IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
Defendant and Appellant.
I. APPELLANT WAS CONVICTED OF A NONEXISTENT CRIME [AOB, Part I, Pages 12-32]
A. The Incorporation By Reference Provisions Of Section 653f, Subdivision (c) Have Never Been Amended, And These Never-Amended Provisions Have Never Changed In Meaning
The People do not immediately take issue with the rule of Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 58-59 (the “Palermo rule”), though they end up attacking it later in their argument. (See post, pp. -.) Instead, the People claim the Palermo rule doesn’t apply because “appellant . . . was convicted under Penal Code section 653f, subdivision (c), [Footnote 1] not as originally promulgated in 1979 but as subsequently amended, most recently in 1993.” (RB 10.) They fail to mention that the 1993 amendment to subdivision (c) was technical, nonsubstantive, and essentially trivial.
The People’s claim is not the law, because section 653f, subdivision (c) has never been amended in any manner relevant here. In particular, the provisions of subdivision (c) dealing with which offenses are incorporated (the “incorporation provisions”) have never been amended. The Palermo rule, and Government Code section 9605, thus defeat the People’s claim.
1. Most Recent Supreme Court Precedent
The People’s claim is contrary to what they argued—successfully—in People v. Escobar (1992) 3 Cal.4th 740: Although section 12022.7 was amended twice after its enactment, neither amendment affected the “great bodily injury” portion of the statute. Thus, neither amendment changed the definition of “great bodily injury” from the original enactment. (Escobar, 3 Cal.4th at pp. 750-751 & fn. 5.) The analysis here should be the same. [Footnote 2]
Even though the People have made a U-turn in this case, they cannot prevail upon this Court to disregard the Supreme Court’s Escobar opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
2. Detailed Analysis Under Section 9605
That alone should be dispositive. However, appellant will also analyze the issue in greater detail.
On the issue in this case, the incorporation provisions of Penal Code section 653f, subdivision (c)—the provisions of subdivision (c) which incor- porate Penal Code sections 264.1, 288 and 289—are identical to what they were, when they were enacted in 1980. Not a word has changed in 20 years.
In case the People dispute this, appellant refers to the original version of section 653f, subdivision (c), enacted as Stats. 1979, ch. 944, p. 3257, § 9 (eff. Jan. 1, 1980). In particular, he refers to the Legislative Counsel’s Digest of the original enactment, which is at the end of the Enactment History section [the second “Tab 1”] of the materials judicially noticed by this Court in its order of October 8, 1998. (To be on the safe side, in case it is hard to find, appellant also attaches it as an Appendix to this brief.)
Comparing the originally enacted section 653f, subdivision (c) to the current version, there are only two differences: Current subdivision (c) has specific intent language (added in 1988) that wasn’t in the original, and the phrase “is punishable by” was changed to “shall be punished by” (in 1993). But on the only issue here, which offenses are incorporated into subdivision (c), the current statute is the same as the enacted version 20 years ago. [Footnote 3]
Because there has never been an amendment of any provision in section 653f, subdivision (c) dealing with which offenses are incorporated, subdivision (c) is governed by Government Code section 9605. That statute states in pertinent part (emphasis added):
Where a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form. The portions which are not altered are to be considered as having been the law from the time when they were enacted; the new provisions are to be considered as having been enacted at the time of the amendment; and the omitted portions are to be considered as having been repealed at the time of the amendment. . . .
As noted above, the portions of section 653f, subdivision (c) dealing with which offenses are incorporated have never been altered, in the 20 years of that subdivision’s existence. Thus based on the underscored lan- guage above, this means the unaltered portions of section 653f, subdivision (c) “are to be considered as having been the law from the time when they were enacted.” Section 9605, like any other statute, should be interpreted according to its plain language. (Rash v. Lungren (1997) 59 Cal.App.4th 1233, 1236-1237 [Bedsworth, J.]; accord McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 75 L.Ed. 816] [Fourteenth Amendment].)
Section 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 (1941) 18 Cal.2d 237, 245; People v. Escobar, supra, 3 Cal.4th at p. 751, fn. 5; Corporation of America v. Johnson (1936) 7 Cal.2d 295, 305-306.) 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. (1985) 37 Cal.3d 873, 895.)
Thus, when certain language (here, the incorporation provisions of section 653f(c)) 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 v. Johnson, supra, 7 Cal.2d at pp. 305-306; People v. Escobar, supra, 3 Cal.4th at pp. 750-751 & fn. 5.) That is especially so here, where the only amendment to section 653f(c) after the Jan. 1, 1989 effective date of section 288(c)—the offense appellant was convicted of soliciting—was technical and nonsubstantive. (See authorities cited at the end of footnote 3, ante, p. 3.)
To put it differently, because all of the incorporation provisions in section 653f, subdivision (c) are “unaltered portions of an amended statute” (to quote section 9605), the effective date of those unaltered incorporation portions is the date on which subdivision (c) was first effective: January 1, 1980. Thus under Palermo, the incorporation provisions of section 653f(c) incorporate the version of section 288 that existed on January 1, 1980.
As a result, the Palermo rule applies now to section 653f, subdivision (c), as it did 20 years ago. Section 653f(c) didn’t apply to lewd act with a 14-year-old when it was enacted in 1980, and it doesn’t do so now.
B. The Never-Amended Incorporation Provisions Of Section 653f, Subdivision (c) Cannot Be Deemed “Amended By Implication”
1. Amendment By Implication
Since the portions of section 653f, subdivision (c) specifying the incorporated offenses have never changed, the People want this Court to deem them amended by implication, solely because the Legislature amended other portions of subdivision (c) or other provisions in section 653f. (See RB 10.) Amendments by implication, like repeals by implication, are disfavored. (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540-541; City of Irvine v. Irvine Citizens Against Overdevelopment (1994) 25 Cal.App.4th 868, 878 [Rylaarsdam, J.].) An amendment or repeal by implication will only be found where there is no reasonable basis for harmonizing the statutes. (People v. Leong Fook (1928) 206 Cal. 64, 69-70; People v. Weatherill (1989) 215 Cal.App.3d 1569, 1583; Lambert v. Conrad (1960) 185 Cal.App.2d 85, 93-95.)
Here, amendment of other portions of subdivision (c) or of section 653f did not amend the incorporation provisions of subdivision (c) by impli- cation, as it is easy to harmonize the incorporation provisions of subdivision (c) with the rest of section 653f. One need only use established laws of statutory meaning, such as Government Code section 9605 or the Palermo rule. (Or, one need only rely on People v. Escobar, supra.)
Each time the Legislature amended a different portion of Penal Code section 653f, it is presumed to have known of and relied on existing law, which included section 9605 and the Palermo rule. (Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 609; Estate of McDill (1975) 14 Cal.3d 831, 837-838.) “[T]he failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” (Walker v. Superior Court (1988) 47 Cal.3d 112, 129; Estate of McDill, supra, 14 Cal.3d at pp. 837-838.)
Consequently, it is presumed that the 1979 Legislature knew of and relied on Government Code section 9605, and on Palermo v. Stockton Theatres, in enacting section 653f, subdivision (c). Conversely, there is no legal basis on which to deem section 653f, subdivision (c) amended by implication. A similar effort to defeat the Palermo rule with a claim of “amendment by implication,” shortly before the enactment of section 653f(c), was rejected in Deglow v. Board of Trustees (1977) 69 Cal.App.3d 459, 464-465.
The People try to paint Government Code section 9605 as reflective of an incompetent Legislature. They say: “Applying Penal Code section 653f, subdivision (c), to only those victims who are under 14 . . . would result in a construction in which this Court would have to conclude the Legislature did not know what it was doing when it amended the statute.” (RB 10-11.) A court should not conclude the Legislature is as unintelligent as the People suggest.
Section 653f, subdivision (c) does not “[a]pply . . . to only those victims who are under 14.” Section 653f, subdivision (c) applies to solicitation of any of the sex crimes of force or violence described in that statute, including a violation of section 288, subdivision (b). These solicitation crimes can be committed against people of any age, whether over, under, or exactly 14. Section 653f(c) only contains a limitation to children under 14 for solicitation of nonforcible, nonviolent lewd acts.
In any event, the People err in theorizing on whether the Legislature “kn[e]w what it was doing” when it “amended section 653f, subdivision (c)” (RB 10-11.) First, the only amendment of section 653f, subdivision (c) after January 1, 1989 was a nonsubstantive change of a different portion of that subdivision. (Ante, pp. 1, 3 & fn. 3.) A nonsubstantive change is not the hallmark of an inept Legislature.
Second, the People can’t defeat legislation by claiming it was inept. “‘[J]udicial review of a statute does not invoke a consideration of the legis- lation’s wisdom.’ (Calfarm Ins. Co. v. Deukmejian  48 Cal.3d [805,] 814.” (Costa v. Workers’ Compensation Appeals Bd. (1998) 65 Cal.App.4th 1177, 1184 [Rylaarsdam, J.]; see also Code Civ. Proc., § 1858.)
The People also refer to section 653f, subdivision (c) being “defective in the manner argued by appellant.” (RB 11.) Appellant has never argued section 653f, subdivision (c) is or was ever “defective.” Appellant argues the statute means what the Legislature intended it to mean. He also argues it was solely the prerogative of the Legislature, not the Judicial or Executive Branches, to determine what offenses should be incorporated into section 653f, subdivision (c). [Footnote 4]
“[D]efining criminal conduct is a quintessentially legislative prero- gative.” (People v. Brown (1995) 35 Cal.App.4th 708, 713 [Sonenshine, J.]; Pen. Code, § 6; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631; United States v. Bass (1971) 404 U.S. 336, 348 [92 S.Ct. 515, 30 L.Ed.2d 488] [14th Amdt.].) If the People disapprove of the Legislature’s choice in section 653f(c), their remedy is with the Legislature, not with the courts.
2. Article IV, Section 9
The People also claim that Article IV, section 9 of the Constitution creates the amendment by implication that they seek. (RB 10.) The relevant sentence in Article IV, section 9 is: “A section of a statute may not be amended unless the section is reenacted as amended.”
However, that sentence doesn’t say that every reenactment of a statute is an amendment. It is only a technical provision that directs the Legislature to amend statutes by reenacting them, rather than using word-by-word insertions or the like, so as to avoid confusion over what the amended statute says. (People v. Western Fruit Growers (1943) 22 Cal.2d 494, 500-501.) It doesn’t create amendments that wouldn’t otherwise exist.
Article IV, section 9 doesn’t negate Government Code section 9605. The two operate in harmony, not in conflict. “The Legislature adopted section 9605 to ensure that the intent of the Legislature would be carried out, consistent with article IV, section 9, whenever statutes are amended.” (In re Lance W., supra, 37 Cal.3d at p. 895.)
The People’s claim that Article IV, section 9 creates an amendment by implication here is especially unmeritorious, because the only amendment of section 653f, subdivision (c) after January 1, 1989—the effective date of section 288(c), the offense which appellant was convicted of soliciting—was technical and nonsubstantive. That amendment was in the triple-joined 1993 amendments, in which “is punishable by” was changed to “shall be punished by” in subdivisions (a) through (d). (See ante, p. 3 & fn. 3.)
Under the People’s theory of Article IV, section 9, when the Legislature made a technical, nonsubstantive change in one portion of a statute, that simultaneously operated to abrogate both Government Code section 9605 and the Palermo rule in other portions of the statute. Apart from being contrary to various Supreme Court cases discussed in this Part, including People v. Escobar, supra, 3 Cal.4th at pp. 750-751 & fn. 5, the People’s theory is contrary to law and common sense.
It is contrary to law because Article IV, section 9 must be harmonized with Government Code section 9605, rather than construed in conflict with it. (Arcadia Unified School Dist. v. State Dep’t of Education (1992) 2 Cal.4th 251, 260; California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 594; see In re Lance W., supra, 37 Cal.3d at p. 895.)
It is contrary to common sense because Article IV, section 9 is only a method of clarifying what statutes actually say when they are amended, so no one is misled on what the law actually is. (People v. Western Fruit Growers, supra, 22 Cal.2d at pp. 500-501.) Article IV, section 9 is not a form of “stealth amendment,” by which the Legislature is deemed to have made substantive amendments on every statutory provision which appears in a technical reenactment—even if the Legislature only intended and wanted to make trivial, nonsubstantive amendments (such as changing “is punishable by” to “shall be punished by”). No case has ever suggested such a radical and absurd view.
Such a view of Article IV, section 9 is incompatible with Supreme Court opinions on that provision, such as Western Fruit Growers. It is also incompatible with Palermo v. Stockton Theatres and similar Supreme Court cases, because Palermo rejects any notion that a statutory amendment automatically changes unamended incorporation provisions. Courts are duty-bound to follow the Supreme Court cases. (Auto Equity, supra, 57 Cal.2d at p. 455.) Such a view of Article IV, section 9 is also incompatible with Government Code section 9605. That means the Legislature has not interpreted Article IV, section 9 in such an absurd manner, and the Legislature’s interpretation of the Constitution is entitled to great deference in the courts. (Davis v. City of Berkeley (1990) 51 Cal.3d 227, 242-243; People v. Munoz (1992) 11 Cal.App.4th 1190, 1192 [Crosby, J.].)
Were there any remaining doubt, appellant would refer to a Wash- ington Supreme Court case, State v. Rasmussen (1942) 14 Wash.2d 397 [128 P.2d 318]. Rasmussen contains a useful discussion of how the Palermo rule, and Washington’s version of California’s Article IV, section 9—both of which are long established rules utilized nationwide (see also post, pp. -)—coexist with each other, and how Article IV, section 9 has no effect on the validity or utility of the Palermo rule. (Rasmussen, supra, 14 Wash.2d at pp. 400-402 [128 P.2d at p. 320].) A similar discussion may be found in State v. Claridge (1930) 37 Ariz. 78, 84 [289 P. 515, 517-518].)
In short, there is no basis on which the People can use the technical, nonsubstantive 1993 amendment to section 653f, subdivision (c) as an “amendment by implication” to overthrow Palermo. The Legislature is presumed to have used Palermo in 1979 (Viking Pools, Inc. v. Maloney, supra, 48 Cal.3d at p. 609; Estate of McDill, supra, 14 Cal.3d at pp. 837-838), and this Court is bound to use it now.
C. The People’s Effort To Attack The Palermo Rule Fails; Palermo Is A Long-Established Convention Nationwide For Incorporation By Reference, And Was Fully Applicable When The Legislature Enacted Penal Code Section 653f, Subdivision (c) In 1979
Because the incorporation provisions of section 653f(c) have never been amended, and because they have not been “amended by implication,” the People are reduced to attacking the Palermo rule. (See RB 12-13.)
The People point to nothing in section 653f which would impair the application of Palermo. “[L]egislative enactments will not be construed so as ‘to overthrow long-established principles of law unless such [an] intention is made clearly to appear either by express declaration or by necessary implication.’ [Citation.]” (McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Ass’n (1991) 231 Cal.App.3d 1450, 1455 [Wallin, J.]; People v. Davenport (1985) 41 Cal.3d 247, 266.)
The People spend much of their discussion trying to distinguish People v. Kirk (1990) 217 Cal.App.3d 1488, which appellant discussed at AOB 17-18. While Kirk is obviously not dispositive here, it shows the lengths to which the People must go to try to circumvent Palermo, and in the end to attack it. It also shows why they must fail.
The People argue that Kirk “disregarded the statute’s plain meaning.” (RB 12.) They fail to mention that the Kirk Court held it was “following the plain language of the statute,” and that it was the People’s construction which was unreasonable. (Id. at p. 1499 [emphasis added].)
The People also use Kirk to claim that the Palermo rule is in derogation of the plain meaning of statutes. In the bottom half of RB 12, they twice claim the Kirk Court had to choose between the plain meaning of the statute and effectuating legislative intent, and ultimately chose to “disregard the statute’s plain meaning.” (RB 12.) Apparently, the People seek to portray Palermo as some form of “judicial activism” gone awry.
The Palermo rule is long-established law. It appears in California cases as early as 1863, among the nine prior California Supreme Court opinions on which Palermo relied. The rule has also been utilized in numerous opinions since Palermo. (See, e.g., cases cited in AOB 14.)
Nor is the Palermo rule to be written off as some bizarre California anomaly. It is a long-established canon of statutory construction recognized throughout American jurisprudence. (See, e.g., 2A C. Sands, Sutherland on Statutory Construction (1984), § 51.08 at p. 516; 73 Am.Jur.2d (1974), Statutes, § 28.) A small sampling of cases in other jurisdictions which recognize the Palermo rule as it applies in this case includes: City of Pleasant Ridge v. Governor (1969) 382 Mich. 225, 243-247 [169 N.W.2d 625, 630-632]; Seale v. McKennon (1959) 215 Ore. 562, 572-573 [336 P.2d 340, 345-346]; Legat v. Adorno (1951) 138 Conn. 134, 150-151 [83 A.2d 185, 194]; Kloss v. Suburban Cook County Tuberculosis Sanitarium Dist. (1949) 404 Ill. 87, 94 [88 N.E.2d 89, 92]; and United States ex rel. Kessler v. Mercur Corp. (C.C.A. 2d 1936) 83 F.2d 178, 180.
While the People accuse appellant of disregarding the plain meaning of section 653f(c) (RB 12-13), the Palermo rule utilizes plain meaning. For example, an early U.S. Supreme Court opinion relied on the Palermo rule as it applies in this case:
It was not an uncommon course of legislation in the states, at an early day, to adopt, by reference, British statutes: and this has been the course of legislation by congress in many instances where state practice and state process has been adopted. And such adoption has always been considered as referring to the law existing at the time of adoption; and no subsequent legislation has ever been supposed to affect it.
(Kendall v. United States (1838) 37 U.S. (12 Pet.) 524, 625 [9 L.Ed. 1181] [emphasis added] [also utilized and cited with approval in In re Heath (1892) 144 U.S. 92, 93-94 [12 S.Ct. 615, 36 L.Ed. 358]].)
In other words, the Palermo rule is a conventional and convenient method of incorporation by reference. It merely provides that when a Legis- lature enacts or amends a statute, and in so doing wishes to incorporate ano- ther statute as it then exists, the Legislature may refer to the statutory designation of the existing statute as a shorthand, instead of having to quote the entire existing statute. (See, e.g., Kendall Gate-Investco, Inc. (1981) 395 So.2d 240, 241; City of Pleasant Ridge v. Governor (1969) 382 Mich. 225, 243-247 [169 N.W.2d 625, 630-632]; State v. Rasmussen, supra, 14 Wash.2d at p. 402 [128 P.2d at p. 320].)
In short, the Palermo rule is a convention, a shorthand often used as a means of making incorporation of statutes more convenient. It is nonsensical to claim that a language convention used by a Legislature is in violation of a statute’s plain meaning—for by definition, the language convention is part of the plain meaning. The People’s claim is akin to saying that the word “jury” derogates from the plain meaning of a statute, when it is used as a shorthand for “body of twelve citizens called upon to be the sole trier of fact in a case.” Of course, that is a non sequitur, and in the end so is the People’s claim.
Finally, the People have made no effort to discuss any of the nine factors of legislative intent, set forth in AOB 18-31, as to why the Palermo rule applied to the enactment of section 653f(c) in 1980 and should be applied by this Court. The People haven’t even mentioned any of those nine factors. They should thus be taken to have conceded them.
D. Conclusion To Part I
To conclude, the Legislature is presumed to have enacted section 653f(c) in 1980 with knowledge and reliance on Palermo and like Supreme Court cases. (Viking Pools, Inc. v. Maloney, supra, 48 Cal.3d at p. 609; Estate of McDill, supra, 14 Cal.3d at pp. 837-838.) Granted, the Legislature could have used a different form of incorporation by reference if it had wanted to; the Palermo rule does not operate when there is “express intent to the contrary.” (Vallejo and Northern Ry. Co. v. Reed Orchard Co. (1918) 177 Cal. 249, 254.) But here, nothing indicates the Legislature wanted to use a contrary form of incorporation, and everything indicates the Legis- lature intended to follow Palermo. This Court should too, at the very least because our Supreme Court does. (Auto Equity, supra, 57 Cal.2d at p. 455.)
For all of the above reasons, as well as those in the discussion in the AOB, the judgment should be reversed.
APPELLANT’S REPLY BRIEF FOOTNOTES
Footnote 1: All further statutory references are to the Penal Code, unless otherwise stated or unless the context makes a different reference obvious.
Footnote 2: Escobar was a stronger case for “implied amendment” than that here. In Escobar, there was also an intervening decision of the Supreme Court, which the defendant argued was ratified by the Legislature, when it later enacted the amendments unrelated to the definition of great bodily injury. The Supreme Court rejected that argument as well. (Id., 3 Cal.4th at pp. 750-751 & fn. 5.) If the argument failed in Escobar despite two amendments and a Supreme Court opinion, it certainly must fail here.
Footnote 3: If there were any remaining doubt that section 653f, subdivision (c) has never been amended in any manner relevant to this case, appellant briefly examines the amendments to all subdivisions of section 653f after January 1, 1980 (the effective date of subdivision (c)).
According to the Historical and Statutory Notes to section 653f, the 1982 amendment dealt with soliciting witness dissuasion, and affected only subdivision (a). The 1983 amendment increased the maximum fine in subdivision (a). The 1987 amendment added a specific intent requirement in subdivisions (a) through (c) (to conform to established law, see People v Davis (1989) 211 Cal.App.3d 317, 320, fn. 1), added a subdivision (d), and changed the prison terms in subdivision (b). That amendment did not affect which offenses were incorporated in subdivision (c). None of these amendments are relevant to the operation of the Palermo rule in this case anyway, because they all preceded the 1989 enactment of now-section 288(c)(1), the offense appellant was convicted of soliciting.
As for the post-1988 amendments to section 653f—the only ones which would need to be examined here with respect to the Palermo rule—the 1989 amendment changed some punctuation. The triple-joined 1993 amendments added subdivision (e), and a reference to carjacking in subdivision (a). They also made nonsubstantive changes, including changing “is punishable by” to “shall be punished by” in subdivisions (a) through (e); this was the only change to subdivision (c) in the 1993 amendments. Such a technical amendment does not affect the substance of a statute. (Adoption of Anderson (1982) 135 Cal.App.3d 200, 203; Heating Equipment Mfg. Co. v. Franchise Tax Board (1964) 228 Cal.App.2d 290, 310; see People v. Birks (1998) 19 Cal.4th 102, 125-126 [statute kept original meaning, when only amendments since 1872 enactment were technical].)
Footnote 4: The People also seem to suggest the nonsubstantive 1993 amendment to subdivision (c) “rectifi[ed] . . . defects” in subdivision (c). (RB 11 [citing Dubins v. Regents of the University of California (1994) 25 Cal.App.4th 77, 85, and Sutherland on Statutory Construction, §§ 22.30, 22.31].) As stated in the text, there were no “defects” in subdivision (c); it was up to the Legislature to determine what solicitations to proscribe there.
Beyond that, the authority cited by the People doesn’t support their claim at all. The Dubins cite says, “[A]ny material change in the language of the original act is presumed to indicate a change in legal rights.” (Id. at p. 85 [citing Sutherland, § 22.30].) Here, the nonsubstantive 1993 amend- ment to subdivision (c) was not a material change in the original act. (See also Holiway v. Woods (1983) 143 Cal.App.3d 1006, 1010-1011 [Sutherland § 22.30 doesn’t apply to immaterial changes].) Furthermore, whether material or not, it had nothing to do with the incorporation provisions of subdivision (c) at issue here. As to the incorporation provisions, the Palermo rule applies—a rule which, ironically, is also found in the Sutherland treatise on which the People purport to rely. (See post, p. .)