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The People v. Michael David Cornett

April 30, 2012


Court: Superior County: Sonoma Judge: Rene A. Chouteau Ct.App. 1/2 A123957 Super. Ct. No. SCR504048

The opinion of the court was delivered by: Cantil-sakauye, C. J.

Sonoma County

Penal Code section 288.7 makes it a felony, punishable by an indeterminate life term, for any adult to engage in specified sexual conduct "with a child who is 10 years of age or younger."*fn1 Does the phrase "10 years of age or younger" include within its protection a child victim who is 10 years of age but has not yet reached his or her 11th birthday? Or is the phrase limited, as the majority of the Court of Appeal held, to children molested prior to the day of or on the day of their 10th birthday? We conclude that the interpretation of the statutory phrase "10 years of age or younger" includes children younger than 10 years of age and children who have reached their 10th birthday but who have not yet reached their 11th birthday. That is, "10 years of age or younger" as expressed by the Legislature in Penal Code section 288.7 is another means of saying "under 11 years of age." We reverse the judgment of the Court of Appeal that concluded otherwise.


Defendant Michael David Cornett sexually molested his two stepdaughters. He was convicted of seven felony sex offenses, including one count of oral copulation of Jane Doe 1 in violation of Penal Code*fn2 section 288.7, subdivision (b).*fn3 With respect to his conviction of violating section 288.7(b) as to Jane Doe 1, the trial court imposed, but stayed pursuant to section 654, a sentence of 50 years to life.

Defendant claimed on appeal, among other things, that his section 288.7(b) conviction must be reversed and the count dismissed because Jane Doe 1 -- who was 10 years and approximately 11 months old at the time of the molestation -- was not "10 years of age or younger" within the meaning of section 288.7. The majority of the Court of Appeal panel agreed with defendant that victims who have passed their 10th birthday fall outside the scope of section 288.7. The Court of Appeal dissent reasoned that common parlance and common sense supported the interpretation of section 288.7 as covering children until they reached their 11th birthday. We granted the People's petition for review.


To determine whether defendant was properly convicted of violating section 288.7(b), we must determine the meaning of the phrase "10 years of age or younger" as stated in section 288.7.*fn4 The basic rules for statutory construction are well settled.

"As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose." (People v. Murphy (2001) 25 Cal.4th 136, 142.) "We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent." (People v. Watson (2007) 42 Cal.4th 822, 828; accord, Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.) The plain meaning controls if there is no ambiguity in the statutory language. (People v. King (2006) 38 Cal.4th 617, 622.) If, however, "the statutory language may reasonably be given more than one interpretation, ' " 'courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.' " ' " (Ibid.)

A. The Ordinary Meaning of "10 Years of Age"

In accordance with these principles, we begin our consideration of the language of section 288.7 by noting that, with the exception of infants, an individual ordinarily states his or her age as the year or number of years accumulated since the birth year. In common parlance, a person reaches a particular age on the anniversary of his or her birth and remains that age until reaching the next anniversary of his or her birth. Black's Law Dictionary recognizes this usual understanding of "age," noting that "[i]n American usage, age is stated in full years completed (so that someone 15 years of age might actually be 15 years and several months old)." (Black's Law Dict. (9th ed. 2009) p. 70, col. 1.) Thus, the ordinary meaning of the phrase "10 years of age" is a child who has reached his or her 10th birthday but who has not yet reached his or her 11th birthday.*fn5 (See Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 ["When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word"]; Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 720 [interpreting statutory language in accordance with its usual and ordinary meaning].)

Defendant contends this ordinary understanding of age is not the only reasonable understanding of the phrase "10 years of age" used in section 288.7. In his view, individuals are "under" a specified age before their birthday and "over" the specified age starting on the day after their birthday. Technically, they are a specific age only on their actual birthday. He argues that because the Legislature used the phrase "10 years of age or younger" and not the phrase "under 11 years of age," a precise reading of the chosen language would at most cover children up to and including their 10th birthday.

Defendant's proposed technical reading of the phrase "10 years of age or younger" is sufficiently plausible to demonstrate a latent ambiguity in the statutory language. We therefore turn to a consideration of the legislative history and purpose of section 288.7 for any light it might shed on the Legislature's intent. (People v. King, supra, 38 Cal.4th at p. 622; Mosk v. Superior Court (1979) 25 Cal.3d 474, 495; see also Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371.)

B. The Legislative History and Purpose of Section 288.7 and the Legislative History of Other Penal Code Statutes Containing Similar Language

Section 288.7 was enacted as part of the Sex Offender Punishment, Control, and Containment Act of 2006 (the Act). (Stats. 2006, ch. 337, § 1, p. 2584.) The Act contained more than 60 sections. It made numerous changes to the body of statutory law relating to sex offenders. (Assem. Com. on Appropriations, Analysis of Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as amended June 22, 2006, p. 1.) The primary purpose of the Act was to prevent "future victimization" of the community by sex offenders. (Stats. 2006, ch. 337, § 2, subd. (a), p. 2584.) Among the provisions of the Act was the creation of several new criminal offenses involving child victims. For example, the Act created the offense of child luring (id., § 7, p. 2589 adding § 288.3 to the Penal Code), the offense of loitering on school grounds by a registered sex offender (id., § 25, p. 2631 adding § 626.81 to the Penal Code), and, of course, the new offense imposing an indeterminate life sentence for sexual intercourse, sodomy, oral copulation or sexual penetration of "a child 10 years of age or younger" in section 288.7. (Id., § 9, pp. 2590-2591.) A number of the other provisions of the Act also increased penalties for, among other crimes, child pornography and various sex offenses against children. (See, e.g., Stats. 2006, ch. 337, §§ 6, p. 2589, 20, 21, 22, 23, pp. 2624-2629, 26, p. 2631.) In addition, changes were made to parole and probation provisions for sex offenders, to sex offender registration requirements, and to the system for collecting and disseminating information regarding sex offenders. (See Legis. Counsel's Dig., Sen. Bill No. 1128 (2005-2006 Reg. Sess.) 6 Stats. 2006, Summary Dig., pp. 180-184.)

There is nothing in the legislative history of the Act expressly addressing the specific issue of statutory interpretation before us. Defendant urges us, however, to draw from a few descriptive comments regarding proposed section 288.7 a ...

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