PEOPLE v. JEFFERS

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas William JEFFERS, Defendant and Appellant.

Crim. B–007118.

Decided: February 11, 1986

Frank O. Bell, Jr., State Public Defender, under appointment by the Court of Appeal, and Richard Lennon, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Robert R. Anderson, Supervising Deputy Atty. Gen., and Robert C. Schneider, Deputy Atty. Gen., for plaintiff and respondent.

Thomas William Jeffers appeals from a denial of probation following jury conviction of four counts of lewd and lascivious conduct—masturbation—on a child under 14 years of age.  (Pen.Code, § 288, subd. (a).)1  As to three of the counts, the jury found true the special allegation that, in violating section 288, he had substantial sexual conduct with a victim under the age of 11 years.  (Pen.Code, § 1203.066, subd. (a)(8).)   That section prohibits the trial court from granting probation, suspending execution or imposition of sentence or striking, pursuant to section 1385, a finding bringing the defendant within the provisions of section 1203.066.   Jeffers contends the trial court erred in finding he did not come within the limited exception to that section.   We disagree and affirm the judgment.

FACTS

Christina A., the victim, was eight and one-half years old at the time of the offenses.   Jeffers knew her family for about eight years and his wife worked with Christina's grandmother.   Mrs. A. considered him a close family friend and she, her mother and Christina lived with the Jeffers two separate times.   Jeffers loaned Mrs. A. money for medical expenses, taught Christina to swim and bought her a bicycle.   In 1983, the Jeffers often picked Christina up at the Y.M.C.A. and spent afternoons with her.

In January 1984, Mrs. A. became uneasy that Mr. Jeffers was spending so much time alone with Christina and, replying to her mother's questioning, Christina said that Jeffers had been molesting her.   At trial, she testified to at least eight acts of molestation.   Medical examination revealed no physical injury.   Jeffers denied all allegations but admitted Christina had changed clothes and bathed in his presence and that she had watched him undress.   Christina had not lived with Jeffers for approximately a year prior to the offenses.   The jury found that he had not penetrated the vagina with a foreign object or committed oral copulation as alleged but did find him guilty of four counts of masturbation.  (Pen.Code, § 288, subd. (a).)

The probation officer recommended that the court find Jeffers conformed with the criteria of section 1203.066, subdivision (c) and that he be granted probation with a lengthy suspended prison sentence.   He concluded that “the defendant's involvement in the present offense appears to have occurred due to the closeness of both the defendant's and victim's families” and viewed the offense as “almost incestuous in nature.”   Jeffers' psychiatrist opined that Jeffers had a father-daughter relationship with Christina.

The trial court denied Jeffers' request for probation for the sole reason that it felt “incapable totally of concluding that the defendant fits within the description set forth in paragraph 1” of section 1203.066, subdivision (c).   The court sentenced him to the mid-term of six years on each count, counts 4, 5 and 6 to run concurrently with count 3, the base term.

DISCUSSION

Jeffers contends that he legally and factually met the first criterion of section 1203.066, subdivision (c) and was eligible for probation.   At time of sentencing, section 1203.066, subdivision (c) provided:  “Paragraphs (7), (8), and (9) of subdivision (a) [prohibiting a grant of probation or suspension of execution or imposition of sentence] shall not apply when the court makes all of the following findings:  (1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative or is a member of the victim's household who has lived in the household.  (2) Imprisonment of the defendant is not in the best interests of the child.  (3) Rehabilitation of the defendant is feasible in a recognized treatment program designed to deal with child molestation, and if the defendant is to remain in the household, a program that is specifically designed to deal with molestation within the family.  (4) There is no threat of physical harm to the child victim if there is no imprisonment.   The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to.   The court shall state its reasons on the record for whatever sentence it imposes on the defendant.  [¶] The court shall order the psychiatrist or psychologist appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.”2

The sole question here presented is whether Jeffers “is a member of the victim's household who has lived in the household.”   Pursuant to fundamental rules of statutory construction, we attempt to ascertain the purpose of the legislature and turn first to the language of the statute itself.  (See People v. Cicero (1984) 157 Cal.App.3d 465, 473, 204 Cal.Rptr. 582.)   The term “household” is not defined in either the statute or Senate Bill 586 (SB 586) of which the statute was a part.  (Stats.1981, ch. 1064.)   The only other place that term is used in section 1203.066 is in subdivision (a)(9) which describes persons who occupy a position of special trust and commit an act of substantial sexual abuse.   That section describes persons in authority who, by reason of their position, are able to exercise undue influence over the victim, and includes, among others, household members.

 A court may also rely on extrinsic aids such as history of the statute, committee reports, legislative debates, and statements to the voters.   (Noroian v. Department of Administration (1970) 11 Cal.App.3d 651, 655, 89 Cal.Rptr. 889;  see also People v. Black (1982) 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.)   In an earlier version of SB 586, introduced March 16, 1981, paragraph (1) read, “The defendant is the victim's natural parent, adoptive parent, stepparent, relative or member of the victim's household.”   This was later amended to “or is a member of the victim's household who has lived in the household for a substantial period of time but not less than one continuous year, while assuming the role of a parent.”   (Assem.J. (Aug. 10, 1981) p. 6342.)   The Joint Committee for Revision of the Penal Code held extensive hearings after which SB 586 “was drastically amended in the Assembly by deleting many of its existing provisions and substituting, as new SB 586, many of the provisions of the Assembly Bill No. 457․”  (People v. Cicero, supra, 157 Cal.App.3d 465, 476, 204 Cal.Rptr. 582.)

As part of section 1203.065, the Assembly amended the provision in question as follows:  “The defendant is a member of the victim's immediate family, including parent, grandparent, aunt, uncle, brother or sister, or is a step-parent, adopted parent, or has been living in the household for a substantial period of time but not less than one continuous year, while assuming the role of a parent.”   It also provided that, “Imprisonment of defendant would either cause psychological harm to the child or cause a breakup of the family, or both.”  (Assem.J. (Aug. 25, 1981) p. 6998.)   September 13, 1981, the Senate rejected the Assembly amendments.  (Sen.J. (Sept. 13, 1981) p. 6337.)   Two days later, a conference committee reported the bill out with amendments, including section 1203.066 as enacted.  (People v. Cicero, supra, 157 Cal.App.3d 465, 476, 204 Cal.Rptr. 582;  Sen.J. (Sept. 15, 1981) p. 6613.)   Both houses unanimously approved the bill.  (People v. Cicero, supra, 157 Cal.App.3d 465, 476, 204 Cal.Rptr. 582.)

 Where changes have been introduced by amendment, we must assume they were with design.  (People v. Cicero at 476, 204 Cal.Rptr. 582;  People v. Valentine (1946) 28 Cal.2d 121, 142, 169 P.2d 1;  People v. Salazar (1983) 144 Cal.App.3d 799, 807, 193 Cal.Rptr. 1.)   As enacted into law, the language is less specific, using general terms of “relative” and “household member.”

Jeffers argues that by delineating the category as household members who have lived in the household, the legislature must have intended a broader definition than the common one of those who live in the household.   The term “household” has been defined as follows:  (1) “․ those who dwell under the same roof and compose a family:  ․ a social unit comprised of those living together in the same dwelling place.”  (Webster's New Internat. Dict. Unabridged (3d ed. 1981) p. 1096.);  (2) “Occupants of a house.”  (The Concise Oxford Dict. Unabridged (7th ed. 1982) p. 484.);   and (3) “A family living together․  Those who dwell under the same roof and compose a family.”  (Black's Law Dict. (5th ed. 1979.) p. 666.)   Therefore, Jeffers contends, the legislature must have had in mind an extended family network including persons such as boyfriends, close family friends and babysitters, with the limitation that, at some point, they must have lived in the household.

 The phrase “is a member of the household who has lived in the household” is ambiguous.   Thus, we are guided by well-settled principles of statutory interpretation that when statutory language is reasonably susceptible of two constructions, “ ‘ordinarily that construction more favorable to the offender will be adopted.’ ”  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186.)   It has long been the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances may reasonably permit.  (Carlos v. Superior Court (1983) 35 Cal.3d 131, 145, 197 Cal.Rptr. 79, 672 P.2d 862.)   We also are cognizant that legislative enumeration of certain exceptions by necessary implication excludes all other exceptions.  (People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828.)

The trial court based its ruling on “the plain English ․ in the statute, coupled with the analysis set forth in ․ Senator Roberti's letter․”  Said letter (Defense Special Exhibit 1), admitted into evidence at sentencing,3 was written on Senator Roberti's stationary by Edward Cohen, Project Director of the Joint Committee for Revision of the Penal Code, and discussed the intent of section 1203.066 added by the Imbrecht-Rains-Goggin Child Sexual Abuse Prevention Act (SB 586).   We note this extrinsic evidence, mindful that extrinsic aids are relevant only to resolve ambiguities in the language since “(t)here may be numerous opinions held by participants in the legislative process about what legislation will accomplish.”  (In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 740, fn. 27, 199 Cal.Rptr. 697.)   We also note that Senator Roberti was a member of the Joint Committee for Revision of the Penal Code which held the hearings on SB 586.

Although Cohen did not specifically discuss the first criterion of paragraph (c), he explained the second:  “The policy of paragraph (2) of subdivision (c) is for the court to protect the child's well being.   This often requires a balancing of the child's interest, and the question was intentionally left to the court's judgment based on the facts and the victim's needs in each case.   [¶] Factors which were considered to come within paragraph 2 at the time of drafting the section included, but were not limited to, the child's guilt if the parent were imprisoned, the need for the parent for the child's therapy, the financial welfare of the child and the child's need for the family to remain intact.․

Cohen also explained that SB 586, part of a six-bill package on child molesting, was controversial and underwent extensive amendments in the legislative process.  “The issue of treatment versus imprisonment, the victim's needs versus law enforcement's needs, and family needs versus victim's needs were extensively debated․  Penal Code § 1203.066 was a hard fought balancing act with the interests of the victim being the primary concern.”

The synopsis of SB 586 in the Summary of 1981 Crime Legislation, California Legislature, compiled by the Joint Committee for the Revision of the Penal Code corroborates Cohen's letter:  “Because it can be necessary to involve the offending family members in cases of intrafamily child molest in order to rehabilitate the child victim, SB 586 permits probation for these offenders ․ if the judge finds that the offender poses no threat of physical harm to the child, that granting the offender probation is in the best interest of the child and that rehabilitation of the defendant is feasible.”  (p. 17.)

 The focus of the Joint Committee hearings on SB 586 was concern for the victim versus protection of society.   Ability to rehabilitate the offender locally was discussed in the context of the victim's needs rather than benefit to the offender.   We concur with Jeffers that “household member who has lived in the household” is a catch-all category to allow the trial court discretion to grant probation to an offender who is a member of the victim's extended family—and we use that term in the broad sense—who has lived in the household.   However, the statutory language, “is a member,” indicates that the offender must still occupy the role of family member at the time the court considers probation eligibility.   In other words, instead of focusing on when the offender lived in the household, the trial court should focus on whether the offender is a part of the extended family unit.   Once the trial court finds the offender meets all the criteria of section 1203.066, subdivision (c) and is eligible for probation, other factors it may wish to consider in its exercise of discretion to grant or deny probation are whether it is likely the relationship would and should be reestablished in the child's best interest, whether the offender's participation is vital to the child's therapy or his imprisonment would further traumatize the victim or cause undue financial hardship to the family.   Additionally, if the relationship between offender and victim is not obvious, i.e., parent or step-parent, the trial court might request that probation or psychological reports specifically address the first criterion of paragraph (c).

 In the instant case, the record indicates that, while Jeffers and Christina may have had a warm and caring relationship prior to the abuse, he was not a member of her “household” or extended family at time of sentencing.   In fact, from the testimony, it appears Mrs. A. would never allow him near Christina in the future, and Christina herself testified that she did not like him at time of trial.   There was substantial evidence to support the trial court's conclusion that Jeffers did not meet all four criteria and, therefore, was not, as a matter of law, eligible for probation.

The judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   As amended, section 1203.066, subdivision (c) now reads, in pertinent part, as follows:  “Paragraphs (7), (8), (9), and (10) of subdivision (a) shall not apply when the court makes all of the following findings:  ․”  (Stats.1985, ch. 1406, p. ––––, § 1.   Addition by amendment underlined.)

3.   We augmented the record to include this exhibit on our own motion.

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.