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PEOPLE v. CORNETT
190 Cal.App.4th 845 (2010)
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL DAVID CORNETT, Defendant and Appellant.
No. A123957.
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*
OPINIONKLINE, 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 All these issues, save one, are addressed in the unpublished portion of this opinion.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.
* 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, ante, 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, post, at pp. 851-863.)
* See footnote, ante, 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 before their anniversary of birth" (In re Harris (1993) 5 Cal.4th 813, 844 [21 Cal.Rptr.2d 373, 855 P.2d 391]), 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."'" (Ibid.; accord, In re Edward (R.I. 1982) 441 A.2d 543 ["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., Moskal v. United States (1990) 498 U.S. 103, 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., United States v. R. L. C. (1992) 503 U.S. 291, 307 [117 L.Ed.2d 559, 112 S.Ct. 1329] (conc. opn. of Scalia, J.); Newland, The Mercy of Scalia: Statutory Construction and the Rule of Lenity (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. (Smith v. Goguen (1974) 415 U.S. 566, 572-576 [39 L.Ed.2d 605, 94 S.Ct. 1242].)
* See footnote, ante, 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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