strikes law, which sets forth a sentencing scheme that is “in addition to any other enhancement or punishment provisions which may apply” (§ 667, subd. (e)), and the five-year enhancement provision, which does not apply “when the punishment imposed under other provisions of law would result in a longer term of imprisonment” (§ 667, subd. (a)(2)). The court determined that this conflicting language created “an ambiguity in section 667 as to whether a five-year enhancement is applicable to a twenty-five-year-to-life habitual offender sentence.” (Turner, supra, 40 Cal.App.4th at p. 741.) Turning to the legislative history to resolve this ambiguity, the court noted that the Legislature was aware of the conflict and intended the enhancement provisions of section 667, subdivision (a) to apply, and thus the court concluded that the five-year enhancements were properly imposed. (Id. at pp. 741-742.)
Likewise here. Defendant was sentenced under the third strikes law (§ 667, subd. (b)‑(i)), in addition to the habitual sexual offender statute (§ 667.71). Under Turner, supra, 40 Cal.App.4th 733, it was proper to also impose the five-year enhancements. (Accord, People v. Acosta (2002) 29 Cal.4th 105, 128-134 [prior conviction can be used both as a strike under the three strikes law and to impose a five-year enhancement under section 667, subdivision (a)]; People v. Dotson (1997) 16 Cal.4th 547, 554-556 [five-year enhancements should be imposed in addition to indeterminate term under the three strikes law].)
Arguing to the contrary, defendant relies on People v. Lobaugh (1987) 188 Cal.App.3d 780 (Lobaugh) and People v. Skeirik (1991) 229 Cal.App.3d 444 (Skeirik). Neither case is availing. Defendant Lobaugh was sentenced to three years for robbery, two years consecutive for a firearm enhancement, five years consecutive for a prior serious felony conviction, and one year consecutive for a prior prison term, for an aggregate sentence of 11years. (Lobaugh, at p. 783.) On appeal, he challenged the imposition of the five-year enhancement, arguing that it violated section 667, subdivision (a)(2), because without the five-year enhancement, his prison term totaled six years, which constituted a longer term of imprisonment under an alternative sentencing scheme. The court rejected this claim, explaining: “In deciding whether section 667 applies, the court should not, as defendant argues, make an internal comparison of the component sentences. Rather, the court should determine whether the total term to be imposed, including the section 667 enhancement, is longer than that resulting from other provisions of law. If not, section 667 is inapplicable.” (Lobaugh, at p. 784.)
Skeirik is equally unhelpful. There, defendant was convicted of two counts of assault with a deadly weapon and one count of possession of a firearm by an ex-felon. The jury also found true, among other things, that defendant was a habitual offender within the meaning of section 667.7 (habitual offenders who inflict great bodily injury) and had two prior serious felony convictions within the meaning of section 667, subdivision (a). The court sentenced him pursuant to section 667.7 to two consecutive life terms, plus a concurrent term of 18 years four months. The determinate portion of his sentence included two five-year terms for the prior serious felony conviction enhancements. (Skeirik, supra, 229 Cal.App.3d at p. 449.)
As pertinent here, on appeal defendant challenged the imposition of the two five-year enhancements. The Court of Appeal agreed, explaining: “Section 667, subdivision (a), provides a five-year enhancement for each of the serious felony convictions found to be true in this case. Subdivision (b) of that section sets forth a limitation on the application of the enhancement. Subdivision (b) provides in part that ‘[t]his section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.’ As previously noted in [Lobaugh, supra,] 188 Cal.App.3d 780, 784, section 667.7, subdivision (b), requires the court to determine whether the aggregate term to be imposed, including a section 667 enhancement, is longer than that resulting from other provisions of law. If it is then the 667 enhancement is applicable. Here, the life sentence provided for in section 667.7 constitutes an ‘other provision of law’ which results in a longer term of imprisonment and will accordingly prevail over the section 667 enhancements.” (Skeirik, supra, 229 Cal.App.3d at p. 468, fn. omitted.)
According to defendant, Lobaugh and Skeirik dictate that the trial court here should have compared “the sentence it would have imposed, including the five-year enhancement, to the punishment imposed under an alternate scheme such as a habitual-offender statute. A life sentence is obviously longer than a determinate sentence . . . and in this case, obviously 25 years to life, doubled to 50 years to life, is longer than any determinate sentence the court could have imposed, with all enhancements.” Defendant’s analysis is flawed for one significant reason—neither Lobaugh nor Skeirik involved sentencing under the three strikes law. Turner, supra, 40 Cal.App.4th 733, confirmed that when sentencing under the three strikes law, section 667, subdivision (a)(1) still applies, despite the limiting language of subdivision (a)(2).).
2. The court properly imposed two five-year serious felony enhancements even though defendant had only one prior serious felony conviction*
Failing the above argument, defendant contends that even if the court could impose a five-year enhancement under section 667, subdivision (a), it could impose only one such enhancement—not two as it did—because defendant had only one prior serious felony conviction. In defendant’s words, “[t]he enhancement does not attach to each offense separately, but to the defendant, and the five-year enhancement is to be added to the total sentence otherwise imposed by the court.” People v. Byrd (2001) 89 Cal.App.4th 1373 (Byrd) held otherwise.
Defendant Byrd was convicted of 12 counts of robbery, one count of mayhem, one count of attempted premediated murder, and one count of possession of a firearm by a convicted felon, with numerous enhancements, including three prior serious felony convictions. (Byrd, supra, 89 Cal.App.4th at p. 1375.) In sentencing him, the court added three five-year terms to each indeterminate sentence on the first 10 counts. Defendant challenged this on appeal, arguing “that his prior serious felony convictions are status enhancements that may be used only once where consecutive sentences are imposed.” (Id. at pp. 1379-1380.) The Court of Appeal disagreed, concluding that it was proper to use defendant’s prior serious felony convictions to enhance each indeterminate sentence. (Id. at p. 1380.) While defendant “question[s] whether Byrd was correctly decided,” we see no reason to disagree with the result.
People v. Misa (2006) 140 Cal.App.4th 837 (Misa) is also instructive. There, defendant was convicted of one count of torture and two counts of assault. (Id. at p. 840.) The court imposed an indeterminate life sentence on the torture count, plus a term of 18 years for the assault and enhancements. The determinate term included two serious felony prior enhancements, one on the torture count and one on the assault count. (Id. at p. 841.) As pertinent here, defendant argued that the court erred in imposing the prior conviction enhancement twice. (Id. at p. 845.) The Court of Appeal rejected the argument. While first noting that People v. Tassell (1984) 36 Cal.3d 77, 90 (Tassell) (overruled on other grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 401) held that a section 667, subdivision (a) enhancement may be used to enhance a determinate sentence only once, regardless of the number of determinate terms that make up the total sentence, the court also noted that People v. Williams (2004) 34 Cal.4th 397, 402, held Tassell to be inapplicable to indeterminate sentences where the defendant is subject to the three strikes law. (Misa, supra, 140 Cal.App.4th at pp. 844‑845.) Defendant Misa was, like defendant Williams, subject to the three strikes law. Misa thus concluded that the two five-year enhancements were properly imposed.
Again, defendant argues that Misa was wrongly decided because defendant there was a second-strike defendant, unlike the defendant in People v. Williams. Consequently, he submits, the “punitive purposes, cited in [Williams,] to justify multiple use of enhancements in three-strike cases” do not necessarily apply. As defendant would have it, “[t]here is no public interest whatever in unduly lengthening the sentence of a person who has committed only a single prior serious or violent felony, and who then is convicted of a subsequent felony.” The Misa court rejected this argument (Misa, supra, 140 Cal.App.4th at p. 846). So do we.
DISPOSITION
Defendant’s convictions on counts 6 and 7 are reversed. In all other regards, the judgment of conviction is affirmed. Our rulings do not affect the aggregate sentence imposed by the trial court. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.






_________________________
Kline, P.J.


I concur:


_________________________
Lambden, J.
























A123957, People v. Cornett

People v. Cornett A123957
Concurring and dissenting opinion of Richman, J.

I concur in all portions of the majority opinion except part E.
Penal Code section[1] 288.7, subdivision (b) provides that “Any person 18 years of age or older who engages in oral copulation or sexual penetration . . . 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 25 years to life.” Based on that the jury convicted defendant on count 6, but the court stayed the sentence on it pursuant to section 654.
In part E, the majority concludes that the conviction must be reversed and the count dismissed because Jane Doe 1—who was 10 years, 11 months at the time of the molestation—was not “10 years of age or younger” within the ambit of the statute. The majority thus rejects the People’s interpretation that “a child who is 10 years of age or younger” includes a child up to and including the day before the child’s eleventh birthday. I agree with the People’s interpretation, and thus respectfully dissent from part E of the majority opinion.
The rules governing statutory construction are well established. We recently summarized them in Brown v. Valverde (2010) 183 Cal.App.4th 1531, where we explained that in construing a statute, our objective is to determine the intent of the lawmakers using a three-step process. We look first to the words of the statute themselves, giving them a “ ‘ “ ‘a plain and commonsense meaning’ ” ’ ” unless they are defined otherwise. If the statutory language is clear and unambiguous, then our analysis is complete. If the language does not resolve the question, we then attempt to glean the lawmakers’ intent from extrinsic aids such as the legislative history. Failing that, the third step requires us to “ ‘apply “reason, practicality, and commonsense to the language at hand” ’ ” and to “ ‘consider the consequences that will flow from a particular interpretation.’ ” (Brown v. Valverde, supra, 183 Cal.App.4th at pp. 1546-1547; accord, MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082‑1084.)
Both defendant and the People represent that no California court has yet interpreted the phrase “__ years of age or younger.” And our research has found no published opinion on the issue, despite the number of statutes that use such language. (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 [same]; 1170.72 [“11 years of age or younger”]; 1347 [“13 years of age or younger”]; and 12088.5 [“18 years of age or younger”].)
Other jurisdictions have construed this identical language, however, and held in accord with the People’s position, construing the language to include children who have passed the particular birthday but not yet reached the next birthday. The following cases are illustrative: 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 [“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 fourteenth birthday but have not yet reached their fifteenth]; State v. Hansen (Fla.Ct.App. 1981) 404 So.2d 199, 200 [“11 years of age or younger” includes children who have passed their eleventh birthday but not yet reached their twelfth]; 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 fifteenth birthday]; and Canada v. State (Tex.Crim.App. 1979) 589 S.W.2d 452, 454 [“less than fifteen years of age” and “fourteen years of age or under” are identical in meaning]. Also see People ex rel. Makin v. Wilkins (N.Y.App.Div. 1965) 22 A.D.2d 497, 502 [child is “10 years or under” until the child reached his or her eleventh birthday]; and 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 seventeen years old until he or she attains eighteenth birthday].)
As the majority notes, other jurisdictions have construed similar—but, in no case, identical—language to reach the result the majority reaches, 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 [“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 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 twelfth birthday]; Knott v. Rawlings (Iowa 1959) 96 N.W.2d 900, 901-903 [“a child of the age of sixteen years, or under” does not include a child who has passed his or her sixteenth 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 tenth 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 sixteenth birthday].)
At one point the majority distills the People’s position this way: “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.”[2] (Maj. opn. at p. 32.) I conclude that the People’s interpretation is more reasonable, for several reasons.
First, the People’s interpretation is consistent with the manner in which people commonly state their age. In statutory construction terms, it is the “ ‘ “ ‘commonsense meaning.’ ” ” ” (Brown v. Valverde, supra, 183 Cal.App.4th at p.1546.) As the Utah Supreme Court well put it in State v. Christensen, supra, 20 P.3d at p. 330: “It is significant that it is almost a universal practice in our society to state our age (except possibly for infants) by the number of full years we have lived, without adding or recognizing that we have also lived some additional months beyond those full years. We do not ordinarily recognize increase in our age until we have lived another full year.” Or, in the words of State v. Carlson, supra, 394 N.W.2d at p. 674: “[T]o 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. Shabazz, supra, 622 A.2d at p. 916, put it this way: “In common parlance, a juvenile becomes 17 years of age upon reaching his 17th birthday, and remains 17 years of age until he reaches his 18th birthday. The simple and overriding fact is that most people state their ages in yearly intervals. Although such expressions are perhaps linguistically flawed, we doubt that the Legislature intended to depart from the common, everyday meaning of the words used and engage in a metaphysical analysis of the aging process. Instead, we believe that the Legislature, in drafting the statute, intended to ‘talk the way regular folks do.’ ”
To put it in personal terms, my majority colleagues and I are our respective “__ years of age” until we reach our next birthdays. I believe this is how “regular folks” talk. How “ordinary people” state their age. “Common parlance.”
Second, the majority’s conclusion as to the interpretation of section 288.7, subdivision (b) leads to an illogical result, one I cannot believe is what the Legislature intended. Under their interpretation, section 288.7, subdivision (b) would apply to all children from birth through the day of their tenth birthday—but to no other ten year olds. Common sense suggests that the statute would apply to all ten-year-old children. There is no rationale for the position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday.
Third, had the Legislature intended to protect only those children under the age of 10—which is essentially what the majority concludes—it could have easily said so. As we recently confirmed, “The Legislature knows how to speak the language. . . .” (State Building and Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 322, quoting People v. Palomar (1985) 171 Cal.3d 131, 134.) Thus, it has been observed that the Legislature “knows how to draft time limits” (City of Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29, 51), “knows how to construct an exclusive definition” (Alan Van Vliet Enterprises v. State Bd. of Equalization (1977) 65 Cal.App.3d 964, 970), and “knows how to draft a provision to require consideration of the defendant’s age or other personal characteristic . . . .” (People v. Trevino (2001) 26 Cal.4th 237, 241.) If the Legislature meant section 288.7 to apply only to children under 10 (and the day of their 10th birthday), it could easily have done so, as it has done in many other places. Numerous statutes illustrate the point, including the following: section 261.5, subdivision (b) [unlawful intercourse with minor, defined as “person under the age of 18 years”]; section 26 [“children under the age of 14”]; section 307 [“under the age of 21 years”]; Family Code section 6500 [minor “under 18 years of age”]; and Evidence Code section 1360 [“under the age of 12”].
This leads me finally to the principle at the heart of the majority’s conclusion, the “rule of lenity,” which the majority discusses in an exhaustive—and typically scholarly—way, reaching all the way back to Chief Justice Marshall. There is nothing about any of that discussion with which I can disagree, only as to how the rule of lenity applies—more accurately, does not apply—here.
As the majority necessarily acknowledges, “ ‘the rule of construction “ ‘not an inexorable command to overrule common sense and evident statutory purpose.’ ” ’ ” (People v. Anderson (1987) 43 Cal.3d 1104, 1146.) Indeed, the rule only applies when “two reasonable interpretations of the same provision stand in relative equipoise . . . .” (People v. Avery (2002) 27 Cal.4th 49, 58.) In my view, the majority’s interpretation does not so stand. Stated otherwise, since the majority’s “interpretation is not equally reasonable, the rule of lenity is inapplicable.” (People v. Oates (2004) 32 Cal.4th 1048, 1068.)
Indeed, a case quoted extensively in the majority opinion provides a compelling reason why the rule of lenity does not apply here. That case is People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312‑313, which confirms that the United States Supreme Court’s “explanation” for the rule of lenity is to “ ‘ensure[] that criminal statues will provide fair warning.’ ” (Maj. opn. at pp. 35-36.) I have absolutely no doubt that when defendant committed the heinous crime on Jane Doe I, he knew that she was “10 years of age.” What else could he have thought‌ She had not reached her eleventh birthday.
_________________________
Richman, J.




Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Rene A. Chouteau

Attorneys for Appellant: Orzo William Childs
By appointment, First District Appellate
Project, independent case system

Attorneys for Respondent: Edmund G. Brown Jr., Attorney General
Dane R. Gillette, Chief Asst. Atty. General
Gerald A. Engler, Sr. Asst. Atty. General
Laurence K. Sullivan, Super. Deputy A.G.
Moona Nandi, Deputy Attorney General


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