# People v. Murphy

> California Supreme Court · March 29, 2001 · 105 Cal. Rptr. 2d 387

URL: https://www.frixlaw.com/law-library/cases/9782547

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. FLOYD E. MURPHY, JR., Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** March 29, 2001
- **Citations:** 105 Cal. Rptr. 2d 387; 25 Cal. 4th 136; 2001 Daily Journal DAR 3141; 19 P.3d 1129; 2001 Cal. Daily Op. Serv. 2533; 2001 Cal. LEXIS 1562; 2001 WL 300674
- **Precedential status:** Published
- **Opinion:** Dissent by Mosk
- **Judges:** Chin, Mosk
- **Cited by:** 290 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9782547

## How later opinions describe it (automated extraction)

- holding that the Three Strikes sentencing scheme applied in addition to other sentencing enhancements because the phrase “notwithstanding any other law” was unambiguous
- stating that the purpose of the Three Strikes law is “to punish recidivism”

## Opinion text

MOSK, J.
I dissent.
Notwithstanding any other law or provision of law, the “Three Strikes” law (Stats. 1994, ch. 12, § 1, p. 71, adding Pen. Code, § 667, subds. (b)-(i)); Prop. 184, § 1, as approved by voters, Gen. Elec. (Nov. 8, 1994), adding Pen. Code, § 1170.12) governs when a defendant is convicted of a felony or “strike” of any kind, and was previously convicted of one or more felonies or strikes defined as serious or violent (Pen. Code, §§ 667, subd. (c), 1170.12, subd. (a); see id., §§ 667, subds. (d), (e), (f), 1170.12, subds. (b), (c), (d)).
Appellant had previously been convicted of, among other felonies, oral copulation with a person under 14 years of age in violation of Penal Code section 288a.
For purposes of the Three Strikes law, one of the felonies defined as serious (Pen. Code, §§ 667, subd. (d)(1), 1170.12, subd. (b)(1)) is a “lewd or lascivious act on a child under the age of 14 years” as enumerated in Penal Code section 1192.7, subdivision (c)(6) (Penal Code section 1192.7(c)(6)).
The question here is this: Is oral copulation with a person under 14 years of age in violation of Penal Code section 288a a “lewd or lascivious act on a child under the age of 14 years” within the meaning of Penal Code section 1192.7(c)(6)?
The majority answer, Yes, and proceed to affirm the judgment of the Court of Appeal, which gave the same answer below. They are wrong to do so.
*161 What Penal Code section 288a requires for oral copulation with a person under 14 years of age is clear: The perpetrator must engage in an objectively sexual act, but need not possess any subjectively sexual intent. (See, e.g., People v. Thornton (1974) 11 Cal.3d 738, 765 [ 114 Cal.Rptr. 467 , 523 P.2d 267 ], disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12 [ 160 Cal.Rptr. 84 , 603 P.2d 1 ] (plur. opn.) & 686-687 (cone, opn. of Richardson, J.); People v. Whitham (1995) 38 Cal.App.4th 1282, 1293 [ 45 Cal.Rptr.2d 571 ]; People v. Brocklehurst (1971) 14 Cal.App.3d 473, 476 [ 92 Cal.Rptr. 340 ].)
What Penal Code section 1192.7(c)(6) means by a “lewd or lascivious act on a child under the age of 14 years” is also clear.
Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” undoubtedly covers a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288. In People v. Martinez (1995) 11 Cal.4th 434 [ 45 Cal.Rptr.2d 905 , 903 P.2d 1037 ], we concluded, under what we took to be the common and ordinary meaning of the words in question, that Penal Code section 288 required this: The perpetrator must possess a subjectively sexual intent, but need not engage in any objectively sexual act.
But, to my mind, Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288. If it did in fact extend further, it would not carry any determinate sense in such part. And if it did indeed carry any such sense, it would not denote an objectively sexual act without regard to any subjectively sexual intent.
That Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288 is supported by its language. The phrase in the former provision is virtually identical to the phrase in the latter.
That Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” does not extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288 is confirmed by its history.
As originally enacted by the voters through their approval of Proposition 8 at the Primary Election of June 8, 1982, Penal Code section 1192.7(c)(6) *162 referred to “lewd acts on a child under the age of 14 years.” (Prop. 8, § 7, as approved by voters, Primary Elec. (June 8, 1982).)
As amended by the Legislature in 1986, Penal Code section 1192.7(c)(6) was made to refer to “lewd or lascivious acts on a child under the age of 14 ■ years” (Stats. 1986, ch. 489, § 1, p. 1809, italics added), since changed from the plural to the singular.
Although without express citation, Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” was intentionally, and not coincidentally, rendered virtually identical to Penal Code section 288’s “lewd or lascivious act” on “a child who is under the age of 14 years.”
For example, one legislative report accompanying Assembly Bill No. 3733 (1985-1986 Reg. Sess.), the measure that would effect the amendment in question, stated as follows; “The . . . sponsor of this bill. . . claims that the differences in wording between Proposition 8 and related provisions of the Penal Code have led to confusion and may, in some cases, require special findings in order to apply Proposition 8 enhancements. Thus the proposed amendments are intended to conform Penal Code section 1192.7(c) ... to the appropriate Penal Code section provisions. According to the sponsor, this would end any confusion caused by the differences in language, while keeping true to the intent of the electorate.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, p. 2; accord, Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4,. 1986, p. 2 [stating that the bill’s purpose is “to conform” Pen. Code, § 1192.7(c) “to the appropriate Penal Code provisions”]; Assem. Com. on Pub. Safety, Republican Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) Apr. 25, 1986, p. 1 [stating that the bill is “intended to conform the Prop. 8 serious felonies to the definitions of the crimes listed elsewhere in the Penal Code”].)
The same legislative report went on to state of Assembly Bill No. 3733 and its effect: As it then stood, Penal Code section 1192.7(c)(6) applied to “[specified lewd acts”; as amended, it would apply as well to “ ‘lascivious’ acts per P.C. Sec. 288.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) as amended June 4, 1986, p. 3.)
Another legislative report was similar: Assembly Bill No. 3733 would amend Penal Code section 1192.7(c)(6) from “[l]ewd acts” to “[l]ewd or lascivious acts per Penal Code Section 288.” (Assem. 3d reading analysis of *163 Assem. Bill No. 3733 (1985-1986 Reg. Sess.) June 5, 1986, p. 2, underscoring in original.)
Yet another legislative report was to the same effect: Assembly Bill No. 3733 would amend Penal Code section 1192.7(c)(6) from “lewd acts” to “lewd or lascivious acts per Penal Code § 288.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 3733 (1985-1986 Reg. Sess.) May 5, 1986, p. 1, underscoring in original.)
In a word, as we recognized in Martinez, Penal Code section 1192.7(c)(6) “incorporated” Penal Code section 288 “by reference.” (People v. Martinez, supra, 11 Cal.4th at p. 446 & fn. 9.) Such was its purpose, and such was its effect.
Next, if Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” did in fact extend beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288, it would not carry any determinate sense in such part. The language of Penal Code section 1192.7(c)(6) points to Penal Code section 288 and only to Penal Code section 288. The same is true of its history.
Finally, if Penal Code section 1192.7(c)(6)’s “lewd or lascivious act on a child under the age of 14 years” did indeed carry any determinate sense beyond a “lewd or lascivious act” on “a child who is under the age of 14 years” in violation of Penal Code section 288, it would not denote an objectively sexual act without regard to any subjectively sexual intent. If we were right to conclude in Martinez that Penal Code section 288’s “lewd or lascivious act” on “a child who is under the age of 14 years” indicates a subjectively sexual intent without regard to any objectively sexual act, it is hard for us to conclude here that Penal Code section 1192.7(c) (6)’s “lewd or lascivious act on a child under the age of 14 years” indicates precisely the opposite—an objectively sexual act without regard to any subjectively sexual intent.
It follows, then, that the answer to the question posed above is this: Oral copulation with a person under 14 years of age in violation of Penal Code section 288a—which requires an objectively sexual act but not any subjectively sexual intent—is not a “lewd or lascivious act on a child under the age of 14 years” within the meaning of Penal Code section 1192.7(c)(6)—which requires a subjectively sexual intent but not any objectively sexual act.
In giving a contrary answer, the majority rely on the “plain language” (maj. opn., ante, at pp. 142, 143) of Penal Code section 1192.7(c)(6)’s “lewd *164 or lascivious act on a child under the age of 14 years,” invoking the phrase’s “common and ordinary meaning” (maj. opn., ante, at p. 143). We proceeded in like fashion in Martinez with respect to Penal Code section 288 ’s “lewd or lascivious act” on “a child who is under the age of 14 years,” focusing on that phrase “[a]s commonly understood” (People v. Martinez, supra, 11 Cal.4th at 449 ). The majority purport to distinguish the latter phrase from the former, but without identifying any difference. They do not even attempt to explain how virtually the same phrase can indicate, in Martinez , a subjectively sexual intent without regard to any objectively sexual act, with “intent” being “determinative,” and, in this case, an objectively sexual act without regard to any subjectively sexual intent, with “intent” being altogether immaterial. (Maj. opn., ante, at p. 148.) Somewhat embarrassed by our statement in Martinez that Penal Code section 1192.7(c)(6) “incorporated” Penal Code section 288 “by reference” (People v. Martinez, supra, 11 Cal.4th at p. 446 & fn. 9), they assert that Penal Code section 1192.7(c)(6) includes Penal Code section 288, but is not limited thereto, pointing to the fact that it is not absolutely identical and does not cite it expressly. Such an assertion is little more than an engine to allow the expansion of the provision at will. For they do not even suggest what Penal Code section 1192.7(c)(6) may include in addition to Penal Code section 288. Without a doubt, the kind of perpetrator whom they target is scarcely worthy of sympathy. But, nevertheless, he is entitled to better than he receives at their hands.
In conclusion, I would reverse the judgment of the Court of Appeal as to sentence and remand the cause to that court for proceedings not inconsistent with the views expressed herein.
Appellant’s petition for a rehearing was denied June 20, 2001.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9782547. Public record. Not legal advice.