People v. Martinez

• Decision Date: 30 October 2001
• Docket Number: No. H021773.,H021773.
• Citation: 113 Cal.Rptr.2d 229,93 Cal.App.4th 481
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry Anthony MARTINEZ, Defendant and Appellant.

113 Cal.Rptr.2d 229

93 Cal.App.4th 481

The PEOPLE, Plaintiff and Respondent, v. Jerry Anthony MARTINEZ, Defendant and Appellant.

No. H021773.

Court of Appeal, Sixth District.

October 30, 2001.

Review Granted January 23, 2002.

Jan Stiglitz, Attorney under appointment by the Court of Appeal for Defendant and Appellant.

Bill Lockyer Attorney General, David P. Druliner, Chief Assistant, Ronald A. Bass, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Seth K. Schalit, Deputy Attorney General, Attorneys for Plaintiff and Respondent.

WUNDERLICH, J.

I. Statement of the Case

A jury convicted defendant Jerry Anthony Martinez of soliciting another person to commit a violation of Penal Code section 288¹ (§ 653f, subd. (c)) and annoying or molesting a minor and having a prior conviction under section 288 (§ 647.6, subd. (c)(2)). Thereafter, the court further found that defendant had two prior felony convictions that qualified as "strikes" under the "Three Strikes" law. (§§ 667, subds.(b)-(i); 1170.12.) At sentencing, the court imposed indeterminate terms of 25 years to life for both convictions but stayed the term for annoying and molesting under section 654. Defendant appeals from the judgment. He claims his convictions must be reversed because (1) his conduct did not constitute criminal solicitation and (2) the statutory proscription against annoying or molesting a minor is facially overbroad and unconstitutional. Defendant further claims the trial court erred in admitting evidence of his prior convictions for molestation under Evidence Code section 1108 because (1) that statute is unconstitutional and (2) the evidence was more prejudicial than probative. Last, he claims the court erring in giving CALJIC No. 17.41.1 (1998 new) (6th ed.1996), which requires jurors to report misconduct.

We modify the judgment, striking defendant's conviction for solicitation and vacating the stay on his conviction for annoying and molesting a minor. We further modify the judgment to reflect that (1) presentence custody credit previously awarded against the sentence for solicitation shall now apply against the sentence for annoying and molesting and (2) any credit earned by defendant serving the sentence for solicitation shall be applicable to the sentence for annoying and molesting. We affirm the judgment as modified.

II. Facts

On January 4, 2000, a 14 year old girl, hereafter referred to as the victim, walked past the Franklin Mall on her way home from school. She saw defendant, whom she had met a couple of days before, and said hello. He asked if she wanted to drink beer with him. She agreed, and they sat on a bench and drank from cans concealed in paper bags. He asked her how old she was, where she went to school, and what grade she was in. She told him. He informed her that he had just gotten off parole. She asked what he was on parole for, he said it was for "sex, drugs, and rock and roll."

Defendant then asked the victim if she wanted to make some money. She asked how, he offered her $20 for five minutes of oral sex. When she declined, he offered $40 for 10 minutes. Again she declined. He increased the offer to $60 for 15 minutes, but she told him she would not do it no matter how much money he offered. She then finished her beer, talked with defendant for a little longer, and left. She testified that defendant's offers angered her, and although she was not afraid, she felt degraded.

John Gavidia, a maintenance worker at the mall, testified that he saw defendant talking to a girl at the mall. He did not recognize her but had seen defendant before. The two were smoking cigarettes and drinking from paper bags. He heard the girl say something like, "$20, $40, that's a lot of money." He immediately called the police.

At trial, the People introduced documentary evidence that defendant had two prior convictions for lewd conduct with a minor. (See § 288.)

III. The Conviction for Solicitation

Defendant was convicted of violating section 653f, subdivision (c), which provides, in relevant part, "Every person who, with the intent that the crime be committed, solicits another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or any violation of Section 264.1, 288², or 289, shall be punished by imprisonment in the state prison for two, three, or four years."

Defendant contends that offering the victim money for oral sex did not violate the statute because he did not ask her to commit one of the specified crimes. Indeed, he notes that even if she had complied with his offer, she would not have violated section 288. (See People v. Slaughter (1941) 45 Cal.App.2d 724, 725, 115 P.2d 30 [because minor victim of lewd act not criminally liable, accomplice instruction not required]; cf. People v. Tobias (2001) 25 Cal.4th 327, 332, 106 Cal. Rptr.2d 80, 21 P.3d 758 [same re minor participant in incest with adult].) We agree.

To resolve defendant's claim, we must construe section 653f, subdivision (e). In doing so, our fundamental goal is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246, 40 Cal.Rptr.2d 903, 893 P.2d 1224.) To find intent, we turn to the words of the statute. Viewing them in context and in light of the nature and obvious purpose of the statute, we give the words their plain, everyday, commonsense meaning. If we find no ambiguity or uncertainty, we simply presume the Legislature meant what it said. Further inquiry into legislative intent is unnecessary. However, if we find the statutory language susceptible to more than one reasonable interpretation, we may then turn to extrinsic indicia of intent, such as legislative history, public policy, and the statutory scheme of which the statute is a part. Where the language of a penal statute is ambiguous, we give the defendant the benefit of a doubt and interpret it as favorably to him or her as is reasonably possible, being careful, however, to avoid interpretations that would frustrate the purpose of a statute, render it nugatory, or lead to an absurd result. (People v. Murphy, supra, 25 Cal.4th at p. 142, 105 Cal.Rptr.2d 387, 19 P.3d 1129; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 96 Cal.Rptr.2d 463, 999 P.2d 686; People v. Alvarado (2001) 87 Cal.App.4th 178, 185-186, 104 Cal.Rptr.2d 624; People v. Rackley (1995) 33 Cal.App.4th 1659, 1665-1666, 40 Cal. Rptr.2d 49.)

In Benson v. Superior Court (1962) 57 Cal.2d 240, 243, 18 Cal.Rptr. 516, 368 P.2d 116, the court explained that the purpose of section 653f was not just to prevent the commission of the specified crimes but also to protect otherwise innocent people from exposure to inducements to commit crimes. As the court in People v. Miley (1984) 158 Cal.App.3d 25, 34, 204 Cal.Rptr. 347, observed concerning criminal solicitation, "the harm is the asking...." (Original italics.)

We turn to the language of section 653f, subdivision (c), and in particular to the clause "who, with the intent that the crime be committed, solicits another to commit [a specified offense]." We begin with the word "solicit." Its plain and ordinary meaning is to ask another person to do a particular thing. (See Webster's 3d New Internat. Diet. (1993) p. 2169.) As the California Supreme Court explained, "`Solicit' is defined as: `To ask for with earnestness, to make petition to, to endeavor to obtain, to awake or excite to action, to appeal to, or to invite.' [Citation.] `It implies personal petition and importunity addressed to a particular individual to do some particular thing, ...' [Citation.]" (Aetna Bldg. Maintenance Co. v. West (1952) 39 Cal.2d 198, 203-204, 246 P.2d 11, italics omitted; accord, People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 345-346, 138 Cal.Rptr. 66, 562 P.2d 1315.) The plain and ordinary meaning of "to commit" as it relates to criminal activity is to act in violation of the law and thereby become subject to punishment as a perpetrator. (See § 27.)³ Last, the phrase "with the intent that the crime be committed" clearly indicates that the solicitor need only intend that someone commit one of the target offenses; the solicitor need not intend to personally commit it or even aid and abet its commission by another person.

Read as a whole, the entire clause "who, with the intent that the crime be committed, solicits another to commit [one of the specified offenses]" simply and directly means that the solicitee must be asked to violate one the specified crimes. When we consider the statutory language in light of its purpose to prevent criminal inducements, we find that it unambiguously proscribes asking another person to become a perpetrator of one of the specified offenses with the intent that the offense be committed. Accordingly, we presume the Legislature intended to convey this meaning. Indeed, this view of the statute reflects how the crime of solicitation is generally understood. (See generally 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, §§ 31-32, pp. 237-239; 2 LaFave & Scott, Substantive Criminal Law (1986) § 6.1, pp. 3-8; 81 C.J.S. (1977) Solicit, p. 676; 21 Am.Jur.2d (1998) Criminal Law § 181, pp. 257-258; Solicitation to Commit a Crime (1957) 51 A.L.R.2d 953, 955-956; Criminal Attempt and Related Problems, 2 U.C.L.A. Law. Rev. 319, 349; e.g., Model Pen.Code, § 5.02(1)⁴.) Thus, in People v. Gordon (1975) 47 Cal.App.3d 465, 472, 120 Cal. Rptr. 840, the court explained that "[s]olicitation consists of the asking of another to commit one of the specified crimes with intent that the crime be committed." For example, in People v. Bell (1988) 201 Cal. App.3d 1396, 248 Cal.Rptr. 57, the defendant asked an undercover police officer to procure a minor on whom he intended to commit lewd acts. On appeal from his conviction, the defendant argued that since he did not ask the undercover officer to commit...