People v. Fox

[396]Opinion

VARTABEDIAN, Acting P. J. Under the “Three Strikes” law, a defendant is subject to increased punishment for his current offense if he has previously been convicted of specified offenses. (Pen. Code, §§ 667. subds. (b) -(i), 1170.12.)1 Defendant, William Leo Fox, appeals claiming his Oregon conviction for second degree rape, which is defined as sexual intercourse with a minor under the age of 14, does not constitute a strike under California law.

Section 1192.7, subdivision (c)(6) includes within its definitions of serious felonies (strikes) any “lewd or lascivious act on a child under the age of 14 years.” The California Supreme Court in People v. Murphy (2001) 25 Cal.4th 136 [105 Cal.Rptr.2d 387, 19 P.3d 1129], recently held that, in order for a conviction to satisfy the requirements of a serious felony contained in section 1192.7, subdivision (c)(6), the prior conviction need only be a lewd and lascivious act on a child and need not contain the specific sexual intent element contained in section 288. We conclude that although defendant’s prior conviction from Oregon does not contain a specific sexual intent, it is a lewd and lascivious act within the meaning of section 1192.7, subdivision (c) (6). We affirm.

Discussion

Section 667, subdivision (d)(2) sets forth what prior convictions will be considered to be strikes. The list includes “[a] conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.” “Under section 1192.7 (c)(6), a ‘lewd or lascivious act on a child under the age of 14 years’ is a ‘serious’ felony.” (People v. Murphy, supra, 25 Cal.4th at p. 141.) Section 1192.7, subdivision (c)(6) does not reference any particular Penal Code section. Under section 667.5, subdivision (c)(6), a violent felony includes “[l]ewd acts on a child under the age of 14 years as defined in Section 288.”

Section 288, subdivision (a) proscribes the following conduct: “Any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or