People v. Warner

Decision Date10 August 2006
Docket NumberNo. S126233.,S126233.
Citation39 Cal.4th 548,47 Cal.Rptr.3d 1,139 P.3d 475
CourtCalifornia Supreme Court
PartiesThe PEOPLE, Plaintiff and Respondent, v. Brian Eric WARNER, Defendant and Appellant.

Superior Court, Sacramento County; Roland L. Candee, Judge.

John Ward, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant.

Gary M. Mandinach for the California Public Defender's Association as Amicus Curiae on behalf of Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen, Janet E. Neeley, Stan Cross and Lee E. Seale, Deputy Attorneys General, for Plaintiff and Respondent.

WERDEGAR, J.

[139 P.3d 551]

A jury convicted defendant Brian Eric Warner of three counts of lewd or lascivious conduct with a child under 14 years of age. (Pen.Code,1 § 288, subd. (a).) In addition, the jury found he had suffered a prior felony conviction in Nebraska for child sexual assault. Because the record does not show defendant's Nebraska crime contained all of the elements of any offense in California amounting to a serious felony, as defined in section 1192.7, subdivision (c), we conclude defendant was not subject to a serious-felony sentence enhancement (§ 667, subd. (a)) nor eligible to be sentenced under the three strikes law (§§ 667, subds.(b)-(i), 1170.12). Accordingly, we reverse in part the judgment of the Court of Appeal.

FACTS

Defendant was married to C.H. and lived with her and her two daughters, C., then five years old, and S., then three years old. S. told her mother that defendant had touched her vagina. C.H. reported the incident to child protective services, who contacted police. An investigation led police to focus on three alleged incidents of lewd or lascivious behavior with S. During a police interrogation, defendant admitted all three incidents of sexual molestation. He also admitted the molestations to his wife, who surreptitiously tape-recorded his admission of one of the incidents. A jury convicted defendant of three counts of lewd or lascivious conduct with a child under 14 years of age. (§ 288, subd. (a).) After examining documents from Nebraska, the jury also sustained the allegation that defendant had previously suffered a conviction in Nebraska for child sexual assault in violation of Nebraska Revised Statutes section 28-320.01 (1995). The trial court sentenced him under the habitual sexual offender law (§ 667.71) to consecutive terms of 25 years to life for the three substantive counts and added a serious-felony enhancement term of five years for the prior out-of-state conviction (§ 667, subd. (a)). In the aggregate, defendant was sentenced to 80 years to life.

The Court of Appeal affirmed defendant's three convictions for violating section 288, subdivision (a) and the imposition of the serious-felony sentence enhancement under section 667, subdivision (a), but reversed the finding that

[139 P.3d 552]

defendant was eligible for sentencing under the habitual sexual offender law. The court remanded the case for resentencing, noting that defendant was eligible for sentencing under the three strikes law. On defendant's petition, we granted review and limited the issue to whether his prior Nebraska conviction for child sexual assault qualified as a serious felony for California sentencing purposes. In addition, at oral argument, we asked the parties to brief the further question whether, at the time of defendant's prior conviction, the Nebraska law "contained the same mens rea element as Penal Code section 288, subdivision (a), in that it required the defendant to harbor the specific intent to arouse or gratify the sexual desires of himself or the victim."

DISCUSSION

For criminal sentencing purposes in this state, the term "serious felony" is a term of art. Severe consequences can follow if a criminal offender, presently convicted of a felony, is found to have suffered a prior conviction for a serious felony. If the present conviction is also for a serious felony, the offender is subject to a five-year enhancement term to be served consecutively to the regular sentence. (§ 667, subd. (a).) Even if an offender's present conviction is not for a serious felony, a prior conviction for a serious felony renders the offender subject to the more severe sentencing provisions of the three strikes law. (§§ 667, subds.(b)-(i), 1170.12.)

Whether a crime qualifies as a serious felony is determined by section 1192.7, subdivision (c) (section 1192.7(c)), which lists and describes dozens of qualifying crimes. Murder, robbery, kidnapping, and forcible sexual assaults are of course on the list. At issue in this case are the crimes described in section 1192.7(c)(6): committing a "lewd or lascivious act on a child under the age of 14 years." Defendant's three present convictions for violating section 288, subdivision (a), which required proof he touched a child with lewd intent (People v. Martinez (1995) 11 Cal.4th 434, 45 Cal.Rptr.2d 905, 903 P.2d 1037), indisputably qualify as serious felonies. The question is whether defendant's prior felony conviction in Nebraska similarly qualifies.2

Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must "include[ ] all of the elements of any serious felony" in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law (§§ 667, subds.(b)-(i),

[139 P.3d 553]

1170.12), the foreign crime (1) must be such that, "if committed in California, [it would be] punishable by imprisonment in the state prison" (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must "include[ ] all of the elements of the particular felony as defined in" section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).3 We now turn to the question whether defendant's prior conviction in Nebraska qualifies as a "serious felony."

I

In 1996, defendant pleaded no contest in Nebraska to a charge of sexual assault of a child, in that he, "being a person nineteen years of age or older, subject[ed] [N.H.] whose date of birth is July 22, 1991, and who is a person of fourteen years of age or younger, to sexual contact," a violation of Nebraska Revised Statutes section 28-320.01. In order to determine whether this Nebraska crime contains "all of the elements" of a serious felony in California, we must first determine what elements are required by Nebraska law. At the time of defendant's crime, Nebraska Revised Statutes section 28-320.01 provided: "(1) A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older." (Italics added.) At that time, Nebraska Revised Statutes section 28-318(5) defined "sexual contact" as "the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact shall also mean the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party." (Italics added.)4

Nebraska Revised Statutes section 28-318(5) does not, on its face, require that the prohibited touching be for any particular purpose or be accomplished with any specific intent. The statutory language plainly states the actor must simply act intentionally; that is, he must intend to touch the victim. The touching cannot be involuntary or accidental. Instead of requiring

[139 P.3d 554]

specific intent, the statute requires proof the touching occurred under circumstances in which it "can be reasonably construed as being for the purpose of sexual arousal or gratification." (Neb.Rev. Stats., § 28-318(5).) This plain meaning controls. (Caspers Const. Co. v. Nebraska State Patrol (2005) 270 Neb. 205, 209, 700 N.W.2d 587, 591 ["In construing a statute, an appellate court should consider the statute's plain meaning"]; see In re Jennings (2004) 34 Cal.4th 254, 263, 17 Cal.Rptr.3d 645, 95 P.3d 906 [we interpret statutes by giving statutory language its "`plain, commonsense meaning'"].)

Consistent with the statute's plain language, the Nebraska Supreme Court has never required proof of specific lewd intent to sustain a violation of Nebraska Revised Statutes section 28-318(5). According to the Nebraska Supreme Court, to prove "sexual contact" under Nebraska Revised Statutes section 28-318(5), the state need prove only that the "circumstances and conduct . . . could be construed as being for such a purpose [of sexually arousing or gratifying either the perpetrator or the victim]." (State v. Osborn (1992) 241 Neb. 424, 433, 490 N.W.2d 160, 167; State v. Berkman (1988) 230 Neb. 163, 166, 430 N.W.2d 310, 313.) Of course, the Nebraska Supreme Court is the final arbiter of the meaning of its state's laws. (See Cooper v. Swoap (1974) 11 Cal.3d 856, 886, 115 Cal.Rptr. 1, 524 P.2d 97 [California Supreme Court is "the final authority on matters of state law"]; see also Burford v. Sun Oil Co. (1943) 319 U.S. 315, 325, 63 S.Ct. 1098, 87 L.Ed. 1424 [recognizing Texas courts alone can give definitive interpretation of Texas state law].)

Michigan courts, construing similar statutory language, have explicitly rejected the argument that proof of specific lewd intent is required. The law in Michigan...

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