PEOPLE v. MURPHY

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Court of Appeal, Third District, California.

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

No. C025452.

Decided: October 27, 1998

Donald I. Segerstrom, Sonora, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George H. Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant was convicted by a jury of two counts of lewd and lascivious conduct with a child under the age of 14 (Pen.Code, § 288, subd. (a);  statutory references to sections of an undesignated code are to the Penal Code).   He admitted two serious felony convictions within the meaning of the Three Strikes Law (§ 667, subds. (b)-(i)).   Sentenced to two consecutive terms of 25 years to life, defendant appeals, raising numerous contentions including claims of sentencing error.   On appeal, the People contend the trial court failed to impose a mandatory term for an enhancement.   In the published part of this opinion we shall address the various claims of sentencing error.   In the nonpublished part of this opinion, we shall reject defendant's other claims of error.   We shall affirm the convictions but vacate the sentence and remand for resentencing.1

During 1995 and 1996, defendant molested his stepdaughter, Savana S., six times.   On each occasion, defendant rubbed his hand “up and down” outside the victim's clothes in the “private” area of her groin.   Five of the molestations occurred when the victim was six years old and one after she turned seven.   We shall relate additional facts as are necessary in our discussion of defendant's separate contentions.

I-V *

VI

 Defendant contends he was improperly sentenced under the Three Strikes Law because one of the two qualifying strikes is not a serious felony within the meaning of section 667, subdivision (d)(1).   The offense in question is oral copulation as defined in section 288a, subdivision (c).   That section defines two discrete offenses:  (1) oral copulation with a child under 14 years of age and more than 10 years younger than the perpetrator, and (2) oral copulation by means of force, violence, duress, etc.11

Section 667, subdivision (d)(1) defines a prior felony conviction for purposes of the Three Strikes Law as “[a]ny offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state.”   Section 667.5, subdivision (c) includes as violent felonies “[o]ral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person[ ]” (§ 667.5, subd.(c)(5)) and “[l]ewd acts on a child under the age of 14 years as defined in Section 288” (§ 667.5, subd. (c)(6)).   Section 1192.7, subdivision (c) similarly defines a prior felony conviction to include “oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person” (§ 1192.7, subd. (c)(5)) and a “lewd or lascivious act on a child under the age of 14 years” (§ 1192.7, subd. (c)(6)).

Defendant argues his conviction under section 288a, subdivision (c) does not qualify as a strike under either section 667.5, subdivision (c)(5) or section 1192.7, subdivision (c)(5) because force, violence, etc. is not a necessary element.   Defendant further argues his prior conviction is not a strike under section 667.5, subdivision (c)(6) because, while oral copulation may reasonably be considered a lewd act, it is not a lewd act “as defined in Section 288.”  (See People v. Mena (1988) 206 Cal.App.3d 420, 426-429, 254 Cal.Rptr. 10.)   Finally, defendant argues his conviction does not qualify as a strike under section 1192.7, subdivision (c)(6) because, despite the fact that subdivision is not expressly limited to offenses “as defined in Section 288,” it may reasonably be inferred the enactors intended such a restriction.

We are not persuaded.   Were it the intention to limit the scope of section 1192.7, subdivision (c)(6), it would have been expressed so, as in section 667.5, subdivision (c)(6).   We will not read into an enactment language not expressly there for no reason other than to create perfect symmetry between otherwise similar statutes.   In matters of statutory construction our fundamental concern is with legislative intent.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.)   We determine that intent by looking first to the words of the enactment, giving them their usual and ordinary meaning.  (Trope v. Katz (1995) 11 Cal.4th 274, 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.)   If the language is clear there is no need to resort to other indicia of intent.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

Defendant's prior conviction under section 288a, subdivision (c) involved either oral copulation by force, violence, etc., thereby qualifying as a strike under either section 667.5, subdivision (c)(5) or section 1192.7, subdivision (c)(6), or oral copulation of a child under 14 years of age and more than 10 years younger than the perpetrator, thereby qualifying as a strike under section 1192.7, subdivision (c)(6).   Defendant was properly sentenced as a third strike offender.12

VII

The trial court sentenced defendant to two consecutive terms of 25 years to life, citing both section 667, subdivisions (b) through (i) and section 667.71.   Defendant contends the court erred in relying on section 667.71 because that provision authorizes only one life term for a habitual sexual offender.   Although it is not clear from the record that the trial court sentenced defendant under section 667.71, we address defendant's contention for the benefit of the court on remand for resentencing.

 Section 667.71, subdivision (b) states in relevant part:  “A habitual sexual offender is punishable by imprisonment in the state prison for 25 years to life.”   Subdivision (a) defines a habitual sexual offender as “a person who has been previously convicted of one or more of the offenses listed in subdivision (d) and who is convicted in the present proceeding of one of those offenses.”   Subdivision (d) includes as qualifying offenses a violation of “subdivisions (a) or (b) of Section 288” and “oral copulation in violation of Section ․ 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person[.]”

Consistent with his argument in Part VI of this opinion, defendant contends his prior conviction for violating section 288a, subdivision (c) is not a qualifying offense for purposes of habitual sexual offender status.   However, defendant acknowledges section 667.71 requires only one qualifying conviction and his prior conviction under section 288 will suffice for this purpose.   Defendant nevertheless argues multiple terms are unauthorized in sentencing under section 667.71 because that section is based on a defendant's status as a habitual offender, which is the same whether he commits one current offense or many.

In People v. Jenkins (1995) 10 Cal.4th 234, 40 Cal.Rptr.2d 903, 893 P.2d 1224 (Jenkins ), the court held a recidivist defendant convicted of multiple current offenses involving great bodily injury under section 667.7 may be sentenced to multiple life terms.   Section 667.7, subdivision (a) defines a “habitual offender” as one convicted of “a felony” involving great bodily injury or the use of force likely to cause great bodily injury who has served two or more prison terms for certain qualifying offenses.

Defendant argues Jenkins is inapposite because section 667.7 involves a “much different sentencing scheme” than that set forth in section 667.71.   According to defendant, section 667.7 imposes punishment for “a” qualifying felony, thereby permitting multiple punishments for multiple offenses, whereas section 667.71 imposes punishment for the status of being a habitual offender.   Defendant relies on the language of section 667.71, subdivision (b), which states:  “A habitual sexual offender is punishable by imprisonment in the state prison for 25 years to life.”   Defendant further argues that had the Legislature intended multiple punishments for multiple current offenses it would have said so as it did in section 667.61.13

Defendant's argument notwithstanding, sections 667.7 and 667.71 operate in a like manner.   Section 667.7 authorizes a life term for a defendant convicted of “a” qualifying offense who has served two or more prison terms for qualifying convictions.   Similarly, section 667.71 authorizes a life term for a defendant convicted of “one” qualifying offense who has previously been convicted of “one or more” such offenses.   A defendant sentenced under section 667.71 is not being sentenced for his status as a habitual offender any more than another defendant sentenced for a current conviction is being sentenced for his status as a convicted felon.

 Section 667.71, subdivision (a) defines a “habitual sexual offender” as a person previously convicted of “one or more” qualifying felonies who is convicted in the present proceeding of “one” such offense.   Absent a contrary indication, where different language is used in different parts of a statute, we presume the Legislature intended different meanings.  (County of San Diego v. Department of Health Services (1991) 1 Cal.App.4th 656, 661, 2 Cal.Rptr.2d 256.)   Had the Legislature intended the requirement of “one” current qualifying conviction to include “one or more” offenses, it would have said so.

By virtue of defendant's conviction in the current proceeding of two qualifying offenses, he is a habitual sexual offender twice over and subject to multiple punishments.   On remand, the trial court has discretion to resentence defendant under section 667.71.

VIII

 In a related argument, defendant contends he cannot be sentenced under both section 667, subdivisions (b) through (i) and section 667.71.   At the time of sentencing, section 654 read in relevant part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one[.]”  (Stats.1977, ch. 165, § 11, p. 644.)   Defendant argues section 667, subdivisions (b) through (i) and section 667.71 essentially punish the same acts.

The People argue duplicate sentencing is permissible because the two sentencing schemes serve different objectives and neither section 667, subdivisions (b) through (i) nor section 667.71 supplants the other.   In People v. Ervin (1996) 50 Cal.App.4th 259, 57 Cal.Rptr.2d 728 (Ervin ), the defendant was convicted of burglary and forcible rape and admitted a conviction of attempted robbery.   He was sentenced under section 667.61, subdivision (b) to 15 years to life for the rape plus four years concurrent for the burglary and five years for the attempted robbery prior (§ 667, subd. (a)).  On appeal, the defendant contended he must be sentenced under the Three Strikes Law as a one strike offender, rather than under section 667.61, subdivision (b).   The People argued defendant is subject to sentencing under both schemes and as one convicted of a serious felony with one strike, his sentence under section 667.61 should have been doubled under section 667, subdivision (e)(1).

The court agreed, explaining:  “[T]he three strikes law and section 667.61 serve different objectives-the former punishes recidivism, the latter aggravated sex offenses-and there is simply no reason for suggesting that a recidivist criminal ought to be rewarded rather than penalized because his latest offense is sufficiently heinous to bring him within the provisions of section 667.61.”  (50 Cal.App.4th at p. 264, 57 Cal.Rptr.2d 728.)   The court noted section 667 indicates it is to be applied “in addition to any other enhancement or punishment provisions which may apply” (§ 667, subd. (e)) and “shall be applied” in every case in which a defendant has a prior qualifying conviction (§ 667, subd. (f)).  (50 Cal.App.4th at p. 265, 57 Cal.Rptr.2d 728.)   The court remanded for resentencing.

The People contend the court here correctly sentenced defendant under both section 667, subdivisions (b) through (i) and section 667.71.   Yet, the trial court did not sentence defendant under both sentencing schemes.   The court's stated rationale for the sentence imposed on each offense was either section 667 or section 667.71.

Unlike section 667.61, sentencing under section 667.71 is not mandatory.   Section 667.71, subdivision (b) says a habitual sexual offender is “punishable by imprisonment in the state prison for 25 years to life.”   It does not say the offender “shall be punished” in this way.   Section 667.71, subdivision (c) reads:  “At the request of the prosecutor and in lieu of the punishment specified in subdivision (b), the court shall order that the defendant be punished pursuant to Section 667.6, 667.61, 667.7, or 1170.1, if applicable.”

When a court elects to punish a habitual sexual offender under section 667.71, it is required to impose a term of 25 years to life for each current offense.   Since sentencing under section 667, subdivisions (b) through (i) is mandatory (People v. Dotson (1997) 16 Cal.4th 547, 552, 66 Cal.Rptr.2d 423, 941 P.2d 56), the court is then required to augment the sentence under section 667, subdivision (e).   And, under section 667, subdivision (e)(2)(A)(i), the offender with two strikes is then subject to a sentence on each offense of “[t]hree times the term otherwise provided as punishment.”   Under section 667.71, “the term otherwise provided as punishment” is 25 years to life.   In other words, the court is required to sentence the offender to a term of 75 years to life for each offense.

The record is ambiguous whether the trial court intended to sentence under section 667.71.   Although the court mentioned that section, it did not impose a sentence distinct from that required under the Three Strikes Law. Because, as we shall explain, this matter must be remanded for resentencing, the court will have an opportunity to reconsider whether to invoke section 667.71.   If it does so, and again imposes consecutive terms of 25 years to life under that section, those terms must be tripled under section 667, subdivision (e)(2)(A)(i).

IX

 The People raise one final point regarding sentencing.   Section 667, subdivision (a) mandates a five-year enhancement for each charge of a prior serious felony conviction “brought and tried separately.”   The primary term and each section 667, subdivision (a) enhancement must run consecutively.  (§ 667, subd. (a)(1).)   Defendant was charged in the information with one prior serious felony conviction within the meaning of section 667, subdivision (a) as to each current offense.   However, the court failed to impose corresponding enhancements, indicating sentencing on these matters would be stayed pending completion of the 50 years to life term.   This was error.  (People v. Dotson, supra, 16 Cal.4th at p. 553-557, 66 Cal.Rptr.2d 423, 941 P.2d 56.)

 Defendant contends the People failed to appeal and therefore waived the issue.   Not so.  “If a trial court imposes a sentence unauthorized by law, a reviewing court may correct that sentence whenever the error is called to the court's attention.  [Citations.]”  (People v. Crooks (1997) 55 Cal.App.4th 797, 810, 64 Cal.Rptr.2d 236.)   An unauthorized sentence claim may be raised by the People whether or not they appeal the judgment.  (Ibid.)

X

The convictions are affirmed.   The sentence is vacated and the matter is remanded for resentencing.   On remand, the court may consider in its discretion whether to impose sentence under section 667.71 and may reconsider in its discretion whether to strike for purposes of sentencing, either or both of defendant's prior felony convictions and, in any event, shall impose sentence for the serious felony enhancement (§ 667, subd. (a)) and otherwise proceed consistent with the views expressed in this opinion.

FOOTNOTES

1.   Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication with the exception of Parts I through V as they were renumbered per the modification of November 18, 1998.

FOOTNOTE.   See footnote 1, ante.

11.   Section 288a, subdivision (c) reads:  “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.”

12.   Having so concluded, we need not address the People's argument an act of oral copulation involving a child and a co-resident adult necessarily involves duress within the meaning of section 667.5, subdivision (c)(5) and section 1192.7, subdivision (c)(5).   We also need not consider the People's argument the record of the prior conviction contains evidence sufficient to establish duress.   Finally, we need not consider defendant's argument oral copulation within the meaning of section 288a is not necessarily a lewd act within the meaning of section 288, thereby bringing the offense within section 667.5, subdivision (c)(6), because the former is a general intent crime whereas the latter is a specific intent crime.

13.   Section 667.61, subdivision (a) reads:  “A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j).”

PUGLIA, Presiding Justice.

SCOTLAND, J., and NICHOLSON, J., concur.