People v. Hammer

• Decision Date: 29 May 2003
• Docket Number: No. S104303.,S104303.
• Citation: 30 Cal.4th 756,134 Cal.Rptr.2d 590,69 P.3d 436
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey G. HAMMER, Defendant and Appellant.

134 Cal.Rptr.2d 590

30 Cal.4th 756

69 P.3d 436

The PEOPLE, Plaintiff and Respondent, v. Jeffrey G. HAMMER, Defendant and Appellant.

No. S104303.

Supreme Court of California.

May 29, 2003.

Christopher Blake, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster, Steven T. Oetting and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Penal Code section 667.61, known as the "One Strike" law, requires imposition of a sentence of 25 years to life in prison if a person is convicted of one of the sexual offenses listed in subdivision (c) of the statute and certain other triggering circumstances are found to exist. (Pen. Code, § 667.61, subds. (a), (c), (d) & (e).)¹ One of the triggering circumstances is that the person previously has been convicted "of an offense specified in subdivision (c)." (Id., subd. (d)(1).) The list of offenses set forth in subdivision (c) includes the following: "(7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066." In this case, defendant previously was convicted in 1988 of a violation of section 288, subdivision (a), but in that prior proceeding defendant qualified for, and was granted, probation. More than 10 years later, defendant was convicted in the present proceeding of new specified offenses under the One Strike law, including new violations of section 288, subdivision (a). The question presented is whether the prior conviction of the earlier section 288, subdivision (a) charge, as to which defendant qualified for probation, subjects defendant to sentencing under the One Strike law for his present offenses. The Court of Appeal concluded that the 1988 prior constituted such a qualifying prior conviction, and upheld sentencing under the One Strike law. We conclude that the judgment of the Court of Appeal should be affirmed.

I

In 1985, defendant Jeffrey G. Hammer married J. and adopted her then four-yearold daughter, M. In 1988, while J. was pregnant with their younger daughter K., defendant forced M., who was then six or seven years of age, to orally copulate him on several occasions. J. learned of these incidents, and on the basis of that conduct defendant subsequently was charged and convicted in 1988 of a violation of section 288, subdivision (a). Upon sentencing for that conviction, defendant qualified for and received probation, which he subsequently completed successfully. In 1991, defendant and J. divorced.

In 1997, defendant and J. reconciled and defendant moved back into the home with J., M., and K., who was then nine years of age. Thereafter, on separate occasions in August 1998 and December 1999, defendant molested K.—rubbing lotion on her breasts and twisting her nipples in the earlier incident, and attempting to force her to orally copulate him in the later incident.

After the December 1999 incident, defendant's actions were reported to the police, and defendant was arrested. He was charged with committing, among other crimes, violations of section 288, subdivisions (a) (lewd acts upon a child under the age of 14 years) and (b)(1) (forcible lewd acts upon a child under the age of 14 years) against K. The People also alleged that defendant's prior 1988 conviction for violating section 288, subdivision (a), operated to enhance defendant's current sentence under three separate statutory schemes. First, the People asserted, the 1988 prior conviction qualified as a triggering circumstance within the meaning of the One Strike law, section 667.61, subdivisions (a), (c)(7), and (d)(1), thereby subjecting defendant to a sentence of 25 years to life in prison for each qualifying current offense. Second, the People asserted, the 1988 prior conviction qualified as a felony conviction within the meaning of the "Habitual Sexual Offender" law, section 667.71, subdivisions (a), (b), and (c)(4), thereby subjecting defendant to a sentence of 25 years to life in prison for each qualifying current offense. Finally, the People asserted, the 1988 prior conviction constituted a "serious" prior felony under section 667, subdivision (a), thus subjecting defendant to a five-year sentence enhancement.²

Defendant was convicted by a jury in the present proceeding on two counts (counts two and four of the information) of committing lewd acts upon a child under the age of 14 years (§ 288, subd. (a)) and one count (count one of the information) of committing lewd acts upon a child under the age of 14 years by use of force (§ 288, subd. (b)(1)).³

Defendant admitted the prior conviction allegations, and the trial court sentenced him to 55 years to life in prison. The sentence was calculated as follows: (i) on count one (the section 288, subdivision (b)(1) charge), a term of 25 years to life was imposed under both the One Strike law, section 667.61, subdivisions (a), (c)(7) and (d)(1), and the Habitual Sexual Offender law, section 667.71, subdivisions (a), (b) and (c)(4); (if) on count four (one of the two section 288, subdivision (a) charges), a consecutive term of 25 years to life was imposed under both the One Strike law (§ 667.61, subds.(a), (c)(7), & (d)(1)) and the Habitual Sexual Offender law (§ 667.71, subds.(a), (b) & (c)(4)); and finally (iii) a consecutive five-year enhancement was imposed under section 667, subdivision (a).⁴ The Court of Appeal affirmed defendant's convictions and sentence.

The principal issue raised in this appeal is whether the trial court properly based the 25-year-to-life terms imposed for counts one and four in part upon the One Strike law, section 667.61, subdivisions (a), (c)(7), and (d)(1), in light of the circumstance that defendant qualified for (and indeed was granted) probation following his prior 1988 conviction for violating section 288, subdivision (a).

II

A

The One Strike law, section 667.61, requires a sentence of 25 years to life in prison whenever a defendant (1) is convicted of a current offense specified in subdivision (c),⁵ and (2) either "one or more of the circumstances specified in subdivision (d)"⁶ or "two or more of the circumstances specified in subdivision (e)" are present.⁷ (§ 667.61, subd. (a).) The law expressly divests trial courts of authority to avoid these severe sentences: it provides that courts are barred from exercising their traditional discretion to "strike" any of the triggering circumstances specified in the One Strike law. (Id, subd. (f).)

There is no controversy in this case concerning the first requirement—conviction in the present case of at least one of the offenses listed in section 667.61, subdivision (c). As defendant concedes, this condition is satisfied by virtue of the present conviction on the section 288, subdivision (b)(1) count (forcible lewd conduct upon a child under the age of 14 years), and, additionally, the two convictions in the present case on the section 288, subdivision (a) counts (nonforcible lewd conduct upon a child under the age of 14 years), as to which defendant was not qualified for probation. (§ 667.61, subd. (c)(4) & (7); see § 1203.066, subd. (a)(5).)

The issue before us solely concerns whether defendant committed those qualifying present offenses under circumstances specified in the One Strike law, triggering a sentence of 25 years to life in prison.

Section 667.61, subdivision (d)(1), of the One Strike law mandates a sentence of 25 years to life when a defendant commits a qualifying offense after he or she "has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all the elements of an offense specified in subdivision (c)." (Italics added.)

The specific question before us is whether, in light of defendant's 1988 prior conviction for violating section 288, subdivision (a), as to which he qualified for probation, "defendant has been previously convicted of an offense specified" in section 667.61, subdivision (c).

Section 667.61, subdivision (c), which as noted above is specifically referred to and incorporated in section 667.61, subdivision (d)(1), provides in relevant part: "This section shall apply to any of the following offenses: [¶] ... [¶] (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066." (Italics added.)

B

As we recently observed in People v. Acosta (2002) 29 Cal.4th 105, 124 Cal.Rptr.2d 435, 52 P.3d 624 (Acosta), in which we construed other aspects of the One Strike law: "`[0]ur fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language "in isolation." [Citation.] Rather, we look to "the entire substance of the statute ... in order to determine the scope and purpose of the provision.... [Citation.]" [Citation.] That is, we construe the words in question "`in context, keeping in mind the nature and obvious purpose of the statute....' [Citation.]" [Citation.] We must harmonize "the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole." [Citations.]'" (Acosta, supra, 29 Cal.4th 105, 112, 124 Cal.Rptr.2d 435, 52 P.3d 624, quoting People v. Murphy (2001) 25 Cal.4th 136, 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129 (Murphy).) As in Acosta, "[t]hese familiar principles guide our interpretation of the sentencing provisions at issue here." (Acosta, supra, 29 Cal.4th 105,112,124 Cal.Rptr.2d 435, 52 P.3d 624.)

Defendant, stressing what he terms the "plain meaning" of the "literal language" of section 667.61, subdivisions (...