Opinion
2d Crim. No. B301147
10-01-2020
The PEOPLE, Plaintiff and Respondent, v. Matthew Roland BETTS, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to rules 8.1105(b) and 8.1110 of the California Rules of Court, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are Factual and Procedural History and Parts 1, 3, 4, and 5 of the Discussion.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
TANGEMAN, J.
The "One Strike" law ( Pen. Code, § 667.61 ) mandates indeterminate sentences for defendants who commit certain sexual offenses under specified circumstances. ( People v. Carbajal (2013) 56 Cal.4th 521, 534, 155 Cal.Rptr.3d 335, 298 P.3d 835.) The Legislature amended the law in 2010 by adopting Assembly Bill No. 1844 (A.B. 1844), which added subdivision (j)(2) to section 667.61. (See Stats. 2010, ch. 219, § 16; Legis. Counsel's Dig., Assem. Bill No. 1844 (2009-2010 Reg. Sess.).) This subdivision increased the penalties imposed on defendants who commit certain sexual offenses against minors. (Ibid. ) The issue presented here is whether convictions for committing lewd acts on a child are exempt from the sentencing provisions of subdivision (j)(2). We conclude "that the Legislature meant what it said" ( People v. Gray (2014) 58 Cal.4th 901, 906, 168 Cal.Rptr.3d 710, 319 P.3d 988 ( Gray )), and that such convictions are subject to the subdivision's sentencing provisions.
Undesignated statutory references are to the Penal Code.
A jury convicted Matthew Roland Betts of multiple counts of sexual abuse against two children: three counts of oral copulation or sexual penetration of a child under age 11 (§ 288.7, subd. (b); counts 1, 3, & 7) and six counts of lewd acts on a child under age 14 (§ 288, subd. (a); counts 2, 4, 5, 6, 8, & 9). The jury also found true allegations that Betts committed his lewd acts against more than one victim ( § 667.61, subd. (e)(4) ) and that he engaged in substantial sexual conduct when he committed the crimes charged in counts 1 through 8 (§ 1203.066, subd. (a)(8)). The trial court sentenced him to concurrent terms of 25 years to life in state prison on counts 2, 4, 5, 6, 8, and 9 ( § 667.61, subd. (j)(2) ) and concurrent terms of 15 years to life on counts 1, 3, and 7 (§ 288.7, subd. (b)), for a total indeterminate term of 25 years to life.
Betts contends: (1) the trial court prejudicially erred when it admitted evidence on child sexual abuse accommodation syndrome (CSAAS); (2) the sentences imposed on counts 2, 4, 5, 6, 8, and 9 were not authorized by section 667.61, subdivision (j)(2) ; (3) the sentences imposed on counts 2, 4, 5, 6, and 8 violate the prohibition against ex post facto laws; (4) the true findings on the substantial sexual conduct allegations in counts 1, 2, 3, 5, 6, and 7 must be vacated; and (5) the abstract of judgment requires correction. In the published portion of our opinion, we conclude that the trial court properly sentenced Betts pursuant to section 667.61, subdivision (j)(2), for his convictions on counts 2, 4, 5, 6, 8, and 9. In the unpublished portion, we vacate the true findings on six of the substantial sexual conduct allegations, order correction of the abstract of judgment, and otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
See footnote *, ante .
DISCUSSION
See footnote *, ante .
2. Section 667.61, subdivision (j)(2)
Betts contends the sentences on counts 2, 4, 5, 6, 8, and 9 must be reduced to 15 years to life because section 667.71, subdivision (j)(2), does not apply to convictions for lewd acts on a child under age 14. We disagree.
The application of section 667.71, subdivision (j)(2), presents an issue of statutory interpretation for our independent review. ( People v. Tran (2015) 61 Cal.4th 1160, 1166, 191 Cal.Rptr.3d 251, 354 P.3d 148.) Our fundamental task is to ascertain the Legislature's intent when it enacted the subdivision. ( Smith v. Superior Court (2006) 39 Cal.4th 77, 83, 45 Cal.Rptr.3d 394, 137 P.3d 218.) We begin with its words, giving them their plain, commonsense meanings. ( People v. Gonzalez (2017) 2 Cal.5th 1138, 1141, 218 Cal.Rptr.3d 150, 394 P.3d 1074.) We interpret those words in the context of section 667.61 as a whole ( People v. Blackburn (2015) 61 Cal.4th 1113, 1123, 191 Cal.Rptr.3d 458, 354 P.3d 268 ), harmonizing them with the section's other provisions whenever possible ( People v. Valencia (2017) 3 Cal.5th 347, 357-358, 220 Cal.Rptr.3d 230, 397 P.3d 936 ( Valencia )). If no ambiguity appears, "we presume that the Legislature meant what it said, and the plain meaning of the [subdivision] controls." ( Gray , supra , 58 Cal.4th at p. 906, 168 Cal.Rptr.3d 710, 319 P.3d 988.) We will follow that meaning unless doing so would lead to absurd results the Legislature did not intend. ( People v. Ledesma (1997) 16 Cal.4th 90, 95, 65 Cal.Rptr.2d 610, 939 P.2d 1310.)
If we conclude that the meaning of subdivision (j)(2) is ambiguous, we may examine the legislative history to determine the Legislature's intent. ( People v. Scott (2014) 58 Cal.4th 1415, 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827.) We may also consider the impact of an interpretation on public policy and the consequences that may flow from it. ( Mejia v. Reed (2003) 31 Cal.4th 657, 663, 3 Cal.Rptr.3d 390, 74 P.3d 166.) But we cannot insert words into the subdivision that the Legislature has omitted. ( People v. Guzman (2005) 35 Cal.4th 577, 587, 25 Cal.Rptr.3d 761, 107 P.3d 860 ( Guzman ); see Code Civ. Proc., § 1858.) Our job is not to rewrite a statute to conform to an assumed intent that does not appear from its language. ( People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 571, 107 Cal.Rptr.3d 265, 227 P.3d 858.)
The Legislature enacted the One Strike law to increase the penalties imposed on defendants who commit certain sexual offenses under specified circumstances. (Sen. Bill. No. 26, Stats. 1993-1994, ch. 14, § 1.) The more serious circumstances were listed in subdivision (d) of section 667.61, the less serious in subdivision (e). ( People v. Lopez (2004) 119 Cal.App.4th 355, 360, 14 Cal.Rptr.3d 202.) The penalty imposed depended on the number and seriousness of those circumstances: If a defendant committed an offense "under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e)," they were to be sentenced to 25 years to life in state prison. (Former § 667.61, subd. (a).) If they committed their offense under just one of the circumstances specified in subdivision (e), however, they were to be sentenced to 15 years to life in prison. (Former § 667.61, subd. (b).) The age of the victim was not a factor under this scheme.
The One Strike law has been amended several times, including to increase the number of offenses to which its provisions apply and to mandate consecutive sentences for defendants convicted of certain offenses. (See Prop. 83, Gen. Elec. (Nov. 7, 2006), § 12; Senate Bill No. 1128, Stats. 2006, ch. 337, § 33.) The most recent substantive amendments were made in 2010, when the Legislature increased the penalties imposed on defendants convicted of sexual offenses against minors. (See Stats. 2010, ch. 219, § 16; Legis. Counsel's Dig., A.B. 1844 (2009-2010 Reg. Sess.).) Under the current version of the law, the penalty imposed on a defendant depends not only on the circumstances underlying their offense but also on the nature of the offense itself and the ages of the victim and the defendant.
A defendant is now subject to the One Strike law's sentencing provisions if they commit one of nine listed sexual offenses. (See § 667.61, subd. (c).) Three of those offenses require proof that the victim was under 14 years of age at the time of the offense: lewd acts on a child, in violation of section 288, subdivision (a); forcible lewd acts on a child, in violation of section 288, subdivision (b); and continuous sexual abuse of a child, in violation of section 288.5. ( § 667.61, subds. (c)(4), (c)(8), & (c)(9).) With one exception, the law mandates the harshest penalties for defendants convicted of one of these offenses, or one of the other six offenses listed in subdivision (c) if the victim was under 14 years of age: "Any person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of [s]ection 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life." (Id. , subd. (j)(1).) "Any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life." (Id. , subd. (j)(2).) The law mandates the same penalties for defendants whose victims are minors 14 years of age or older, but only if they were convicted of one of a more narrow list of offenses. (Id. , subds. (l ), (m), & (n).)
A straightforward application of section 667.61 ’s provisions reveals no sentencing error here. Lewd or lascivious acts against a child under age 14 is an offense specified in subdivision (c)(8). Committing that offense against multiple victims is a circumstance specified in subdivision (e)(4). Thus, pursuant to subdivision (j)(2), the trial court properly imposed sentences of 25 years to life in prison on counts 2, 4, 5, 6, 8, and 9.
Betts disagrees. He points out that, unlike most of the other offenses listed in subdivision (c), a conviction for lewd acts on a child already requires the victim to be under 14 years old. Applying the penalty mandated by subdivision (j)(2) to such a violation, he argues, renders that subdivision's phrase "upon a victim who is a child under 14 years of age" mere surplusage. To Betts, this shows that the Legislature intended to exempt lewd acts on a child convictions from this subdivision's provisions, as it did with subdivision (j)(1). (Cf. Valencia , supra , 3 Cal.5th at p. 357, 220 Cal.Rptr.3d 230, 397 P.3d 936 [a " ‘construction making some words surplusage is to be avoided’ "].)
The rule against surplusage is not so rigid. ( In re J. W. (2002) 29 Cal.4th 200, 209, 126 Cal.Rptr.2d 897, 57 P.3d 363.) Betts is correct that applying subdivision (j)(2) to lewd acts on a child convictions renders some of the language in the subdivision surplusage. But the same is true when the subdivision is applied to convictions for forcible lewd acts on a child and continuous sexual abuse of a child. And for defendants who commit one of those three offenses under the circumstance specified in subdivision (d)(7). (See § 667.61, subd. (d)(7) [infliction of bodily harm on a victim "under 14 years of age"].) Exempting these offenses from the One Strike law's harsher penalties for defendants who commit sexual offenses against children would require us to elevate the rule against surplusage over legislative intent. That we cannot do. ( People v. Rizo (2000) 22 Cal.4th 681, 687, 94 Cal.Rptr.2d 375, 996 P.2d 27 [minor redundancies permissible when they effectuate legislative intent].)
Betts also argues that applying subdivision (j)(2) to lewd acts on a child convictions renders subdivision (b) surplusage. This argument confuses surplusage with inapplicability. Simply because a sentencing provision does not apply to certain convictions does not mean that that provision is surplusage; surplusage results when a provision does apply. By its very terms ("[e]xcept as provided in subdivision (a), (j), (l ), or (m)"), subdivision (b) does not apply when subdivision (j)(2) does.
Next, Betts claims that a straightforward interpretation of subdivision (j)(2) creates an anomaly between the sentencing scheme for lewd acts on a child and that for all other offenses listed in subdivision (c). A defendant convicted of lewd acts on a child will be sentenced to 25 years to life in prison no matter whether they committed their crime under one or more of the circumstances specified in subdivision (d) or one or more of the circumstances specified in subdivision (e). ( § 667.61, subds. (a) & (j)(2).) But a defendant convicted of forcible lewd acts on a child or continuous sexual abuse of a child is subject to two possible sentences: 25 years to life if the offense was committed under one subdivision (e) circumstance, or life without the possibility of parole if it was committed under one or more of the circumstances specified in subdivision (d) or two or more of the circumstances specified in subdivision (e). (Id. , subds. (j)(1) & (j)(2).) And if the defendant is convicted of one of the six other offenses listed in subdivision (c), they are subject to a sentence ranging from 15 years to life in prison (id. , subd. (b)) to 25 years to life (id. , subds. (a), (j)(1), (j)(2), (l ), & (m)) to life without the possibility of parole (id. , subds. (j)(1) & (l )), depending on the nature of the offense, the circumstances under which it was committed, the age of the victim, and the age of the defendant.
The consequences are different if the forcible lewd acts on a child or continuous sexual abuse of a child was committed by a minor: 25 years to life, regardless of the circumstances. (§ 667.61, subds. (j)(1) & (j)(2).)
We perceive no anomaly in this multi-tiered sentencing scheme. As set forth above, the purpose of A.B. 1844 was to increase the penalties imposed on defendants who committed sexual offenses against minors. The bill did just that: It increased the penalty from 25 years to life to life in prison without the possibility of parole for a defendant who committed any one of six listed offenses on a minor under one or more subdivision (d) circumstances or two or more subdivision (e) circumstances. (Compare former § 667.61, subd. (a) with current § 667.61, subds. (j)(1) & (l ).) It increased the penalty from 25 years to life to life without the possibility of parole for a defendant who committed either of two additional offenses on a child under 14 under one subdivision (d) circumstance or two subdivision (e) circumstances. (Compare former § 667.61, subd. (a) with current § 667.61, subd. (j)(1).) It increased the penalty from 15 years to life to 25 years to life for a defendant who committed any of six listed offenses on a minor under one subdivision (e) circumstance. (Compare former § 667.61, subd. (b) with current § 667.61, subds. (m) & (j)(2).) And it increased the penalty from 15 years to life to 25 years to life for a defendant who committed any of three listed offenses on a child under 14 under one subdivision (e) circumstance. (Compare former § 667.61, subd. (b) with current § 667.61, subd. (j)(2).)
That A.B. 1844 did not similarly increase the penalty for a defendant who committed lewd acts on a child under one subdivision (d) circumstance or two subdivision (e) circumstances does not suggest that the Legislature intended for the exception set forth in subdivision (j)(1) ("with the exception of a violation of subdivision (a) of [s]ection 288") to also apply to subdivision (j)(2). Were that the case, A.B. 1844 would not have increased the penalty for committing lewd acts on a child at all ; it would still be subject to subdivisions (a) and (b) rather than (a) and (j)(2).
Betts argues that subjecting lewd acts on a child convictions to subdivision (j)(2)’s sentencing provisions means that such convictions will never be subject to the sentencing provisions of subdivisions (a) and (b). The opposite is true: lewd acts on a child is the only offense listed in section 667.61 that can be committed against a minor and be subject to subdivision (a)’s sentencing provisions. Every other listed offense committed against a minor is subject to the stricter sentencing provisions of subdivisions (j)(1), (j)(2), (l ), and (m).
Betts also claims that subjecting lewd acts on a child convictions to subdivision (j)(2) would incentivize a defendant to commit their crime in a more heinous manner since they would receive the same sentence no matter how many circumstances listed in subdivisions (d) and (e) were found true. But many of the circumstances listed in those subdivisions—inflicting mayhem or torture or other bodily injury on the victim, tying or binding the victim, using a deadly weapon—would elevate the offense from lewd acts on a child to forcible lewd acts on a child, subjecting the defendant to the harsher sentencing provisions of subdivision (j)(1). And while we presume that all people know the law ( Arthur Andersen v. Superior Court (1998) 67 Cal.App.4th 1481, 1506-1507, 79 Cal.Rptr.2d 879 ), we question whether that presumption applies to " ‘Byzantine’ " sentencing laws that can be " ‘bewildering in [their] complexit[ies]’ " ( People v. Winslow (1995) 40 Cal.App.4th 680, 684, fn. 1, 46 Cal.Rptr.2d 901 ).
Finally, Betts argues the "rule of lenity" requires us to exempt lewd acts on a child convictions from the provisions of subdivision (j)(2). But as our Supreme Court has stated, " ‘ "the rule of lenity applies ‘only if two reasonable interpretations of the statute stand in relative equipoise.’ " ’ " ( People v. Cornett (2012) 53 Cal.4th 1261, 1271, 139 Cal.Rptr.3d 837, 274 P.3d 456.) It " ‘has no application where, "as here, a court ‘can fairly discern a contrary legislative intent.’ " ’ [Citations.]" ( Ibid. )
We conclude that lewd acts on a child convictions are not exempt from the sentencing provisions of section 667.61, subdivision (j)(2). We accordingly decline Betts's invitation to insert the exemption contained in subdivision (j)(1) into subdivision (j)(2). ( Guzman , supra , 35 Cal.4th at p. 587, 25 Cal.Rptr.3d 761, 107 P.3d 860.)
See footnote *, ante .
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DISPOSITION
The true findings on the substantial sexual conduct allegations tied to counts 1, 2, 3, 5, 6, and 7 are vacated. The matter is remanded to the trial court with directions to order the clerk of the court to prepare a new abstract of judgment that: (1) omits those six findings, (2) states that the sentence imposed on count 1 is to run concurrently with those imposed on all other counts, (3) includes Betts's conviction on count 2, and (4) specifies the lengths of the sentences imposed on counts 8 and 9. After preparing the new abstract, the clerk shall forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur:
YEGAN, Acting P. J.
PERREN, J.