Brief Bank # B-801 (Re: CHK IV(B) [Fundamental Rules Of Statutory Interpretation: Incorporation Of Other Statutes: Applies To Statutes At The Time Of Incorporation, Not As Later Amended].)
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION THREE
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,
v.
JOHN DOE,
Defendant and Appellant
APPELLANT’S OPENING BRIEF
Appeal From Final Judgment of Conviction
Superior Court, County of Orange
The Honorable William M. Monroe
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Attorney for John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. –
Independent Case)
ARGUMENT
I. APPELLANT WAS CONVICTED OF A NONEXISTENT CRIME
A. Overview
By dismissing the attempt charge (RT 370), the trial court presumably agreed with appellant’s point that the evidence did not show sufficient steps toward violation of then-section 288(c) [now 288(c)(1)] to qualify as an attempt. The People pressed on, and tried to obtain conviction of an even more inchoate crime, solicitation of a violation of section 288(c).
There is no such crime. Only the Legislature can create a crime; the courts cannot. (Pen. Code, § 6; In re Brown (1973) 9 Cal.3d 612, 624; United States v. Lanier (1997) 520 U.S. 259, ___ [117 S.Ct. 1219, 1225, 137 L.Ed.2d 432] [Fourteenth Amendment].) Here, the Legislature did not. Based on the well-known rule of Palermo v. Stockton Theatres (1948) 32 Cal.2d 53, 58-59 and like cases, appellant was convicted of a crime that has never existed. It cannot be created here out of nothingness.
The judgment should therefore be reversed.
B. Discussion: General Principles
Penal Code section 653f, subdivision (c), the statute under which appellant was charged and convicted, was added by Stats. 1979, ch. 944, § 9, effective Jan. 1, 1980. As enacted, it read essentially as it does now:
Every person who solicits another to commit rape by force or violence, sodomy by force or violence, oral copulation by force or violence, or any violation of Section 264.1, 288 or 289, is punishable by imprisonment in a state prison for two, three or four years.
(Emphasis added.)
When section 653f(c) was enacted in 1980, the reference to “any violation of Section 288” referred only to lewd acts on a child under 14. Section 288, subdivision (c), the crime of lewd acts on a child of 14 or 15 with a perpetrator at least 10 years older, did not then exist. That crime, the one appellant was alleged to have solicited, was added by Stats. 1988, ch. 1398, § 1—nine years after the enactment of section 653f, subdivision (c). [Footnote 1]
The issue is: When the Legislature enacted section 653f, subdivision (c) in 1980 and made it applicable to “any violation of section 288,” did that make section 653f(c) applicable to a violation of section 288(c) by a lewd act on a child of 14 or 15, when that crime didn’t then exist and didn’t come into existence until nine years later?
Appellant’s answer is predictable. So is his reasoning, since it follows long-settled law:
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 (1948) 32 Cal.2d 53, 58-59 [emphasis added].) More recent cases utilizing this principle include People v. Superior Court (Lavi) (1992) 4 Cal.4th 1164, 1176, fn. 7; San Bernardino County Sheriff’s Employees’ Benefit Ass’n v. Board. of Supervisors (1992) 7 Cal.App.4th 602, 610-611 [Div. Two]; and People v. Domagalski (1989) 214 Cal.App.3d 1380, 1385-1386 [Div. One].
Using this established rule, the 1979 enactment of section 653f, subdivision (c) incorporated the provisions of sections 264.1, 288 and 289 by specific reference. It thus incorporated those statutory provisions as they existed on January 1, 1980. Section 288, as it existed in 1980 and for nine years thereafter, did not make “lewd act on a 14- or 15-year-old” a crime.
Appellant cannot imagine a clearer case of incorporation of a statute by specific reference than a case such as this. The incorporating statute is specifically made applicable to particular Code sections set forth by section number, and those Code sections each deal with a specific legal principle (or finite set thereof) and nowhere refer to a general body of laws.
As our Supreme Court held in one case of that nature:
* * * [W]hen, as here, [the incorporating statute] designates and adopts an entire provision contained in a section of the code by its descriptive number . . . the statute so adopted by reference is the same as though the provision adopted had been bodily incorporated in the adopting statute. [Citations.] In the absence of express intent to the contrary, and none is apparent here, the reference made in [former Code of Civil Procedure] section 1249 must be construed as referring to the provision contained in [former] section 1254 as it existed when section 1249 was passed; and it cannot be interpreted as adopting an entirely new provision designated as section 1254.
(Vallejo and Northern Ry. Co. v. Reed Orchard Co. (1918) 177 Cal. 249, 254.)
In the vast majority of cases, “where a statute, or some portion of it, [is] incorporated by reference to its section designation, [a] court [will find] the reference to be specific and the effect . . . the same as if the adopted statute had been set out verbatim in the adopting statute, so that repeal or subsequent modification of the statute referred to [does] not affect the adopting statute.” (People v. Domagalski, supra, 214 Cal.App.3d at p. 1385 [quoting then-Judge {now Justice} Huffman’s opinion for the Appellate Department].) So too here, section 653f(c) adopted particular provisions in a Code by their descriptive numbers, and cannot be interpreted as having adopted a new provision that was added years later.
Appellant, of course, does not overlook the “cognate rule, recognized as applicable to many cases, to the effect that where the reference is general instead of specific, such as a reference to a system or body of laws or to the general law relating to the subject in hand, the referring statute takes the law or laws referred to not only in their contemporary form, but also as they may be changed from time to time . . . .” (Palermo v. Stockton Theatres, supra, 32 Cal.2d at p. 59.)
For example, the phrase “as provided by law” evinces a legislative intent to incorporate future statutory amendments, as a reference to the relevant general law. (State School Building Finance Committee v. Betts (1963) 216 Cal.App.2d 685, 692.) “The street laws of the state of California” similarly refers to a body of laws. (Thoits v. Byxbee (1917) 34 Cal.App. 226, 230-231.) Even a reference to statutes by number can be a “reference to a system or body of laws”—the exceptional case not contemplated by People v. Domagalski, supra—when the numbered statutes are the central statutes in a body of laws, and the referring statute evinces a legislative intent to incorporate that body of laws. (In re Jovan B. (1993) 6 Cal.4th 801, 816-820 [reference to numbered statutes incorporated the body of laws known as the Determinate Sentencing Act, based on legislative intent, and because those statutes “state the central, fundamental principles by which all DSA sentences are to be computed”].)
That is not this case. There are no provisions in section 653f, subdivision (c) which incorporate a body of laws in general terms. Section 653f, subdivision (c) doesn’t criminalize solicitation of “all sex crimes,” or “all violent sex crimes plus sex crimes against minors,” or “all lewd acts punishable by this Code.” It criminalizes solicitation of six specific types of sex crimes, three of which are incorporated by specific description, and three of which are incorporated by specific statute numbers of laws that do not themselves refer to a general body of laws (sections 264.1, 288 and 289). Because the references are specific, they incorporate the numbered statutes as they existed when section 653f(c) was enacted in 1980.
Numerous cases have found specific incorporation based on less specificity than the incorporation in this case. For example, Division Two recently followed Palermo in holding that a Code chapter consisting of several related statutes was specifically incorporated into another statute as of the date of its enactment, and the subsequent amendment of the latter statute did not change that incorporation. (San Bernardino County Sheriff’s Employees’ Benefit Ass’n, supra, 7 Cal.App.4th at pp. 610-611.) Our Supreme Court has similarly held a set of named statutes to be specifically incorporated as of the date of enactment. (County of San Diego v. Milotz (1956) 46 Cal.2d 761, 769-770.) In a predecessor case to Palermo v. Stockton Theatres, our Supreme Court held a reference to an entire title was a specific incorporation as of the date of enactment. (Rancho Santa Anita v. City of Arcadia (1942) 20 Cal.2d 319, 322.)
The published opinion which appears analytically closest to this case is People v. Kirk (1990) 217 Cal.App.3d 1488 [cited with approval in In re Jovan B., supra, 6 Cal.4th at p. 816, fn. 10].
Kirk dealt with Penal Code section 667.6(c), which was enacted in 1980, in the same enactment as section 653f(c). (Stats. 1979, ch. 944, § 10.) Section 667.6(c) incorporated violations of several sex crime statutes in a manner that clearly required force or fear, but also incorporated section 289 without any such express restriction. The People claimed the absence of express restriction showed a legislative intent to incorporate into section 667.6(c) every act defined in section 289, including post-1980 amendments, rather than limiting the incorporation of section 289 to penetration by force or fear. In 1980, section 289 criminalized only penetration accomplished by force or fear; but it was later amended to include several forms of penetration without force or fear, including some based on the age of the victim. (Kirk, supra, 217 Cal.App.3d at p. 1498.)
The Court of Appeal followed Palermo v. Stockton Theatres and related cases, and held that section 667.6(c) specifically incorporated the version of section 289 in effect in 1980, rather than generally incorporating all provisions of section 289 that might exist in 1980 or after future amendments. (Kirk, supra, 217 Cal.App.3d at p. 1499.) To further support its reliance on Palermo, Kirk also looked to indicia of legislative intent such as the promotion of harmony among related statutes. (Kirk, supra, 217 Cal.App.3d at pp. 1499-1500.) Appellant will discuss in the next section the numerous indicia of legislative intent which further show the appropriateness of the Palermo rule in this case.
In short, under the rule of Palermo v. Stockton Theatres as set forth above, section 653f(c) incorporates sections 264.1, 288 and 289 as they existed when section 653f(c) was enacted in 1980. Because section 288(c) wasn’t enacted until 1989, it is not incorporated into section 653f(c).
Accordingly, there is no such crime as solicitation of a lewd act on a 14- or 15-year-old. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant’s conviction of a non-crime cannot stand.
C. Further Discussion: Interpreting The Statutes As Part Of A Harmonious Legislative Scheme, And In Accordance With Legislative Intent
The above should be dispositive. However, if any doubt remains, appellant will also examine in detail the legislative intent of section 653f, subdivision (c), and that statute’s role as part of a harmonious scheme of laws. “A close reading of Palermo and the cases cited therein . . . makes it clear that in cases where it is questionable whether only the original language of a statute is to be incorporated or whether the statutory scheme, along with subsequent modifications, is to be incorporated, the determining factor will be the legislative intent behind the incorporating statute.” (People v. Domagalski, supra, 214 Cal.App.3d at p. 1380.)
In determining legislative intent, a court considers a statute read as a whole, harmonizing its elements by considering each clause and section in the context of the overall statutory framework, to promote the general purpose of the statute and avoid absurd consequences. (People v. Jenkins (1995) 10 Cal.4th 234, 246.)
The result is the same: By its specific reference to Penal Code section 288 in the 1980 enactment of section 653f, subdivision (c), the Legislature incorporated section 288 as it existed in 1980, and did not generally incorporate all statutory provisions that later happened to turn up in section 288 by post-1980 amendments.
There are many reasons why that is so.
First. There is nothing to suggest the 1979 Legislature intended section 653f(c) to include solicitation of nonviolent sex crimes against 14- or 15-year-olds. In 1980, section 288 applied only to lewd acts on a child under 14. There is not the slightest hint that in enacting section 653f(c) in 1980, the Legislature was contemplating a hypothetical possibility that section 288 might be later amended to include 14- and 15-year-olds.
Appellant has also obtained a legislative history of the bill that became section 653f(c), which he has sought leave to file concurrently with this brief. It says nothing about section 288 that indicates contemplation of expanding that statute to 14- and 15-year-olds.
Furthermore, there is affirmative evidence the 1979 Legislature had no intent to make section 653f, subdivision (c) applicable to nonviolent sex crimes against 14- and 15-year-olds by persons at least 10 years older (such as the current section 288(c)). In the same legislative enactment as that creating section 653f(c) (Stats 1979, ch. 944), the Legislature amended two other statutory provisions that did define nonviolent sex crimes against 14- and 15-year-olds, namely subdivision (b)(2) of sections 286 and 288a. Thus, the Legislature was well aware of existing statutory provisions relating to nonviolent sex crimes against 14- and 15-year-olds.
Given that awareness, if the Legislature had intended to make section 653f(c) applicable to nonviolent sex crimes against 14- and 15-year-olds, it knew how to do so. It didn’t. Instead, section 653f(c) was specifically limited to violations of sections 286 and 288a “by force or violence.”
This is a clear sign the 1979 Legislature intended section 653f(c) not to apply to nonviolent sex crimes against 14- and 15-year-olds. That alone supports the common-sense application of Palermo discussed above.
Second. In assessing the import of a statute, a court looks to the Legislature’s purpose at the time of enactment, not a hypothetical legislative intent at a later time. (In re Pedro T. (1994) 8 Cal.4th 1041, 1048.) Thus, appellant considers here what Pedro T. would require him to consider: Is it more likely that the 1979 Legislature, which put the specific references to sections 264.1, 288 and 289 when it enacted section 653f(c), would have considered those references specific (incorporating the statutes as they then existed), or general (incorporating all provisions with those statute numbers, including all future amendments and repeals)?
When the Legislature enacted section 653f, subdivision (c) in 1980, the Palermo rule was the settled law for determining whether an incorporation was specific or general. (See, e.g., People v. McGee (1977) 19 Cal.3d 948, 958, fn. 3.) The Legislature is presumed to enact and amend statutes with knowledge of existing judicial decisions, and in the light of such decisions as have a direct bearing on them. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 727-728; Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1814-1815 [Crosby, J.].)
Appellant is unaware of any published opinion as of 1980 which would have supported a claim that the incorporation in section 653f(c) was general. Three specific statutes (sections 264.1, 288 and 289) dealing with discrete types of crimes were incorporated by section number into a fourth statute (section 653f(c)). The caselaw in 1980 made very clear that these were specific incorporations. (See, e.g., People v. McGee, supra, 19 Cal.3d at p. 958, fn. 3 [using Palermo rule to find two statutes specifically incorporated into third]; Harrington v. Obledo (1977) 72 Cal.App.3d 705, 711-712 [same, for one statute incorporated into second]; Madrid v. Justice Court (1975) 52 Cal.App.3d 819, 823, 825 [same as McGee].) The conclusion is the same: Section 653f(c) incorporates the version of section 288 which was in effect on January 1, 1980.
This conclusion is further underscored by an opinion from Division One several years after section 653f(c) was enacted, which relied almost entirely on pre-1980 caselaw:
A review of each of the cases which have followed Palermo is instructive on this issue [of specific vs. general incorporation]. Without exception, in each case where a statute, or some portion of it, was incorporated by reference to its section designation, the court found the reference to be specific and the effect was the same as if the adopted statute had been set out verbatim in the adopting statute, so that repeal or subsequent modification of the statute referred to did not affect the adopting statute. [Footnote 5: Citation to five cases, four of which were pre-1980]. Only in those cases where an entire body of law relating to a particular subject was adopted by reference did the court find the reference to be general so that subsequent amendments to the incorporated statute affected the adopting statute. [Footnote 6: Citation to two pre-1980 cases.]
(People v. Domagalski, supra, 214 Cal.App.3d at pp. 1385-1386.) Section 653f(c) fell into the former category, as it incorporated section 288 by reference to its section designation. The 1979-1980 Legislature would have considered that to be a specific incorporation of section 288 as it existed at that time, and would have had no reason to think otherwise.
Thus, construing the intent of the 1979-1980 Legislature in light of then-existing caselaw, as one must, one reaches the same conclusion: The Legislature intended for the incorporation of sections 264.1, 288 and 289 into section 653f(c) to be specific, and to encompass the incorporated statutes as they existed on January 1, 1980.
Third. One of the analyses in People v. Kirk, supra, applies to this case as well. The Legislature’s specific limitation of section 653f(c) to rape, sodomy and oral copulation by force or violence means that only forms of rape, sodomy or oral copulation accomplished by force or violence fall within section 653f(c). However, if one were not to use the Palermo rule in this case, then some forms of penetration accomplished without force or violence—all of which were enacted into section 289 after the enactment of section 653f(c)—would be encompassed within section 653f. This would include section 289 offenses against minors, unconscious persons, and persons incapable of giving consent.
Such a construction would create statutory disharmony, since section 653f(c) would then treat similar conduct very differently. As in People v. Kirk, supra, such a construction is inappropriate. (See id., 217 Cal.App.3d at pp. 1499-1500.)
Fourth. In 1979, anyone contemplating the purely hypothetical possibility that the Legislature might later create a crime of lewd act on a 14- or 15-year-old would not assume that crime would automatically be included in the statute numbered 288. It could just as easily have been given its own section number (e.g., section 288.2), or its provisions as easily incorporated into other section numbers (e.g., 261, 261.5, 286, 288a, 289).
If the Legislature intended to permit the categories of lewd acts sub- ject to section 653f(c) to self-expand beyond those existing in 1980 (absent further amendment), it would not have relied on the fortuity of what section number might be used in the future. Rather, it would have described the crimes generally (e.g., “any lewd act punishable by this Code”). (See also, e.g., People v. Domagalski, supra, 214 Cal.App.3d at p. 1386 & fn. 6.)
This point becomes even clearer when one considers the most recent crime incorporated in section 288, lewd act by a caretaker on a dependent adult. (Stats. 1995, ch. 890, § 1; see sec. 288, subd. (c)(2).) It is inconceivable that the 1979 Legislature was contemplating incorporation of that offense into section 653f(c) at the time the latter statute was enacted (and of course, nothing in the Legislative History suggests such incorpo- ration was then contemplated). In fact, it is virtually inconceivable that the 1979 Legislature even contemplated the existence of such a crime, since the most basic crime against a dependent adult in the Penal Code—neglect, now covered by section 368—wasn’t enacted until four years later. (Stats. 1983, ch. 968, § 1.) One can hardly deem section 653f(c) to incorporate a crime that wasn’t contemplated when section 653f(c) was enacted.
But if somehow the 1979 Legislature was contemplating incorporation of lewd act on a dependent adult into section 653f(c), it is inconceivable the 1979 Legislature would have tried to accomplish that incorporation by merely referring to section 288. For in 1979-1980, one could not have predicted that the offense of lewd act by a caretaker on a dependent adult would necessarily have ended up in section 288. It could as easily have received its own numerical designation—just as the offense of dependent adult neglect received its own numerical designation (Penal Code section 367a, later changed to section 368), rather than being inserted into the related statute dealing with child neglect (section 273a).
One can only conclude the 1979 Legislature did not use a bare reference to section 288 to show an intent to incorporate within section 653f(c) the later-enacted offense of lewd act by a caretaker on a dependent adult. No more did the 1979 Legislature use a bare reference to section 288 to show an intent to incorporate within section 653f(c) the later-enacted offense of lewd act on a 14- or 15-year-old by a person 10 years older.
Beyond all of that, the Legislature could not have known in 1980 what future numbering scheme might be used for lewd acts in general. For example, section 288(b) could easily have been split off from section 288(a) and given its own number (e.g., section 288.1). There would be many good reasons to have done so, such as making for greater ease in utilizing section 667.6 and other statutes which apply only to forcible lewd acts.
If one assumed section 653f(c) applied to any crime in the Penal Code that happened to be numbered 288, then had such a renumbering occurred—as it often does—the lewd act offense given its own statutory number (in this hypothetical, lewd act by force) would no longer be subject to section 288, without another statutory amendment. There would then be a crime of soliciting a lewd act without force, but no crime of soliciting a lewd act with force.
It is implausible that the Legislature enacted section 653f(c) with the intent of permitting such bizarre results. The Legislature didn’t intend to make section 653f(c) dependent on what crimes happened to drift in and out of the sections numbered 264.1, 288 or 289 over the years. Rather, it intended to fix the sex crimes which could be the subject of solicitation as of the time of the legislation. It did exactly that for solicitation of rape, oral copulation and sodomy, criminalizing only solicitation of these crimes by force or violence. There is nothing to suggest it intended anything other than a fixed incorporation for violations of sections 264.1, 288 or 289.
Fifth. Appellant’s interpretation is the only one which promotes an overall legislative purpose in enacting section 653f(c).
Every crime within section 653f(c), as enacted in 1980, was a “violent felony” in section 667.5. Rape, sodomy and oral copulation by force and violence were obviously “violent felonies.” (See, e.g., the pre-1978 version of section 667.5, in the “Historical and Statutory Notes” to West’s Annotated section 667.5.) Every violation of section 264.1 was also a “violent felony.” And every violation of section 289 was a “violent felony” in 1980; section 289 took effect on January 1, 1979, and until January 1, 1982 applied only to acts by force, violence, duress, menace or fear, the “violent felonies” under section 667.5(c)(11). (See Stats. 1981, ch. 896, § 3 for the amendment effective Jan. 1, 1982; People v. Kusumoto (1985) 169 Cal.App.3d 487, 490, 491-492 & fn. 4 for the statute after that amendment [adding then-subdivision (b) to the statute, showing the prior statute applied only to acts by force, violence, duress, menace or fear].)
Similarly, all lewd acts on a child under 14 were “violent felonies” in 1980 (as they are today). (People v. Hetherington (1984) 154 Cal.App.3d 1132, 1136-1140 [Div. One]; People v. Sutton (1990) 220 Cal.App.3d 1325, 1327.) The Legislature concluded that lewd acts on a child under 14 which do not involve physical violence nonetheless “cause extraordinary psycholo- gical or emotional harm.” (People v. Hetherington, supra, 154 Cal.App.3d at p. 1140; see sec. 667.5(c), last par.) The Legislature has not drawn the same conclusion for nonviolent sex acts with other minors who are at least 14. Such acts are criminal, but the Legislature has never made them “violent felonies.” (Accord People v. Mena (1988) 206 Cal.App.3d 420, 426-429.)
Thus, appellant’s construction of 653f(c) preserves the harmonious nature of the statute, as applying only to violent felonies. (Cf. People v. Kirk, supra, 217 Cal.App.3d at pp. 1499-1500 [adopting construction of section 667.6 which preserved its unity as applying only to crimes of force and violence, and not to age-based sex crimes enacted after section 667.6 was].) A contrary view would destroy that harmonious nature, and would substitute a statutory scheme that had no rhyme or reason, which depended on fortuitous circumstances of statutory numbering.
Sixth. As a corollary to the above, it affirmatively appears that the Legislature intended to make section 653f(c) encompass only sex crimes that were considered “violent felonies.”
Section 653f(c) can be divided into two parts. The first part, with the first three incorporated types of crimes, refers not to statutory code section numbers, but rather to rape, sodomy or oral copulation “by force or violence.” The second part, with the last three incorporated types of crimes, does refer to statutory code section numbers.
However, when section 653f(c) became effective on January 1, 1980, the three statutes to which section 653f(c) specifically referred by section number were always violent felonies under section 667.5. The offenses which were not described by statute number (rape, sodomy or oral copulation by force or violence) were always violent felonies as well, but a mere reference to the statute numbers underlying those offenses (sections 261, 286 or 288a) would not necessarily have referred to a violent felony, when section 653f(c) became effective in 1980. At that time, section 261 also proscribed rape of an incompetent or unconscious person and certain rapes by threat; section 286 also proscribed consensual sodomy with a minor between 14 and 17; and section 288a also proscribed consensual oral copulation with a minor between 14 and 17, or by a prisoner. None of these were violent felonies. (See People v. Masten (1982) 137 Cal.App.3d 579, 590, fn. 8 [definition of “violent felony” as it existed in 1982]. [Footnote 2]
The Legislature is presumed to intend every word, phrase and provi- sion in a statute to have meaning and perform a useful function. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476; McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Ass’n (1991) 231 Cal.App.3d 1450, 1454 [Wallin, J.].) The only logical reason why the Legislature did and didn’t use statute numbers in section 653f(c), in the manner it did and didn’t, was to limit section 653f(c) to solicitation of violent felony sex crimes. Otherwise, the decision on when and when not to use statute numbers would have been arbitrary and meaningless, a construction this Court should eschew. [Footnoe 3]
Seventh And Eighth. Appellant’s interpretation prevents absurd results that would occur if section 653f(c) were construed to include solicitation of any violation of section 264.1, 288 or 289, including portions of those statutes enacted after section 653f(c). Statutes should be construed so as not to produce absurd results. (People v. Loeun (1997) 17 Cal.4th 1, 9; McLarand, Vasquez & Partners, supra, 231 Cal.App.3d at pp. 1453-1454.) Appellant’s interpretation also promotes the goal of harmony among related statutes (Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1386-1387), which a contrary interpretation does not.
Appellant makes this point from two different perspectives:
Seventh. For purposes of which forms of the statutes could be the subject of a solicitation under section 653f(c), it would create absurd results for the acts of rape under section 261—i.e., penetration by a known object, a penis—to be fixed at the time section 653f(c) was enacted, while the acts of penetration by an unknown object that happened to fall under section 289 would change with any post-enactment amendments.
For example, rape with a penis of a victim incapable of giving consent (section 261, subdivision (1)) could not be the subject of solicitation under section 653f, as it is not accomplished by force or violence. However, rape with a foreign or unknown object of a victim incapable of giving consent (section 289, subdivision (b))—an offense that came into existence two years after section 653f(c) was enacted (Stats. 1981, ch. 896, sec. 3)—could be the subject of solicitation. That is wholly irrational.
As another example, a nonviolent lewd act by a caretaker on a dependent adult was in 1996 made a crime within section 288. (Stats. 1995, ch. 890, § 1; see ante, p. .) That crime is serious, but the Legislature did not deem it as serious as most other sex crimes, since it is a “wobbler” which can result in no more than three years’ imprisonment. (Sec. 288, subd. (c)(2).) The Legislature considered rape offenses under section 261 to be far more serious, since they are straight felonies with a minimum imprisonment of three years, and a maximum of eight. (Sec. 264, subd. (a).) Many section 261 offenses—even ones accomplished without force or violence—are so serious that they qualify for full consecutive sentences under section 667.6; these include rape by threat of retaliation and threatened use of authority. (Sec. 261, subds. (a)(6) and (a)(7); see sec. 667.6, subds. (c) and (d).)
However, rape by threat of retaliation or threatened use of authority—as serious as those crimes are—cannot be the subject of solicitation under section 653f(c), as they are not “rape by force or violence.” By contrast, a view of section 653f(c) contrary to appellant’s would mean that a lewd act by a caretaker on a dependent adult, a crime which the Legislature views as much less serious than any rape, can be the subject of a solicitation under section 653f(c). Even the most “consensual” such lewd act, with full verbal disclosure and no touching of any intimate part of the body, would qualify. (See generally, e.g., People v. Martinez (1995) 11 Cal.4th 434, 444, 447 [violation of section 288 does not require touching of private part of body].)
That statutory scheme would be irrational as well. There is not even a hint that the Legislature intended it. And while other similar results would ensue from such a construction, the existence of any one further supports appellant’s argument: The Legislature did not intend in 1980 to fix the rape, oral copulation and sodomy offenses which could be the subject of solicitation, limiting them to offenses by force and violence; while allowing the violations of sections 288 and 289 which could be the subject of a solicitation to be in constant flux, depending on what offenses happened to be added to or deleted from sections 288 and 289 at any given time.
Even if arguendo one didn’t call these results absurd, they would at least severely impair the goal of harmony among related statutory provisions. Courts eschew statutory constructions of that nature, as shown in another recent case involving the Palermo rule and sex crimes. (People v. Kirk, supra, 217 Cal.App.3d at pp. 1499-1500.)
Eighth. A different form of absurd result can be seen from the penalties attendant to solicitation vis-a-vis the underlying offenses. For example, the offense in this case, a violation of what is now section 288(c)(1), is a “wobbler” (alternate felony/misdemeanor). This statutory provision, as noted above, was added long after the enactment of section 653f(c) in 1980. (Stats. 1988, ch. 1398, § 1; see ante, p. .) So too with the newer offense of lewd act by a caretaker on a dependent adult, in violation of section 288(c)(2). (Stats. 1995, ch. 890, § 1; see ante, p. .)
The current section 289 states that noncoercive penetration by a foreign or unknown object of a 16-year-old, or by a person in a facility for the mentally disabled on a similarly situated person, are also “wobblers.” (Subds. (c), (h)).) These provisions were also added long after section 653f(c) was enacted. (Stats. 1985, ch. 934, § 1; Stats. 1986, ch. 1299, § 6.)
But if one construed section 653f to include any violation of sections 288 or 289, including later-enacted violations, then merely soliciting a violation of section 289(h) on a 16-year-old, or soliciting a lewd act on a 14-year-old (the “crime” at issue here) or on a dependent adult, would be a straight felony subject to imprisonment of 2, 3 or 4 years. By contrast, the completed crime of actually performing a lewd act on a 14-year-old or dependent adult, or penetrating a 16-year-old or incompetent person with a foreign or unknown object, would be a “wobbler” punishable as a misdemeanor or as a felony with prison terms of 16 months or 2 or 3 years.
It would have been absurd for the Legislature to punish a mere solici- tation more harshly than the completed crime, especially since a solicitation may not even rise to the level of an attempt. (People v. Phillips (1985) 41 Cal.3d 29, 73, fn. 26.) A court will not presume the Legislature intended an absurd result. (Freedom Newspapers, Inc. v. Orange County Employees Retirement System Board of Directors (1993) 6 Cal.4th 821, 828; People v. York (1998) 60 Cal.App.4th 1499, 1507 [Sills, P.J.].)
The result also would be of doubtful constitutionality, since the inchoate lesser-included crime would be less serious than the completed one but would have a more severe range of sentences, a result that would probably violate the Eighth and Fourteenth Amendments and corresponding state provisions. (People v. Schueren (1973) 10 Cal.3d 553, 560-561; Cannon v. Gladden (1955) 203 Or. 629 [281 P.2d 233].) [Footnote 4]
It is presumed the Legislature did not intend to enact a statute that raises substantial constitutional questions which may result in total or partial invalidation of the enactment, absent a clearly expressed contrary intention. (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 344; People v. Simon (1995) 9 Cal.4th 493, 522.) There is no expressed contrary intention here. In like manner, a court must construe a statute so as to eliminate doubts as to its constitutionality. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 509; In re Kay (1970) 1 Cal.3d 930, 942.)
The Supreme Court’s opinion in Palermo v. Stockton Theatres, supra, was based in part on these principles. The Court found there would be grave doubt of the constitutionality of the legislation at issue, if the reference was found to be general. As a result, the Court found the reference specific. (Id., 32 Cal.2d at pp. 59-60.) The same analysis supports the same result here.
Ninth. If there were any ambiguity, it would have to be construed favorably to appellant, under state law (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530) and the Fourteenth Amendment. (United States v. Bass (1971) 404 U.S. 336, 348 [92 S.Ct. 515, 30 L.Ed.2d 488].)
D. Conclusion To Part I
Appellant makes these points on legislative intent only to underscore what the Palermo rule already requires by itself, as discussed in sections (A) and (B). The versions of sections 264.1, 288 and 289 that are incorporated in section 653f(c) are the versions which existed when section 653f(c) was enacted in 1980. In 1980, there was no such crime as lewd act on a 14-year-old, in section 288(c) [which didn’t exist], or anywhere else in section 288.
Consequently, there is no such crime as solicitation of a lewd act on a 14-year-old in violation of section 653f(c)/288(c). Appellant was charged with and convicted of a crime that does not exist.
To allow this conviction to stand would thus violate state law, as a conviction for a nonexistent crime. It would also violate the Fourteenth Amendment, as a deprivation of liberty without due process of law. Due process of law at least means a person cannot be criminally punished or deprived of liberty for a crime that does not exist. (Suniga v. Bunnell (9th Cir. 1993) 998 F.2d 664, 669.) It also means fair warning is required of what acts are criminal (McBoyle v. United States (1931) 283 U.S. 25, 27 [51 S.Ct. 340, 75 L.Ed. 816]), and there is no fair warning when a person is tried and convicted for an act that is not a crime. And it requires sufficient evidence for a rational trier of fact to find the defendant guilty of the charged criminal offense beyond a reasonable doubt (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [99 S.Ct. 2781, 61 L.Ed.2d 560]), which cannot be met when a defendant is convicted of a nonexistent offense.
Under any law, the result is perhaps the most basic due process principle of all: “Nowhere in this country can any man be condemned for a nonexistent crime.” (Adams v. Murphy (5th Cir. 1981) 653 F.2d 224, 225.)
A conviction of a nonexistent offense is a nullity, void ab initio, which a court has a duty to annul. (People v. Bean (1989) 213 Cal.App.3d 639, 645.) Accordingly, the judgment should be reversed.
CONCLUSION
For the foregoing reasons, appellant respectfully asks that the judgment be reversed. If the reversal is on the grounds in Part VI, the cause should be remanded for further proceedings on the discovery motion.
Dated: September 18, 1998.
S. Michelle May
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
FOOTNOTES
Footnote 1: Between 1981 and 1988, the statute lettered as subdivision (c) was what is now subdivision (d) (with minor variations). All further references to section 288(c) will be to the crime of lewd act on a 14- or 15-year-old.
For the Court’s reference, and to verify that the current section 288(c) did not exist before 1988, appellant reprints section 288 as it was set forth in a 1984 appellate opinion. Section 288 then stated:
(a) Any person who shall willfully and lewdly commit any lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part I of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.
(b) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or threat of great bodily harm, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six or eight years.
(c) In any arrest or prosecution under this section the peace officer, the district attorney, and the court shall consider the needs of the child victim and shall do whatever is necessary and constitutionally permissible to prevent psychological harm to the child victim.
(Hochheiser v. Superior Court (1984) 161 Cal.App.3d 777, 790 & fn. 7.)
Footnote 2: The description of section 286 is taken from People v. Hickey (1980) 109 Cal.App.3d 426, 440, fn. 8. The description of section 288a is taken from the depublished opinion in People v. Collins (1977) 66 Cal.App.3d 597 [136 Cal.Rptr. 109] [cited for its quotation of the former statute and not as precedent; see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254; Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439, 443, fn. 2].
One significant amendment to both statutes, relevant to the statutes’ status as “violent felonies,” occurred after the cases underlying the above opinions: In the same legislation in which section 653f(c) was enacted (Stats. 1979, ch. 944, §§ 6, 7), sections 286 and 288a were amended to make clear that when an act of sodomy or oral copulation with a child under 14 also fell under section 288, the crime would be punished under section 288. (See Review of Selected 1979 California Legislation (1980) 11 Pac. L.J. 259, 430 [cited in People v. Gordon (1985) 165 Cal.App.3d 839, 845, fn. 1].) In that manner, all violations of sections 286 or 288a that met the criteria of then-section 288 were clearly “violent felonies.”
Footnote 3: Appellant does not contend that the Legislature intended the category of sex offenses that can be the subject of solicitation under section 653f(c) to be coextensive with all violent felony sex offenses. He only points out that every sex offense that can be the subject of solicitation under section 653f(c) was, and is, a violent felony.
Footnote 4: These issues are also illustrated by comparing the penalties for the two charges originally filed against appellant, attempt to violate then-section 288(c) [now section 288(c)(1)], which unquestionably is a crime; and soliciting a person to violate section 288(c), assuming arguendo the latter was a crime. Attempt to violate section 288(c) is a “wobbler” punishable by up to six months in county jail, or imprisonment in state prison for 6, 12 or 18 months. (See sec. 664, subds. (a), (b); sec. 288(c)(1).) Soliciting someone to violate section 288(c), which would involve less movement toward a completed crime than an attempt (People v. Adami (1973) 36 Cal.App.3d 452, 457-458), would always be a felony subject to imprisonment of two, three or four years (sec. 653f(c))—i.e., a sentence range always higher than that for attempt. This result seems strange on a policy level, and would raise similar questions of constitutionality, given that the high term for attempt would be less than the low term for the more inchoate crime of solicitation.
LAW OFFICES OF
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
July 8, 1999
The Honorable Stephen M. Kelly, Clerk
Fourth District Court of Appeal
925 N. Spurgeon St.
Santa Ana CA 92701
Re: People v. Doe
Dear Mr. Kelly:
As counsel for appellant John Doe, I am writing to inform the Court of a recently decided case from the California Supreme Court, which was decided well after the close of briefing, and which appellant believes is relevant to the issue in Part I of his briefs. I would respectfully ask that this letter be transmitted to the Court for its consideration, and that the Court grant permission to file this letter as a supplemental brief. Appellant does not object to the People filing a response within any appropriate period of time.
The case is People v. Morante (May 17, 1999) 20 Cal.4th 403. Morante is pertinent to appellant’s reply to the People’s claim that “appellant . . . was convicted under Penal Code section 653f, subdivision (c), not as originally promulgated in 1979 but as subsequently amended, most recently in 1993.” (RB 10.) The amendments to section 653f(c) to which the People referred were described in the reply brief, and were technical, nonsubstantive amendments unrelated to the incorporation provisions that were the subject of appellant’s argument. (See ARB 1, 2-3 & fn. 3.) Apppellant contended, inter alia, that the People’s claim was contrary to what the People successfully urged in People v. Escobar (1992) 3 Cal.4th 740, that amendments to a statute which were unrelated to a different part of the statute did not impliedly amend that different part. (Id. at pp. 750-751; see ARB 2 & fn. 2; see also ARB 4-6, 9 [relying on Escobar].) Appellant also relied on Government Code section 9605, as Escobar did. (Id., 3 Cal.4th at p. 751, fn. 5.)
The Supreme Court’s recent Morante opinion contained a similar holding, which, like appellant’s argument here, relied on Escobar and Government Code section 9605. Morante similarly held that an amendment of a statute (adding a new provision to Penal Code section 778a, on prosecutions for certain kidnappings) which was unrelated to the matter of statutory interpretation at issue on appeal (the Supreme Court’s prior Buffum opinion, on jurisdiction for conspiracy) could not be deemed to affect that unrelated matter of statutory interpretation. In holding that an amendment of one provision of a statute was not an implied amendment or ratification of an unrelated provision in the statute, Morante stated in pertinent part:
* * * [S]omething more than mere silence is required before that acquiescence is elevated into a species of implied legislation . . . . [Citations.] . . . . 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”. . . . ‘ ” (People v. Escobar (1992) 3 Cal. 4th 740, 750-751; People v. King (1993) 5 Cal. 4th 59, 76-77.) . . . .
* * * Our decision in Buffum, concerning the extent to which a conspiracy must progress within this state in order to be prosecutable when its criminal objective is accomplished outside the state, is not implicated by the addition of a subdivision intended to address jurisdiction over new out-of-state offenses that are committed in the course of a kidnapping that is commenced within the state.[FN14]
[FN14] When a statute is amended, the portions not modified ” ‘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. . . .’ ” (People v. Escobar, supra, 3 Cal. 4th 740, 751, fn. 5, quoting Gov. Code, § 9605.)
(People v. Morante, supra, 20 Cal.4th at pp. 429-430 & fn. 14.)
Appellant agrees with the Supreme Court’s analysis and result in Morante, as he previously agreed with the Supreme Court’s analysis and result in Escobar. Moreover, just as the Supreme Court in Morante relied on footnote 5 of Escobar, appellant relied on footnote 5 of Escobar five times in his reply brief. (ARB 2 & fn. 2, 4, 5, 9.) In one of its passages quoted above, the Supreme Court in Morante quoted the portion of Escobar‘s footnote 5 which discussed Government Code section 9605. (Morante, supra, 20 Cal.4th at p. 430, fn. 14.) Appellant did the same in his reply brief (ARB 4 [third full par.]), and in general, relied extensively on Government Code section 9605 as well as Escobar. (See ARB 2, 4-7, 9-10.)
Appellant greatly appreciates the Court’s consideration of this letter, and would be pleased to provide further information or authority should that be desired.
Sincerely,
S. Michelle May
State Bar No. 111072
Counsel for Appellant John Doe
By Appointment of the Court of Appeal
(Appellate Defenders, Inc. – Independent Case)
