IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
December 6, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL DAVID CORNETT, DEFENDANT AND APPELLANT.
Sonoma County Super. Ct. No. SCR-504048
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Michael Cornett was charged with molesting his two stepdaughters, 10-year-old Jane Doe 1 and six-year-old Jane Doe 2, with the final instance captured in a photograph taken by defendant's 12-year-old stepson. A jury found defendant guilty on all seven felonies alleged against him, and found all special allegations to be true--including that 11 years earlier he had been convicted of molesting yet another stepdaughter. Defendant was sentenced to 10 years, plus 150 years to life in state prison.
Defendant makes numerous arguments on appeal, asserting myriad errors during trial and at sentencing. The People concede that two of the arguments as to sentencing on count 6 are well taken, and we conclude that an argument as to the conviction on that count has merit as well, requiring a reversal of the conviction on that count.
We shall also reverse the conviction on count 7, alleging commission of a lewd and lascivious act on a child under the age of 14 (because no evidence regarding that offense was presented at the preliminary hearing), modify two rulings made at sentencing, and in all other respects affirm, leaving defendant convicted of six felonies. The judgment is affirmed as modified, a modification that does not affect the aggregate sentence imposed by the trial court.
All these issues, save one, are addressed in the unpublished portion of this opinion. The singular exception, the one issue addressed in the published portion of the opinion, is an issue apparently never before addressed in California: was Jane Doe 1, who was 10 years 11 months at the time of the molestation, a "child . . . 10 years of age or younger" within Penal Code section 288.7, subdivision (b),*fn2 the offense charged in count 6. We answer in the negative, concluding that "a child who is 10 years of age or younger" excludes children who have passed the 10th anniversary of their birth.
EVIDENCE AT TRIAL*fn3
The Incident on January 9, 2007*fn4
Defendant and Angela Cornett, who had been friends since they were young, began dating in May 2003 and married in November the following year. At the time they began dating, Angela had three children from a prior relationship--three-year-old Jane Doe 2, seven-year-old Jane Doe 1, and 10-year-old Dion.*fn5
At some point near the end of 2006, Angela and defendant, who had been living in Marin, bought property in Sebastopol. There were multiple houses on the property, all of which needed work before they were habitable. Angela, defendant, and the children were going to live in one house, and Angela's mother and father were each going to live in one of the two smaller houses. By January 2007, most of the work had been completed on the main house, and Angela and her family had moved in. The house for Angela's father was almost ready, with some minor work remaining to be done.
On the evening of January 9, 2007, Angela was sleeping on the couch in the main house. She woke up, noticed it was time for the girls to go to bed, and asked Dion to tell his sisters it was bedtime. According to Dion's testimony, at the time, Jane Doe 1 was at her grandfather's future house, and Jane Doe 2 in the main house. Dion went to his grandfather's house and looked in the living room window. He did not see anyone, so he tried to open the front door, but it was locked. Noticing that the bedroom light was on, he walked over to the bedroom window. Peering inside, Dion saw Jane Doe 1 lying on her back on the bed. She was wearing nothing but a shirt and had her legs open. Defendant was on top of her, with his hands pushing her legs down, orally copulating her.
Dion ran back to the main house, grabbed a camera, and returned to his grandfather's house. Again looking through the window, he saw defendant in essentially the same position as before, although his head was now up. Dion took a picture through the window, ran back to the main house, told his mother, "Mom, he's molesting Jane Doe 1," and showed her the picture he had taken.
Angela ran down to the grandfather's house, where she found Jane Doe 1 sitting on the coffee table watching television and defendant doing some work on the countertop in the kitchen. She repeatedly demanded to know "[w]hat the hell's going on here?" Defendant responded that he did not know what she was talking about. Dion, who was right behind Angela, said, "You were licking her vagina," which defendant denied. After sending Dion and Jane Doe 1 back to the main house, Angela continued to confront defendant, at one point punching him in the face. Defendant eventually changed his story, claiming that it happened because Jane Doe 1 instigated it, although he was vague about what happened.
Once back at the house, Dion called "Auntie Yaqinah," a close family friend considered to be an aunt by Dion and his sisters. Dion told Yaqinah he saw defendant on top of Jane Doe 1 and they were "doing it." When Yaqinah suggested that perhaps he was mistaken and that he should get some evidence, Dion told her he had already taken a picture. She then told him to call the police, which he did.
Yaqinah also spoke with Jane Doe 1, who sounded "shaky." Jane Doe 1 told her that she was playing in her grandfather's house when defendant came into the room, pushed her down on the bed, and pulled down her clothes. He started touching her with his hand and then, according to Jane Doe 1, "He did it."
Yaqinah also spoke with Angela who was "really, really upset." Angela told her that defendant had admitted everything.
Santa Rosa Sheriff Deputies Cutting and Salkin arrived within minutes and found defendant and Angela standing in the driveway. As Deputy Cutting began speaking with defendant, he detected an odor of alcohol but observed no outward symptoms of intoxication. When the deputy asked defendant if he knew why he, the deputy, was there, defendant responded that his stepson had called the police. Defendant then volunteered that he had been doing some work at what was going to be his father-in-law's house when Jane Doe 1 came in to have a conversation. During this conversation, she was seated on the bed and he was standing a few feet away. According to the deputy, at no point did defendant ever mention that he horsed around with Jane Doe I, tickled her, or gave her a raspberry, or that he bent down to pick up screws.
That night, Jane Doe 1 was taken to Redwood Children's Center (RCC) for a forensic interview.*fn6 A genital swab and a blood sample were also taken, and analysis of the swab determined that the sample contained amylase, an enzyme found in saliva. A DNA analysis of the genital swab and an oral swab taken from defendant determined that his DNA matched that found on the genital swab. The likelihood that someone's DNA would match that found in the genital sample was 1 in 3.2 quadrillion African-Americans, 1 in 51 trillion Caucasians, and 1 in 800 trillion Hispanics.
The next day, Detective Joel Pedersen of the Sonoma County Sheriff's Department spoke with Angela. She told him that Jane Doe 2 had told her defendant had orally copulated her the previous night. Consequently, Jane Doe 2 was taken to RCC to be interviewed.
Interview of Defendant*fn7
Defendant was taken to the Sonoma County Sheriff's Department, where he was interviewed by Detective Pedersen in the early morning hours of January 10, 2007. Defendant initially told the detective that while he was working on the kitchen that evening, Jane Doe 1 came into the house and went into the bedroom, where she started doing gymnastics on the bed. She called for him to come into the room because she wanted to discuss something that had happened. While she was still jumping on the bed, defendant dropped some screws so he bent down to pick them up. Dion then ran into the room or began banging on the door and saying, " 'I took a picture of you. I took a picture of you.' " When Detective Pedersen asked defendant if he had touched or come into close contact with Jane Doe 1, defendant responded, " 'I mean, I don't even remember--I don't remember even brushing up against her, but it's--it's a very tight space right there.' "
Over the course of the interview, defendant's version of the incident evolved. At one point he claimed he "probably" horsed around with Jane Doe 1 a bit while she was bouncing on the bed and that it was possible he tickled her on his way back up from picking up the screws. At another point, he said he believed he pushed her down on the bed and then tickled her. He later claimed he sometimes tickled the girls and gave them raspberries "you know, blow on their belly" but he could not remember if he had given Jane Doe 1 a raspberry that night, and was pretty sure he had not.
Detective Pedersen specifically asked defendant about Jane Doe 1's pants coming down. At that point, defendant denied that her pants were down. When asked about her shirt coming up, defendant first said he did " '[n]ot specifically' " remember that happening, but then later said, " '[Y]ou know, I mean, we're jumping around on the bed and you're wearing loose clothes, it's entirely possible that, um, clothes move around.' "
When Detective Pedersen again asked defendant what happened that night, defendant offered yet another version. This time, he claimed Jane Doe 1 was in the bedroom doing flips on the bed. He told her to get off the bed and may have tickled and horsed around with her a bit: " 'I may have even, um--nah. I was thinking I may have even, you know, bounced her back on the bed or something. But I was telling her to get off the bed so I'm pretty sure I didn't do that.' " When asked again about her pants coming down, defendant this time responded, "Um, I mean, I guess if she had scooted back on the bed when I was bending down to pick up the screws. As I said, I don't remember seeing her pants down."
Detective Pedersen also asked what the picture Dion took was going to show. Defendant said he did not know, that he would have to see the photo. When asked how Jane Doe 1's legs got up in the air, defendant hypothesized that they may have come up when he was tickling her, like she scrunched her legs up, contradicting a prior claim that her legs were never in the air. He also said that his arms may have gotten tangled up in her legs either when she scrunched her legs or when he was standing back up.
Detective Petersen asked defendant, " 'When I find your DNA that's been swabbed off of her vagina from your saliva, why would it be there?' " Defendant suggested " 'maybe drool.' " When asked how his drool got on Jane Doe 1's vagina, defendant responded, " 'Unless I did--I don't know--drool a little bit on her stomach and then she put her hand down there and did it. I don't know. I mean, I know that's pretty impossible any other way.' "
Detective Pedersen asked defendant to summarize the incident one more time. Defendant explained that he was working on the house when Jane Doe 1 came in, went into the bedroom, and began bouncing and doing flips on the bed. He went into the room and told her to stop bouncing on the bed. She told him something about her brother, and he said he would look into it. She then rolled back, did a back-flip, and bounced over the edge of the bed. He then tickled her, and when she squirmed, he dropped his screws. He bent down to pick up the screws and tickled her again as he was getting up. He did remember part of her belly being exposed because " 'that's a prime tickling spot.' "
Prior to the interview, Detective Pedersen had run a criminal history on defendant and learned he had previously molested another stepdaughter. During the interview, the detective asked defendant about this prior conviction. Defendant claimed that his stepdaughter at the time, Jessica, came to him and told him that some of her friends were doing "things" with their stepbrothers. According to defendant, he felt that she was probing him to find out what he thought about it, so he told her that what her friends were doing was inappropriate and they should stop. Defendant had also had a conflict with Jessica during her birthday party, that she was arguing with her girlfriends so he told her the party was over. The next day he was contacted by the Marin County Sheriff's Department. He told them that Jessica had grabbed him in the crotch a few times " 'more or less playing' "--and the next thing he knew he was signing a confession to something he had not done.
Detective Pedersen's interview with defendant was being recorded, and after the detective left the room, defendant could be heard saying, " 'Oh, fuck, I'm so fucking scared. It's all over.' "
Testimony of Jane Doe 1 and Jane Doe 2*fn8
Jane Doe 1, who was 12 years old at the time of trial, testified that on the evening of January 9, 2007, she and Jane Doe 2 were in their grandfather's future house with defendant. Defendant was doing some work, while the girls were jumping on the bed in the bedroom. Defendant came into the bedroom and told the girls to take their clothes off and jump on the bed naked. Jane Doe 1 testified that she was "pretty sure" Jane Doe 2 took all of her clothes off, although she "d[id]n't know."*fn9 During her interview at RCC, Jane Doe 1 had told the interviewer that Jane Doe 2 had taken off all her clothes. Jane Doe 1 also testified that Jane Doe 2 had jumped on the bed naked at defendant's request, and when she did a handstand, defendant held her legs and blew on her vagina. According to Jane Doe 1, she herself did not take off her clothes, and did not jump on the bed naked.
At some point, Jane Doe 1 took her sister back to the main house to go to bed. She then returned to her grandfather's house to turn off the bedroom light. Defendant was still there, and he followed her into the bedroom. He told her that she could lie down, and when she said she did not want to, he put his hands on her shoulders and forced her down. When he started to take off her pants and underwear, she told him to stop but he did not. He started to touch her, putting his mouth and his hands on her vagina. She then saw a flash at the window. Defendant said he thought he saw a flash, stopped touching her, and left the room.
Jane Doe 1 pulled up her underpants and pants and tried to get out of the house. She did not know how to unlock the door, however, so she sat down and watched television while defendant went into one of the back rooms. She soon heard banging on the door, looked out the window and saw that it was her mother and Dion; figuring out how to open the door, she let them in. Her mother told her to go back to the main house, which she did. She then went into her room and crawled into bed in the dark, feeling scared and upset.
Jane Doe 2, who was eight years old at the time of trial, also testified about what happened the evening of January 9, 2007. As she described it, she and Jane Doe 1 were playing at their grandfather's house. Defendant had told them not to wear any clothes, so both she and her sister were naked. They were playing on the bed, and when she did a handstand, defendant touched her vagina with his tongue. According to Jane Doe 2, Jane Doe 1 also did handstands on the bed, and defendant touched her, too. The two girls then sat down on the bed, and defendant unzipped his pants, pulled down his underwear, and told the girls to touch his penis. Both girls touched it with their hand. Jane Doe 1 then took her back to the main house and put her to bed, although she did not go to sleep until after the police left later that night.
A video recording of a portion of Jane Doe 2's RCC interview was played at trial. In the interview, Jane Doe 2 talked about defendant showing her his penis. As she described it to the interviewer, "It was standing up straight," "[i]t was kind of a little bit soft," "[b]ut it was really rough." She drew of a picture of defendant's genitals, including two "balls" like "basketball[s]" and then the penis with "little bumps." Jane Doe 2 also described having seen defendant's "boy part" on more than one occasion, one of which was on January 9, 2007, when she and Jane Doe 1 were in their grandfather's house. She described "stuff" coming out of the "boy part." Defendant told both girls to put their finger in the hole at the tip of his "boy part." Jane Doe 2 did as defendant instructed, but she told the interviewer that she was uncertain whether Jane Doe 1 did so. At some point, defendant "squeezed" his penis and "weird, greasy stuff" that was white came out and went onto the "boy part." Defendant then pulled up his pants. At some point that same night, defendant told the girls to take their clothes off. After they jumped around on the bed, he told them to put their clothes back on before anyone saw them.
Jane Doe 2 also described an incident in which defendant touched her "back here and in here." When prodded to describe what that meant, she marked her genitals on a picture of a little girl and wrote that defendant touched her "butt." On more than one occasion, when they were alone in the kitchen, defendant put his hand under her clothes and touched her skin. Although she could not identify how many times this occurred, she specifically identified "Saturday" as one of the times this happened.*fn10
Additional Evidence at Trial*fn11
Defendant's former stepdaughter Jessica also testified at trial. Jessica, who was 23 years old at the time of trial, was younger than 10 years old when she met defendant, who married her mother and came to live with them. She recounted how defendant would come into her room at night, put his hands inside her clothes, and touch her vagina, chest, and bottom. Jessica pretended to be asleep when it happened and never said anything while defendant was touching her. This happened frequently, three to four times a week in the beginning and then once or twice a week after her little sister was born. It went on for "a few years" and stopped when she was in fifth grade because she "[g]ot tired of it" and told her school principal. She never told anyone before that because defendant used to hit her when she was younger, and she was afraid of his anger.
Kristin Allen, an investigator in the Sonoma County District Attorney's Office, also testified. In 1996, when she was a detective with the Marin County Sheriff's Office, she interviewed defendant in connection with allegations by then 12-year-old Jessica that he had sexually molested her. During that interview, defendant told her that Jessica was beginning to go through puberty and had approached him because she was curious about sexuality, claiming that she was planning on becoming sexually active and was, in fact, sexually active with her stepbrothers. Defendant claimed he was concerned for her and wanted to talk to her about it, but Jessica said that the only way she would tell him what she and her stepbrothers were doing was to act it out with him. According to defendant, Jessica also told him she was interested in being sexually involved with him. Defendant explained that it began with a few incidents of fondling, and then evolved to genital-to-genital touching. According to Allen, defendant then signed a written confession.
The prosecutor introduced into evidence the information, guilty plea, and abstract of judgment from the resulting conviction.
The prosecutor also played for the jury four telephone calls between Angela and defendant that occurred while he was incarcerated and awaiting trial. In one call, defendant told Angela, "I've not only destroyed my life, but many lives around me." In another, when Angela remarked that everything they had had been "ripped" away, defendant responded, "Unfortunately, I'm the one who did it. And it eats at me every single day." Later in the same call he admitted to being "ashamed." In a third call, defendant apologized to Angela and remarked that he could not believe he had destroyed their lives. In that same call, he told her that everything he had read about the case against him was "complete lies." Angela responded that while she did not know what the children's statements said, "I know, and you know, what happened."
In the fourth telephone call, defendant was talking about his upcoming preliminary hearing and told Angela that he needed to "get . . . some recantation on . . . statements that were made," because they were not true. Angela asked if that meant he lied to her on the night of the incident, presumably referring to his admission that something happened between him and Jane Doe 1, albeit supposedly at her instigation. After claiming he did not remember the conversation, he eventually responded, "I'm always honest with you, Sweetheart." He then reiterated his desire to get the children to recant their prior statements, to "get new statements saying that what is in the previous statements is completely wrong, . . . was made up out of . . . fear or coaching."
Angela also testified about a letter defendant sent to his sister, which his sister then forwarded to Angela. In the letter, he again discussed getting the children to change their stories. The letter also mentioned Jessica, his former stepdaughter, again asking his sister to try to contact her and get her to retract her story that he previously molested her.
Dr. Anthony Urquiza, a clinical psychologist, testified as an expert in the area of child sexual abuse accommodation syndrome. Dr. Urquiza testified that it is typical for a child who has been sexually abused to delay disclosing the abuse due to fear, embarrassment, and shame. He explained that abused children are often coerced, both overtly and covertly, to keep quiet about the abuse. When the child does disclose the abuse, it typically happens as a process over time. In other words, the child will often initially disclose one aspect of the abuse and then wait to see if he or she will get in trouble. If not, the child will then add more to the disclosure, and even more later on. Sometimes, a child discloses sexual abuse, and then later retracts or minimizes the allegation due to family pressure, negative consequences, or the other parent's continuing relationship with the perpetrator.
Dr. Urquiza also explained that because children often have a relationship with the abuser, they are reluctant to disclose the abuse because they do not want the person they like to get in trouble. They also fear break up of the family if the abuser is a family member.
By complaint filed January 11, 2007 and amended on May 16, 2007, the District Attorney of the County of Sonoma charged defendant with the following five felonies: (1) aggravated sexual assault upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (§ 269, subd. (a)(4)); (2) oral copulation upon Jane Doe 1, a child under the age of 14 years and more than 10 years younger than defendant, on January 9, 2007 (§ 288a, subd. (c)(1)); (3) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 9, 2007 (§ 288, subd. (a)); (4) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)); and (5) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)).
The amended complaint also alleged the following enhancements as to all counts: (1) defendant was previously convicted, on April 25, 1996, of committing a lewd act upon a child in violation of section 288, subdivision (a) (§ 667.71); (2) defendant committed offenses against more than one victim (§ 667.61, subd. (b)); (3) on April 25, 1996 defendant was convicted of violating section 288, subdivision (a) (§ 1203.066, subd. (a)(5)); (4) defendant committed the above offenses on more than one victim at the same time and in the same course of conduct (§ 1203.066, subd. (a)(7)); and (5) defendant had substantial sexual conduct with Jane Doe 1 (counts 1, 2) and Jane Doe 2 (counts 3, 4, 5) who were under the age of 14 years (§ 1203.66, subd. (a)(8)). The amended complaint also alleged in aggravation that in April 1996 defendant had been convicted of committing a lewd act upon a child in violation of section 288, subdivision (a), which constituted a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).
A preliminary hearing was held on August 15, 2007. At the conclusion of the hearing, the court held defendant to answer all charges alleged against him. Two weeks later, the district attorney filed an information alleging seven counts against defendant. In addition to the five counts previously alleged, the district attorney added two others: (6) oral copulation upon Jane Doe 1, a child who was 10 years of age and younger, by a person 18 years of age and older, on January 9, 2007 (count 6; § 288.7, subd. (b)); and (7) commission of a lewd and lascivious act upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (count 7; § 288, subd. (a)).
Trial began on October 27, 2008. Following motions in limine, jury selection, and preliminary instructions, testimony began on November 6, 2008. On November 18, 2008, after calling 16 witnesses, the People rested. Defendant rested without presenting any evidence.
On November 20, 2008, after the court heard closing arguments and instructed the jury, the jury began deliberations. After less than seven hours of deliberations over the course of three days, the jury found defendant guilty on all seven counts and found all allegations to be true.
On January 27, 2009, the court sentenced defendant to state prison for 10 years, plus 150 years to life with the possibility of parole, calculated as follows: count 1: 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 2: 25 years to life, doubled due to the strike to 50 years to life, with a five-year enhancement under section 667, subdivision (a)(1), stayed pursuant to section 654; count 3: consecutive 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 4: consecutive 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 5: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 6: concurrent 25 years to life , doubled to 50 years to life due to the strike, stayed, with the section 667, subdivision (a)(1) enhancement stayed; and count 7: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken.
This timely appeal followed.
Defendant asserts the following claims: (1) his conviction on count 7--that he committed a lewd act on Jane Doe 1 when she touched his penis on January 9, 2007--must be reversed because the prosecutor failed to present evidence of that incident at the preliminary hearing; (2) his conviction on count 7 must be reversed because it was not supported by sufficient "credible" evidence; (3) the trial court erred in admitting the videotaped interview of Jane Doe 2 at the RCC and instructing the jury that the interview was affirmative evidence or, alternatively, his counsel's failure to object to admission of the videotape constituted ineffective assistance of counsel; (4) his sentence under the habitual sexual offender law (§ 667.71) must be set aside because the People failed to plead that defendant was a habitual sexual offender and the jury did not make a finding as to his status as a habitual sexual offender as required by section 667.71, subdivision (f); (5) his conviction on count 6--oral copulation on Jane Doe 1, a child 10 years of age or younger--must be reversed because Jane Doe 1 was over the age of 10 years at the time of the crime; and (6) the two five-year sentences imposed for defendant's prior serious felony conviction must be stricken because he was sentenced under an alternative sentencing scheme applicable to habitual offenders or, alternatively, that only one five-year enhancement could be imposed.*fn12 We address these contentions in turn.
A. Defendant's Conviction On Count 7 Must Be Reversed Because There Was No Evidence Supporting The Offense Presented At The Preliminary Hearing And Defendant Could Not Reasonably Have Been Expected To Object To This Defect*fn13
As set forth above, the amended complaint charged defendant with two counts involving Jane Doe 1: aggravated sexual assault by oral copulation (count 1) and oral copulation on a person under the age of 14 years and more than 10 years younger than defendant (count 2). The remaining three counts (counts 3, 4, and 5) charged defendant with committing a lewd and lascivious act on Jane Doe 2. Following the preliminary hearing, the district attorney filed an information alleging two additional charges involving Jane Doe 1: oral copulation on a child 10 years of age or younger (count 6), and commission of a lewd and lascivious act on a child under the age of 14 years (count 7).
Defendant does not challenge the district attorney's right to allege in the information additional charges not included in the complaint before the magistrate. Defendant correctly notes, however, that the charges may only be added if evidence was presented to the magistrate showing that the offense was committed or that it arose out of the transaction that was the basis for the commitment. (§ 739; Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665; People v. Burnett (1999) 71 Cal.App.4th 151, 165-166.) Defendant contends his conviction on count 7 violated this rule because there was no evidence supporting the offense presented at the preliminary hearing. We agree.
Count 7 did not specify the act that was the subject of that count. Instead, it alleged that on or about January 9, 2007, "defendant did violate Section 288(a) of the Penal Code, in that the said defendant did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of Jane Doe #1 (DOB 2/15/96), a child under the age of fourteen years, with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of the said defendant and the said child." In closing argument, the prosecutor told the jury that count 7 was "when Jane Doe  touched [defendant's] penis," an argument based on Jane Doe 2's trial testimony that when defendant told her and her sister to touch his penis, they both did so.
But in contrast to that trial testimony, there was no evidence before the magistrate that Jane Doe 1 touched defendant's penis.*fn14 Detective Pederson, who was present at the January 10 RCC interview of Jane Doe 2, testified at the preliminary hearing that Jane Doe 2 told the RCC interviewer defendant had instructed both sisters to take off their clothes.*fn15 She then described defendant masturbating to the point of ejaculation. According to Jane Doe 2, defendant also told both girls to place their fingers on the tip of his penis. Detective Pederson testified that Jane Doe 2 told the interviewer that she did so, but he did not offer any testimony that Jane Doe 1 did so. And at the preliminary hearing, Jane Doe 1 never testified that she had touched defendant's penis. Defendant's conviction on count 7 thus violated the rule prohibiting prosecution "for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based." (People v. Burnett, supra, 71 Cal.App.4th at pp. 165-166.)
This is not, however, the end of our inquiry. The People argue that defendant forfeited his right to assert this claim on appeal by failing to challenge the information or object at trial,*fn16 in claimed support of which they cite two cases: People v. Bartlett (1967) 256 Cal.App.2d 787 (Bartlett), and People v. Harris (1967) 67 Cal.2d 866, 870 (Harris). Neither supports a finding of forfeiture in the setting here.
Defendants in Bartlett were charged with two counts of burglary and, following a preliminary examination, were held to answer on those two counts. The district attorney then filed an information charging defendants with a third burglary count as well. Defendants moved under section 995 for dismissal of the information, and the two counts on which they were originally held were dismissed for lack of probable cause. They then sought a writ of prohibition to bar further proceedings on the third count, on the grounds that there was no evidence of corpus delicti and no probable cause. The writ was denied, and defendants were tried and convicted on the third count. (Bartlett, supra, 256 Cal.App.2d at p. 789.)
As pertinent here, on appeal defendants asserted that their convictions must be reversed because the offense for which they were convicted was not included in the commitment order. (Bartlett, supra, 256 Cal.App.2d at pp. 788-789.) The Court of Appeal disagreed that reversal was warranted on that ground.*fn17 (Id. at pp. 791-792.) First, the court noted that section 739 permitted the district attorney to file an information charging defendants with the offenses designated in the commitment order " 'or any offense or offenses shown by the evidence taken before the magistrate to have been committed. . . .' " (Id. at p. 790.) It then observed that "section 739 has been construed as authorizing the inclusion of an offense not designated in the commitment order but shown by the preliminary examination to have been committed by defendant if such added offense is related to or connected with the crime or crimes designated in the commitment order." (Id. at p. 791.) The court then concluded, however, that the third burglary count was improperly added because it was insufficiently related to or connected with the burglary counts designated in the commitment order. (Id. at pp. 791-792.)
Despite this error, the Court of Appeal did not reverse on this ground, stating that "by going to the trial without raising the point [defendants] have waived it." (Bartlett, supra, 256 Cal.App.2d at p. 792.) The court explained that section 996 requires defendant to bring a motion "under section 995 to dismiss an information charging an offense other than the one designated in the commitment order," or be held to have waived such objection. (Ibid.) It noted that defendants did move under section 995 to dismiss the information and sought a writ of prohibition, but neither time did they contend that they were improperly committed on the third count. Consequently, "[t]he failure to raise that issue in those proceedings constituted a waiver." (Ibid.)
Harris, supra, 67 Cal.2d 866, the second case on which the People rely, is similar. There, defendants Harris and Peart were charged with two counts of first degree robbery. At the preliminary hearing, Peart was represented by counsel while Harris appeared in propria persona. Following a jury trial, defendants were convicted on both counts and sentenced to state prison. (Id. at pp. 867-868.) On appeal, the court considered "whether failure to provide counsel at the preliminary hearing require[d] reversal of the ensuing judgment of conviction when the defendant did not move under section 995 of the Penal Code to set aside the information." (Harris, at p. 868) and concluded that Harris's failure to present a timely challenge to the information barred him from asserting the issue on appeal (Ibid.). The court relied on section 996, which "bars the defense from questioning on appeal any irregularity in the preliminary examination" when it has failed to move to set aside the information under section 995, holding that "to permit a defendant to question the legality of his commitment for the first time on appeal would enable him to secure a reversal of his judgment of conviction even though he was found guilty after an errorless trial." (Harris, at p.870.)
The People argue that defendant forfeited this argument by failing to challenge the addition of count 7 by a section 995 motion or objecting at trial or sentencing, likening defendant to the unsuccessful appellants in Bartlett and Harris. But here defendant could not reasonably have been expected to raise an objection below--and a section 995 motion would not have been successful. Defendant correctly explains why: "Count 7 alleged that appellant 'did willfully, unlawfully, and lewdly commit a lewd and lascivious act upon and with the body and certain part and members thereof of Jane Doe #1.' [Citation.] Testimony before the magistrate showed that appellant had orally copulated Jane Doe 1 on that date [citation] and touched her vagina [citation]. Either of these acts supported the charge made in Count 7. Accordingly, no motion to dismiss under Penal Code section 995 could have succeeded."
It was only at trial, when the prosecutor argued that count 7 was based on Jane Doe 1's touching of defendant's penis, that count 7 became unsupported by evidence presented at the preliminary hearing. Given that the preliminary hearing occurred on August 15, 2007, and the prosecutor gave her closing argument on November 20, 2008, it would be unreasonable to expect defense counsel to object to the prosecutor's election of a crime shown by the evidence at trial on the ground that it had not been shown at the preliminary hearing 15 months prior. Defendant cannot be held to have forfeited this claim, and his conviction on count 7 must be reversed.*fn18
B. The Videotaped Recording Of Jane Doe 2's Interview at RCC Was Properly Admitted*fn19
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.*fn20 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.*fn21 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.*fn22 (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.*fn23
C. Defendant Forfeited Objection to Sentencing Under The Habitual Sexual Offender Statute By Failing To Challenge It Below*fn24
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,*fn25 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"].)*fn26
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*fn27 (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  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.*fn28 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.
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*fn29
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*fn30
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 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*fn31
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.
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.
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*fn32 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."*fn33 (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.
Trial Court: Sonoma County Superior Court Trial Judge: Hon. Rene A. Chouteau