Warner

A jury convicted defendant Brian Eric Warner of three counts of lewd or lascivious conduct with a child under 14 years of age. (Pen. Code, 1 § 288, subd. (a).) In addition, the jury found he had suffered a prior felony conviction in Nebraska for child sexual assault. Because the record does not show defendant’s Nebraska crime contained all of the elements of any offense in California amounting to a serious felony, as defined in section 1192.7, subdivision (c), we conclude defendant was not subject to a serious-felony sentence enhancement (§ 667, subd. (a)) nor eligible to be sentenced under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Accordingly, we reverse in part the judgment of the Court of Appeal.

Facts

Defendant was married to C.H. and lived with her and her two daughters, C., then five years old, and S., then three years old. S. told her mother that defendant had touched her vagina. C.H. reported the incident to child protective services, who contacted police. An investigation led police to focus on three alleged incidents of lewd or lascivious behavior with S. During a police interrogation, defendant admitted all three incidents of sexual…

We granted review to decide when a prior out-of-state conviction constitutes a “lewd or lascivious act on [an underage] child” for serious felony sentencing purposes (Pen. Code, § 1192.7, subd. (c)(6)) 1 —a category that includes sexually motivated touching (§ 288, subd. (a) (section 288(a))) and sexual penetration. (See People v. Murphy (2001) 25 Cal.4th 136, 141-149 [ 105 Cal.Rptr.2d 387 , 19 P.3d 1129 ].) I agree with the majority that qualifying foreign convictions must contain “all of the elements” of such a serious felony in California. (§ 667, subds. (a)(1), (d)(2).) Plainly, the latter requirement excludes conduct that is not lewd, lascivious, and felonious because it either lacks sexual intent or is not inherently sexual in nature.

I am less sanguine about the majority’s conclusion that the Nebraska lewd touching statute under which defendant was previously convicted lacks the same mens rea as section 288(a), California’s comparable law. (Ibid, [requiring specific intent to arouse or gratify sexual desires of defendant or victim]; see People v. Martinez (1995) 11 Cal.4th 434, 444-445 [ 45 Cal.Rptr.2d 905 , 903 P.2d 1037 ].) As explained below, the Nebraska statute may…

A jury convicted defendant Brian Eric Warner of three counts of lewd or lascivious conduct with a child under 14 years of age. (Pen.Code, [1] § 288, subd. (a).) In addition, the jury found he had suffered a prior felony conviction in Nebraska for child sexual assault. Because the record does not show defendant's Nebraska crime contained all of the elements of any offense in California amounting to a serious felony, as defined in section 1192.7, subdivision (c), we conclude defendant was not subject to a serious-felony sentence enhancement (§ 667, subd. (a)) nor eligible to be sentenced under the three strikes law (§§ 667, subds.(b)-(i), 1170.12). Accordingly, we reverse in part the judgment of the Court of Appeal.

Defendant was married to C.H. and lived with her and her two daughters, C., then five years old, and S., then three years old. S. told her mother that defendant had touched her vagina. C.H. reported the incident to child protective services, who contacted police. An investigation led police to focus on three alleged incidents of lewd or lascivious behavior with S. During a police interrogation, defendant admitted all three incidents of sexual molestation.…