PEOPLE v. CORNETT No. A123957.

190 Cal.App.4th 845 (2010)

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DAVID CORNETT, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.
December 6, 2010.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan, and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION*

OPINION

KLINE, P. J.

Defendant Michael David Cornett was charged with molesting his two stepdaughters, 10-year-old Jane Doe 1 and six-year-old Jane Doe 2, with the final instance captured in a photograph taken by defendant's 12-year-old stepson. A jury found defendant guilty on all seven felonies alleged against him, and found all special allegations to be true—including that 11 years earlier he had been convicted of molesting yet another stepdaughter. Defendant was sentenced to 10 years, plus 150 years to life in state prison.

Defendant makes numerous arguments on appeal, asserting myriad errors during trial and at sentencing. The People concede that two of the arguments as to sentencing on count 6 are well taken, and we conclude that an argument as to the conviction on that count has merit as well, requiring a reversal of the conviction on that count.

We shall also reverse the conviction on count 7, alleging commission of a lewd and lascivious act on a child under the age of 14 (because no evidence regarding that offense was presented at the preliminary hearing), modify two rulings made at sentencing, and in all other respects affirm, leaving defendant convicted of six felonies. The judgment is affirmed as modified, a modification that does not affect the aggregate sentence imposed by the trial court.

All these issues, save one, are addressed in the unpublished portion of this opinion. The singular exception, the one issue addressed in the published portion of the opinion, is an issue apparently never before addressed in California: Was Jane Doe 1, who was 10 years 11 months at the time of the molestation, a "child ... 10 years of age or younger" within Penal Code section 288.7, subdivision (b),1 the offense charged in count 6? We answer in the negative, concluding that "a child who is 10 years of age or younger" excludes children who have passed the 10th anniversary of their birth.

EVIDENCE AT TRIAL*

PROCEDURAL BACKGROUND

By complaint filed January 11, 2007, and amended on May 16, 2007, the District Attorney of the County of Sonoma charged defendant with the following five felonies: (1) aggravated sexual assault upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (§ 269, subd. (a)(4)); (2) oral copulation upon Jane Doe 1, a child under the age of 14 years and more than 10 years younger than defendant, on January 9, 2007 (§ 288a, subd. (c)(1)); (3) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 9, 2007 (§ 288, subd. (a)); (4) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)); and (5) commission of a lewd and lascivious act on Jane Doe 2, a child under the age of 14 years, on January 6, 2007 (§ 288, subd. (a)).

The amended complaint also alleged the following enhancements as to all counts: (1) defendant was previously convicted, on April 25, 1996, of committing a lewd act upon a child in violation of section 288, subdivision (a) (§ 667.71); (2) defendant committed offenses against more than one victim (§ 667.61, subd. (b)); (3) on April 25, 1996, defendant was convicted of violating section 288, subdivision (a) (§ 1203.066, subd. (a)(5)); (4) defendant committed the above offenses on more than one victim at the same time and in the same course of conduct (§ 1203.066, subd. (a)(7)); and (5) defendant had substantial sexual conduct with Jane Doe 1 (counts 1, 2) and Jane Doe 2 (counts 3, 4, 5) who were under the age of 14 years (§ 1203.066, subd. (a)(8)). The amended complaint also alleged in aggravation that in April 1996 defendant had been convicted of committing a lewd act upon a child in violation of section 288, subdivision (a), which constituted a prior strike conviction (§ 1170.12) and a prior serious felony conviction (§ 667, subd. (a)(1)).

A preliminary hearing was held on August 15, 2007. At the conclusion of the hearing, the court held defendant to answer all charges alleged against him. Two weeks later, the district attorney filed an information alleging seven counts against defendant. In addition to the five counts previously alleged, the district attorney added two others: (1) oral copulation upon Jane Doe 1, a child who was 10 years of age or younger, by a person 18 years of age or older, on January 9, 2007 (count 6; § 288.7, subd. (b)); and (2) commission of a lewd and lascivious act upon Jane Doe 1, a child under the age of 14 years, on January 9, 2007 (count 7; § 288, subd. (a)).

Trial began on October 27, 2008. Following motions in limine, jury selection, and preliminary instructions, testimony began on November 6, 2008. On November 18, 2008, after calling 16 witnesses, the People rested. Defendant rested without presenting any evidence.

On November 20, 2008, after the court heard closing arguments and instructed the jury, the jury began deliberations. After less than seven hours of deliberations over the course of three days, the jury found defendant guilty on all seven counts and found all allegations to be true.

On January 27, 2009, the court sentenced defendant to state prison for 10 years, plus 150 years to life with the possibility of parole, calculated as follows: count 1: 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 2: 25 years to life, doubled due to the strike to 50 years to life, with a five-year enhancement under section 667, subdivision (a)(1), stayed pursuant to section 654; count 3: consecutive 25 years to life, doubled due to the strike to 50 years to life, plus a consecutive five-year term for the section 667, subdivision (a)(1) enhancement; count 4: consecutive 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 5: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken; count 6: concurrent 25 years to life, doubled to 50 years to life due to the strike, stayed, with the section 667, subdivision (a)(1) enhancement stayed; and count 7: concurrent 25 years to life, doubled due to the strike to 50 years to life, with the section 667, subdivision (a)(1) enhancement stricken.

This timely appeal followed.

DEFENDANT'S CONTENTIONS

Defendant asserts the following claims: (1) his conviction on count 7—that he committed a lewd act on Jane Doe 1 when she touched his penis on January 9, 2007—must be reversed because the prosecutor failed to present evidence of that incident at the preliminary hearing; (2) his conviction on count 7 must be reversed because it was not supported by sufficient "credible" evidence; (3) the trial court erred in admitting the videotaped interview of Jane Doe 2 at the Redwood Children's Center and instructing the jury that the interview was affirmative evidence or, alternatively, his counsel's failure to object to admission of the videotape constituted ineffective assistance of counsel; (4) his sentence under the habitual sexual offender law (§ 667.71) must be set aside because the People failed to plead that defendant was a habitual sexual offender and the jury did not make a finding as to his status as a habitual sexual offender as required by section 667.71, subdivision (f); (5) his conviction on count 6—oral copulation on Jane Doe 1, a child 10 years of age or younger—must be reversed because Jane Doe 1 was over the age of 10 years at the time of the crime; and (6) the two 5-year sentences imposed for defendant's prior serious felony conviction must be stricken because he was sentenced under an alternative sentencing scheme applicable to habitual offenders or, alternatively, that only one 5-year enhancement could be imposed.6 We address these contentions in turn.

DISCUSSION

A.-C.*

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D. Defendant Was Not Properly Charged with and Convicted of Violating Section 288.7 Because Jane Doe 1 Was Not "10 Years of Age or Younger"

As noted, count 6 of the information charged defendant with a violation of section 288.7, subdivision (b), for orally copulating Jane Doe 1 on January 9, 2007. That subdivision provides, "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." The jury convicted defendant on that count, but the court stayed the sentence on it pursuant to section 654. Defendant now contends that the conviction must be reversed and the count dismissed because, applying the rules of construction applicable to penal statutes, Jane Doe 1—who was 10 years 11 months at the time of the molestation—cannot be deemed to have been "10 years of age or younger" at the time of the offense.

No California court has yet interpreted the phrase "10 [(or some other number)] years of age or younger" despite the use of such language in several California statutes. (See, e.g., §§ 273i, subd. (c) ["14 years of age or younger"], 417.27, subd. (a) ["17 years of age or younger"], 701.5, subd. (a) ["12 years of age or younger"], 861.5 ["10 years of age or younger"], 1127f ["10 years of age or younger"], 1170.72 ["11 years of age or younger"], 1347, subd. (b) ["13 years of age or younger"], 12088.2, subd. (a) ["17 years of age or younger"], and 12088.5, subd. (a) ["18 years of age or younger"].)17

While courts in other jurisdictions have construed the same or similar language, they are very divided. Some courts have construed the language to include children who have passed the particular birthday but not yet reached the next birthday. (See, e.g., State v. Christensen (2001) 2001 UT 14 [20 P.3d 329] ["`14 years of age or older, but not older than 17'" includes a person who is 17 years old until he or she attains his or her 18th birthday]; State v. Shabazz (1993) 263 N.J.Super. 246 [622 A.2d 914, 915] ["`17 years of age or younger' includes a juvenile who has attained the age of 17 but has not yet reached his 18th birthday"]; State v. Joshua (1991) 307 Ark. 79 [818 S.W.2d 249, 251], overruled on other grounds in Kelly v. Kelly (1992) 310 Ark. 244 [835 S.W.2d 869] ["`twelve years of age or younger'"includes children who "have reached and passed their twelfth birthday but have not reached their thirteenth"]; State v. Carlson (1986) 223 Neb. 874 [394 N.W.2d 669, 674] ["`fourteen years of age or younger'" means children who have "passed their 14th birthday but have not reached their 15th"]; State v. Hansen (Fla.Dist.Ct.App. 1981) 404 So.2d 199, 200 ["`11 years of age or younger'" includes children who have passed their 11th birthday but not yet reached their 12th]; Phillips v. State (Tex.Crim.App. 1979) 588 S.W.2d 378, 380 ["`14 years of age or younger'" includes all children who have not attained their 15th birthday].)

However, courts in other jurisdictions have construed the same or similar language to include only children who have not passed the specified birthday date. (See, e.g., State v. Collins (R.I. 1988) 543 A.2d 641, 645, overruled on other grounds in State v. Rios (R.I. 1997) 702 A.2d 889 ["`thirteen (13) years of age or under'" applies to "persons under thirteen years of age and to those who are exactly thirteen years old"]; State v. Jordan (R.I. 1987) 528 A.2d 731, 733-734 ["`thirteen (13) years of age or under'" includes "only those victims who had reached the day prior to their thirteenth birthday or were under that age"]; State v. McGaha (1982) 306 N.C. 699 [295 S.E.2d 449, 450] ["`the age of 12 years or less'" excludes a child who has passed his or her 12th birthday]; Knott v. Rawlings (1959) 250 Iowa 892 [96 N.W.2d 900, 901-902] (Knott) ["`a child of the age of sixteen years, or under'" does not include a child who has passed his or her 16th birthday]; People v. O'Neill (N.Y.Sup.Ct. 1945) 208 Misc. 24 [53 N.Y.S.2d 945, 947] ["`ten years or under'" excludes children who have passed their 10th birthday]; Gibson v. People (1908) 44 Colo. 600 [99 P. 333, 334-335] ["`sixteen (16) years of age or under'" excludes children who have passed beyond the first day of their 16th birthday].)

In some cases courts have been able to resolve the issue on the basis of an illuminating legislative history18 (see, e.g., State v. Munoz (2010) 224 Ariz. 146 [228 P.3d 138]; People ex rel. Makin v. Wilkins (N.Y.App.Div. 1965) 22 A.D.2d 497 [257 N.Y.S.2d 288]), while others have relied upon the practical consequences of competing interpretations, rejecting those that would have absurd results (see, e.g., State v. Shabazz, supra, 622 A.2d 914, 917; State v. Collins, supra, 543 A.2d 641). Unfortunately, neither of these factors provides assistance in this case.

The legislative history of section 288.7, which has never been amended, sheds no light on the issue before us. The only substantive change to the provision during the legislative process was the addition of oral copulation and sexual penetration as proscribed activities. (Cf. Sen. Bill No. 1128 (2005-2006 Reg. Sess.) as introduced Jan. 9, 2006, and Sen. Bill No. 1128 (2005-2006 Reg. Sess.) § 9.) Nor are the consequences of the competing constructions instructive. It would be as reasonable to limit the age of the children section 288.7 seeks to protect by confining it to those who have not passed the 10th anniversary of their birth as to those who have not reached the 11th anniversary. (See State v. Hansen, supra, 404 So.2d 199, 200.)

Due to the absence of any useful extrinsic information or any absurdity resulting from the application of the competing constructions, we must rely exclusively on the language of the statute, and the only useful guidelines are those provided by the applicable rules of statutory construction.

(1) In California a criminal defendant "`is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. . . .'" (People v. Gutierrez (1982) 132 Cal.App.3d 281, 284 [183 Cal.Rptr. 31], quoting Ex parte Rosenheim (1890) 83 Cal. 388, 391 [23 P. 372]; see People v. Davis (1981) 29 Cal.3d 814, 828 [176 Cal.Rptr. 521, 633 P.2d 186]; Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617]; People v. Forbes (1996) 42 Cal.App.4th 599, 603-604 [49 Cal.Rptr.2d 836].) Thus, "when language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted." (In re Tartar (1959) 52 Cal.2d 250, 256 [339 P.2d 553]; accord, People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312 [58 Cal.Rptr.2d 855, 926 P.2d 1042]; Bowland v. Municipal Court (1976) 18 Cal.3d 479, 487-488 [134 Cal.Rptr. 630, 556 P.2d 1081].) The foregoing principles reflect "the policy of this state to construe a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit . . . ." (Keeler v. Superior Court, at p. 631; see People v. Garcia (1999) 21 Cal.4th 1, 10 [87 Cal.Rptr.2d 114, 980 P.2d 829]; People v. Alberts (1995) 32 Cal.App.4th 1424, 1427 [37 Cal.Rptr.2d 401].) This principle is often referred to as the rule of strict construction but it is also known as the "rule of `lenity.'" (People ex rel. Lungren v. Superior Court, at p. 312.)

(2) While, as the Attorney General says, courts should always give words and phrases "a plain and commonsense meaning," common parlance is not always indicative of "commonsense," a highly ambiguous, subjective and somewhat tendentious concept, and as this case shows, a word or phrase may have more than one "commonsense meaning." This is particularly true with respect to the subject of the phrase we must decipher. The concepts of time and its measurements are peculiarly illusive. "The basic difficulty lies in trying to find demarcations in a homogenous indivisibility. Time is without natural units; its so-called divisions are but incidental, independent, repetitious events, such as the swings of a pendulum or rotations of the earth. And he who seeks to fix the ever-approaching or receding, never pausing, points in time, essays to shoe a running horse." (Annot., Inclusion or Exclusion of the Day of Birth in Computing One's Age (1949) 5 A.L.R.2d 1143, 1144-1145, § 2.) Although the Legislature could easily have provided the necessary certainty—as by specifying that a qualifying offense must be committed on a victim who is either "under 10 [or 11] years age"—the ambiguity cannot be eliminated by resort to inference or implication arising from common sense, popular parlance, or any other extrinsic factor. (See Keeler v. Superior Court, supra, 2 Cal.3d at pp. 631-632.)

People v. Gutierrez, supra, 132 Cal.App.3d 281 is instructive on this point. Gutierrez involved a statute precluding a grant of probation to a defendant possessing more than one-half ounce of heroin. The term "ounce" could refer to either an avoirdupois ounce or an apothecaries' ounce, and the 14.3 grams of the substance the defendant possessed was less than the number of grams in one-half of an apothecaries' ounce, but more than the number of grams that constitute one-half of an avoirdupois ounce. The question presented was whether, as the statute did not specify, an "ounce" should be measured by the avoirdupois or apothecaries' weight standard. (Id. at pp. 283-284.) Even though the average person would understand the word "ounce" to refer only to an avoirdupois ounce, and few would even be aware another type of ounce existed, the court rejected the idea that the meaning of the word "ounce" in a penal statute could be made certain by its common usage. In adopting the uncommon use of an apothecaries' ounce as the weight standard, the court relied upon "`a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no [way] implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved . . . [against the government.]'" (Id. at p. 285, quoting Bell v. United States (1955) 349 U.S. 81, 83-84 [99 L.Ed. 905, 75 S.Ct. 620].)

(3) The interpretation of section 288.7 urged by the Attorney General is clearly not the only "commonsense" interpretation. As previously pointed out, state courts are almost evenly divided about the proper interpretation of statutes applicable to persons of a designated age "and under." (State v. Jordan, supra, 528 A.2d 731, 732.) Knott, supra, 96 N.W.2d 900 is illustrative of the line of cases defendant relies upon. The petitioner in that case was charged with committing lascivious acts with "`a child of the age of sixteen years, or under.'" (Id. at p. 900.) The question presented was whether "one who is sixteen years, six months and three days old [is] `a child of the age of sixteen years, or under,'" within the meaning of the penal statute. (Id. at p. 901.) The Iowa Supreme Court answered the question in the negative, stating as follows: "A child is one year old on the first anniversary of his birth and is sixteen years old on the sixteenth anniversary. Before the sixteenth anniversary he is under the age of sixteen years and after that anniversary he is over the age of sixteen. Sixteen years is an exact and definite period of time. It does not mean or include sixteen years and six months. We should be realistic and not read something into the statute which is not there and which clearly was not intended to be there. This is a criminal statute and cannot be added to by strained construction. [¶] `Of the age of sixteen years' must be construed to mean just what it says, i.e., sixteen years and not sixteen years, six months and three days." (Ibid., italics added.)

Like the California court in People v. Gutierrez, supra, 132 Cal.App.3d 281, the Knott court explicitly refused to be guided by "common parlance." As here, the state emphasized the fact "that when one is asked to state his age he gives only the age at the latest anniversary of his birth and does not add the additional months and days which a completely correct statement would require. . . ." Pointing out that "it is commonly accepted that one is sixteen until his seventeenth birthday anniversary," the state argued that the statute should be seen as reflecting this common understanding. (Knott, supra, 96 N.W.2d at p. 901.) The court rejected the argument as "unsound," stating as follows: "When the legislature wrote `sixteen years' into the statute it intended the words to be construed according to their ordinary meaning. It is contended that when the legislature used the words `a child of the age of sixteen years, or under' it intended such words to mean `a child under seventeen years of age.' That contention is answered by the fact that it chose the words `sixteen years, or under' in preference to the words, `under seventeen years' which it would have used had it intended what the State maintains it intended." (Ibid.) We find this reasoning compelling, as have other courts. (See, e.g., State v. McGaha, supra, 295 S.E.2d 449: State v. Jordan, supra, 528 A.2d 731; Gibson v. People, supra, 99 P. 333; State v. Maxson (1978) 54 Ohio St.2d 190 [375 N.E.2d 781]; People v. O'Neill, supra, 53 N.Y.S.2d 945.)

Conceding that many cases have construed the phrase "___ years of age or younger" to be limited to persons who had not passed the birthday indicated by the statute, the Attorney General contends that the more reasonable cases, which reflect the "modern trend," are those which include persons who have reached and passed the age designated by the statute but have not reached the subsequent birthday. Many of the cases relied upon by the Attorney General are distinguishable.

State v. Shabazz, supra, 622 A.2d 914, involved a statute criminalizing the use or employment of a person "`17 years of age or younger'" to participate in a drug distribution scheme. The court noted that a subsequent provision in the statute barred a mistake of age defense for persons "`18 years of age or older'" and pointed out that this language "would make no sense" if the statute excluded juveniles after their 17th birthday. (Id. at p. 917) Other cases reaching the result the Attorney General urges turned on extrinsic evidence of a sort not present in this case. For example, in People ex rel. Makin v. Wilkins, supra, 257 N.Y.S.2d 288, the 1950 statute before the court was clearly intended to legislatively overrule a 1945 judicial decision construing the phrase "`ten years or under'" as excluding persons who had passed their 10th birthday. (Id. at p. 290.) As the court observed, the 1950 amendment "`forcefully indicates that the [1945] judicial decision did not correspond with legislative intent, and that a different interpretation should be had.'" (Id. at p. 291; see also State ex rel. Morgan v. Trent (1995) 195 W.Va. 257 [465 S.E.2d 257].)

Most of the other cases supporting the interpretation urged on us by the Attorney General do not follow or ignore the rule of strict construction applicable in California. For example, in State v. Christensen, supra, 20 P.3d 329, the defendant had argued that the victim, who was between her 17th and 18th birthdays, was "`older than 17'" and therefore not protected by the statute. The Supreme Court of Utah rejected the cases the defendant relied upon because most of them "relied in part on the rule that criminal statutes are to be construed strictly against the state and liberally in favor of the defendant" (id. at p. 330), a rule which "does not obtain in Utah." (Ibid.)

(4) State v. Carlson, supra, 394 N.W.2d 669 and State v. Joshua, supra, 818 S.W.2d 249 are simply indifferent to the rule of strict construction. The statute in Carlson protected victims "`fourteen years of age or younger'" (Carlson, at p. 670) and that in Joshua victims "`twelve (12) years of age or younger'" (Joshua, at p. 249). The reasoning of Carlson, which was adopted in Joshua, is as follows: "If `less than fourteen years of age' or `under fourteen years of age' had been used in [the statute], the protection of that statute would terminate when a child reached the 14th birthday. Because `less than' or `under' is absent from [the statute], while `fourteen years of age or younger' appears in the statute, the compelled logical conclusion is that the statute's protection extends into and throughout the year immediately following a person's 14th birthday. When the plain and unambiguous language of [the statute] is considered, [citations], to the ordinary person `fourteen years of age' means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, `fourteen years of age' is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of `fourteen years of age' would be a perversion of popular parlance." (State v. Carlson, supra, at pp. 673-674, italics added; see State v. Joshua, at p. 251.) Far from a "compelled logical conclusion," the italicized sentence is no more than an ipse dixit. Moreover, the inference that an otherwise ambiguous provision of a penal statute must have been intended to adopt "popular parlance" makes a mockery of the rule of strict construction, the purpose of which is to ensure that crimes are not "`"`built up by courts with the aid of inference, implication, and strained interpretation' [citation].. . . `[P]enal statutes must be construed to reach no further than their words; no person can be made subject to them by implication.' [Citation.]"'" (Gayer v. Whelan (1943) 59 Cal.App.2d 255, 262-263 [138 P.2d 763], quoting Ex parte McNulty (1888) 77 Cal. 164, 168 [19 P. 237] and In re Twing (1922) 188 Cal. 261, 265 [204 P. 1082].) Without ever referring to the rule of strict construction, Carlson relies instead on the "pertinent" rule "`that a statute should be construed so that an ordinary person reading it would get from it the usual, accepted meaning'" (Carlson, at pp. 671-672), a rule more frequently applied to civil than to penal statutes.

(5) As Chief Justice Marshall pointed out almost 200 years ago, "[t]he rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself." (United States v. Wiltberger (1820) 18 U.S. 76, 95 [5 L.Ed. 37].) The strength of this "time-honored interpretive guideline" (Liparota v. United States (1985) 471 U.S. 419, 427 [85 L.Ed.2d 434, 105 S.Ct. 2084]), at least in this jurisdiction, is worth discussing. Along with those of several other states, the California Legislature nominally abrogated the rule of lenity in 1872 by enacting section 4, which states: "The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." The rule of strict construction or, as it is also called, the rule of lenity, has, however, survived the statute. The reason a higher degree of certainty is still required of a penal than a civil statute (Lorenson v. Superior Court (1950) 35 Cal.2d 49, 60 [216 P.2d 859]) is that the rule of strict construction possesses a constitutional dimension. As Professor Packer said, the rule of strict construction and the constitutional vagueness doctrine "have an intimate connection and may most usefully be thought of as contiguous segments of the same spectrum." (Packer, The Limits of the Criminal Sanction (1968) pp. 79, 93; see also Jeffries, Legality, Vagueness, and the Construction of Penal Statutes (1985) 71 Va. L.Rev. 189, 198-201.) In effect, the rule of strict construction may be seen "as something of a junior version of the vagueness doctrine." (Packer, The Limits of the Criminal Sanction, supra, at p. 95.) The rule of lenity may also be seen as a means of avoiding constitutional issues by making it unnecessary to address potential due process concerns. (Eskridge & Frickey, Quasi-Constitutional Law: Clear Statement Rules as Constitutional Lawmaking (1992) 45 Vand. L.Rev. 593, 600.)

(6) The rule of lenity also serves the purposes of minimizing the risk of selective or arbitrary enforcement, and maintaining the proper balance between the Legislature, prosecutors and the courts. (United States v. Kozminski (1988) 487 U.S. 931, 951-952 [101 L.Ed.2d 788, 108 S.Ct. 2751].) Courts defer to the legislative responsibility to define criminal liability and the appropriate penalty but require clear directives. As has been said, "[l]enity is an appropriate background principle in the penal context because it maintains the judicial-legislative balance while protecting the rights of individuals. It has survived so long in the common law system precisely because it allays concerns with separation of powers and due process and provides interpretive consistency. When the legislature fails to speak clearly, considerations of lenity avoid the dilemma of how to derive a legitimate interpretation without `legislating' by choosing a priori the stance the court will take. Considerations of lenity therefore create a presumption against criminal liability by assuming that the legislature only intended what was readily apparent." (Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity, supra, 29 Harv. C.R.-C.L. L.Rev. at pp. 206-207, fns. omitted.)

United States v. Bass (1971) 404 U.S. 336 [30 L.Ed.2d 488, 92 S.Ct. 515] articulates two other policies that inform the rule of strict construction. The first, the Supreme Court explained, is that "`a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.'" (Id. at p. 348.) This much quoted statement was originally made by Justice Holmes in McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 51 S.Ct. 340]. As noted in United States v. Bass, Holmes prefaced this statement with the observation that "`it is not likely that a criminal will carefully consider the text of the law before he murders or steals,'" but the Bass court pointed out that in the case of gun acquisition and possession, which was the issue in United States v. Bass, it is not unreasonable to imagine a citizen attempting to "`[steer] a careful course between violation of the statute [and lawful conduct].' [Citation.]" (United States v. Bass, at p. 348, fn. 15, quoting United States v. Hood (1952) 343 U.S. 148, 151 [96 L.Ed. 846, 72 S.Ct. 568].) United States v. Bass thus implicitly acknowledges that, ordinarily, persons contemplating the commission of criminal acts do not first consult the appropriate penal statute.19 It may also be noted that the need to provide fair warning would seem unnecessary with respect to crimes, such as the one that here concerns us, that are malum in se rather than malum prohibitum.

The second policy reflected in the rule of lenity that was commented on in United States v. Bass is, however, uniformly applicable and has particular relevance to the case at hand. As stated in Bass and reiterated in Liparota v. United States, supra, 471 U.S. at page 427, and People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at page 313, "because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies `the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.' [Citation.]" (United States v. Bass, supra, 404 U.S. at p. 348.) Our own Supreme Court's opinion more than a century ago in Ex parte Rosenheim, supra, 83 Cal. 388, 391 also recognized that "criminal penalties, because they are particularly serious and opprobrious, merit heightened due process protection for those in jeopardy of being subject to them, including the strict construction of criminal statutes." (People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 313.)

The Attorney General's construction of section 288.7, subdivision (b), exposes all offenders whose victims have passed the 10th anniversary of their birth to a penalty, 15 years to life, equal to that applicable to a defendant convicted of second degree murder. Imposition of that penalty in this case would not be the result of an unambiguous legislative determination, but the product of a judicial interpretation of a phrase which, as the case law effectively demonstrates, is clearly susceptible of two constructions. As Chief Justice Marshall said, the rule of strict construction is based on the "plain principle that the power of punishment is vested in the legislative, not in the judicial department." (United States v. Wiltberger, supra, 18 U.S. at p. 95.) Our guess, and it is only that, is that the phrase "ten years of age or younger" was probably decided upon by a drafter who erroneously assumed it was no different from the phrase "younger than 10 years of age." Such a mistake, if that is what it was, provides no basis upon which to expand the application of a serious felony offense to individuals the Legislature did not manifestly intend to include within its scope.

Due to the seriousness of the penalty that would otherwise result, the court in People v. Gutierrez, supra, 132 Cal.App.3d 281 declined to construe the word "ounce" to mean an avoirdupois ounce rather than an apothecaries' ounce, though most people are almost certainly unaware that there is such a thing as an apothecaries' ounce. The court left it to the Legislature to clarify the meaning of the word "ounce" if it disagreed with the meaning the court assigned. So, too, should we leave it to the Legislature to clarify the age of the children referred to by subdivision (b) of section 288.7. The penalty in this case is far greater than that at issue in Gutierrez, and the statute we must construe is much more obviously susceptible of two constructions than the one at issue in Gutierrez. Indulging the uncertainty in favor of the state and against the defendant not only conflicts with the rule of lenity but invites rather than discourages statutory ambiguity. If the meaning we attach to the language in question does not reflect the legislative will, the Legislature can easily rectify the problem, as it did in Gutierrez, and such an exercise, if it is necessary, may have the salutary effect of reminding legislators of the heightened need for clarity in criminal statutes.

(7) It is true that the rule in favor of strict construction of criminal statutes "`"is not an inexorable command to override common sense and evident statutory purpose. It does not require magnified emphasis upon a single ambiguous word in order to give it a meaning contradictory to the fair import of the whole remaining language."' [Citation.] . . . [T]he rule does not `require[] that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope—nor does any rule require that the act be given the "narrowest meaning." It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislative body].'" (People v. Anderson (1987) 43 Cal.3d 1104, 1146 [240 Cal.Rptr. 585, 742 P.2d 1306].) However, as we have explained, the rule of strict construction can be applied in this case without overriding common sense, or requiring magnified emphasis upon a single ambiguous word. Nor do we need to strain or distort language in order to exclude conduct clearly intended to be within its scope, because in this instance the intent of the legislative body is not at all "evident" from the language it used.

Justice Richman contends that defendant's interpretation of section 288.7, subdivision (b), would lead to an "illogical result," because it would apply the provision "to all children from birth through the day of their tenth birthday—but to no other ten year olds[,] [whereas] [c]ommon sense suggests that the statute would apply to all ten-year-old children." (Conc. & dis. opn., post, at p. 866.) According to Justice Richman, "[t]here is no rationale for the position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday." (Ibid.) This odd reasoning assumes that which the argument purports to demonstrate; namely, that for purposes of the statute a person remains "ten years of age or younger" until the 11th anniversary of his or her birth. But that interpretation of "ten years of age" is no more "logical" than one limiting the reference to children who have not passed the 10th anniversary of their birth. Justice Richman's assertion that "[t]here is no rationale for [defendant's] position that the Legislature chose the line of demarcation to be a child on his or her tenth birthday" simply ignores the rationale set forth in Knott, supra, 96 N.W.2d 900 and like cases, which is simply that "10 years of age" means just what it says, i.e., 10 years and not 10 years and 11 months. Paraphrasing the opinion in Knott, a child is one year old on the first anniversary of his birth and is 10 years old on the 10th anniversary. Before the 10th anniversary he or she is under the age of 10 years and after that anniversary the child is over that age. Ten years is an exact and definite period of time. It does not mean or include 10 years and two or six or 11 months. As the Knott court emphasized, we should not read something into a criminal statute which is not there. (Id. at p. 901.) Justice Richman may disagree with this reasoning, but it cannot be dismissed as "illogical."

Justice Richman also emphasizes that the Legislature could easily have restricted the application of section 288.7 to children under the age of 10, if that was indeed its intent, and argues that its failure to do so compels the conclusion it did not intend to do so. (Conc. & dis. opn., post, at pp. 866-867.) But that argument can just as readily be turned against the interpretation the Attorney General urges us to adopt. While "[t]here are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision" (Smith v. Goguen, supra, 415 U.S. at p. 581), that is not here the case. As earlier indicated, if the Legislature wanted to protect children under the age of 11, as the Attorney General claims, it could easily have said so by using the commonly accepted phrase "under the age of 11. The unusual phrasing the Legislature did employ appears in only 10 sections of the Penal Code (see p. 852, ante). The phrases "under the age of ___" and "under ___ years of age," by contrast, appear in hundreds of Penal Code provisions, and repeatedly in section 288 itself. It is hard to know whether this was purposeful, but it is as consistent with an intention to define the children referred to in section 288.7 as limited to those who have not passed the 10th anniversary of their birth, which is the literal meaning of the text, as it is to the interpretation urged by the state.

We do not presume to know precisely what the Legislature intended by the words "ten years of age or younger," nor do we claim that the phrase can have but one meaning, or that the meaning attributed to it by the Attorney General is unreasonable or would have absurd consequences. Putting aside the rule of strict construction, the interpretation of the same or similar language adopted in State v. Carlson, supra, 394 N.W.2d 669 and the other cases the Attorney General relies upon seems to us as reasonable as the different interpretation of such language adopted in Knott, supra, 96 N.W.2d 900 and the other cases relied upon by defendant. All we say is that (1) because section 288.7 is a penal statute, the inquiry into the ambiguity of the phrase "10 years of age or younger" must be undertaken from the perspective of the rule of strict construction; and (2) viewed from that perspective the language is manifestly ambiguous. Indeed, as one court has said, "one is left to conjecture why on earth the legislature did not plainly say `under the age of [10' or, alternatively, `under the age of 11],' especially since this very controversy has waxed in other jurisdictions for fifty years. Indeed this very jurisdictional split on the subject is what finally forces us to face the fact that there must be ambiguity, for if there were none there would likewise be no legal controversy." (State v. Carroll (Fla.Dist.Ct.App. 1979) 378 So.2d 4, 7.) The Legislature should take another look at section 288.7 and amend it if the intention was to include as victims children under the age of 11 in subdivision (b).

(8) For the foregoing reasons, we hold that, as it is employed in section 288.7, subdivision (b), the phrase "10 years of age or younger" excludes victims who have passed their 10th birthday.

E. The Trial Court Properly Imposed Two 5-year Enhancements for Defendant's Prior Serious Felony Conviction

1., 2.*

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

Defendant's convictions on counts 6 and 7 are reversed. In all other regards, the judgment of conviction is affirmed. Our rulings do not affect the aggregate sentence imposed by the trial court. The clerk of the superior court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.

Lambden, J., concurred.

RICHMAN, J., Concurring and Dissenting.—

I concur in all portions of the majority opinion except part D.

Penal Code section1 288.7, subdivision (b) provides that "Any person 18 years of age or older who engages in oral copulation or sexual penetration.. . with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Based on that the jury convicted defendant on count 6, but the court stayed the sentence on it pursuant to section 654.

In part D., the majority concludes that the conviction must be reversed and the count dismissed because Jane Doe 1—who was 10 years, 11 months at the time of the molestation—was not "10 years of age or younger" within the ambit of the statute. The majority thus rejects the People's interpretation that "a child who is 10 years of age or younger" includes a child up to and including the day before the child's 11th birthday. I agree with the People's interpretation, and thus respectfully dissent from part D. of the majority opinion.

The rules governing statutory construction are well established. We recently summarized them in Brown v. Valverde (2010) 183 Cal.App.4th 1531 [108 Cal.Rptr.3d 429], where we explained that in construing a statute, our objective is to determine the intent of the lawmakers using a three-step process. We look first to the words of the statute themselves, giving them a "`"a plain and commonsense meaning"'" unless they are defined otherwise. (Brown v. Valverde, supra, 183 Cal.App.4th at p. 1546.) If the statutory language is clear and unambiguous, then our analysis is complete. If the language does not resolve the question, we then attempt to glean the lawmakers' intent from extrinsic aids such as the legislative history. Failing that, the third step requires us to "`apply "reason, practicality, and commonsense to the language at hand"'" and to "`consider the consequences that will flow from a particular interpretation.'" (Brown v. Valverde, supra, 183 Cal.App.4th at p. 1547; accord, MacIsaac v. Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082-1084 [36 Cal.Rptr.3d 650].)

Both defendant and the People represent that no California court has yet interpreted the phrase "___ years of age or younger." And our research has found no published opinion on the issue, despite the number of statutes that use such language. (See, e.g., §§ 273i ["14 years of age or younger"], 417.27 ["17 years of age or younger"], 701.5, subd. (a) ["12 years of age or younger"], 861.5 ["10 years of age or younger"], 1127f [same]; 1170.72 ["11 years of age or younger"], 1347, subd. (b) ["13 years of age or younger"], and 12088.5, subd. (a) ["18 years of age or younger"].)

Other jurisdictions have construed this identical language, however, and held in accord with the People's position, construing the language to include children who have passed the particular birthday but not yet reached the next birthday. The following cases are illustrative: State v. Shabazz (1993) 263 N.J.Super. 246 [622 A.2d 914, 915] ["`17 years of age or younger' includes a juvenile who has attained the age of 17 but has not yet reached his 18th birthday"); State v. Joshua (1991) 307 Ark. 79 [818 S.W.2d 249, 251] ("`twelve years of age or younger'" includes children who have reached and passed their 12th birthday but have not reached their 13th); State v. Carlson (1986) 223 Neb. 874 [394 N.W.2d 669, 674] ("`fourteen years of age or younger'" means children who have passed their 14th birthday but have not yet reached their 15th); State v. Hansen (Fla.Ct.Dist.App. 1981) 404 So.2d 199, 200 ("`11 years of age or younger'" includes children who have passed their 11th birthday but not yet reached their 12th); Phillips v. State (Tex.Crim.App. 1979) 588 S.W.2d 378, 380 ("`14 years of age or younger'" includes all children who have not attained their 15th birthday); and Canada v. State (Tex.Crim.App. 1979) 589 S.W.2d 452, 454 ("`less than fifteen years of age'" and "`fourteen years of age or under'" are identical in meaning); see also People ex rel. Makin v. Wilkins (N.Y.App.Div. 1965) 22 A.D.2d 497, 502 [257 N.Y.S.2d 288] (child is 10 years or under until the child reached his or her 11th birthday); and State v. Christensen (2001) 2001 UT 14 [20 P.3d 329] ("14 years of age or older, but not older than 17" includes a person who is 17 years old until he or she attains his or her 18th birthday).

As the majority notes, other jurisdictions have construed similar—but, in no case, identical—language to reach the result the majority reaches, to include only children who have not passed the specified birthday date. (See, e.g., State v. Collins (R.I. 1988) 543 A.2d 641, 645 ["`thirteen (13) years of age or under'" applies to "persons under thirteen years of age and to those who are exactly thirteen years old"]; State v. Jordan (R.I. 1987) 528 A.2d 731, 733-734 ["thirteen (13) years of age or under" includes "only those victims who had reached the day prior to their thirteenth birthday or were under that age"]; State v. McGaha (1982) 306 N.C. 699 [295 S.E.2d 449, 450] ["`the age of 12 years or less'" excludes a child who has passed his or her 12th birthday]; Knott v. Rawlings (1959) 250 Iowa 892 [96 N.W.2d 900, 901-903] ["`a child of the age of sixteen years, or under'" does not include a child who has passed his or her 16th birthday]; People v. O'Neill (N.Y.Sup.Ct. 1945) 208 Misc. 24 [53 N.Y.S.2d 945, 947] ["`ten years or under'" excludes children who have passed their 10th birthday]; Gibson v. People (Colo. 1908) 44 Colo. 600 [99 P. 333, 334-335] ["`sixteen (16) years of age or under'" excludes children who have passed beyond the first day of their 16th birthday].)

At one point the majority distills the People's position this way: "Conceding that many cases have construed the phrase `___ years of age or younger' to be limited to persons who had not passed the birthday indicated by the statute, the Attorney General contends that the more reasonable cases, which reflect the `modern trend,' are those which include persons who have reached and passed the age designated by the statute but have not reached the subsequent birthday."2 (Maj. opn., ante, at p. 856.) I conclude that the People's interpretation is more reasonable, for several reasons.

First, the People's interpretation is consistent with the manner in which people commonly state their age. In statutory construction terms, it is the "`"commonsense meaning."'" (Brown v. Valverde, supra, 183 Cal.App.4th at p. 1546.) As the Utah Supreme Court well put it in State v. Christensen, supra, 20 P.3d at page 330: "It is significant that it is almost a universal practice in our society to state our age (except possibly for infants) by the number of full years we have lived, without adding or recognizing that we have also lived some additional months beyond those full years. We do not ordinarily recognize increase in our age until we have lived another full year." Or, in the words of State v. Carlson, supra, 394 N.W.2d at page 674: "[T]o the ordinary person `fourteen years of age' means that one has passed the 14th birthday but has not reached the 15th birthday. Thus, `fourteen years of age' is a temporal condition existing on the 14th birthday and continuing until the 15th birthday. Any other construction of `fourteen years of age' would be a perversion of popular parlance." State v. Shabazz, supra, 622 A.2d at page 916, put it this way: "In common parlance, a juvenile becomes 17 years of age upon reaching his 17th birthday, and remains 17 years of age until he reaches his 18th birthday. The simple and overriding fact is that most people state their ages in yearly intervals. Although such expressions are perhaps linguistically flawed, we doubt that the Legislature intended to depart from the common, everyday meaning of the words used and engage in a metaphysical analysis of the aging process. Instead, we believe that the Legislature, in drafting the statute, intended to `talk the way regular folks do.'"

To put it in personal terms, my majority colleagues and I are our respective "___ years of age" until we reach our next birthdays. I believe this is how "regular folks" talk. How "ordinary people" state their age. "Common parlance."

Second, the majority's conclusion as to the interpretation of section 288.7, subdivision (b) leads to an illogical result, one I cannot believe is what the Legislature intended. Under their interpretation, section 288.7, subdivision (b) would apply to all children from birth through the day of their 10th birthday—but to no other 10 year olds. Common sense suggests that the statute would apply to all 10-year-old children. There is no rationale for the position that the Legislature chose the line of demarcation to be a child on his or her 10th birthday.

Third, had the Legislature intended to protect only those children under the age of 10—which is essentially what the majority concludes—it could have easily said so. As we recently confirmed, "`The Legislature knows how to speak the language. . . .'" (State Building & Construction Trades Council of California v. Duncan (2008) 162 Cal.App.4th 289, 322 [76 Cal.Rptr.3d 507], quoting People v. Palomar (1985) 171 Cal.App.3d 131, 134 [214 Cal.Rptr. 785].) Thus, it has been observed that the Legislature "knows how to draft time limits" (City of Oakland v. Public Employees' Retirement System (2002) 95 Cal.App.4th 29, 51 [115 Cal.Rptr.2d 151]), "knows how to construct an exclusive definition" (Alan Van Vliet Enterprises, Inc. v. State Bd. of Equalization (1977) 65 Cal.App.3d 964, 970 [135 Cal.Rptr. 716]), and "knows how to draft a provision to require consideration of the defendant's age or other personal characteristic . . . ." (People v. Trevino (2001) 26 Cal.4th 237, 241 [109 Cal.Rptr.2d 567, 27 P.3d 283].) If the Legislature meant section 288.7 to apply only to children under 10 (and the day of their 10th birthday), it could easily have done so, as it has done in many other places. Numerous statutes illustrate the point, including the following: section 261.5, subdivision (a) (unlawful intercourse with minor, defined as "person under the age of 18 years"); section 26 ("[c]hildren under the age of 14"); section 307 ("under the age of 21 years"); Family Code section 6500 (minor "under 18 years of age"); and Evidence Code section 1360, subdivision (a) ("under the age of 12").

This leads me finally to the principle at the heart of the majority's conclusion, the "rule of lenity," which the majority discusses in an exhaustive—and typically scholarly—way, reaching all the way back to Chief Justice Marshall. There is nothing about any of that discussion with which I can disagree, only as to how the rule of lenity applies-more accurately, does not apply—here.

As the majority necessarily acknowledges, the rule of construction "`"`is not an inexorable command to overrule common sense and evident statutory purpose.'"'" (Maj. opn., ante, at p. 861, quoting People v. Anderson (1987) 43 Cal.3d 1104, 1146 [240 Cal.Rptr. 585, 742 P.2d 1306].) Indeed, the rule only applies when "two reasonable interpretations of the same provision stand in relative equipoise . . . ." (People v. Avery (2002) 27 Cal.4th 49, 58 [115 Cal.Rptr.2d 403, 38 P.3d 1].) In my view, the majority's interpretation does not so stand. Stated otherwise, since the majority's "interpretation is not equally reasonable, the rule of lenity is inapplicable." (People v. Oates (2004) 32 Cal.4th 1048, 1068 [12 Cal.Rptr.3d 325, 88 P.3d 56].)

Indeed, a case quoted extensively in the majority opinion provides a compelling reason why the rule of lenity does not apply here. That case is People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 312-313 [58 Cal.Rptr.2d 855, 926 P.2d 1042], which confirms that the United States Supreme Court's "explanation" for the rule of lenity is to "`ensure[] that criminal statutes will provide fair warning.'" (See maj. opn., ante, at pp. 859-860.) I have absolutely no doubt that when defendant committed the heinous crime on Jane Doe 1, he knew that she was "10 years of age." What else could he have thought? She had not reached her 11th birthday.

FootNotes


* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the entire section entitled "Evidence at Trial" and the section entitled "Discussion" parts A., B., C, E.1. and 2.
1. All further statutory references are to the Penal Code unless otherwise indicated.
* See footnote, page 845.
6. Defendant also advances two other claims. Defendant was sentenced on count 6 to 25 years to life under the habitual sexual offender law (§ 667.71), doubled to 50 years to life due to the strike. The court then stayed the sentence pursuant to section 654 since it was the same act charged in count 1. Defendant claims that his sentence on this count must be modified to a 15-year-to-life term, because section 288.7, subdivision (b), the offense named in that count, is not listed in the habitual sexual offender law. He additionally claims that the abstract of judgment erroneously fails to indicate that the sentence on count 6 was stayed pursuant to section 654. The Attorney General concedes that both arguments are well taken, noting that the 15-year-to-life term would be doubled to 30 years to life due to the strike, and we agree. The issues are moot, however, because, as we later explain, appellant's conviction of violation of section 288.7, subdivision (b), must be reversed. (See discussion, at pp. 851-863.)
* See footnote, page 845.
17. The method for computing attained age under the common law is no longer employed by most states. "[T]he common law rule for calculating a person's age has always been that one reaches a given age at the earliest moment of the day their anniversary of birth" ( (1993) , 844 [, ]), apparently on the theory that "`"[a] person is in existence on the day of his birth. On the first anniversary he or she has lived one year and one day."'" ( accord, (R.I. 1982) ["at common law a person reaches his or her next year in age at the first moment of the day prior to the anniversary date of his or her birth"].)
18. Though the United States Supreme Court considers it appropriate to resolve statutory ambiguity on the basis of a legislative history disclosing the policies that motivated enactment or amendment of the statute (see, e.g., (1990) , 108 [112 L.Ed.2d 449, 111 S.Ct. 461]), some judges on that court believe the use of legislative history to construe an otherwise ambiguous penal statute against a criminal defendant is inconsistent with the rule of lenity (see, e.g., (1992) , 307 [117 L.Ed.2d 559, 112 S.Ct. 1329] (conc. opn. of Scalia, J.); Newland, (1994) 29 Harv. C.R.-C.L. L.Rev. 197).
19. Moreover, as the Supreme Court has also pointed out, the provision of actual notice to such persons is a less meaningful aspect of vagueness doctrine than the need for a legislature to establish minimal guidelines to govern law enforcement, because inherently vague statutory language permits selective law enforcement, which denies due process. ( (1974) , 572-576 [39 L.Ed.2d 605, 94 S.Ct. 1242].)
* See footnote, page 845.
1. All further statutory references are to the Penal Code unless otherwise indicated.
2. The majority's description is an accurate paraphrase of the People's concession, as their brief does state that "appellant has identified a number of cases from other jurisdictions that have construed the phrase `___ years of age or younger' to include only persons who had not passed the anniversary of their birth . . . ." In light of the actual wording of the statutes in those cases-none of which uses that language-perhaps the People have conceded too much.

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