Opinion
E052959 E052972
08-12-2011
THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; MIGUEL PABLO ORTEGA, Real Party in Interest. THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; AARON MATTHEW ELLIOTT, Real Party in Interest.
Paul Zellerbach, District Attorney, Matt Reilly, Deputy District Attorney, for Petitioners. No appearance for Respondent. Gary Windom, Public Defender, Joseph J. Martinez and William A. Meronek, Deputy Public Defenders, for Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF10003944)
(Super.Ct.No. BAF10000369)
OPINION
ORIGINAL PROCEEDINGS; petitions for writ of mandate. Richard Todd Fields and James T. Warren, Judges. Petitions granted.
Judge Warren is a retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Paul Zellerbach, District Attorney, Matt Reilly, Deputy District Attorney, for Petitioners.
No appearance for Respondent.
Gary Windom, Public Defender, Joseph J. Martinez and William A. Meronek, Deputy Public Defenders, for Real Parties in Interest.
INTRODUCTION
In these consolidated matters, we are asked to decide a simple issue, one which does not require any detailed recitation of the facts. Penal Code section 288.7, under which both petitioners were charged, provides enhanced penalties when a "person 18 years of age or older . . . engages in sexual intercourse or sodomy with a child who is 10 years of age or younger." (§ 288.7, subd. (a).) In both cases, the victims had passed their 10th birthday, but neither had yet celebrated her 11th birthday. The question before us is whether the victims fit within the language of section 288.7 because they are 10 years old, not 11, or whether the statute applies only to victims who have not yet reached their 10th birthday. We believe the former is the correct interpretation.
All further statutory references are to the Penal Code unless otherwise indicated.
Compared to section 288, subdivision (a). (See discussion infra.)
STATEMENT OF THE CASES
In People v. Aaron Matthew Elliott (BAF10000369), the evidence at the preliminary hearing established that the victim, Jane Doe 1, was born in November 1999, and the alleged criminal conduct occurred in May 2010.
Jane Doe 1 testified that the event occurred on or about the eighth of a month "between June and July." However, the matter was being investigated by law enforcement by May 18, and the victim further testified that she told her mother about the incident about two weeks after it happened. The information alleges a date in May 2010.
In People v. Miguel Pablo Ortega (RIF10003944), the victim, Jane Doe 2, told an investigating officer that she was born in early August 2000. Although Jane Doe 2 reported that Ortega had been touching her "inappropriately" over a period of approximately four months, she added that "within the [last] few days . . . it had escalated to the point where he was going underneath her panties." The victim was interviewed by the officer on August 26, 2010.
Section 288.7, subdivision (a), applies only to "sexual intercourse or sodomy," while subdivision (b) applies to "oral copulation or sexual penetration." Thus, with respect to defendant Ortega, the charges under the statute must have occurred after Jane Doe 2's 10th birthday.
In both cases, the defendants moved to dismiss under the authority of People v. Cornett (2010) 190 Cal.App.4th 845, review granted March 23, 2011, S189733. At the time, the trial courts apparently felt bound to follow Cornett. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, due to the grant of review we write on a clean slate, although we are perfectly cognizant that our views are but writ in sand and will likely last only until washed into irrelevance by the decision of the Supreme Court. For the same reason we are not inclined to set out our reasoning in laborious detail, although we will gladly rely on the efforts and scholarship of the First Appellate District, Division Two, in Cornett.
In some cases, the Legislature's definition of criminal conduct relative to the age of the victim is not subject to dispute. For example, the language in Penal Code section 288, subdivision (a), regarding "a child who is under the age of 14 years" clearly means a child who has not yet reached his or her 14th birthday. "[T]hree years of age or older," as used in Welfare and Institutions Code section 361.5, subdivision (a)(1)(A), also obviously applies to all children who have passed their third birthday.
This construction is confirmed by the language in section 288, subdivision (c)(1), imposing lesser punishment upon an adult 10 years older than the victim, where the victim is "a child of 14 or 15 years." This covers the period including and immediately following the child's 14th birthday, at which point section 288, subdivision (a), no longer applies.
In other cases, the interpretation is not so straightforward. As our colleagues in San Francisco discovered, the phrase "X years of age or younger" has produced mixed results. For example, in State v. Shabazz (1993) 263 N.J. Super. 246, 248 [622 A.2d 914, 915], the phrase "'17 years of age or younger'" was held to include a juvenile who had reached 17 but not yet turned 18. The opposite view also has its adherents. (See State v. Jordan (R.I. 1987) 528 A.2d 731, 733-734 ["'thirteen (13) years of age or under'" was found to include only children who had not yet reached "the day prior to their thirteenth birthday"].)
Rhode Island would appear to use the common-law means of calculating age, which assumes that a person is in existence on the day of his or her birth. Thus, on the first anniversary of the birth, the child has already lived one year and one day. (See In re Harris (1993) 5 Cal.4th 813, 844; In re Edward (R.I. 1982) 441 A.2d 543.)
Section 288.7 was enacted in 2006 and has not been amended. (Stats. 2006, ch. 337, § 9, Sen. Bill 1128, eff. Sept. 20, 2006.) During the legislative process, the only substantive change to the proposed bill was to add oral copulation and sexual penetration as prohibited activities. (Cf. Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as introduced Jan. 9, 2006, and Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 9.) Thus, legislative history is of little assistance. Nor, logically, does one result seem better than the other. It would have been reasonable to limit the statute's protection to children who have not passed the 10th anniversary of birth, but it would also have been reasonable to extend that protection to children up until the time of their 11th birthday.
Given these circumstances, the First District decided to apply the rule of lenity. In general, this rule applies when language in a statute is reasonably susceptible of two constructions, and then requires the adoption of that more favorable to the defendant. (In re Tartar (1959) 52 Cal.2d 250, 256.) The purpose is to ensure that criminal statutes provide fair warning of what is prohibited. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312-313.) But it applies only when the two possible interpretations are "'in relative equipoise,'" (People v. Avery (2002) 27 Cal.4th 49, 58) and it is not meant to overrule common sense (People v. Anderson (1987) 43 Cal.3d 1104, 1146).
We agree with the concurring and dissenting opinion of Justice Richman in the Cornett case. In our opinion, this is a case for a common sense interpretation of the phrase "10 years of age or younger." If defendants had each been asked, at the time the offenses were allegedly committed, how old the victims were, we think it clear that defendants would have responded, "10 years old." Neither of the victims were 11 years of age; they were 10.
We recognize, as did the court in San Francisco, that section 288.7 provides for strict penalties. Subdivision (a) punishes the defendant who commits an act of intercourse or sodomy upon a qualifying victim with a term of 25 years to life in prison, while subdivision (b), applying to oral copulation or sexual penetration, imposes a sentence of 15 years to life. On the other hand, it may well be said that there is no justification for giving any rule of lenity benefit to an adult male who commits a substantial sexual act on any child under the age of 11. Such an act is clearly malum in se and abhorrent. Fair warning is inherent in the nature of the act itself; common sense should lead any person contemplating such an act to expect severe punishment—the same common sense we use in construing the phrase "10 years of age or younger."
DISPOSITION
Accordingly, the People's petitions for writ of mandate are granted. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its orders in both cases dismissing the charge or charges under Penal Code section 288.7 and to reinstate those charges.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
The previously ordered stays are lifted.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur: RAMIREZ
P.J.
McKINSTER
J.