Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Ct. No. 07CM3720, Peter M. Schultz, Judge. (Retired Judge of the Kings S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Christina Hitomi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J.; Levy, J.; and Kane, J.
INTRODUCTION AND FACTS
Appellant Jose Luis Segura was convicted after jury trial of continuous sexual abuse of J.B., a child under the age of 14 years (count 1); continuous sexual abuse of C.B., a child under the age of 14 years (count 2); aggravated sexual assault of C.B., a child under the age of 14 years via oral copulation (count 5); aggravated sexual assault of C.B., a child under the age of 14 years via sexual penetration (count 6); and exhibition of harmful matter to C.B. with the intent of seducing her (count 7). (Pen. Code, §§ 288.5, subd. (a); 288a; 289, subd. (a); 269, subds. (a)(4) & (a)(5); 288.2, subd. (a).)
Unless otherwise specified all statutory references are to the Penal Code.
Appellant was sentenced to an aggregate term of 45-years-to-life imprisonment plus two years, calculated as follows: three consecutive indeterminate terms of 15 years to life for counts 1, 5 and 6 plus a consecutive determinate term of two years for count 7. Count 2 was dismissed. (§ 288.5, subd. (c).)
Appellant argues imposition of a full term consecutive sentence on count 1 pursuant to the One Strike law (§ 667.61) was unauthorized because he was not convicted of an offense specified in subdivision (c) of section 667.1 against more than one victim. We reluctantly agree. !()! The sentence imposed for count 1 will be vacated and the matter remanded for resentencing.
Resolution of this issue does not require recitation of the factual circumstances of the offenses.
In two unpublished decisions, this court determined that violation of section 269 is not a qualifying offense and does not trigger application of the One Strike law. The first decision, People v. Olvera, F046143 (2005) 2005 WL 3293301, was authored by Justice Levy with Justices Dibiaso and Cornell concurring. The second opinion, People v. Baltierra, F052609 (2008) 2008 WL 4356112, was authored by Justice Hill with Justices Vartabedian and Gomes concurring. Olvera and Baltierra contain the same line of reasoning, which has been followed in this case. No other districts have authored published or unpublished opinions on this issue. No California court has concluded that section 269 is a qualifying offense.
DISCUSSION
Section 667.61 is known as the One Strike law. In relevant part, it mandates a sentence of 15-years-to-life imprisonment when the defendant is convicted of sexual crimes listed in subdivision (c) against more than one victim. (§ 667.61, subds. (b) & (e)(5).) Subdivision (c) contains a list of nine “triggering” offenses: (1) rape in violation of paragraph (2) or (6) of subdivision (a) of section 261; (2) spousal rape, in violation of paragraph (1) or (4) of subdivision (a) of section 262; (3) rape, spousal rape or sexual penetration in concert in violation of section 264.1; (4) a lewd or lascivious act in violation of subdivision (b) of section 288; (5) sexual penetration in violation of subdivision (a) of section 289; (6) sodomy in violation of paragraph (2) or (3) of subdivision (c) or subdivision (d) of section 286; (7) oral copulation in violation of paragraph (2) or (3) of subdivision (c) or subdivision (d) of section 288a; (8) lewd or lascivious act in violation of subdivision (a) of section 288; and (9) continuous sexual abuse of a child in violation of section 288.5. (§ 667.61, subd. (c)(1)-(9).)
Subdivision (b) provides, “Except as provided in subdivision (a), any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment … for 15 years to life.” Subdivision (e) provides, “The following circumstances shall apply to the offenses specified in subdivision (c).” Subsection (5) of subdivision (e) provides, “The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.”
Appellant was convicted in count 1 of continually sexually abusing J.B. in violation of section 288.5, subdivision (a). Section 288.5 is a triggering offense listed in subdivision (c) of section 667.61. In counts 5 and 6, appellant was convicted of aggravated sexual assault on C.B. in violation of section 269, subdivision (a)(4) and (a)(5). The sexual act underlying the aggravated sexual assault in count 5 was oral copulation in violation of section 288a. The underlying sexual act in count 6 was sexual penetration in violation of section 289. Section 269 is not an offense listed in subdivision (c) of section 667.61. However, sections 288a and 289 are both listed offenses. Thus, the question before us is whether the multiple victim provision of the One Strike law applies in this circumstance. Reluctantly, we agree with appellant that a conviction under section 269 is not a triggering offense. Therefore, the One Strike law does not apply.
In construing the relevant provisions of section 667.61, “‘as with any statute, we strive to ascertain and effectuate the Legislature’s intent.’ [Citation.] Because statutory language generally provides the most reliable indicator of that intent [citation], we turn to the words themselves, giving them their ‘usual and ordinary meanings’ and construing them in context. [Citation.] ‘“If there is no ambiguity in the language of the statute, ‘... the Legislature is presumed to have meant what it said, and the plain meaning of the statute governs.’”’ [Citation.]” (People v. Lawrence (2000) 24 Cal.4th 219, 230-231.) We need not look past the clear language of section 667.61 to conclude that section 269 is not an offense listed in subdivision (c). Therefore, conviction of this crime does not trigger the multiple victims provision of the One Strike law. (See Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.)
Examining other rules of statutory construction does not lead to a different result. We are bound by the rule of statutory construction expression unius est exclusio alterius: “The expression of some things in a statute necessarily means the exclusion of other things not expressed.” Section 667.61, subdivision (c) expressly lists those statutory offenses subject to its penalties if a defendant is convicted of committing these crimes against more against one victim. Section 269 is not listed.
We agree with respondent that the jury necessarily found appellant committed conduct that would constitute a violation of two statutes listed in section 667.61, subdivision (c), when it found him guilty of two counts of violating section 269. However, this does not equate to the appellant having been convicted of these other crimes. A conviction requires a formal adjudication of guilt. Individuals who are convicted of violating section 269 necessarily violated one of the statutes listed in subdivision (c) of section 667.61; yet, they were not convicted of these underlying crimes. The Legislature’s choice to use the word “convicted” in subdivisions (b) and (e) of section 667.61 cannot simply be read out of the statute because of our antipathy toward the result it requires in this case.
Further, the Legislature has directly provided for the inclusion of section 269 in other statutes where it intended its inclusion. The Habitual Sexual Offender law (§ 667.71) does expressly list section 269 as a triggering offense even though, like the One Strike law, it also lists offenses that are necessarily included in a violation of section 269. Our Supreme Court drew attention to this discrepancy when it pointed out in People v. Hammer (2003) 30 Cal.4th 756 that certain violations “trigger the Habitual Sexual Offender law, but not the One Strike law.” (Id. at p. 769, fn. 11.) It explained that the Habitual Sexual Offender law is broader than the One Strike law. Section 269 is one of the numerous offenses that are included in the Habitual Sexual Offender law but not the One Strike law. (Ibid.) The Habitual Sexual Offender law and the One Strike law were passed together and listed as related legislation in the relevant committee notes. (Assembly Committee on Public Safety, SB 26X, as amended May 25, 1994.) Thus, one cannot successfully contend that the Legislature was simply unaware of section 269 when it passed the One Strike law.
In arguing that section 269 should be read as a qualifying offense, respondent relies on People v. Jimenez (2000) 80 Cal.App.4th 286 (Jimenez) and People v. Glass (2004) 114 Cal.App.4th 1032 (Glass). Neither of the statues considered in Jimenez and Glass is analogous to the statutory language before us now. In Jimenez, we determined that the omission of section 269 from the sentencing provisions in section 667.6, subdivision (d) did not preclude trial courts from sentencing a defendant convicted of violating section 269 under that sentencing scheme. Section 667.6, subdivision (d) provides that the section is applicable for every violation of an offense listed in subdivision (e) of section 667.6. Section 667.6, subdivision (d) did not require a conviction of a qualifying offense, as does the One Strike law. Therefore, our decision in Jimenez did not focus, as we do now, on the requirement that a defendant must be convicted of a qualifying offense in order to make sentencing under that scheme appropriate. Similarly, in Glass, we concluded the omission of section 269 from the enumerated offenses of the section 12022.8 enhancement did not preclude punishment for the enhancement when the defendant has been convicted of violating section 269. Section 12022.8 was enacted prior to section 269 and, more importantly, it requires only a violation of the enumerated statutes, not a conviction.
We recognize the apparent inequity that results from our holding. Although the factual predicate necessary to apply the One Strike law was proved beyond a reasonable doubt, we are constrained by the statutory language from applying it in this case. If the People had charged appellant with orally copulating and sexually penetrating C.B., he would be subject to the One Strike law. Yet, because appellant was charged and convicted of the greater crime of aggravated sexual assault of a child, he is actually subject to a lesser penalty. If the same criminal conduct committed in this case had involved two adult victims, it would have resulted in convictions under statutes that trigger the penalties of section 667.61. We are limited to interpretation of the law and not its enactment. We cannot insert language into a statute which is unambiguous. (See Code Civ. Proc., § 1858 [a court must not “insert what has been omitted”].) It is the Legislature who must remedy this incongruity, if it so chooses.
For educational purposes, we note that this sentencing problem could have been avoided if the trial court had decided to dismiss counts 5 and 6 instead of count 2. If it had retained count 2, appellant would have been convicted of two counts of violating section 288.5, which is a listed triggering offense, on two different victims.
DISPOSITION
The sentence on count 1 is vacated and the matter is remanded to the trial court for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.