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CHK IV
Rules of Statutory Construction
BRIEF BANK NOTE: FORECITE has available a 38 page Points and Authorities on the use of legislative intent as evidence from William Keller, JD, a registered expert witness on the subject of legislative intent. Mr. Keller’s firm, Legislative Intent Service, has been cited in over 40 appellate opinions. Legislative Intent Service can be reached at (1-800-666-1917), or visit their web site at: www.legintent.com. See B-809-i and B-809-ii for these Points and Authorities, available on the FORECITE website in two parts: .
RESEARCH AID: Finding Urgency Legislation. Urgency legislation can be found on the Secretary of State’s web page at www.ss.ca.gov/executive/99_bill_chapter_summary_page.aspx and the State Legislature’s web page at:
www.leginfo.ca.gov/bilinfo.aspxl
An article discussing how to locate urgency legislation and make sense of it appears in the October 1999 issue of “California Criminal Defense Practice Reporter.” See “Finding Urgency Legislation” by Beth F. Holzman, J.D., CCDPR, 10/99, p. 496.
Introduction
This checklist includes a sampling of rules of statutory construction which may be useful to the criminal practitioner. It is not intended to be exhaustive of all statutory construction rules.
A. Must Be Construed In Favor Of The Defendant.
“Penal statutes should be strictly construed against the government or parties seeking to enforce statutory penalties and in favor of the persons on whom penalties are sought to be imposed.” (People v. Superior Court (Brotherton) (83) 147 CA3d 281, 287 [195 CR 96]; Busic v. United States (80) 446 US 398, 406 [64 LEd2d 381].)
Where a statute is susceptible of two reasonable interpretations, it must be construed in favor of the defendant. (Dunn v. United States (79) 442 US 100, 112 [60 LEd2d 743; 99 SCt 2190]; People v. Anderson (87) 43 C3d 1104, 1145-46 [240 CR 585].)
The court is bound to resolve any ambiguity in favor of the defendant. (People v. Belmontes (83) 34 C3d 335, 346 [193 CR 882].)
The defendant is “entitled to the benefit of every reasonable doubt … as to the true interpretation of words or the construction of language used in a statute.” (People v. Craft (86) 41 C3d 554, 560 [224 CR 626] [internal quotation marks omitted].)
“Generally, if a statute is intended to impose derivative of liability … there must be some legislative direction that it is to be applied to persons who do not themselves commit the proscribed act.” (People v. Reed (82) 135 CA3d 149, 153 [185 CR 169].)
“In determining whether defendant was guilty of violating a penal statute we must strictly construe the statute uninfluenced by the extent of the harm which resulted. [Citation.]” [Original emphasis.] (People v. Budish (82) 131 CA3d 1043, 1048 [182 CR 653].)
“Penal statutes will not be made to reach beyond their plain intent; they include only those offenses coming clearly within the import of their language. [Citation]. Indeed, ‘Constructive crimes — crimes built up by courts with the aid of inference, implication, and strained interpretation — are repugnant to the spirit and letter of english and american criminal law.’ [Citation.]” (Keeler v. Superior Court (70) 2 C3d 619, 632 [87 CR 481].)
The courts are obligated “to construe a penal statute as favorably to the defendant as its language and circumstances of its application reasonably permit; … the defendant is entitled to the benefit of every reasonably doubt as to the true interpretation of words or the construction of language used in a statute.” (Keeler v. Superior Court (70) 2 C3d 619, 631 [87 CR 481]; see also People v. Walker (76) 18 C3d 232, 242 [133 CR 520].)
In re Christian S. (94) 7 C4th 768, 780 [30 CR2d 33], “because the language of section 188’s definition of express malice is, at the very least, reasonably susceptible to the construction asserted by defendant, we adopt that construction. [Fn omitted.]”
Reconciling Rules Of Lenity And Strict Construction Of Statutory Language. See discussion in People v. Wagner (2009) 170 CA4th 499.
B. Fundamental Rules Of Statutory Interpretation.
Legislative Intent Controls. The fundamental rule of statutory interpretation is to ascertain the legislative intent. (People v. Aston (85) 39 C3d 481, 489 [216 CR 771].)
Intent Depends First Upon Words. To determine intent, the court looks first to the words themselves. (People v. Woodhead (87) 43 C3d 1002, 1007 [239 CR 656].)
Plain Meaning Must Be Followed Absent Ambiguity. If the statutory language is clear and unambiguous the plain meaning of the statute must be followed. (People v. Craft (86) 41 C3d 554, 559-60 [224 CR 626]; People v. Belleci (79) 24 C3d 879, 884 [157 CR 503]; California Teachers Assn. v. San Diego Community College District (81) 28 C3d 692, 698 [170 CR 817]; Holder v. Superior Court (69) 269 CA2d 314, 317 [74 CR 853].)
Unambiguous Statutory Language Controls. “This court’s task in construing a statute is to ascertain the intent of the Legislature in order to effectuate the law’s purpose. The court should first turn to the words used in the statute. When the statutory language is clear and unambiguous, there is no need for construction, and the court should not undertake it. (People v. Overstreet (86) 42 C3d 891, 895 [231 CR 213].) It must be determined whether the words of the statute, given their ordinary and popular meaning, are reasonably free from uncertainty or ambiguity. (People v. Mel Mack Co. (75) 53 CA3d 621, 626 [126 CR 505].)” (People v. Clark (92) 10 CA4th 1259, 1263 [13 CR2d 209].)
“In the construction of a statute …, the office of the judge is simply to ascertain and declare what is in terms or in substance contained thereon, not to insert what has been omitted, or to omit what has been inserted; ….” (CCP 1858; see also, People v. Salcedo (94) 30 CA4th 209, 219 [35 CR2d 539].)
Ambiguity May Be Shown Even If Plain Meaning of Words are Not Ambiguous. “[A] conclusion that a statute is ambiguous need not be premised upon the use of words which are themselves ambiguous. The structure or interaction of various parts of a statute may provide a basis for a conclusion that a statute is ambiguous. [Citation.]” (People v. Clark (92) 10 CA4th 1259, 1264 [13 CR2d 209].)
Plain Meaning Not Followed If Absurd Results. The plain meaning of the statute will not be followed if it would frustrate the purposes of the legislation as a whole or lead to absurd results. (People v. Belleci (79) 24 C3d 879, 884 [157 CR 503]; Younger v. Superior Court (78) 21 C3d 102, 113 [145 CR 674]; People v. Pieters (91) 52 C3d 894, 898-99 [276 CR 918]; Love v. Superior Court (90) 226 CA3d 736, 745 [276 CR 660].) Statute should be construed so as to harmonize with the entire scheme of law. (Clean Air Constituency v. State Air Resources Bd. (74) 11 C3d 801, 814 [114 CR 577].)
Statutes Must Be Construed To Be Constitutional. “[S]tatutes are to be so construed, if their language permits, as to render them valid and constitutional rather than invalid and unconstitutional [citation] and … California courts must adopt an interpretation of statutory provision which, ‘consistent with the statutory language and purpose, eliminates doubt as to the provision’s constitutionality’ [citation].” (People v. Amor (74) 12 C3d 20, 30 [114 CR 765].)
When Statutory Language Is Not Clear, Extrinsic Aids Should Be Used. “When the language is suspectable of more than one reasonable interpretation … we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (People v. Woodhead (87) 43 C3d 1002, 1008 [239 CR 656].)
Exceptions to the General Rule of a Statute Are Strictly Construed. “If a statute contains an express exception or exceptions, it will be presumed no others were intended. [Citation.]” (People v. Melton (88) 206 CA3d 580, 592-93 [253 CR 661].)
Legislature Must Express Prescribed Statutory Exceptions. The judiciary should not create statutory exceptions where legislature has not, for whatever reason, done so itself. (County of L.A. v. Frisbie (42) 19 C2d 634, 644 [122 P2d 526]; People v. White (54) 122 CA2d 551, 554 [265 P2d 115].)
Extrinsic Aids — Only Legislative Materials Showing Intent Of Legislature As A Whole May Be Considered. Only legislative materials that indicate the intent of the legislative body as a whole are admissible. Thus, opinions of the author of the statute, letters written to the legislators, or analyses by staff of the executive branch are not admissible unless the materials were prepared for legislative committees or the houses as a whole. (People v. Patterson (99) 72 CA4th 438, 443 [84 CR2d 870].)
Incorporation Of Other Statutes: Applies To Statutes At The Time Of Incorporation, Not As Later Amended. It is a well established principle of statutory law that, where a statute adopts by specific reference the provisions of another statute, regulation, or ordinance, such provisions are incorporated in the form in which they exist at the time of the reference and not as subsequently modified. (Palermo v. Stockton Theatres, Inc. (48) 32 C2d 53, 58-59 [195 P2d 1] [emphasis added].) More recent cases utilizing this principle include People v. Superior Court (Lavi) (93) 4 C4th 1164, 1176 fn 7 [17 CR2d 815]; San Bernardino County Sheriff’s Employee’ Benefits Ass’n v. Board of Supervisors (92) 7 CA4th 602, 610-11 [8 CR2d 658]; and People v. Domagalski (89) 214 CA3d 1380, 1385-86 [263 CR 249].) [See Brief Bank # B-801 for briefing on this issue.]
Courts Should Not “Clean Up” Legislative Mistakes. “As anyone familiar with the legislative process knows, the Legislature routinely passes legislation to clean up past mistakes. That is the legislative function. It should not be transferred to the judicial branch which lacks that power.” (Calif. Correctional Peace Officers Assn. v. Dept. of Corrections (99) 72 CA4th 1331, 1340 [85 CR2d 797]; see also People v. Herman (2002) 97 CA4th 1369 [119 CR2d 199].)
Statutes Are Presumed To Codify Common Law Rules Absent Clear Language To The Contrary. “[A] statute will be construed in light of common law principles unless it contains clear and unequivocal language that discloses an intent to depart from, alter, or abrogate the common law rule concerning a particular subject matter.” (People v. Massicot (2002) 97 CA4th 920, 928 [118 CR2d 705]; see also California Assn. of Health Facilities v. Dept. of Health Services (97) 16 C4th 284, 297 [65 CR2d 872]; see also People v. Vogel (56) 46 C2d 798, 805 [299 P2d 850]; People v. Davis (98) 19 C4th 301, 315 [79 CR2d 295]; see also FORECITE F 4.00 n1.)
C. Examples Of Extrinsic Aids.
Existing Judicial Interpretation. “Statutes must be interpreted in light of existing judicial interpretation absent clear and unequivocal intent to depart from such judicial precedent.” (Theodor v. Superior Court (72) 8 C3d 77, 92 [104 CR 226].)
Other Statutes. “The interpretation of an ambiguous statutory phrase may be aided by reference to other statutes which apply to similar or analogous subjects.” (People v. Woodhead, supra, 43 C3d at 1008.)
Contemporary Administrative Construction. (Johnson v. Santos (83) 148 CA3d 566, 573 [196 CR 145]; see also DeYoung v. City of San Diego (83) 147 CA3d 11, 18 [194 CR 722]; Sonoma County Bd. of Ed. v. Pub. Emp. Rel. Bd. (80) 102 CA3d 689, 700 [163 CR 464] [failure of legislature to amend the statute following publication of the attorney general’s opinion supports an inference that the legislative intent therein was correctly construed].)
Chapter Headings. “Consideration may be given to chapter and section headings in codes in interpreting the various sections. [Citation]” (People v. Navarro (72) 7 C3d 248, 273 [102 CR 137].)
Statutory Number. Where both a description and a statute number are included, and it’s ambiguous which is meant, the statute number controls. (See PC 7.5; see also Williams v. Superior Court (2001) 92 CA4th 612, 617 [111 CR2d 918].)
Historical Context, Etc. “`The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.’ [Citation.]” (Cossack v. Los Angeles (74) 11 C3d 726, 733 [114 CR 460].)
Subsequent Legislative Amendment. “… [W]hen the legislature amends a statute without altering portions of the provision that have previously judicially construed, the legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.” (Marina Point Ltd. v. Wolfson (82) 30 C3d 721, 734 [180 CR 496]; see also In re Michael G. (88) 44 C3d 283, 292 [243 CR 224].)
1. No Implied Amendment To Portions Of Statute Not Amended. GC 9605 ensures that “[t]he portion of an amended statute which remains the same as it was prior to the amendment, continues to be the law from the time of its original enactment…” (Estate of Childs (41) 18 C2d 237, 245 [115 P2d 432]; People v. Escobar (92) 3 C4th 740, 751 fn 5 [12 CR2d 586]; Corporation of America v. Johnson (36) 7 C2d 295, 305-306 [60 P2d 417].) It “avoid[s] an implied repeal and reenactment of unchanged portions of an amended statute, ensuring that the unchanged portion operates without interruption.” (In re Lance W. (85) 37 C3d 873, 895 [210 CR 631].)
Thus, when certain language is used in an original statutory enactment, and that language remains unchanged despite later amendments to other portions of the statute, the unchanged language continues to have the same meaning as it did in the original enactment. (Corporation of America, supra, 7 C2d at 305-306; People v. Escobar, supra, 3 C4th at p. 750-51 and fn 5.) [See Brief Bank # B-784 for additional briefing on this issue.]
Post Enactment Statement. A post enactment statement by the legislature is not binding but may supply evidence of earlier legislative intent to change the law. (See Eu v. Chacon (76) 16 C3d 465, 470 [128 CR 1]; Bobsee Corp. v. US (5th Cir. 1969) 411 F2d 231, 237.)
D. Construction Of Words And Phrases.
Omission Of Critical Word. “Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent.” (Craven v. Crout (85) 163 CA3d 779, 783 [209 CR 649]; see also Hennigan v. United Pacific Insurance Company (75) 53 CA3d 1, 8 [125 CR 408]; Bunner v. Imp. Ins. Co. (86) 181 CA3d 14, 21 [225 CR 912].)
Word Given A Particular Scope. “… [A] word given a particular scope or meaning in one portion of the law shall be given the same scope and meaning in other portions of the law.” (Herrick v. State of California (83) 149 CA3d 156, 165 [196 CR 663].)
Repealed Phrase Or Word. “It is 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 (81) 30 C3d 462, 468 [179 CR 239].)
Different Meaning To Same Word. “‘When the occasion demands it, the same word may have different meanings to effectuate the intention of the act in which the word appears.’ [Citations.]” (Ibid.)
Word With Well-Known Meaning. “… [W]here a word or phrase has a well-known definite legal meaning it will be construed to have the same meaning when used in a statute. [Citation.]” (Plotitsa v. Superior Court (83) 140 CA3d 755, 762 [189 CR 769].)
Same Word In Two Statutes. “Language common to two statutes must be given the same meaning in each enactment.” (Gonzalez & Co. v. Dept. of A.B.C. (84) 151 CA3d 172, 178 [198 CR 479].)
“Generally, identical words in different parts of the same act or in different statutes relating to the same subject matter are construed as having the same meaning.” (Chandis Securities Co. v. City of Dana Point (96) 52 CA4th 475, 486 [60 CR2d 481].)
“[W]here the same term or phrase is used in a similar manner in two related statutes concerning the same subject, the same meaning should be attributed to the term in both statutes unless countervailing indications require otherwise. [Citation.]” (Dieckmann v. Superior Ct. (85) 175 CA3d 345, 356 [220 CR 602].)
General Words Following Enumerated Class. “It is established that where general words follow the enumeration of particular classes of things, the general words will be construed as applicable only to things of the same general nature or class of those enumerated. The rationale is that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things, which would in that even become mere surplusage. [Citation.]” (People v. Clark (92) 10 CA4th 1259, 1264-65 [13 CR2d 209].)
Specific Controls Over General. “[S]pecial provisions control more general provisions, and the general and special provision operate together, neither working the repeal of the other.” (People v. Trimble (93) 16 CA4th 1255, 1259 [20 CR2d 495]; People v. Western Air Lines, Inc. (54) 42 C2d 621, 637 [268 P2d 723]; Bowens v. Superior Court (91) 1 C4th 36, 45 [2 CR2d 376].)”
Modifying Phrases. “Modifying phrases are to be applied to the words immediately preceding them and are not to be construed as extending to more remote phrases.” (People v. Corey (78) 21 C3d 738, 742 [147 CR 639] [internal quotation marks omitted; see also White v. County of Sacramento (82) 31 C3d 676 [183 CR2d 520]; In re Rodney (99) 73 CA4th 36 [85 CR2d 785] [qualifying words and phrases refer solely to the immediately preceding antecedent].)
Enumeration of A Specific Thing Excludes All Others (Expressio unius est exclusio alterius). When a statute enumerates a specific thing, the maxim “expressio unius est exclusio alterius” implies that the statute excludes all other things not expressed in the statute. (See People v. Melton (88) 206 CA3d 580, 592 [253 CR 661].)
Evaluating Legislative Intent. In evaluating legislative intent, the courts should seek to avoid making any language surplusage. (In re Estate of MacDonald (90) 51 C3d 262, 270 [272 CR 153]; see also, Moyer v. Workmen’s Comp. Appeals Bd. (73) 10 C3d 222, 230 [110 CR 144].)
Construction Rendering Some Words Useless Or Redundant Is To Be Avoided. “[E]very word and phrase employed [in a statute] is presumed to be intended to have meaning and perform a useful function… [and] a construction rendering some words in the statute useless or redundant is to be avoided.” (Playboy Enterprises v. Superior Court (84) 154 CA3d 14, 20 [201 CR 207]; see also Shoemaker v. Myers (90) 52 C3d 1, 22 [276 CR 303].)
Use Of Term Or Phrase In One Part Of A Statute And Exclusion Of It From Another. It has been explicitly recognized that “[w]hen the legislature uses a term or phrase in one part of a statute but excludes it from another, the courts should not imply the missing phrase into the sections from which it was excluded.” (In re Jerry M. (97) 59 CA4th 289, 297, fn 5 [69 CR2d 148]; see also Pasadena Police Officers Assn. v. City of Pasadena (90) 51 C3d 564, 576 [273 CR 584]; People v. Herman (2002) 97 CA4th 1369 [119 CR2d 199].) Rather, in the absence of an affirmative reason to suppose otherwise, courts should presume the legislature “said what it meant, meant what it said, and had a good reason for the words it chose.” (Herman, 97 CA4th at 1384; see also People v. Snook (97) 16 C4th 1210, 1215 [69 CR2d 615].)
E. Amendment of Statute.
“To be sure, where the Legislature amends a statue without altering a consistent and longstanding judicial interpretation of its operative language, courts generally indulge in a presumption that the Legislature has ratified that interpretation. (People v. Bouzas (1991) 53 C3d 467, 475.) Nevertheless, presumption of legislative acquiescence in prior judicial decisions is not conclusive in determining legislative intent. As we have also stated: “Legislative silence after a court has construed a statute gives rise at most to an arguable inference of acquiescence or passive approval. But something more than mere silence is required before that acquiescence is elevated into a species of implied legislation. In the area of statutory construction, an examination of what the Legislature has done (as opposed to what it has left undone) is generally the more fruitful inquiry. Legislative inaction is a weak reed upon which to lean. [Citations.]” [Internal quotation marks, punctuation and citations omitted.] (People v. Escobar (1992) 3 C4th 740, 750-51; see also People v. Farley (2009) 46 C4th 1053, 1120 [California Supreme Court is reluctant to draw conclusions concerning legislative intent from legislative silence or inaction].)
Where the amendment to a statute is inconsistent with the re-enacted older portion, the amendment should be given effect. (Donlon v. Jewett (1891) 88 C 530.)
F. Reenactment Of A Statute.
“When a statute is amended which has been the subject of judicial construction, it is presumed that the legislature was fully aware of that construction; when substantial changes are made in the statute, an intent to alter the law in those particulars affected by the changes can be inferred.” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (78) 21 C3d 650, 659 [147 CR 359].)
“The reenactment of a statute in substantially the same language after it has been judicially construed gives rise to a presumption of legislative adoption, acquiescence, or ratification of that construction.” (Holmes v. McColgan (41) 17 C2d 426 [110 P2d 428].)
“Where a statute referring to one subject contains a critical word or phrase, omission of that word of phrase from a similar statute on the same subject generally shows a different legislative intent.” (Craven v. Crout (85) 163 CA3d 779 [209 CR 649]; see also Hennigan v. United Pacific Ins. Co. (75) 53 CA3d 1, 8 [125 CR 408]; 2A Sutherland, Statutory Construction (4th Ed. 1984).)
G. Repeal By Implication Is Disfavored.
“As a general rule of statutory construction … repeal by implication is disfavored. [Citation.]” (People v. Siko (1988) 45 C3d 820, 824.) Such repeal is particularly disfavored when the statute allegedly repealed expresses a legal principle that has long been a part of our penal jurisprudence. (Siko, 45 C3d at 824; see also People v. Cardenas (1982) 31 C3d 897, 913-14; People v. Farley (2009) 46 C4th 1053, 1120 [California Supreme Court is reluctant to to draw conclusions concerning legislative intent from legislative silence or inaction].)
H. Construction of Specific Words.
Such: “‘Such’ is used in statutes to make clear that the second reference is to exactly the same concept mentioned previously. [Citation].” (People v. Clark (92) 10 CA4th 1259, 1264 [13 CR2d 209].)
Should: The term “should” denotes a mandatory duty. (U.S. v. Anderson (7th Cir. 1986) 798 F2d 919, 923-24.)
I. Legislation By Implication Is Disfavored.
“[A]n intention to legislate by implication is not to be presumed.” [Citations and internal quote marks omitted.] (In re Christian S. (1994) 7 C4th 768, 776; see also People v. Farley (2009) 46 C4th 1053, 1120 [California Supreme Court is reluctant to to draw conclusions concerning legislative intent from legislative silence or inaction].)
J. Rules Of Statutory Construction: Two Laws On The Same Subject.
Newer Law Takes Precedence. When two laws on the same subject, passed at different times, are inconsistent with each other, the later act prevails. (People v. Bustamante (97) 57 CA4th 693, 701 [67 CR2d 295].)
Specific Statute Preempts General Statute. The statutory preemption rule bars prosecution under a general statute if a more specific statute is factually applicable. (See People v. Coronado (1995) 12 CA4th 145, 153-54; see also People v. Jenkins (1980) 28 C3d 494, 501.) “As we stated in In re Williamson (1954) 43 C2d 651, 654 ‘It is the general rule that where the general statute standing alone would include the same mater as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’ [Citations.]” (People v. Gilbert (1969) 1 CA3d 475, 479; see also People v. Murphy (2011) 52 CA4th 81, 86-92; People v. Sanchez (1998) 60 CA4th 1490, 1491; People v. Swann (1963) 213 CA2d 447; see also People v. Duran (2004) 124 CA4th 666 [a felon who submits a false application to purchase a firearm may not be prosecuted pursuant to the general attempt statute, but may only be prosecuted under the special statute (PC 12076) which expressly proscribes such false applications].)
However, the statutory elements do not have to “mirror” each other for preemption doctrine to apply. “If it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.” (Jenkins, 28 C3d at 502.)
However, the rule precluding prosecution under a general statute “is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict. [Citation.]“ (People v. Walker (2002) 29 C4th 577, 586 (Walker), citing Williamson, supra, 43 C2d 651, 654.) Moreover, the California Supreme Court explained that “Jenkins, supra, 28 C3d 494, 501-505 — merely stands for the proposition that when the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefore, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears.“ (Mitchell v. Superior Court (1989) 49 C3d 1230, 1250.)
“‘Typically the issue whether a special criminal statute supplants a more general criminal statute arises where the special statute is a misdemeanor and the prosecution has charged a felony under the general statute instead. [Citations.] Such prosecutions raise a genuine issue whether the defendant is being subjected to a greater punishment than specified by the Legislature, and the basic question for the court to determine is whether the Legislature intended that the more serious felony provisions would remain available in appropriate cases.‘ [Citation.]“ (Mitchell, 49 C3d at 1250, fn. 14.)
For example, the general/special statute rule does not apply to the child abuse crimes proscribed by PC 273a and PC 273d because the more general statute, PC 273a, does not provide a more severe penalty than the special statute, PC 273d. (People v. Cockburn (2003) 109 CA4th 1151, 1158-1159.)
Specific Preempts General: Separate Statute vs. Subdivision Not Determinative. See People v. Murphy (2011) 52 CA4th 81, 91 (whether the Legislature has addressed the specific conduct in a separate statute rather than in a clause or subdivision of a statute that includes other conduct is not determinative in our effort to discern the Legislature’s intent).
K. Interpretation Of Language Of Voter Initiatives.
The same rules regarding effectuating the purpose of the law which apply to statutes enacted by the legislature also govern interpretation of measures adopted by initiative. (Whitman v. Superior Court (91) 54 C3d 1063, 1072 [2 CR2d 160]; see also People v. Pieters (91) 52 C3d 894, 898-99 [276 CR 918].)
L. Criminal Statutes Should Normally Be Construed To Require Mens Rea Even If Statutory Language Is Silent.
The United States and California Supreme Courts have emphasized that felony offenses which bear harsh punishment are not the type of “public welfare” offenses for which courts will readily dispense with the mens rea requirement when construing a statute. (Staples v. U.S. (94) 511 US 600 [128 LEd2d 608, 623-24; 14 SCt 1793]; see also People v. Coria (99) 21 C4th 868 [89 CR2d 650]; People v. Simon (95) 9 C4th 493, 520 [37 CR2d 278].)
M. Statutory Construction Re: Jury Instructions Subject To De Novo Review
See FORECITE PG X(A)(13).
