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PEOPLE v. SHORT (1997)

Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. David Burton SHORT, Defendant and Appellant.

No. D025061.

Decided: January 30, 1997

Martin Nebrida Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Robert M. Foster and David Delgado Rucci Deputy Attorneys General, for Plaintiff and Respondent.

David Burton Short appeals following his convictions by jury of rape, forcible oral copulation, oral copulation while the victim was unconscious, and assault by means of force likely to produce great bodily injury.  (The jury was unable to reach a verdict on a charge of rape of an unconscious person, and that charge was dismissed.)

In a court trial, a “one strike” prior conviction under Penal Code 1 section 667.61 (which was also alleged to be a qualifying prior serious felony conviction under the provisions of section 667, subdivision (a) as well as a qualifying “strike” under the “three strikes” law, section 667, subdivisions (b) through (i)) was found to be true.

Short was sentenced to a term of 25 years to life for the rape, with a consecutive 12-year term (6 years doubled) for the forcible oral copulation and a 5-year enhancement for the prior serious felony, for a total indeterminate term of 25 years to life followed by a determinate 17-year term.

On this appeal, Short raises various assertions of error concerning the manner in which his sentences were calculated in this case, asserting (in a matter of first impression) that his sentence under the one strike law was improper for various reasons, and other sentencing error was also committed.   We reverse and remand the present matter for resentencing, with directions.


Jacqueline T. (Jacqueline) and her friend Clyde Fitzgerald (Fitzgerald) were homeless alcoholics who lived on the streets of San Ysidro.   Jacqueline and Fitzgerald had been friends for almost six years.   Jacqueline had known Short, also a homeless person, for over a year.   Jacqueline did not have a personal relationship with Short apart from being a friend.

On the morning of May 2, 1995, Jacqueline, Fitzgerald and Short began drinking near a pharmacy on Beyer Boulevard.   After about an hour or so, the police took Fitzgerald to detox.   Short procured beer, wine and vodka, and he and Jacqueline continued drinking all day long behind the pharmacy.

About five that afternoon, Short told Jacqueline they “ought to get together.”   Jacqueline knew that statement meant Short wanted to have sex with her, because Short had asked her for sex in this way in prior conversations and she had always refused his advances.   On this occasion as before, Jacqueline told Short she did not want to have sex with him.

During this conversation Jacqueline was sitting on a milk crate, as she had done all afternoon.   Jacqueline had previously told Short that she was practicing celibacy.   At this point Short told her “you're not going to practice celibacy any more” and began beating Jacqueline in the face with both fists.   Jacqueline, who was very drunk, first stood up, and then fell to the ground, as Short continued to beat her.

Short pulled Jacqueline's pants down, unzipped his trousers, got on top of her, inserted his penis, and raped her.   After a few minutes Jacqueline passed out, and did not remember anything more until she was being cared for by paramedics.

A store employee taking out the trash observed Short on top of an unmoving Jacqueline, having sex while pinning her hands to the ground.   Another employee also observed Jacqueline motionless, while Short moved up and down on top of her.   The second employee went back into the store and called police.

San Diego Police Officer Cook arrived about 5:25 p.m.   Cook came around a corner by the pharmacy and saw Short and Jacqueline lying on their sides on the ground, with Jacqueline's head in the lap area of Short.   Jacqueline's pants were around her ankles.   Short was holding Jacqueline's head by the hair while forcing her head up and down on his penis in her mouth.   Jacqueline's arms were lying limp by her side.   Cook asked Short what he was doing, and Short then released Jacqueline and rolled over and sat up, in the process removing his penis from her mouth.

Jacqueline tried to sit up, but could not.   Cook saw that Jacqueline was injured, and noticed blood was “oozing out of her mouth” and there were injuries to Jacqueline's face.  (Cook also noticed there was blood on Short's pants.)   Jacqueline was unable to sit up or answer any questions, and she appeared to Cook to be comatose.

San Diego Police Officer Medina arrived, and she attempted to question Jacqueline, who could not answer.   Medina observed “clots of blood dripping out of her mouth.”   Jacqueline “had abrasions and bruising and swelling all over her face.”   One eye “was swollen completely shut, and the other eye was barely open.   She was badly beaten and bleeding.”

At the hospital an internal examination of Jacqueline revealed abrasions and tissue tearing which was consistent with rape but was not consistent with consensual sexual activity.   Jacqueline's blood alcohol level was determined to have been .375, and Short's blood alcohol level was found to have been .25.   Seminal fluid was detected on swabs taken from the area of Short's penis.


Short makes no argument challenging his guilt of the present offenses.   Short argues instead that (1) his Minnesota prior conviction was constitutionally invalid, and thus his 25 years to life sentence under the one strike law was improper;  and (2) the Minnesota prior conviction does not contain all the elements of the comparable California crime, and for this reason also his sentence under the one strike law was improper.

Short also argues (3) section 667.61, subdivisions (f) and (g) preclude use of the Minnesota prior to both double his subordinate terms and enhance his sentence five years;  (4) the imposition of consecutive sentences for the rape and for the oral copulation was error;  and (5) the three strikes law violates the separation of powers doctrine.   We discuss these points in turn.


Short argues that his Minnesota prior was invalid and thus not properly used to enhance his sentences here, because his plea in that case was (1) improperly induced and also because (2) he had constitutionally ineffective assistance of counsel.   We do not agree with either of these assertions.2

Short argues first that he only pled guilty to first degree intrafamilial sexual abuse upon the condition he would be given treatment instead of the prison sentence he received, and that this “plea bargain” was violated by his receiving a prison sentence.   Short next asserts his counsel in that case was constitutionally ineffective because counsel did not advise him concerning a withdrawal of his plea of guilty.3

A. Violation of Plea Bargain

 Taking the points in order, we first address the purported violation of a sentencing bargain.   At the time Short entered his plea of guilty there was no agreement he receive a particular disposition for his plea.   The petition to enter a guilty plea Short signed stated in pertinent part:  “I have been told by my attorney and understand [¶] ․ the maximum penalty that the court could impose for this crime ․ is imprisonment for 0/20 years, and/or a fine of $35,000.”

While the agreement also recited that the state “does not oppose treatment,” this recitation does not control over the explicit statement of the maximum possible penalty.  (As the district attorney noted in this case, Short “was fully aware of the ramifications of his [Minnesota] plea at the time he signed the form.”)   Thereafter, during the probation officer's presentence investigation, the victim's mother strongly opposed a proposal Short be treated at a facility only one block from the victim's school and six blocks from her home.

Also, the presentence report stated (1) there had been no plea agreement, (2) the maximum penalty (as Short acknowledged in his plea form) was 20 years in state prison and a $35,000 fine, and (3) the “presumptive sentence” in this case was commitment to state prison for 54 months.4

At the sentencing hearing in Minnesota, no mention was made of any violation of an agreement for treatment instead of prison.   Short's counsel stated, “I have reviewed the reports, the pre-sentence investigation report and also the confidential report․”  As the presentence report had set out a presumptive prison term of 54 months, Short and his counsel were necessarily well aware in advance of sentencing that the recommendation was for prison commitment.   Finally, the sentencing judge stated, “I had indicated in Chambers I was contemplating a moderate departure downward,” which the district attorney opposed.   The judge then imposed a 42-month prison term instead of the presumptive 54-month term.   The absence of any discussion at the sentencing of any plea bargain violation shows that no such violation occurred, as there had never been any such plea agreement to be violated in the first instance.   Short's claim his plea was conditioned on treatment instead of state prison is without foundation in the record, and is also contradicted by the plain terms of the plea agreement which Short signed.   We reject it.

B. Constitutionally Ineffective Counsel

 We also reject Short's claim that his Minnesota counsel was constitutionally ineffective.   At sentencing Short's lawyer noted “in the confidential report that when [Short] discussed the matter with the doctor, that he had indicated he did not in fact put his finger in the child's vagina.”

The attorney also stated Short had denied guilt prior to entry of the guilty plea, although he had admitted guilt in those proceedings.   The discussion thereafter centered on whether Short desired to contest his factual guilt of sexual abuse, and thus withdraw his guilty plea.   When asked if he wanted to withdraw his plea, Short asked his lawyer “what he would advise.”   The attorney responded he could not advise Short what plea to enter, and Short determined to allow the previously entered plea to stand.

 The choice of what plea to enter is necessarily committed to the personal election of the individual defendant.  (See, e.g., § 1018, providing that “every plea shall be entered ․ by the defendant himself ․ in open court.”)   Short had to make this fundamental decision himself, and he chose not to contest his already-admitted guilt, but to let his plea stand.5  We will not now overturn that decision.


As noted earlier, in this case, Short was sentenced to a term of 25 years to life under section 667.61.   As our Supreme Court noted, section 667.61, which was enacted about six months after the three strikes law (Stats.1994, ch. 12, §§ 1, 2) by Statutes 1994, chapter 447, section 1, is “part of what is commonly known as the ‘One Strike’ law.”  (People v. Rayford (1994) 9 Cal.4th 1, 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) 6

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

Section 667.61, subdivision (c)(1) specifies an applicable current offense as including “[a] violation of paragraph (2) of subdivision (a) of Section 261 [rape by force, count I herein].”  Section 667.61, subdivision (c)(7) also specifies an applicable offense to include “violation of subdivision (a) of Section 288,[ 7 ] unless the defendant qualifies for probation under subdivision (c) of Section 1203.066 [allowing probation in some circumstances following a section 288, subdivision (a) conviction].” 8

Last, section 667.61, subdivision (d) provides:  “The following circumstances shall apply to the offenses specified in subdivision (c):  [¶] (1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).”  (Italics added.)

In other words, having been found guilty in the present proceedings of a violation of section 261, subdivision (a)(2), an offense listed in section 667.61, subdivision (c), Short would receive a 25-years-to-life sentence if his prior conviction was for another offense specified in section 667.61, subdivision (c), “including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).” (§ 667.61, subd. (d)(1).)

Short argues the Minnesota prior was not properly used to impose his 25-years-to-life sentence under section 667.61, subdivisions (a), (c), and (d)(1), because the elements of that offense in Minnesota do not include all of the elements of the qualifying California felony, a violation of section 288, subdivision (a).

Specifically, Short argues, the Minnesota offense of first degree intrafamilial sexual abuse (Minn.Stats., § 609.3641), to which he pleaded guilty, does not include, as does California's Penal Code section 288, subdivision (a), a requirement the sexual act accomplished on the child be done “with the intent of ․ gratifying the lust, passions or sexual desires of [the actor] or the child.”   We proceed to resolve this question.

A. Factual Background-Minnesota Prior Conviction

On the evening of August 25, 1984, one month before Short's fortieth birthday, Anita J. heard Short talking with her seven-year-old daughter, Michelle, in Michelle's bedroom.   Short was telling Michelle he wanted to be her husband and have a baby with her.

Anita chased Short from the house, and learned from speaking with Michelle that Short had on other occasions “been sexual with Michelle” and on this occasion “did, in fact, place his finger in [Michelle's] vagina.”   Short thereafter admitted during entry of a plea of guilty that he had penetrated Michelle's vagina, although stating it had “not really” happened on more than one occasion.

During the presentence investigation, Short told a probation officer that the seven-year-old child was “precocious” and had “a mind of her own.”   Short claimed Michelle would “crawl all over me, and when we would be watching television she would usually climb up into my lap, squirming and sit on me while we watched t.v.” Short claimed the child would crawl into bed between himself and her mother.

While Short claimed to find it annoying when Michelle “would climb and crawl all over him,” he stated that he never tried to stop her.   Short also stated he would sometimes have an erection and become sexually aroused “from standing and holding the victim in his arms or sitting with her on his lap.”

B. Statutes

After originally being charged with criminal sexual conduct in the first degree, in violation of Minnesota Statutes section 609.342, subdivision (a), Short entered a plea of guilty to a lesser offense.   The crime to which Short pleaded guilty in 1984, violation of then-current Minnesota Statutes section 609.3641, subdivision 1(1), intrafamilial sexual abuse in the first degree, was then defined as follows: 9


“Subdivision 1. Crime defined.   A person is guilty of intrafamilial sexual abuse in the first degree if:

“(1) He has a familial relationship to and engages in sexual penetration with a child․”

The lesser offense to first degree intrafamilial sexual abuse, second degree sexual abuse, was defined as follows:


“Subdivision 1. Crime defined.   A person is guilty of intrafamilial sexual abuse in the second degree if:

“(1) He has a familial relationship to and engages in sexual contact with a child․”

Minnesota Statutes section 609.364, subdivision 13, preceding the above-cited section which defined first degree intrafamilial sexual abuse, defined, among other terms, “sexual contact.”  “Sexual contact” was defined as including “any of the following acts, if the acts can reasonably be construed as being for the purpose of satisfying the actor's sexual or aggressive impulses:  [ ¶ ] ‘(a) The intentional touching by the actor of the complainant's intimate parts.  ․’ ” 10 (Italics added.)

Minnesota Statutes section 609.364, subdivision 14, defined the phrase “sexual penetration” to include “any intrusion however slight into the genital or anal openings of the complainant's body․”  No specific intent is listed as required in cases of “sexual penetration.” 11

In California, by contrast, “Section 288 imposes felony liability upon ‘[a]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, 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’ ․  (Id., subd. (a).)”  (People v. Martinez (1995) 11 Cal.4th 434, 442, fn. 5, 45 Cal.Rptr.2d 905, 903 P.2d 1037, italics added.)   Thus, “section 288 is violated by ‘any touching’ of an underage child committed with the intent to sexually arouse either the defendant or the child.”  (Id. at p. 442, 45 Cal.Rptr.2d 905, 903 P.2d 1037, italics added.) 12

Last, although a violation of section 288 may in many cases involve other proscribed acts, “it has long been settled that commission of a sex act constituting a crime under another section of the code is neither a defense to, nor a requirement of, conviction under section 288.”  (People v. Scott (1994) 9 Cal.4th 331, 342, fn. 5, 36 Cal.Rptr.2d 627, 885 P.2d 1040.)

C. Trial of the Prior

Following receipt of the jury verdicts in this case, court trial began on the applicability of Short's Minnesota prior conviction, based on the offense detailed above, as a section 667.61, subdivision (d)(1), section 667, subdivision (a) and a section 667, subdivisions (b)-(i) prior felony conviction.   Among other challenges to the applicability of the Minnesota prior conviction,13 Short's trial counsel argued “[t]he Minnesota charge ․ has a specific element of penetration and lacks an element of sexual arousal which our law does.   They have other sections in Minnesota which may involve sexual arousal, but this count ․ does specifically require penetration, not sexual arousement.”

The trial court then told the district attorney “it's quite apparent that the sexual arousal element of the crime is not present in Minnesota.   So I want you to address that.”

The district attorney argued that “there may be some minor differences in the requirements.”   Proceeding to refer to matters including the Minnesota probation report and the change of plea transcript, the district attorney next argued that “[b]ased on the activity the defendant admitted to in this particular case ․ it appears that from the admissions of his acts with the seven-year-old in Minnesota, that while ․ the words of their statute ․ don't mirror ours, the activity is greater than the requirements in our case.   They require penetration;  we do not.   A lewd and lascivious act according to [section] 288 is much less involved than the penetration of a seven-year-old's vagina in Minnesota.  [¶] And my argument is that the verbiage of the sections [doesn't] have to be verbatim.   Otherwise we would never be able to match section for section in some other state.   But the activity that he pleaded to in Minnesota mirrors and is greater than what is required for a [section] 288 conviction in our state.”

The trial judge disagreed with this characterization of the Minnesota offense, observing that “[i]n California you have to prove not only did he digitally penetrate the vagina of the minor but that he did it for the sexual gratification of himself or the child or both.   So rather than being a lesser standard in California, it's a greater standard.”

Then, observing that “this is actually a very critical decision, and it has a large impact on Mr. Short,” the court asked counsel to brief the issue of the applicability of the Minnesota prior conviction for section 667.61 purposes.   The district attorney and Short's counsel thereafter filed memoranda of points and authorities on the question.   In the memorandum prepared by Short's counsel, it was pointed out there was no case law interpreting the reference in section 667.61, subdivision (d)(1) to an offense committed in another jurisdiction which includes “all of the elements” of one of seven specified California sex offenses.

At a subsequent hearing the court noted it had reviewed the memoranda and “the complete packages of materials from the state of Minnesota.”   The court then focused on the Minnesota definition of “sexual contact,” that the act be done “for the purpose of satisfying the actor's sexual or aggressive impulses.   That language is critical because it's very apparent that the conduct that is admitted here is digital penetration of a then seven-year-old girl.   And the [intent] element, though not specifically present in the statute charging document, is in fact defined by statute.  [¶] Based on all of that, I am going to find that the code section is completely similar and virtually on all fours with California law.   And, as a result, the prior has been proven beyond a reasonable doubt․”

D. Scope of Review

The scope of a review of an out-of-jurisdiction conviction under section 667.61, subdivision (d)(1) is not clear.   As was pointed out by Short's trial counsel in his memorandum on the subject, in some cases a court may look only to the “least adjudicated elements” of an out-of-jurisdiction conviction to determine its applicability, while in other cases the sentencing court may refer to the entire record of the foreign conviction in making such a determination.

Short argues, as he did below, that (a) the applicability of the Minnesota prior conviction is to be tested only with reference to its statutory congruity with a California qualifying offense, and (b) even under a more expansive “whole record” review, there is not sufficient evidence to support the trial court's conclusion the Minnesota prior was a proper qualifying offense.14  (The question of the correct scope of review, which is determinative of the central issue on this appeal, was not addressed below by the district attorney, and it is also not now addressed on this appeal by the Attorney General.)

1. The Crowson “Least Adjudicated Elements” Test

Our Supreme Court, in a 1983 case, addressed “the question whether the difference in the basic elements of the foreign and California offenses precludes enhancement under section 667.5, subdivision (f).”  (People v. Crowson (1983) 33 Cal.3d 623, 632, 190 Cal.Rptr. 165, 660 P.2d 389.)   Crowson had been convicted in 1975 of violating 21 United States Code section 846, conspiracy to possess a controlled substance.   Under that statute, in contrast to California's definition of conspiracy in section 184, commission of an overt act was not an element of the offense.  (33 Cal.3d at pp. 630-631, 190 Cal.Rptr. 165, 660 P.2d 389.) 15

The court went on to resolve the question as follows:

“․ In light of the language of section 667.5, subdivision (f) and past authorities interpreting a related statute, we conclude that enhancement is only permissible when the elements of the foreign crime, as defined by that jurisdiction's statutory or common law, include all of the elements of the California felony.

“We begin with the terms of the statute.   Section 667.5, subdivision (f), enacted in 1976 as part of the Determinate Sentencing Act, provides in full:  ‘A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in state prison provided the defendant served one year or more in prison for such offense in the other jurisdiction.   A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law provided the defendant served one year or more in prison for such offense in the other jurisdiction.’  (Italics added.)

“As the emphasized language indicates, the statute authorizes enhancement for a foreign conviction only when the conviction is ‘for an offense which includes all of the elements' of the California felony.   As used in other portions of section 667.5, the term ‘offense’ quite clearly refers to a specific crime as defined by law, and not simply to the actual conduct of the defendant.   It is, of course, generally ‘presumed, in the absence of anything in the statute to the contrary, that a repeated phrase or word in a statute is used in the same sense throughout.  [Citations.]’  (People v. Hernandez (1981) 30 Cal.3d 462, 468 [179 Cal.Rptr. 239, 637 P.2d 706].)   Although this ‘presumption’ of consistent usage will give way in the face of an apparent contrary legislative intent (see ibid.), we can find nothing to suggest that the Legislature did not intend the relevant comparison to be between the elements of the foreign and California ‘offenses,’ as defined by the applicable statutory or common law.

“This interpretation finds support in the cases construing a parallel statutory provision relating to prior foreign convictions, section 668.   In In re Finley (1968) 68 Cal.2d 389 [66 Cal.Rptr. 733, 438 P.2d 381], Chief Justice Traynor, writing for a unanimous court, reviewed the general principles applicable in determining whether a foreign conviction could be used pursuant to section 668 as a basis for increased punishment under the then-existing habitual criminal law.  (Former § 644.)   Chief Justice Traynor explained that such a determination ‘does not [involve] the opening or reopening of questions calling for resolution on the basis of the testimony of witnesses who may have died or disappeared or where memories have faded․  The fact that an accused suffered a foreign conviction of a crime is made officially of record at the time and place of such conviction, and the law of the jurisdiction where he suffered it is judicially noticed.  [Citations.]  The least adjudicated elements of the prior conviction remain the same whether it is questioned in the trial court at the time of the determination of habitual criminality or on habeas corpus after such determination becomes final.   Neither the People nor the defendant can go behind those adjudicated elements in an attempt to show that he committed a greater, lesser, or different offense.  [Citations.]’  (Italics added.)  (68 Cal.2d at pp. 392-393 [66 Cal.Rptr. 733, 438 P.2d 381].   See, e.g., In re McVickers [(1946) ] 29 Cal.2d 264, 276 [176 P.2d 40].)   The Legislature evidently intended to endorse this approach by explicitly incorporating an elements-of-the-offense standard in section 667.5, subdivision (f).

“Thus, because the elements of Crowson's federal conspiracy offense did not include all of the elements of the corresponding California felony, we conclude that enhancement is not authorized by section 667.5, subdivision (f).”  (People v. Crowson, supra, 33 Cal.3d at pp. 632-635, 190 Cal.Rptr. 165, 660 P.2d 389, italics in orig., fns. omitted.)

Under Crowson, our review of the issue presented by Short would be limited to an inquiry as to whether the Minnesota statute, as defined, necessarily included all the elements of a California violation of section 288, which (as we will set out more fully in part II E, post ) it clearly does not.   Under the Crowson test, Short's sentence under section 667.61 must be set aside as founded upon a legally erroneous determination as to the applicability of Short's Minnesota prior conviction.   Under other cases, however, our review of the question might be more expansive.

2. The Myers “Entire Record of the Proceedings” Test

 In contrast to the test set out in Crowson, a determination whether a foreign conviction is a serious felony for purposes of imposing the enhancement set out in section 667, subdivision (a) may be made, as counsel for Short acknowledges, with reference to the whole record in the case.16  We review the development of this issue.

a. Crowson to Myers

i. People v. Jackson

In 1985 our Supreme Court considered the question of when a prior conviction for burglary could be deemed “burglary of a residence” for purposes of the section 667 five-year enhancements enacted by Proposition 8 in 1982, which incorporated the list of serious felonies set out in section 1192.7.   (People v. Jackson (1985) 37 Cal.3d 826, 831-836, 210 Cal.Rptr. 623, 694 P.2d 736.)

The court observed that section 1192.7 “is an amalgam of different elements.”  (People v. Jackson, supra, 37 Cal.3d at p. 832, 210 Cal.Rptr. 623, 694 P.2d 736.)   The paragraphs of section 1192.7 describe not only offenses, but paragraphs 18 (burglary of a residence) and 24 (providing specified narcotics to a minor) also “describe criminal conduct which does not correspond precisely to the elements of any then-existing criminal offense.”   (Ibid.) After a review of Crowson, the Jackson court observed:

“Crowson established two propositions relevant to the present case:  (1) that proof of a prior conviction establishes only the minimum elements of the crime, even if the charging pleading contained additional, superfluous allegations;  and (2) that the prosecution cannot go behind the record of the conviction and relitigate the circumstances of the offense to prove some fact which was not an element of the crime.   The parties dispute whether these propositions bar the prosecutor from establishing that either defendant's current burglary, or his prior burglary, involved entry into a residence.”   (Id. at p. 834, 210 Cal.Rptr. 623, 694 P.2d 736.)

In Jackson, after noting that if, as part of a bargain, a defendant “finds it advantageous to admit an enhancement which the prosecution may be unable to prove, Crowson does not prevent the court from giving effect to that admission” (People v. Jackson, supra, 37 Cal.3d at p. 836, 210 Cal.Rptr. 623, 694 P.2d 736), the court went on to hold (in a plurality opinion) Jackson had “expressly admitted that his prior 1980 burglary conviction involved burglary of a residence” (ibid.) and thus was subject to an enhanced sentence.  (Id. at p. 837, 210 Cal.Rptr. 623, 694 P.2d 736.)

ii. People v. Alfaro

In 1986 in a case involving, like Jackson, the question of proof a prior burglary conviction included the conduct described in section 1192.7 as “burglary of a residence,” the court held:

“In the present case, the judgment in the 1974 burglary proceeding did not establish that defendant entered a residence.   While the information so alleged, such entry was not an element of the crime.   Defendant's guilty plea constituted ‘a judicial admission of every element of the offense charged’ (People v. Chadd (1981) 28 Cal.3d 739, 748 [170 Cal.Rptr. 798, 621 P.2d 837]), but only that;  it did not admit other allegations in the pleadings.   (Crowson, p. 634 [190 Cal.Rptr. 165, 660 P.2d 389].)   Following the reasoning of Jackson, which limits proof to matters established by collateral estoppel, we conclude that there was no competent proof that defendant's 1974 conviction was for the serious felony of ‘burglary of a residence.’ ”  (People v. Alfaro (1986) 42 Cal.3d 627, 636, 230 Cal.Rptr. 129, 724 P.2d 1154, fn. omitted.)

Alfaro was decided by a majority of four justices, while three others indicated they would have permitted imposition of the enhancement in that Alfaro's plea to burglary “as set forth in the information,” which had alleged the entry of a residence, was adequate proof of the conduct.  (People v. Alfaro, supra, 42 Cal.3d at pp. 637-638, 230 Cal.Rptr. 129, 724 P.2d 1154.)

iii. People v. Guerrero

In 1988 our Supreme Court revisited the question of “to what may the trier of fact look in determining whether the defendant suffered a prior conviction for ‘burglary of a residence’?”  (People v. Guerrero (1988) 44 Cal.3d 343, 348, 243 Cal.Rptr. 688, 748 P.2d 1150.)

The court then decided, after a review of pre-Alfaro cases:

“After careful reconsideration, we believe that the McVickers-[In re] Seeley [(1946) 29 Cal.2d 294, 176 P.2d 24]-Finley line of cases does not support the holding of the Alfaro majority that ultimately rests thereon.   Indeed, far from establishing that proof of the substance of a prior conviction is limited to matters necessarily established by the prior judgment of conviction, those cases declare that the court may look to the entire record of the conviction for this purpose.

“Further, we believe that the McVickers-Seeley-Finley line of cases supports the following rule for use in the context of section 667 enhancements:  in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of the conviction.

“Such a rule is both fair and reasonable.   To allow the trier of fact to look to the entire record of the conviction is certainly reasonable:  it promotes the efficient administration of justice and, specifically, furthers the evident intent of the people in establishing an enhancement for ‘burglary of a residence’-a term that refers to conduct, not a specific crime.   To allow the trier to look to the record of the conviction-but no further-is also fair:  it effectively bars the prosecution from relitigating the circumstances of a crime committed years ago and thereby threatening the defendant with harm akin to double jeopardy and denial of speedy trial.”   (People v. Guerrero, supra, 44 Cal.3d at p. 355, 243 Cal.Rptr. 688, 748 P.2d 1150, italics in original, overruling People v. Alfaro, supra, 42 Cal.3d 627, 230 Cal.Rptr. 129, 724 P.2d 1154.)

Although Guerrero overruled Alfaro, it mentioned Crowson only in passing (People v. Guerrero, supra, 44 Cal.3d at p. 348, 243 Cal.Rptr. 688, 748 P.2d 1150), and did not purport to overturn or disapprove of Crowson.

b. Myers

The Guerrero reasoning was followed in 1993, where the issue considered was “whether ․ the court may look beyond the statutory elements of a crime of which a defendant was convicted in another state and consider the record of the prior conviction to determine whether the term ‘enhancement’ created by Penal Code section 667, subdivision (a) ․ has been established.”   (People v. Myers (1993) 5 Cal.4th 1193, 1195, 22 Cal.Rptr.2d 911, 858 P.2d 301, fn. omitted.)

The Myers court held that a construction of section 667(a) implicating the “least adjudicated elements” approach, which had been adopted by the Court of Appeal, was erroneous:

“Were we to construe the descriptive language of section 667(a) --- ‘any offense committed in another jurisdiction which includes all of the elements of any serious felony’ --- as suggested by the Court of Appeal, the result would be inconsistent with the intent of the electorate.   That intent is to impose the term enhancement whenever the prior conviction includes all of the elements of a California serious felony or involves the conduct described in paragraphs (18) or (24) of subdivision (c) of section 1192.7.   No distinction is made between California and foreign offenses.  Section 667(a) establishes the minimum elements of a foreign offense.   That offense must include all of the elements of the comparable California serious felony.   But, by incorporating the definition of serious felony found in section 1192.7 into section 667(a), subdivision (d) of section 667 expanded the categories of qualifying felonies to include not only the listed offenses when the elements of the corresponding California serious felony are present, but also prior offenses, in California or elsewhere, in which the defendant's conduct while committing the prior felony is conduct described in paragraphs (18) and (24) of subdivision (c) of section 1192.7.

“A defendant whose prior conviction was suffered in another jurisdiction is, therefore, subject to the same punishment as a person previously convicted of an offense involving the same conduct in California.   To implement the purpose of the electorate in incorporating paragraphs (18) and (24) of subdivision (c) of section 1192.7 into section 667(a), the trier of fact must be permitted to go beyond the least adjudicated elements of the offense and to consider, if not precluded by the rules of evidence or other statutory limitation, evidence found within the entire record of the foreign conviction.”  (People v. Myers, supra, 5 Cal.4th at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301, italics added.)

The Myers court then held:

“The Court of Appeal erred in holding that section 667(a) applies only if a foreign offense includes all of the elements of the corresponding felony.   The truth of an allegation made pursuant to section 667(a) that the defendant was convicted of a serious felony in a foreign jurisdiction may be determined on the basis of the entire record of the prior conviction in the same manner that the truth of an allegation that the defendant suffered a prior California conviction of a serious felony may be determined.  (People v. Guerrero, supra, 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150].)”   (People v. Myers, supra, 5 Cal.4th at pp. 1201-1202, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

During trial of this case, counsel for Short noted that the scope of review of an out-of-jurisdiction conviction used to enhance the sentence under section 667.61 was not settled in the case law.   Counsel argued, however, that even under the “entire record of the proceedings” test of Myers, in this case there was “no admission regarding any specific intent” and thus “the conduct for which [Short] was convicted in Minnesota is not the same conduct as required under Penal Code section 288(a) because it lacks the specific intent element.”

On appeal, Short's counsel also asserts that the restrictive Crowson test ought to be applied to review of the Minnesota prior conviction under section 667.61, while also arguing that even if we determine the prior may be evaluated under the test set down in Myers, there is still no sufficiently probative evidence in this record to demonstrate Short's specific intent.   We now must examine which test may be applicable herein.

E. Analysis

1. “Least Adjudicated Elements” Test

 First, we observe that in Minnesota the distinction between first degree (Minn.Stats., § 609.3641) and second degree (Minn.Stats., § 609.3642) intrafamilial sexual abuse is that the first degree offense requires penetration of the victim, while second degree intrafamilial sexual abuse merely requires sexual contact.  (State v. Fisler (Minn.App.1985) 374 N.W.2d 566, 568;  see also State v. Kobow (Minn.App.1991) 466 N.W.2d 747, 752.)

“Sexual contact” is defined as touching “intimate parts” or “clothing covering the immediate area of the intimate parts,” which touching is done “for the purpose of satisfying the actor's sexual or aggressive impulses.”  “Sexual penetration” includes “any intrusion however slight into the genital or anal openings.”  (Minn.Stats., § 609.341)

While the first degree offense does not also recite that the penetration of the genital opening be done “for the purpose of satisfying the actor's sexual or aggressive impulses,” one case has stated that “[t]estimony regarding sexual penetration is sufficient to raise an inference of sexual contact.”  (State v. Kobow, supra, 466 N.W.2d at p. 752.)

The Attorney General, with little analysis, asks that we use the above citation, and the fact second degree sexual abuse is a lesser included offense of first degree sexual abuse, to infer as a necessary matter the existence of a specific intent in Short's Minnesota conviction.   But it is beyond cavil that the offense to which Short pleaded guilty was, as defined in Minnesota, not a specific intent, but a general intent crime.  (See, e.g., State v. Hart (Minn.App.1991) 477 N.W.2d 732, 736 [“The absence of an intent element ․ creates a general intent crime.   The intent required for a general intent crime is the intent to do the act that constitutes a crime.”];  State v. Lindahl (Minn.1981) 309 N.W.2d 763, 767 [first degree criminal sexual conduct is a general intent crime];  and State v. O'Brien (Minn.App.1985) 364 N.W.2d 901, 904 [elements of first degree criminal sexual conduct under Minn. Stats., § 609.342].)

As to the “included” nature of the offense, under the Minnesota scheme, it appears that second degree intrafamilial sexual abuse is an included offense within first degree intrafamilial sexual abuse.17  However, this does not mean that there is an identity of elements herein.   The point has been set out clearly in a footnote within People v. Pearson, supra, 42 Cal.3d at page 356, footnote 2, 228 Cal.Rptr. 509, 721 P.2d 595:

“Section 1159 provides that a defendant may be found guilty of ‘any offense, the commission of which is necessarily included in that with which he is charged․’  We are aware that the meaning of the phrase ‘necessarily included’ offense as used in section 1159 has been expanded․  The expanded definition has been described as follows:  ‘Where a defendant is charged with one or more offenses and from the language of the pleading the commission of one charged offense necessarily includes the commission of another, the latter is a “necessarily included offense,” even though its elements are not within the legal elements of the greater offense as defined by statute.’  (People v. Nicholson (1979) 98 Cal.App.3d 617, 623, 159 Cal.Rptr. 766, citing People v. Marshall (1957) 48 Cal.2d 394, 405, 309 P.2d 456.)”

Despite the fact that the included offense is itself the equivalent of a section 288, subdivision (a) conviction, and that “[t]estimony regarding sexual penetration is sufficient to raise an inference of sexual contact” (State v. Kobow, supra, 466 N.W.2d at p. 752), and the principle that “the circumstances of the touching remain highly relevant to a section 288 violation” (People v. Martinez, supra, 11 Cal.4th at p. 452, 45 Cal.Rptr.2d 905, 903 P.2d 1037),18 we must necessarily still conclude, under the Crowson test, that Short's Minnesota guilty plea was to an offense whose “least adjudicated elements” would not in California necessarily have constituted proof of a violation of section 288.   Under this standard, therefore, the life sentence which was imposed on Short pursuant to the provisions of section 667.61 was improper, and that sentence should be reversed.

2. “Entire Record of the Proceedings” Test

Looking at the “entire record of the proceedings,” under a Myers test, might permit the opposite conclusion, particularly where, as here, Short explicitly stated to the probation officer that physical contact with the seven-year-old child was sexually arousing to him, and the insertion of his finger into Michelle's vagina could be construed, according to the complaint, to have taken place while Short was telling the child he wanted to be her husband and have a baby with her.

Such circumstances would morally permit no other conclusion than this:  Short, who was admittedly aroused by far less overtly sexual contacts with Michelle, in the context of an explicitly sexual conversation committed an explicitly sexual act upon her.   No rational person would, on this record, question whether Short undertook his sexually abusive act, as required by section 288, “with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of [himself]․”

The question before us sounds not in reason, however, but in conformance with the requirements of the law.19  Thus we must now determine the proper scope of review of an out-of-jurisdiction conviction for purposes of imposing the enhanced sentences which are available under section 667.61.   Under the first of the two formulations recited above, the evidence which was introduced in this case clearly could not sufficiently support the ruling the Minnesota prior was the equivalent of a violation of section 288.   Under the second formulation, the evidence might be deemed to sufficiently support the ruling.20  We turn to that question.

F. Resolution

Short argues that the case of People v. Reynolds (1991) 232 Cal.App.3d 1528, 1532-1533, 284 Cal.Rptr. 356, requires reversal of the true finding in this matter.21  This court has, however, in the past declined to follow Reynolds as authority on this particular point.  (People v. Hayes (1992) 6 Cal.App.4th 616, 623, 7 Cal.Rptr.2d 866.)

As we noted in Hayes, courts have questioned whether Crowson remains valid after Guerrero.  (People v. Hayes, supra, 6 Cal.App.4th at p. 623, 7 Cal.Rptr.2d 866.)   We aligned ourselves with those courts doubting the continued validity of Crowson, at least in the following respect:

“We also reject Hayes's reliance on Crowson because we believe Crowson no longer retains validity after Guerrero with respect to the precise issue before us.  ․ As set forth above, Guerrero explicitly overruled Alfaro.   While it did not do so with respect to Crowson, Alfaro and Crowson were based upon almost identical principles.   Guerrero's rejection of the Finley line of cases as supportive of Alfaro and the fact that Guerrero reached its decision over a vigorous dissent stressing its inconsistency with Crowson compels the conclusion that Crowson cannot logically control the circumstances of this case.”   (Ibid., italics added.)

The “precise issue before us” in Hayes was not the “burglary of a residence” conduct described in section 1192.7, subdivision (c)(18) and construed in Guerrero and Myers, but Hayes's argument that “the court could not enhance his sentence on the basis of his earlier Texas robbery conviction because it does not constitute a serious felony within the meaning of sections 667 and 1192.7, subdivision (c)(19).”  (People v. Hayes, supra, 6 Cal.App.4th at p. 619, 7 Cal.Rptr.2d 866, fn. omitted.)   We there observed:

“Section 667, subdivision (a) provides ‘any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive ․ a five-year enhancement for each such prior conviction․’  (Italics added.)  Section 667, subdivision (d) defines a serious felony as any felony listed in subdivision (c) of section 1192.7.   Included in that list is robbery.  (See § 1192.7, subd. (c)(19).)”  (6 Cal.App.4th at p. 619, 7 Cal.Rptr.2d 866, italics in original.)

We resolved the question as follows:

“At the time of Hayes's alleged Texas robbery conviction, former article 1408 of the Texas Statutes defined robbery as follows:  ‘if any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished ․’ (Tex. Stat. Ann. art.   1408 (Vernon 1953).)   The Texas indictment alleged that Hayes, on November 13, 1971, ‘did unlawfully and willfully make an assault upon the person of [the victim] and ․ by said assault and by violence to the said [victim] and by putting the said [victim] in fear of life and bodily injury, did then and there fraudulently take from the person and possession, and without the consent and against the will of said [victim] fifty-six dollars ․’ According to the Texas judgment, Hayes later pled ‘guilty [to] ․ robbery as contained in the indictment․’

“Section 211 defines robbery as ‘the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’   Hayes says the Texas statute, unlike section 211, does not require (1) asportation;  (2) the property in question be taken from the person or immediate presence of the victim;  or (3) the property be taken against the victim's will.

“As set forth above, Hayes pled guilty to the allegation that he ‘did and there fraudulently take from the person and possession, and without the consent and against the will of said [victim] fifty-six dollars ․’ Such facts establish (1) the asportation or carrying away element, as it has been interpreted under California law;  (2) that Hayes took the money from the person of the victim;  and (3) that he gained possession of the property against the victim's will.

“We therefore conclude Hayes's prior Texas conviction contained all the elements of robbery under California law, thereby permitting the court to enhance Hayes's sentence on the basis of such conviction.”  (People v. Hayes, supra, 6 Cal.App.4th at pp. 624-625, 7 Cal.Rptr.2d 866, italics in original, fn. omitted.)

This case, however, unlike Myers, Guerrero, or Hayes, does not involve a section 667 reference to offenses containing the elements of “any serious felony.”   Instead, the case involves a statute which limits enhancement to those prior convictions from other jurisdictions alone which “include[ ] all of the elements of [the seven particular California sex offenses] specified in subdivision (c) [of section 667.61].” (§ 667.61, subd. (d)(1).)

 Three principles here constrain us.   The first is:

“․ ‘It is axiomatic ․ that a decision does not stand for a proposition not considered by the court.’  (People v. Harris (1989) 47 Cal.3d 1047, 1071 [255 Cal.Rptr. 352, 767 P.2d 619], citing People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5 [233 Cal.Rptr. 264, 729 P.2d 698];  Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].) ‘[I]t is only the ratio decidendi of a Supreme Court opinion that is fully binding as a precedent on the lower courts of this state.  [Citations.]’  (Bunch v. Coachella Valley Water Dist. (1989) 214 Cal.App.3d 203, 212 [262 Cal.Rptr. 513].)  ‘The ratio decidendi is the principle or rule which constitutes the ground of the decision, and it is this principle or rule which has the effect of a precedent.   It is therefore necessary to read the language of an opinion in light of its facts and the issues raised, to determine ․ which statements of law are necessary to the decision, and therefore binding precedents․'  (9 Witkin, Cal. Procedure (3d ed.   1985) Appeal, § 783, p. 753, quoted in Bunch v. Coachella Valley Water Dist., supra, 214 Cal.App.3d at p. 212 [262 Cal.Rptr. 513];  Santa Monica Hospital Medical Center v. Superior Court (1988) 203 Cal.App.3d 1026, 1033 [250 Cal.Rptr. 384].)  ‘ “It is the general rule that the language of an opinion must be construed with reference to the facts presented by the case, and the positive authority of a decision is coextensive only with such facts.”  [Citations.]’  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 734-735 [257 Cal.Rptr. 708, 771 P.2d 406], quoted in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1157 [278 Cal.Rptr. 614, 805 P.2d 873].)”  (People v. Superior Court (Williams ) (1992) 8 Cal.App.4th 688, 703, 10 Cal.Rptr.2d 873.)

The second principle constraining us is, to paraphrase our observation in another case, “[h]owever much we might prefer the ․ rule of [Myers ] to that enunciated in [Crowson ], or feel [Crowson ] does not accurately represent the current views of the Supreme Court on the question ․, nonetheless we would be constrained to follow that rule on the same facts, as an intermediate appellate court which is bound by Supreme Court precedent.   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].)”  (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1160-1161, 277 Cal.Rptr. 302.)

The third principle constraining us is itself dispositive:  we here engage in construing a statute, and the basic and most important rule we must follow has recently been set out:

“․ ‘[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law.’  (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal.Rptr.2d 903, 893 P.2d 1224].)   In determining that intent, we first examine the words of the respective statutes:  ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.”  [Citation.]  “Where the statute is clear, courts will not ‘interpret away clear language in favor of an ambiguity that does not exist.’  [Citation.]” '  (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal.Rptr.2d 563, 885 P.2d 976].)”  (People v. Coronado (1995) 12 Cal.4th 145, 151, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

Crowson involved a statute which “authorizes enhancement for a foreign conviction only when the conviction is ‘for an offense [committed in another jurisdiction that] includes all of the elements' of the California felony.”   (People v. Crowson, supra, 33 Cal.3d at p. 633, 190 Cal.Rptr. 165, 660 P.2d 389, italics in original.)   This case involves a statute which authorizes enhancement for a foreign conviction only when that conviction was for an offense which “includes all of the elements” of one of seven specified California felonies, in this case section 288, subdivision (a).   There simply is no principled means of distinguishing the plain and clear language here at issue from that considered and construed in Crowson.

The Crowson court observed that the “Legislature evidently intended to endorse this approach [least adjudicated elements] by explicitly incorporating an elements-of-the-offense standard in section 667.5, subdivision (f).”  (People v. Crowson, supra, 33 Cal.3d at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)   The same “elements-of-the-offense standard” is set out in section 667.61, subdivision (d)(1).   Insofar as Crowson retains validity,22 under this standard, the true finding on the prior was erroneous.

In trial of the matter below, of course, the trial judge necessarily referred to matters beyond the “least adjudicated elements” of the Minnesota offense.   The expansive review which might be permissible under a statute providing an enhancement for conduct, instead of the commission of a very narrowly defined number of specific California offenses, cannot be approved by us under the constraints set out above.

Thus we hold that because the Minnesota prior conviction did not include as required under section 667.61, subdivision (d)(1), “all of the elements” of the specified California offense, in this case section 288, subdivision (a), its use to sentence Short under section 667.61 was error.   Unless and until the Supreme Court overrules Crowson, we cannot hold otherwise.23


Apart from being used to sentence under the one strike law, the court's true finding on the prior conviction was also used (a) as a “serious and/or violent felony” under section 667, subdivision (b) (the three strikes law), requiring doubling of the determinate base term, and (b) as a prior “serious felony” as defined by section 1192.7, subdivision (c) requiring a five-year enhancement under section 667, subdivision (a)(1).

Short now asserts that the provisions of section 667.61, subdivisions (f) and (g), preclude use of his prior conviction to sentence him for the forcible rape under 667.61, subdivision (a) to a life term, and then to double the separate determinate sentence Short received under section 1170.12, subdivision (c) for the oral copulation and also to impose a five-year section 667, subdivision (a)(1) enhancement.

A. Sections 667.61 and 1170.12, Subdivision (c)(1)

Short argues it was improper, under the language of section 667.61, subdivision (f), to impose a life sentence under section 667.61 and double the determinate terms under section 1170.12.   He premises this argument upon the language of section 667.61, subdivision (f), which provides in pertinent part:

“If only the minimum number of circumstances specified in subdivision (d) ․ which are required for the punishment provided in subdivision (a) ․ to apply have been pled or proved, that circumstance ․ shall be used as the basis for imposing the term provided in subdivision (a) ․ rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty.”  (Italics added.)

Short argues the above-quoted language precluded the court from sentencing him under both the one strike and three strikes laws.   As we have above held Short's sentence under 667.61 was improper, however, this argument has become moot, and we do not resolve it.  (But see People v. Ervin, supra, 50 Cal.App.4th at pp. 263-266, 57 Cal.Rptr.2d 728.)

The remaining question, which was not addressed by either party, is whether Short's Minnesota prior conviction qualifies under the test of section 667, subdivision (b) as a “serious [as defined by section 1192.7, subdivision (c) ] and/or violent [as defined by section 667.5, subdivision (c) ] felony.”   While this determination may be made upon the whole record of the prior conviction, we do not now decide the question (see fn. 23, ante ), but leave it to the parties to address at the time of the resentencing of Short in this matter.

B. Sections 667.61 and 667, Subdivision (a)(2)

 Short also argues his indeterminate sentence should not have been enhanced by the five years provided for under section 667, subdivision (a)(1).   Insofar as Short's direct argument is posited upon the language of section 667, subdivision (a)(2), to the effect that “[t]his subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment,” the point has been resolved adversely to Short:

“․ Section 667, subdivision (a)(2) which was originally adopted on June 2, 1982, by the voters as part of Proposition 8 and prior to the adoption of section 667, subdivisions (b)-(i), states, ‘This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment.’   Defendant relies upon this single sentence in the midst of a lengthy sentencing statute to support his contention that a judge may never impose any five-year enhancement when a defendant is sentenced to a term of twenty-five years to life pursuant to section 667, subdivisions (b)-(i).   Defendant cites no legislative committee or counsel reports in support of his contention.

“Defendant's contention raises an issue of statutory construction.   We must interpret section 667 to carry out the Legislature's intent.   Our Supreme Court has noted:  ‘When interpreting a statute our primary task is to determine the Legislature's intent.  [Citation.]  In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.’  (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826 [25 Cal.Rptr.2d 148, 863 P.2d 218];  People v. Jones [(1993)] 5 Cal.4th [1142,] 1146 [22 Cal.Rptr.2d 753, 857 P.2d 1163].)   Further, our Supreme Court has noted:  ‘ “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute)․” ’  (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934].)   However, the literal meaning of a statute must be in accord with its purpose as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659 [25 Cal.Rptr.2d 109, 863 P.2d 179] as follows:  ‘We are not prohibited “from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute.   The meaning of a statute may not be determined from a single word or sentence;  the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.   [Citation.]  Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute]․” ’  In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299], our Supreme Court added:  ‘The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.   [Citations.]  An interpretation that renders related provisions nugatory must be avoided [citation];  each sentence must be read not in isolation but in light of the statutory scheme [citation]․’

“A commonsense statutory construction leads to the conclusion that the two 5-year section 667, subdivision (a) enhancements should apply to defendant.   To begin with, there is language in section 667 which indicates a legislative intent to have the five-year enhancement apply to defendant.  Section 667, subdivision (e) provides in pertinent part, ‘For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction․’  [Italics omitted.]   No doubt, the language in subdivision (a)(2), which supports defendant's position is in conflict with section 667, subdivision (e), thereby creating an ambiguity in section 667 as to whether a five-year enhancement is applicable to a twenty-five-year-to-life habitual offender sentence.   Hence, reference to legislative intent materials is appropriate given the ambiguity in the statute.  (Delaney v. Superior Court, supra, 50 Cal.3d at p. 800 [268 Cal.Rptr. 753, 789 P.2d 934];  Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 372-373 [211 Cal.Rptr. 748, 696 P.2d 141].)   This apparent ambiguity was considered by the Legislature prior to the final adoption of section 667.   In response to a request for analysis by Assembly member Richard K. Rainey, the Office of Legislative Counsel in a letter dated February 16, 1994, stated:  ‘Given the plain language of A.B. 971, it is abundantly clear that the Legislature intends the sentencing provisions proposed by A.B. 971 to apply “in addition to any other enhancement or punishment provisions which may apply” (proposed subd. (e), Sec. 667 (italics added)), including the enhancement provisions set forth in subdivision (a) of Section 667.’  (Ops. Cal. Legis.   Counsel, No. 5794, in letter to Hon. Richard K. Rainey (Feb. 16, 1994) Assem. Bill No. 971, p. 2.;  People v. Ramirez (1995) 33 Cal.App.4th 559, 571 [39 Cal.Rptr.2d 374].)

“Utilization of a legislative counsel opinion is appropriate in construing a statute.  (California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17 [270 Cal.Rptr. 796, 793 P.2d 2];  Franklin v. Appel (1992) 8 Cal.App.4th 875, 890 [10 Cal.Rptr.2d 759];  accord Grupe Development Co. v. Superior Court (1993) 4 Cal.4th 911, 922 [16 Cal.Rptr.2d 226, 844 P.2d 545]).   A report prepared for the Senate Committee on the Judiciary in connection with Assembly Bill No. 971 indicated that when there were two prior serious or violent felony convictions the sentence would be ‘an indeterminate life sentence, with a base of at least 25 years.’  (See Rep. prepared for the Sen. Com. on Judiciary (Assem. Bill No. 971 (1993-1994 Reg. Sess.)) Feb. 17, 1994, p. 10.)   The reference to a ‘base of at least 25 years' is consistent with the intention that the maximum would not be, as asserted by defendant, one of merely 25 years to life.   Our review of the legislative history materials has failed to find any committee reports which indicated that when a 25-year-to-life sentence was imposed, no 5-year enhancement could be imposed.

“Further, there is nothing in the language or voter intent materials for Proposition 184, which adopted section 1170.12, which supports defendant's contention that five-year prior conviction enhancements cannot be imposed in addition to a twenty-five-year-to-life habitual offender sentence.   If Proposition 184 adopted defendant's analysis, he would be entitled to the benefit of the change in the law which occurred during the pendency of the appeal.  (People v. Babylon (1985) 39 Cal.3d 719, 722 [216 Cal.Rptr. 123, 702 P.2d 205];  People v. Rossi (1976) 18 Cal.3d 295, 299-304 [134 Cal.Rptr. 64, 555 P.2d 1313].)   The analysis by the Legislative Analyst in the Proposition 184 voter pamphlet indicated that when a defendant has two prior serious or violent convictions the sentence to be imposed was as follows, ‘Life sentence of at least 25 years.’  (See Ballot Pamp., analysis of Prop. 184 by Legis. Analyst, Gen. Elec. (Nov. 8, 1994) p. 34.)   The language referring to ‘at least 25 years' is consistent with the availability of additional periods of incarceration.   Finally, the voter pamphlet stated that Proposition 184 reaffirmed the earlier amendments to section 667 which we have previously noted allowed for the imposition of enhancements when the accused receives a sentence of 25 years to life.   Specifically, the voter pamphlet indicated:  ‘This measure proposes amendments to state law that are identical to a law enacted by the Legislature and signed by the Governor in March 1994.’   (See Ballot Pamp., analysis of Prop. 184 by Legis.   Analyst, Gen. Elec. (Nov. 8, 1994) p. 33.)   Accordingly, the two 5-year enhancements were properly imposed in the present case.

“Finally, our analysis is consistent with the views expressed in two other Court of Appeal opinions.   In People v. Ramirez, supra, 33 Cal.App.4th at pages 566-569 [39 Cal.Rptr.2d 374], this court held that a five-year enhancement could be imposed when an enhanced sentence was imposed because the accused had experienced only a single prior serious felony conviction.   Further, in People v. Cartwright (1995) 39 Cal.App.4th 1123, 1137-1139 [46 Cal.Rptr.2d 351], our colleagues in the Third Appellate District held that a defendant who received a 25-year-to-life sentence pursuant to section 667, subdivisions (b)-(i) could also receive the 5-year enhancements mandated by section 667, subdivision (a).   We adopt by reference our colleagues' well stated and correct analysis as articulated in Cartwright.  (39 Cal.App.4th at pp. 1137-1139 [46 Cal.Rptr.2d 351].)   Hence, defendant's argument in the present case that he may not receive the two additional five-year enhancements is without merit.  (Accord, People v. Goodloe (1995) 37 Cal.App.4th 485, 493 [44 Cal.Rptr.2d 15].)”  (People v. Turner (1995) 40 Cal.App.4th 733, 740-742, 47 Cal.Rptr.2d 42.)

Thus the language of section 667, subdivision (a)(2) does not preclude imposition of the subdivision (a)(1) enhancement herein.

The remaining point is whether, even under the Myers “whole record” test, the alleged Minnesota prior conviction qualifies as a “serious felony” as defined by section 1192.7, subdivision (c), so as to support imposition of a section 667, subdivision (a) enhancement.  (See part III(A) and fn. 23, ante.)   Upon remand, the parties will be able to address this and the related enhancement issues (see part III(C), post ) in light of our present opinion, and thus we do not now decide it.

C. Section 667, Subdivisions (b)-(i)

 Finally, we must address the fact that the trial judge also found the Minnesota prior conviction to qualify as a serious or violent felony prior under section 667, subdivisions (b)-(i), thus permitting doubling of the sentence Short received for the oral copulation of an unconscious person.

While we have earlier dealt with Short's assertions that the Minnesota prior was improperly used under the one strike law and was also improperly used to impose a five-year section 667, subdivision (a) enhancement, no party has directly raised the issue whether that prior was properly used to invoke the three strikes law providing, as it does here, for a doubling of the base term upon a second serious or violent felony conviction.   In light of the results we have earlier reached, however, this matter also must be addressed at resentencing.

Here, as with the determination whether Short's Minnesota prior conviction was applicable to enhance his sentence under section 667.61, the trial judge determined he could “look behind things, I can look anywhere I want to try and glean what [the substance of the conviction] is․”  As we have pointed out in footnote 23, ante, even under the Myers “whole record” review, a trier of fact may not “look anywhere,” but only to those matters in the record “not precluded by the rules of evidence or other statutory limitation.”  (People v. Myers, supra, 5 Cal.4th at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)

Just as with the question whether Short's Minnesota prior conviction was for a “serious felony” within the scope of section 667, subdivision (a), we leave the determination whether that prior conviction was for a “serious and/or violent felony,” such that the sentence-doubling of section 667, subdivision (e)(1) must be applied, to the trier of fact upon remand.


Short also asserts the trial court erred in imposing a full consecutive sentence for the oral copulation under section 667.6, subdivision (c).   Short argues that in addition to stating the reasons for imposing a consecutive sentence for oral copulation (“the oral copulation was a separate and complete and distinct violent sexual act that occurred after the rape”), the trial judge was required to have separately stated a reason for full-strength consecutive sentencing under section 667.6 rather than one-third the middle term under section 1170.1.   The Attorney General concedes “ideally” the sentencing judge should separately state both (a) the reasons for imposing consecutive sentences and (b) the reasons for imposing full-strength, rather than subordinate, terms for those consecutive offenses.   Because we have already determined the case must be remanded for resentencing, however, we need not decide whether the alleged error herein was or was not harmless.


 Short last argues the provisions of section 667, which forbid a trial court to strike charged prior convictions on its own motion, violate the separation of powers doctrine.   For the following reasons, we do not agree.

As Short is aware, the point he now raises has recently been decided adversely to him: 24

“The three strikes law requires the prosecutor to plead and prove all prior serious and violent felony convictions. (1170.12, subd. (d)(1), (2).)   Appellant argues that this statutory command violates the constitutional principle of separation of powers.  (Cal. Const., art. I, § 3.) It does so, he argues, because the requirement that the prosecutor plead and prove all qualifying prior convictions usurps the discretion of prosecutors to decide what to prosecute, an executive function that cannot be limited by statute.

“The validity of appellant's argument is dependent on the proposition that the charging discretion of prosecutors cannot be limited by law.   Appellant cites no authority for that proposition, and we have found none.   Former article XI, section 1, subdivision (b) of the California Constitution provided that the ‘Legislature shall provide for ․ an elected district attorney’ and other specified officers.   Section 5 of the same article provided that the ‘Legislature, by general and uniform laws, ․ shall prescribe their duties.’

“The Legislature has done so, principally in Government Code section 26500 et seq. and its predecessors.   The second paragraph of section 26500 provides:  ‘The public prosecutor shall attend the courts, and within his or her discretion shall initiate and conduct on behalf of the people all prosecutions for public offenses.’

“Section 5 of article XI of the California Constitution was repealed by Proposition 2, approved by the voters in June 1970 as part of an extensive reduction of constitutional language and transfer of authority to local governments and their electors.   It is clear from the ballot arguments supporting and opposing this measure that no change was envisaged that would prevent legislation on statewide matters from being enacted.  (See Ballot Pamp., arguments in favor, against, and in rebuttal to Prop. 2, as presented to the voters, Prim. Elec. (June 2, 1970) pp. 5-8.)   The Government Code provisions were not directly affected by this initiative;  they were in force before its adoption and, with amendments not germane to this discussion, have remained in force since that time.

“The district attorney acts as a state officer when prosecuting crimes.   (See Pitchess v. Superior Court (1969) 2 Cal.App.3d 653, 657 [83 Cal.Rptr. 41];  Graham v. Municipal Court (1981) 123 Cal.App.3d 1018, 1022 [177 Cal.Rptr. 172].)   The authority of the office derives from statute.  (See County of Modoc v. Spencer (1894) 103 Cal. 498, 499 [37 P. 483].)

“The provision in the three strikes law requiring the prosecutor to allege and prove prior serious felony offenses is not unlike other laws requiring that officer to act (see, e.g., § 969 [‘all known previous convictions, whether in this State or elsewhere, must be charged’];  Gov.Code, § 26528 [district attorney may and, when directed by board of supervisors, shall bring actions to abate public nuisance];  Welf. & Inst.Code, § 11481 [district attorney shall prosecute contributing delinquency cases (§ 272) under specified circumstances] ).   It also is similar to statutory provisions restricting the discretionary authority of prosecutors (and courts) to enter plea bargains.   (See, e.g., § 1192.7, subd. (a) [plea bargaining generally prohibited for serious felonies and other specified offenses].)

“Finally, the prosecutor retains substantial authority and bases for discretion under the three strikes law.   First, he or she must decide whether the person charged actually has suffered a previous conviction of a serious or violent felony.   Second, the prosecutor is specifically authorized to move the court to dismiss or strike a prior felony conviction, either ‘in the furtherance of justice pursuant to Section 1385,’ or if there is insufficient evidence to prove the allegations. (§ 1170.12, subd. (d)(2).)   In light of these provisions, the initiative has been held not to effect a change in the primary duties of the office.  (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1133 [46 Cal.Rptr.2d 351] [three strikes statute, § 667, subds. (b)-(i), valid urgency legislation].)

“We conclude that the enactment of the three strikes initiative did not violate the separation of powers provision of the state Constitution.”   (People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332-1333, 49 Cal.Rptr.2d 152.   See also People v. Butler (1996) 43 Cal.App.4th 1224, 1247, 51 Cal.Rptr.2d 150.)

Short's argument would require us to disagree with the above reasoning.   As we do not, we reject Short's argument the three strikes law violates the separation of powers.


The judgment is reversed and remanded with directions to resentence Short, but without utilization of the provisions of section 667.61.   The trial court is also directed to redetermine, prior to resentencing, the applicability of the alleged Minnesota prior conviction for purposes of imposing the sentences specified in section 667, subdivision (a) and section 667, subdivisions (b)-(i).   In all other respects, the judgment is affirmed.


FN1. All further statutory references are to the Penal Code unless otherwise specified..  FN1. All further statutory references are to the Penal Code unless otherwise specified.

2.   Custis v. United States (1994) 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 precluded such challenges by federal defendants.   As to capital cases, however, last year the California Supreme Court stated:“Upon a close review of the Custis decision and the parties' supplemental briefing, we agree with defendant that Custis neither compels nor justifies a modification of existing California law governing a collateral attack, in a capital proceeding, upon a prior conviction that the prosecution has alleged as a special circumstance rendering the defendant eligible for the death penalty.  Custis was not a capital case, and thus the United States Supreme Court did not address the question of the appropriate scope of a collateral challenge in such a setting.   Because the collateral challenge in the present case relates solely to the proposed use of a prior conviction in a capital context, we have no occasion in this case to determine whether, or in what respect, the policy considerations set forth by the majority in Custis should affect collateral attacks on prior convictions in a noncapital setting.”   (People v. Horton (1995) 11 Cal.4th 1068, 1134, 47 Cal.Rptr.2d 516, 906 P.2d 478, italics in original.)The availability of a challenge such as this in a noncapital proceeding was subsequently resolved.   In Garcia v. Superior Court (1997) 14 Cal.4th 953, 966, 59 Cal.Rptr.2d 858, 928 P.2d 572, the court held that “a defendant whose sentence for a noncapital offense is subject to enhancement because of a prior conviction may not employ the current prosecution as a forum for challenging the validity of the prior conviction based upon alleged ineffective assistance of counsel in the prior proceeding.”As the availability of such a challenge in California was not clear before Garcia, in this case we reach the merits of the argument.

3.   As Short observes in the reply brief, “the Attorney General totally fails to address any of appellant's specific arguments.”   While the Attorney General discusses whether there was evidence Short made a knowing and voluntary waiver of rights before entering his plea (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274;  In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449), this point is only a small part of Short's argument.   As Short notes, the Attorney General does not discuss whether there was a violation of a plea agreement or whether Short had ineffective counsel.   We nonetheless resolve these issues.

4.   The presentence report also stated the victim's mother had been told Short “had been referred for a psychological evaluation and that if treatment was indicated, it was possible for the defendant to receive treatment in prison.”   The results of that psychological evaluation are not a part of this record.

5.   As the trial court observed, the Minnesota record supports the inference Short and his lawyer were well aware of the sentence proposal and had discussed whether Short should withdraw his plea.   Nothing in the Minnesota record supports the assertion Short's counsel was ineffective in any respect.

6.   The case of People v. Ervin (1996) 50 Cal.App.4th 259, 57 Cal.Rptr.2d 728, discusses cumulative sentencing under the three strikes law and the one strike law, a topic we address later.   As Ervin notes, apart from the passing reference to section 667.61 in People v. Rayford, supra, 9 Cal.4th at page 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369, “[w]e have not found any other case discussing any part of section 667.61.”  (People v. Ervin, supra, 50 Cal.App.4th at p. 264, fn. 6, 57 Cal.Rptr.2d 728.) As section 667.61 has not been construed by any appellate court other than Ervin, the issues we discuss in this section are largely questions of first impression.

7.   Section 288, subdivision (a) provides in pertinent part:  “Any person who willfully and lewdly commits any lewd or lascivious act ․ upon or with the body ․ 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 and shall be punished by imprisonment in the state prison for three, six, or eight years.”   Subdivision (b) of section 288 punishes those “who commit[ ] an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury․”  (A related section, 288.5, addressed to the problem of the “resident child molester” who repeatedly molests a child over a period of time, provides for prison terms of six, twelve, or sixteen years for the commission of “three or more acts of lewd and lascivious conduct under Section 288, with a child under the age of 14 years” when those acts are committed over a period of three months or more.)

8.   Section 1203.066 provides generally in subdivision (a):  “Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to section 1385 for, any of the following persons:  [¶] [those who violate sections 288 and 288.5 under specified circumstances].”   One of those circumstances is specified in subsection (8) as including “[a] person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age.”   Subdivision (b) states:  “ ‘Substantial sexual conduct’ means penetration of the vagina or rectum of either the victim or the offender by the penis of the other or by any foreign object․”  Subdivision (c), referred to in the text of section 667.61 above, states that “[p]aragraphs (7), (8), and (9) of subdivision (a) shall not apply when the court makes all of the following findings:  [¶] [ (1) ] [defendant is victim's relative or member of household, (2) probation is in victim's best interest, (3) rehabilitation is feasible, (4) defendant is removed from household, and (5) there is no threat of physical harm to the child victim if probation is granted].”

9.   This statute, section 609.3641, was later repealed and reenacted as Minnesota Statutes section 609.342, subdivision 1(h).  (State v. Campa (Minn.App.1987) 399 N.W.2d 160, 161, fn. 1.)

10.   Current Minnesota Statutes section 609.341, subdivision 1(11)(b) reiterates this definition.

11.   The Attorney General recognizes that “Minnesota does not require a separate finding that [penetration] was intentional and for sexual gratification, it presumes it.”   The Attorney General goes on to argue, however, that in cases of penetration, “[t]he intent of the actor is clear from the act.”

12.   CALJIC No. 10.41 (1996 rev.) provides that to prove a violation of section 288, subdivision (a), “each of the following elements must be proved:  (1) A person touched the body of a child;  (2) The child was under fourteen years of age;  and (3) The touching was done with the specific intent to arouse, appeal to or gratify the lust, passions or sexual desires of that person or the child.”  (Italics added.)

13.   Counsel did request the court to dismiss the prior conviction under the court's section 1385 discretionary power, the scope of which had not then been determined.  (See People v. Superior Court (Romero ) (1996) 13 Cal.4th 497, 529-530, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   The court did note, however, that “exercise of that discretion presumes that the court finds the case is an appropriate one to do that, and this is definitely not such a case․  So I elect specifically not to exercise the discretion, even if I had it.”   While in circumstances such as these there is no need for a post-Romero remand on this issue alone (see, e.g., People v. Askey (1996) 49 Cal.App.4th 381, 389, 56 Cal.Rptr.2d 782), as discussed in section III, post, we must order a remand for a redetermination of the applicability of the Minnesota prior conviction under either section 667, subdivision (a) or section 667, subdivisions (b)-(i).   If the Minnesota prior is found not to be a serious/violent felony conviction under section 667, subdivisions (b)-(i) of course, there could be no sentence-doubling in any event.

14.   Short also points out, in discussing the specific intent required for a violation of our section 288, subdivision (a), that “an act of sodomy committed upon a child under 14 would not violate section 288 if it was ‘committed for wholly sadistic purposes, or by an individual who lacks the capacity to form the required specific intent.’  (People v. Pearson (1986) 42 Cal.3d 351, 356, 228 Cal.Rptr. 509, 721 P.2d 595.)”   As noted earlier, Minnesota, by contrast, penalizes any sexual contact with children which is done “for the purpose of satisfying the actor's sexual or aggressive impulses.”  (Minn.Stats., § 609.364, subd. (13), italics added.)   While Short, in the reply brief, argues this distinction also precludes use of the Minnesota offense as equivalent to our section 288, subdivision (a), the Attorney General nowhere discusses this distinction.   Short also argues the Minnesota prior was not valid because only those section 288, subdivision (a) convictions apply in which the defendant does not “qualif[y] for probation under subdivision (c) of Section 1203.066.” (§ 667.61, subd. (c)(7).)   While the Attorney General does address this issue, in light of the result we reach as to the validity of the prior allegation on other grounds, we do not resolve this question.

15.   The People also argued the difference in the elements of the offenses was immaterial in that Crowson had pleaded guilty to an indictment which charged two overt acts.  (People v. Crowson, supra, 33 Cal.3d at p. 630, 190 Cal.Rptr. 165, 660 P.2d 389.)   The court disagreed, holding that “[i]f proof of an overt act was not required to sustain a conviction under the federal statute, neither a guilty verdict after a jury trial nor a plea of guilty may accurately be viewed as establishing that such an act occurred, regardless of the allegations of the charging pleading.”  (Id. at p. 634, 190 Cal.Rptr. 165, 660 P.2d 389.)

16.   It also appears that this more expansive scope of review would be utilized in a determination of the applicability of a foreign prior conviction as a “strike” under section 667, subdivisions (b)-(i).   See part III(C), post.

17.   Minnesota Statutes section 609.04, subdivision (1) provides in pertinent part:  “An included offense may be any of the following:  (1) A lesser degree of the same crime․”

18.   See, for example, the discussion in People v. Martinez pointing out that “[t]he statute's history confirms that it includes, but is not limited to, acts prohibited under other sex crime statutes.”   (People v. Martinez, supra, 11 Cal.4th at p. 443, fn. 7, 45 Cal.Rptr.2d 905, 903 P.2d 1037.) The cases have always assumed that the trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.  (See, e.g., People v. Owen (1945) 68 Cal.App.2d 617, 619, 157 P.2d 432 [“Intent is manifested by the circumstances connected with the offense.  (Pen.Code, § 21.)   It should be conceded that the acts performed in this case are of a lustful nature.   The intent to arouse the passions of defendant ․ may be based upon the conduct, manner of performance, etc. of the act.”].)

19.   See, for example, People v. Pearson, supra, 42 Cal.3d at page 356, 228 Cal.Rptr. 509, 721 P.2d 595, where it was argued “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.’ ”   Justice Mosk, writing for the majority, responded that “[a]lthough 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․”  (Ibid.)   Thus what we may know to be “true in a moral sense” may yet be insufficient, under a legal standard of proof, to support enhanced punishment.   See also footnote 11, ante.

20.   But see footnote 23, post.

21.   The issue in Reynolds was framed as follows:  “Appellant contends his robbery conviction from Colorado cannot be used because the definition of robbery under Colorado law is not the same as under California law, in that Colorado law does not require an intent to steal.   Section 18-4-301(1) of the Colorado Revised Statutes provides:  ‘A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.’   The prosecutor argued to the trial court that the specific intent to steal required by California law is equally required by Colorado case law, though not by the statute, citing People v. Gallegos (1954) 130 Colo. 232, 274 P.2d 608.   Yet, the Supreme Court of Colorado overruled Gallegos in 1977 and held that robbery does not require specific intent to steal.   (People v. Moseley (1977) 193 Colo. 256, 566 P.2d 331.)   Since appellant was convicted in 1978, his Colorado robbery conviction cannot be used for enhancement under section 667.7.”  (People v. Reynolds, supra, 232 Cal.App.3d at p. 1532, 284 Cal.Rptr. 356, italics in original.)

22.   Although not dispositive of this question, we observe that in People v. Kaurish (1990) 52 Cal.3d 648, 700, 276 Cal.Rptr. 788, 802 P.2d 278, and in People v. Lang (1989) 49 Cal.3d 991, 1038-1039, 264 Cal.Rptr. 386, 782 P.2d 627, the court held that Crowson was inapplicable to introduction of evidence of prior convictions in death penalty cases under section 190.3, subdivision (c), permitting the trier of fact to take into account if relevant “[t]he presence or absence of any prior felony conviction.”  (Ibid.)  In neither case did the court purport to limit, rather than distinguish, Crowson.

23.   This holding should not be read to necessarily imply that Short's Minnesota prior conviction would qualify for purposes of imposition of a section 667.61 enhanced sentence even under the more expansive Myers review.   As Myers itself noted, resort to the “entire record of the foreign conviction” is only permissible insofar as such review is “not precluded by the rules of evidence or other statutory limitation.”   (People v. Myers, supra, 5 Cal.4th at p. 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301.)   Even under a Myers review, it is not at all clear that this record contains sufficient evidence that the prohibited act by Short was accompanied by a contemporaneous specific intent.   We do not, however, decide the question.

24.   Short raises the argument “in order to preserve it in the event the Supreme Court grants review” in the cases next cited.   Review was not granted in those matters.

NARES, Associate Justice.

WORK, Acting P.J., and McDONALD, J., concur.

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PEOPLE v. SHORT (1997)

Docket No: No. D025061.

Decided: January 30, 1997

Court: Court of Appeal, Fourth District, Division 1, California.

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