People v. Cornett
| Decision Date | 23 March 2011 |
| Docket Number | Certified for Partial Publication. ,No. A123957.,A123957. |
| Citation | 2010 Daily Journal D.A.R. 18, 256,118 Cal.Rptr.3d 816,10 Cal. Daily Op. Serv. 15, 159 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Michael David CORNETT, Defendant and Appellant. |
Background: Defendant was convicted in the Superior Court, Sonoma County, No. SCR-504048, Rene Chouteau, J., of offenses including oral copulation with a child who is 10 years of age or younger. Defendant appealed.
Holdings: The Court of Appeal, Kline, P.J., held that:
(1) on issue of first impression, "10 years of age or younger" did not include a child between 10 and 11 years of age, and
(2) the rule of strict construction of penal statutes survived the statute nominally abrogating the rule.
Affirmed in part and reversed in part.
West Codenotes
Limited on Constitutional Grounds
West's Ann.Cal.Penal Code § 4.
*817 Orzo William Childs By appointment, First District Appellate Project, independent case system, Attorneys for Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Asst. Atty. General, Gerald A. Engler, Sr. Asst. Atty. General, Laurence K. Sullivan, Super. Deputy A.G., Moona Nandi, Deputy Attorney General, Attorneys for Respondent.
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),1 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**
PROCEDURAL BACKGROUND
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 *819 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'S CONTENTIONS
[1] 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 videotapedinterview*820 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.6 We address these contentions in turn.
DISCUSSION
A.-C. ***
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"
[2] 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...
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