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PEOPLE v. MONTES

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Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Arturo Daniel MONTES, Defendant and Appellant.

No. B117195.

Decided: November 23, 1998

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Jennifer A. Leal, Deputy Attorney General, for Plaintiff and Respondent.

Arturo Daniel Montes argues that his prior convictions for violation of Penal Code 1 sections 286, 288a, and 289, subdivision (j) do not constitute serious or violent felonies within the meaning of the Three Strikes law.   Respondent counters that each offense constitutes a serious felony-a lewd act on a child under the age of 14 years.

We look to Penal Code section 288 for the definition of lewd act.   That section requires the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the perpetrator or of the child.  Sections 286 and 288a do not include this intent element and therefore do not constitute serious or violent felonies as defined by section 1192.7, subdivision (c)(6) or section 667.5, subdivision (c)(6).   On the other hand, section 289, subdivision (j) includes all the elements of section 288 and for that reason constitutes a serious and violent felony under sections 1192.7, subdivision (c)(6) and 667.5, subdivision (c)(6).   We remand the case to the trial court for resentencing.

FACTUAL AND PROCEDURAL SUMMARY

Appellant was convicted of being a felon in possession of a firearm (§ 12021, subd. (a)(1)).   He does not challenge the underlying judgment of conviction.   His appeal is limited to whether his prior convictions constitute “strikes” under the Three Strikes law.   We summarize only those facts relevant to the appeal.

Appellant was alleged to have suffered four prior felony convictions, including oral copulation of a person under 14 (§ 288a, subd. (c)), penetration by a foreign object on a person under 14 (§ 289, subd. (j)),2 lewd and lascivious acts with a child under 14 (§ 288, subd. (a)), and the “infamous crime against nature” (former § 286 3 ).  The first two offenses were committed against the same victim.

Appellant waived jury trial on the priors.   To prove the priors, the prosecution introduced fingerprint cards, prison packets, and photographs of appellant.   A fingerprint expert, Darrell Carter, testified that appellant's fingerprints matched those in the prior cases.

The court found the priors to be true and sentenced appellant to 25 years to life.   Appellant filed a timely notice of appeal.

DISCUSSION

I.

The only question presented is whether appellant's prior convictions for the “infamous crime against nature,” oral copulation, and penetration with a foreign object (§§ 286, 288a, subd. (c) 4 and 289, subd. (j) 5 ) constitute the serious offense of “lewd or lascivious act on a child under 14 years” ( § 1192.7, subd. (c)(6)) or the violent offense of “lewd acts on a child under the age of 14 years as defined in section 288” (§ 667.5, subd. (c)(6)).6

We first consider whether appellant's convictions for the infamous crime against nature and for oral copulation constitute strikes.   Neither includes the intent required by section 288.   We then turn to appellant's conviction for penetration with a foreign object.   We conclude that lewd or lascivious acts on a child under 14, as defined by section 667.5, subdivision (c)(6) and section 1192.7, subdivision (c)(6), require an intent to arouse, appeal to or gratify the lust, passions, or sexual desires of that person or the child.   We also hold that a conviction under section 288 is not required to satisfy the statutory descriptions of a serious or violent felony because conduct that includes all the elements of section 288 is sufficient.

A

Respondent argues that, even though appellant's convictions for oral copulation and the infamous crime against nature do not include the intent to arouse, they constitute serious crimes within the definition of 1192.7.   According to respondent, the serious offense-lewd or lascivious act on a child under the age of 14-differs from the violent offense-lewd acts on a child under the age of 14 years as defined in section 288.   The reason, as explained by respondent, is that exclusion of the language “as defined in section 288” from section 1192.7, subdivision (c)(6) evinces an intent to broaden the definition of lewd and lascivious acts to include acts committed without the intent required by section 288.   Respondent also points out that section 1192.7 was subsequently enacted, as part of the Victims' Bill of Rights (Prop. 8).  (People v. Bow (1993) 13 Cal.App.4th 1551, 1556, 17 Cal.Rptr.2d 94.)

The problem with respondent's argument is that it makes no showing that even suggests that the voters intended to refer to a definition other than that provided in Penal Code section 288.  (See People v. Mena (1988) 206 Cal.App.3d 420, 428, 254 Cal.Rptr. 10 [Section 288 defines the crime, “Lewd acts on a child under 14․”].)  The only “alternative” definition for lewd provided by respondent is the dictionary definition quoted in In re Smith (1972) 7 Cal.3d 362, 365, 102 Cal.Rptr. 335, 497 P.2d 807:  “The relevant dictionary meaning of ‘lewd’ is ‘sexually unchaste or licentious,’ ‘dissolute, lascivious,’ ‘suggestive of or tending to moral looseness,’ ‘inciting to sensual desire or imagination,’ ‘indecent, obscene, salacious.’  (Webster's New Internat.   Dict. (3d ed.1961) p. 1301.)”   In Smith, the court went on to consider the meaning of the word “lewd” under the Penal Code section at issue in that case (§ 314, indecent exposure).   It concluded the term required a showing of “ ‘the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires' of the persons involved.”  (Ibid.;  see also People v. Martinez (1995) 11 Cal.4th 434, 449, 45 Cal.Rptr.2d 905, 903 P.2d 1037 [“As suggested in Smith, we can only conclude that the touching of an underage child is ‘lewd or lascivious' and ‘lewdly’ performed depending entirely upon the sexual motivation and intent with which it is committed.”].)

The entire definition provided in Smith parallels that given in section 288, which requires an intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or of the child.   When considered in its totality, even respondent's “alternative” definition is substantially similar to that provided in section 288.   Lack of any showing that the voters intended a different definition coupled with the lack of any other viable definition, is fatal to respondent's argument.

 Contrary to respondent's contention, “lewd or lascivious act on a child under the age of 14 years” as used in section 1192.7 requires the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person or of the child.   Appellant's convictions under 286 and 288a lack that intent, and therefore do not constitute strikes within the meaning of section 667.5, subdivision (c)(6) or 1192.7, subdivision (c)(6).  (See People v. Mena, supra, 206 Cal.App.3d at p. 429, 254 Cal.Rptr. 10 [holding §§ 286 and 288a offenses are not “violent felonies” under section 667.5, subdivision (c)(6) ];  see also People v. Thornton (1974) 11 Cal.3d 738, 765, 114 Cal.Rptr. 467, 523 P.2d 267 [stating that sections 288a and 286 are general intent crimes] overruled on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.)

Two courts have reached a different conclusion.   In People v. Henderson (1987) 195 Cal.App.3d 1235, 1238, 241 Cal.Rptr. 461, the court concluded that a violation of section 288a is lewd per se.   More recently, in People v. Murphy (1998) 67 Cal.App.4th 1205, 79 Cal.Rptr.2d 699, the court held that section 1192.7, subdivision (c)(6) is not limited to offenses defined in section 288.   As we explain, we are not persuaded by the reasoning employed in these cases.

The Henderson court relied on the following footnote in People v. Deletto:  “The minor testified about four instances of sexual contact:  (1) defendant touched her ‘secret’ (identified by the court as her vagina) with his ‘wiener’ and ‘put it in [her]’;  (2) defendant touched her ‘in back’ (identified by the court as ‘her bottom’) with his ‘wiener’ and put it in her;  (3) defendant ‘french kissed’ her ‘secret’ and his tongue touched her there;  and (4) defendant placed his ‘wiener’ in her mouth and ejaculated.   Any of the four acts described by the minor could obviously be considered lewd under Penal Code section 288.”  (People v. Deletto (1983) 147 Cal.App.3d 458, 475, fn. 13, 195 Cal.Rptr. 233, emphasis added.)   We agree that the acts described in Deletto could be considered lewd under section 288.   Those acts, with the requisite intent, indeed are lewd.   However, finding them per se lewd, without any finding of intent, is irreconcilable with the holding in Pearson that a person can commit sodomy without committing a lewd act.  (People v. Pearson, supra, 42 Cal.3d at p. 356, 228 Cal.Rptr. 509, 721 P.2d 595.)   As the Pearson court stated:  “Defendant argues that ‘it is inconceivable that a person can engage in sodomy on a child without at the same time committing a lewd and lascivious act on that child.’   Although this may be accurate in a moral sense, it is not true that every such act is committed with the specific intent required in section 288.   For example, an act of sodomy can be committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent.”  (Id. at p. 356, 228 Cal.Rptr. 509, 721 P.2d 595.)

For support, the Henderson court also cited People v. Cline (1969) 2 Cal.App.3d 989, 996-997, 83 Cal.Rptr. 246, disapproved in People v. Scott (1994) 9 Cal.4th 331, 347, footnote 9, 36 Cal.Rptr.2d 627, 885 P.2d 1040.   Cline concerned the issue of whether section 654 permits punishment under both section 288 and 288a.  (2 Cal.App.3d at pp. 996-997, 83 Cal.Rptr. 246.)   Putting aside the fact that the approach adopted in Cline has been rejected, the analysis under section 654 does not aid resolution of the issue presented in this case-whether the definition of lewd includes an intent element.

Finally, in People v. Murphy, supra, 67 Cal.App.4th at pages 1209-1210, 79 Cal.Rptr.2d 699, the court rejected the definition of lewd in section 288, assumed the conduct was lewd, and then concluded as much.   Because the only definition of lewd presented to us includes an intent element, we respectfully disagree with the conclusion in Murphy.

B

The remaining question is whether appellant's conviction under section 289, subdivision (j), constitutes a strike.   Appellant concedes this conviction satisfies the elements of section 288.   But he argues that it fails to qualify as a prior strike because he was not convicted under section 288.   In other words, according to appellant, it is the conviction rather than the conduct upon which it is based that triggers sections 667.5, subdivision (c)(6) and 1192.7, subdivision (c)(6).

Appellant finds support for his argument in People v. Mena, supra, 206 Cal.App.3d at p. 429, 254 Cal.Rptr. 10.   In holding that violations of sections 286 and 288a do not constitute lewd and lascivious acts on a minor under 14 as defined by section 667.5, the Mena court reasoned:  “Each of the subdivisions preceding (c)(6) clearly states the name of a felony crime, i.e., murder, mayhem, rape, sodomy and oral copulation․   Moreover, ‘Lewd Act on Child Under 14’ is a name commonly given the crime defined by section 288.  [Citation.]   Finally, [this] construction accomplishes the announced purpose of the statute-to identify certain felony offenses as ‘violent’-in a straightforward manner.”  (Id. at p. 428, 254 Cal.Rptr. 10.)   The Mena court specifically stated that “[section 667.5] subdivision (c)(6) states the name of a felony defined by section 288.”  (206 Cal.App.3d at p. 429, 254 Cal.Rptr. 10.)

 A prior conviction qualifies as a “strike” under the Three Strikes law if it satisfies the definition of a violent felony under section 667.5, subdivision (c)(6), or a serious felony under section 1192.7, subdivision (c)(6).  “[A] statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts [citation];  and ․ courts should give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.  [Citation.]   In our search for legislative intent, we are also guided by the principle that [i]n construing a criminal statute, a defendant must be given the benefit of every reasonable doubt as to whether the statute was applicable to him.  [Citations.]   We must also try to give effect to every phrase and paragraph, leaving no part of the statute useless or deprived of meaning.  [Citations.]   Moreover, it is fundamental that a statute should not be interpreted in a manner that would lead to absurd results.”  (People v. Bryant (1992) 10 Cal.App.4th 1584, 1599-1600, 13 Cal.Rptr.2d 601, internal quotation marks omitted).)

 In adopting the Three Strikes law, the Legislature intended to punish recidivist criminals more severely than others and so protect the public from criminals.  (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1329, 49 Cal.Rptr.2d 152.)   Interpreting a lewd and lascivious act as including all conduct that falls within that category furthers the goals of punishment and protection.   A contrary interpretation would impede these goals by permitting a defendant who is convicted of a lesser included offense to suffer a greater punishment than the defendant convicted of the greater offense.  (See People v. Bow, supra, 13 Cal.App.4th at p. 1557, 17 Cal.Rptr.2d 94 [applying the same reasoning to Proposition 8].)

The language of section 667.5 supports this conclusion.   In subdivision (c)(6) the Legislature used the phrase “as defined by.”   The Legislature did not use the phrase “in violation of.”   The language “as defined by” suggests that any conduct that falls within the ambit of the definition provided in section 288 is sufficient to constitute a strike.   In contrast, paragraphs 10, 13, 14, 16, and 19 in the current version of section 667.5 which require a violation of a specific statute, use the phrase “in violation of.”

Although Mena, on its face, suggests a different result, the Mena court was concerned that sections 286 and 288a lack the intent requirement specified in section 288.  “The problem with having all lewd acts defined in section 288 be violent felonies is that either the acts must be accompanied by the specific intent specified in section 288 (‘the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires' of the perpetrator or child) or else some acts otherwise embraced by section 288 would not be felonies.   Although subdivision (a) of section 288 includes ‘other crimes provided for in Part I of the code upon or with the body ․ of a child ․,’ many of these crimes are misdemeanors.”  (People v. Mena, supra, 206 Cal.App.3d at pp. 428-429, 254 Cal.Rptr. 10.)

 We share the concern expressed by the Mena court, and agree that violations of sections 286 and 288a by themselves do not constitute serious or violent felonies, as defined.   But to the extent the Mena court concludes that even when conduct meets all the elements of section 288, it does not constitute a serious or violent felony, we respectfully disagree.7  As we have discussed, the term “lewd or lascivious act” describes a range of conduct which includes the conduct described in section 289, subdivision (j).   Appellant's conviction under section 289, subdivision (j) therefore constitutes a strike under the Three Strikes law.

The court declined to strike any of appellant's prior convictions after concluding that appellant's sentence would not be affected unless it struck three prior convictions.  (Appellant had suffered four serious felony convictions.)   As appellant points out, the court may have exercised its discretion in a different manner had it determined that appellant suffered only two prior “strikes.”   Accordingly, we remand the case to the trial court for resentencing.

II

Appellant raises additional contentions on appeal.   He maintains that:  (1) he received ineffective assistance of counsel based on his attorney's failure to challenge the sufficiency of the evidence that his prior convictions constitute strikes;  (2) the trial court erred in refusing to strike three prior felony convictions;  and (3) his sentence constitutes cruel and unusual punishment.   Because we have concluded that the section 286 and 288a prior convictions do not constitute strikes and that the case must be remanded for resentencing, we need not and do not reach these additional issues.

DISPOSITION

The judgment of conviction is affirmed.   The finding that appellant's prior convictions under sections 286 and 288a constitute strikes under the Three Strikes law is reversed.   The case is remanded for resentencing.

FOOTNOTES

FN1. All further statutory citations are to this code..  FN1. All further statutory citations are to this code.

2.   We granted appellant's request to take judicial notice of the felony complaint filed January 20, 1988, in People v. Montes, case no.  A575687, and the reporter's transcript of the plea proceeding in the same case.   Those documents show that appellant pled guilty to a violation of section 289, subdivision (j).   The abstract of judgment and fingerprint card erroneously state that he was convicted under subdivision (a) of that statute.

3.   In 1973, when appellant violated former section 286, this statute provided:  “Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the state prison for not less than one year.”

4.   Currently, as well as at the relevant time, section 288a, subdivision (c) provides:  “Any person who participates in an act of oral copulation with another person who is under 14 years of age and more than 10 years younger than he or she, or when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person or where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat shall be punished by imprisonment in the state prison for three, six, or eight years.”

5.   In 1988, when appellant violated former section 289, subdivision (j), that statute provided:  “Any person who participates in an act of penetration of the anal or vaginal openings with a foreign object, instrument, or device of another person who is under 14 years of age and who is more than 10 years younger than he or she for the purpose of sexual arousal, gratification, or abuse, shall be punished by imprisonment in the state prison for three, six, or eight years.”

6.   The parties agree that appellant's convictions do not constitute sodomy by force or oral copulation by force (§§ 1192.7, subds. (c)(4) & (c)(5);  667.5, subds. (c)(4) & (c)(5)) because the record contains no evidence of force and those crimes may be committed without force.   They also agree that appellant's convictions for the “infamous crime against nature” (former § 286) and oral copulation (§ 288a, subd. (c)) do not include the “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or of the child, ․” (§ 288;  see People v. Pearson (1986) 42 Cal.3d 351, 356, 228 Cal.Rptr. 509, 721 P.2d 595 [“it is not true that every such act [of sodomy] is committed with the specific intent required in section 288.   For example, an act of sodomy can be committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent.”] )   There is not dispute that penetration with a foreign object in violation of section 289, subdivision (j) includes the same intent and the same elements as section 288.   Indeed, section 288, subdivision (a) is a lesser included offense of section 289, subdivision (j).  (See People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073 [“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.”].)

7.   Appellant also relies on People v. Jackson (1985) 37 Cal.3d 826, 832, 210 Cal.Rptr. 623, 694 P.2d 736, overruled in People v. Guerrero (1988) 44 Cal.3d 343, 243 Cal.Rptr. 688, 748 P.2d 1150, as recognized in People v. Harrell (1989) 207 Cal.App.3d 1439, 255 Cal.Rptr. 750.   That case concerned whether a second degree burglary conviction constitutes burglary of a residence.   The court construed section 1192.7, subdivision (c), paragraphs (18) and (24) as referring not to specific criminal offenses, but to the criminal conduct described-burglary of a residence and selling, furnishing, administering or providing heroin, cocaine or PCP to a minor.  (37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   Appellant argues that because the court mentioned only those paragraphs, it concluded paragraph (6) defines a specific offense.   But, the Jackson court did not consider whether paragraph (c)(6) require a conviction under 288.  “Opinions are not authority for matters not considered.”  (Gonzales v. Superior Court (1995) 37 Cal.App.4th 1302, 1311, fn. 8, 44 Cal.Rptr.2d 144.)

EPSTEIN, J.

CHARLES S. VOGEL, P.J., and COOPER (F.M.), J.*, concur.

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