People v. Murphy

The "Three Strikes" law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (Pen.Code, §§ 667, subds. (b)-(i), 1170.12.) [1] The extent of the increase depends on the number of qualifying prior convictions, or strikes. The habitual sexual offender statute prescribes a prison term of 25 years to life for a person who is convicted of one or more of certain specified offenses after having been previously convicted of one of those specified offenses. (§ 667.71.)

We granted review in this case to consider the following sentencing issues under these statutes: (1) whether a conviction for oral copulation with a child who is less than 14 years old and more than 10 years younger than the perpetrator (§ 288a, subd. (c)(1)) is a strike under the Three Strikes law; (2) whether a defendant with a qualifying prior conviction under the habitual sexual offender statute who sustains two new qualifying convictions in one proceeding may receive a separate prison term under section 667.71 for each of the new convictions; and (3) whether a court should apply both the Three Strikes law and the habitual sexual…

The “Three Strikes” law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) 1 The extent of the increase depends on the number of qualifying prior convictions, *140 or strikes. The habitual sexual offender statute prescribes a prison term of 25 years to life for a person who is convicted of one or more of certain specified offenses after having been previously convicted of one of those specified offenses. (§ 667.71.)

We granted review in this case to consider the following sentencing issues under these statutes: (1) whether a conviction for oral copulation with a child who is less than 14 years old and more than 10 years younger than the perpetrator (§ 288a, subd. (c)(1)) is a strike under the Three Strikes law; (2) whether a defendant with a qualifying prior conviction under the habitual sexual offender statute who sustains two new qualifying convictions in one proceeding may receive a separate prison term under section 667.71 for each of the new convictions; and (3) whether a court should apply both the Three Strikes law and the habitual…

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”…