Opinion
B233305
02-10-2012
THE PEOPLE, Plaintiff and Respondent, v. FABIAN CORTEZ, Defendant and Appellant.
Jennifer M. Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. VA114988)
APPEAL from the judgment of the Superior Court of Los Angeles County. Lori Ann Fournier, Judge. Affirmed.
Jennifer M. Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Susan Sullivan Pithey and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal presents a single issue of statutory interpretation. Defendant and appellant Fabian Cortez contends his conviction on two counts of violating Penal Code section 288.7, subdivision (a) (section 288.7(a)) must be reversed on the grounds the statutory phrase "10 years of age or younger" is ambiguous and the evidence was insufficient to establish defendant's victim fell within the proscribed age. We disagree and affirm.
Defendant was charged by information with four counts of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(1)), two counts of sexual intercourse with a child 10 years of age or younger (§ 288.7(a)), and one count of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). Defendant pled not guilty to all charges. Defendant waived his right to a jury trial. Following a court trial, defendant was convicted as charged and sentenced to 110 years to life in state prison plus 16 years.
The evidence presented at trial established that defendant's victim was his biological daughter, F.C. F.C. testified the abuse began with fondling when she was seven years old but soon led to sexual intercourse (vaginal penetration with his penis). F.C. testified that her father had intercourse with her two or three times a week when she was seven and eight years old, and as she grew older, the abuse became steadily more frequent, until it was every day by the time she was 13. F.C. also testified that defendant often used force and duress, including holding her hands and twisting them, covering her mouth, and saying not to tell her mother because it would "kill" her if she knew what was going on. The abuse stopped after F.C. was able to confide in a school counselor at age 13.
Defendant's sole challenge on appeal concerns his conviction on counts 5 and 6 for violating section 288.7(a), which provides: "Any person 18 years of age or older who engages in sexual intercourse or sodomy 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." Defendant contends the phrase "10 years of age or younger" is ambiguous and equally capable of being read two ways. Defendant contends the phrase can be read to include "(1) children through the day of their tenth birthday and not after, or (2) children until the date of their eleventh birthday."
The dates of abuse pled in counts 5 and 6 of the information were 11 days past F.C.'s 10th birthday and later, but all before her 11th birthday. Under the common law rule of lenity, defendant contends, his convictions must be reversed as the statute must be strictly construed and read as including only children who have reached their 10th birthday but are not a single day older.
Penal Code section 4 provides: "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." Our Supreme Court has reconciled the common law rule of lenity with the mandate of Penal Code section 4 as follows: "'The rule of statutory interpretation that ambiguous penal statutes are construed in favor of defendants is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute's ambiguities in a convincing manner is impracticable.'" (People v. Avery (2002) 27 Cal.4th 49, 58, italics added, quoting People v. Jones (1988) 46 Cal.3d 585, 599.) "The rule applies only if the court can do no more than guess what the legislative body intended; there must be an egregious ambiguity and uncertainty to justify invoking the rule." (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 24, p. 53, italics added.)
We reject defendant's contention that section 288.7(a) is ambiguous. Section 288.7(a) contains no ambiguity that is impracticable to resolve concerning the age of the intended victims covered by its terms. It does not require guesswork or conjecture to glean the legislative intent. Section 288.7(a) says in plain English that it applies to victims who are 10 years of age or younger. Common parlance and usage of the phrase tells us that a child is 10 years of age until she reaches her 11th birthday. The statute provides clear and ample warning of the conduct which it proscribes. Defendant asks this court to adopt a strained interpretation of the statutory language. The rule of lenity "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, 1145-1146.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J. WE CONCUR:
BIGELOW, P. J.
FLIER, J.