People v. Murphy

• Decision Date: 29 March 2001
• Docket Number: No. S075263.,S075263.
• Citation: 19 P.3d 1129,25 Cal.4th 136,105 Cal.Rptr.2d 387
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Floyd E. MURPHY, Jr., Defendant and Appellant.

105 Cal.Rptr.2d 387

25 Cal.4th 136

19 P.3d 1129

The PEOPLE, Plaintiff and Respondent, v. Floyd E. MURPHY, Jr., Defendant and Appellant.

No. S075263.

Supreme Court of California.

March 29, 2001.

Rehearing Denied June 20, 2001.

Donald I. Segerstrom, Jr., under appointment by the Supreme Court, Sonora, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, W. Scott Thorpe, Wayne K. Strumpfer and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

The "Three Strikes" law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (Pen.Code, §§ 667, subds. (b)-(i), 1170.12.)¹ The extent of the increase depends on the number of qualifying prior convictions, or strikes. The habitual sexual offender statute prescribes a prison term of 25 years to life for a person who is convicted of one or more of certain specified offenses after having been previously convicted of one of those specified offenses. (§ 667.71.)

We granted review in this case to consider the following sentencing issues under these statutes: (1) whether a conviction for oral copulation with a child who is less than 14 years old and more than 10 years younger than the perpetrator (§ 288a, subd. (c)(1)) is a strike under the Three Strikes law; (2) whether a defendant with a qualifying prior conviction under the habitual sexual offender statute who sustains two new qualifying convictions in one proceeding may receive a separate prison term under section 667.71 for each of the new convictions; and (3) whether a court should apply both the Three Strikes law and the habitual sexual offender statute in determining the sentence of a defendant who meets the criteria of both statutes. We conclude that defendant's prior conviction under section 288a constitutes a strike, that section 667.71 authorizes imposition of a term for each of his new qualifying convictions, and that his sentence for each new conviction should be determined by applying the provisions of both the Three Strikes law and the habitual sexual offender statute.

FACTS

As relevant here, an information filed July 2, 1996, charged defendant Floyd E. Murphy, Jr., with two counts of violating section 288, subdivision (a)—committing a "lewd or lascivious act" on a child who is less than 14 years old, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child. As to each count, the information alleged that in May 1980 defendant sustained two qualifying prior convictions under the Three Strikes law, one for "oral copulation with child under 14 years, in violation of Section 288a[, subdivision] (c)," and the other for a "Lewd Act with child under 14 years, in violation of Section 288[, subdivision] (a)." The information also alleged that these prior convictions rendered defendant a habitual sexual offender under section 667.71. Finally, the information alleged that the prior conviction under section 288, subdivision (a), constituted a "serious felony" conviction for enhancement purposes under section 667, subdivision (a).

After hearing the evidence, the jury returned a guilty verdict on both counts. Defendant waived trial on the alleged prior convictions and admitted that he had previously been convicted under section 288a, subdivision (c), of "oral copulation on a child under the age of 14 years" and under section 288, subdivision (a), of "lewd conduct with a child under the age of 14 years." The trial court sentenced defendant to a total unstayed prison term of 50 years to life, consisting of a consecutive term of 25 years to life for each conviction. The court explained: "Now, that sentence is pursuant to the provisions of [section] 667 subdivision] (b) through subdivision] (i) [the Three Strikes law]. It's also subject to the provisions of [section] 667.71...."

On appeal, defendant argued in part that the trial court committed the following sentencing errors: (1) treating his prior conviction under section 288a, subdivision (c), as a strike under the Three Strikes law; (2) relying on section 667.71 to impose a consecutive term for each of his new convictions; and (3) sentencing him under both section 667.71 and the Three Strikes law. The Court of Appeal rejected all of these arguments, finding that defendant's prior conviction under section 288a, subdivision (c), constituted a strike under the Three Strikes law, that section 667.71 authorized a consecutive term of 25 years to life for each of defendant's new convictions, and that each of those terms had to be tripled under the Three Strikes law (§ 667, subd. (e)(2)(A)(i)) because defendant had two prior strikes. For several reasons, however, it vacated defendant's sentence and remanded for resentencing, directing the trial court to consider various sentencing issues.

We then granted defendant's petition for review.

Discussion

I. Defendant's Section 288a Conviction Is a Strike

A strike under the Three Strikes law is a prior conviction for any offense that, as of June 30, 1993 (§ 667, subd. (h)), was "defined in subdivision (c) of Section 667.5 as a violent felony or ... defined in subdivision (c) of Section 1192.7 as a serious felony in this state." (§ 667, subd. (d)(1).) In arguing that defendant's prior conviction under section 288a, subdivision (c), for oral copulation with a child under 14 years of age is a strike, the Attorney General relies principally on subdivision (c)(6) of section 1192.7 (section 1192.7(c)(6)). Under section 1192.7(c)(6), a "lewd or lascivious act on a child under the age of 14 years" is a "serious" felony. Citing People v. Henderson (1987) 195 Cal. App.3d 1235, 241 Cal.Rptr. 461, the Attorney General argues that an act of oral copulation with a child under 14 years of age is lewd per se, i.e., it necessarily constitutes a lewd act on a child within the meaning of section 1192.7(c)(6).

Defendant disagrees, arguing that the language of section 1192.7(c)(6)—"lewd or lascivious act on a child under the age of 14 years"—is an "obvious preference ... to a violation of section 288, subdivision (a)." The latter section provides in relevant part: "Any person who willfully and lewdly commits any lewd or lascivious act ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony...." (§ 288, subd. (a).) Defendant reasons that because this language "closely matches" the language of section 1192.7(c)(6), "the `serious felony'" that section 1192.7(c)(6) defines "is a violation of section 288, subdivision (a)." Defendant then asserts that because section 288, subdivision (a), "necessarily includes the specific intent to arouse, appeal to, or gratify the lust, passions or sexual desires of one of the participants" and oral copulation of a child under section 288a, subdivision (c), is "a general intent crime," "it is possible to commit a violation of section 288a, subdivision (c) without committing a lewd or lascivious act upon a child under 14." Thus, defendant asserts, his conviction under section 288a, subdivision (c), is not a "serious felony" conviction under section 1192.7(c)(6).

As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature's intent so as to effectuate the law's purpose. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572, 88 Cal.Rptr.2d 19, 981 P.2d 944.) We begin by examining the statute's words, giving them a plain and commonsense meaning. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476, 66 Cal.Rptr.2d 319, 940 P.2d 906.) We do not, however, consider the statutory language "in isolation." (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) Rather, we look to "the entire substance of the statute ... in order to determine the scope and purpose of the provision.... [Citation.]" (West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 608, 86 Cal.Rptr. 793, 469 P.2d 665.) That is, we construe the words in question "`in context, keeping in mind the nature and obvious purpose of the statute....' [Citation.]" (Ibid.) 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." (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; see also Woods v. Young (1991) 53 Cal.3d 315, 323, 279 Cal.Rptr. 613, 807 P.2d 455; Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91, 255 Cal.Rptr. 670, 767 P.2d 1148; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387, 241 Cal.Rptr. 67, 743 P.2d 1323.)

Applying these principles, we disagree with defendant. We first observe that defendant's argument is inconsistent with the plain language of section 1192.7(c)(6). An act of oral copulation on a child under 14 years of age by a person more than 10 years older than the child is a lewd or lascivious act under the common and ordinary meaning of those words.² Moreover, as defendant acknowledges, section 1192.7(c)(6) contains "no direct reference to section 288." By contrast, both the electorate and the Legislature have enacted other criminal statutes that define the triggering conduct or circumstance by express reference to a lewd and/or lascivious act on a child "in violation of [s]ection 288." (§§ 190.2, subd. (a)(17)(E) ["lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288"], 999?, subd. (a) ["lewd acts on a child under 14, in violation of Section 288"],* 1202.1, subd. (e)(6) ["[l]ewd or...