Opinion
A152603
03-09-2020
The PEOPLE, Plaintiff and Respondent, v. John Paul GRAVES, Defendant and Appellant.
Tiffany J. Gates, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Seth K. Schalit, and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts II.A., B., C., D., and E.
Tiffany J. Gates, Santa Rosa, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Seth K. Schalit, and Roni Dina Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.
Siggins, P. J. A jury convicted John Paul Graves of one felony count of annoying or molesting Jane Doe, a child under 18 ( Pen. Code, 647.6, subd. (c)(2) ) and one felony count of lewd acts involving Jane Doe, a child of 14 or 15 years by a person at least 10 years older (§ 288, subd. (c)(1)). The trial court later found true allegations that Graves had two prior felony convictions within the meaning of section 647.6, subdivision (c)(2) and that Graves had served three prior prison terms within the meaning of section 667.5.
We note defendant’s last name is listed as "Graves-Ocon" on the abstract of judgment, but the trial court record includes signed statements by defendant and his parents in which his last name is simply "Graves."
Unless otherwise specified, further statutory references are to the Penal Code.
Graves claims the court erred by allowing evidence of his past offenses to be introduced under Evidence Code section 1108. He claims the trial court erroneously instructed the jury that the testimony of a single witness could suffice to convict him, and that Jane Doe’s out-of-court report of the assault to her friend could be used to establish that the assault occurred. He further alleges the court was sua sponte obliged to give a unanimity instruction, and that his sentence was unauthorized under section 647.6. Finally, in supplemental briefing, Graves argues and the People agree, and so de we, that under Senate Bill No. 136 (2019–2020 Reg. Sess.), effective January 1, 2020, the sentencing enhancements imposed for service of prior prison terms must be stricken. In the published portion of this opinion, we affirm the sentence imposed on Graves under section 647.6. In the unpublished portion of the opinion we reject his other arguments, except for his challenge to the sentence enhancement. We strike the sentence enhancement imposed under section 667.5, subdivision (b) for service of a prior term of incarceration in state prison. In all other respects, we affirm. The case is remanded for resentencing.
I. BACKGROUND
On May 20, 2016, Jane Doe and her friend Lucy went shopping at a mall in San Mateo. Jane was 15 years old at the time. While browsing in a clothing store, she noticed Graves was standing close to her. Soon after, Graves came up behind Jane, put his hand on her right buttock and "squeeze[d] tight."
After squeezing Jane’s buttock, Graves entered the store’s changing room, removed his shirt, and stepped out of the changing room multiple times. He was bare chested and made eye contact with Jane each time.
Within minutes after Graves grabbed her, Jane told Lucy that Graves had touched her. Lucy said that when Jane told her, she was "very upset and about to start crying." Jane and Lucy then told the store’s employees that Graves had grabbed Jane’s buttock. Mall security detained Graves until police arrived. The police conducted a field show-up and, after admonishing her, asked Jane to look at a suspect. She identified Graves as the man who grabbed her. Police arrested him. He had previous convictions for annoying or molesting minors as well as sexual battery of minors.
The jury returned verdicts finding Graves guilty of annoying or molesting a child under the age of 18 in violation of section 647.6, subdivision (c)(2) (count 1), and committing a lewd act upon a child age 14 or 15 years by a person at least 10 years older in violation of section 288, subdivision (c)(1) (count 2). Two prior felony convictions for violations of section 647.6 and three prior terms in state prison as alleged under section 667.5, subdivision (b) were found true by the court. On count 1, Graves was sentenced under section 647.6, subdivision (c)(2) to the middle term of four years in prison. The middle term of two years in prison was imposed and stayed on count 2, under section 654. An additional year was imposed for one of the prior prison terms for a total sentence of five years in prison. This appeal is timely. II. DISCUSSION
See footnote *, ante .
F. Authorized Sentence Under Section 647.6
Section 647.6, subdivision (c)(2) provides an enhanced sentence of two, four or six years in prison for a defendant with a record of certain prior crimes who is convicted of violating the statute. Graves was assessed a midterm sentence of four years for his violation of section 647.6. He asserts this enhanced sentence was unauthorized because neither of his two prior felony convictions for violations of section 647.6 involved a minor under 14 years of age. Graves’s argument is based upon a misreading of the statute.
Section 647.6, subdivision (c)(2) provides: "Every person who violates this section after a previous felony conviction under Section 261, 264.1, 269, 285, 286, 287, 288.5, or 289, or former Section 288a, any of which involved a minor under 16 years of age, or a previous felony conviction under this section, a conviction under Section 288, or a felony conviction under Section 311.4 involving a minor under 14 years of age shall be punished by imprisonment in the state prison for two, four, or six years."
Under the longstanding "last antecedent rule" of statutory interpretation, " ‘qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote.’ " ( White v. County of Sacramento (1982) 31 Cal.3d 676, 680, 183 Cal.Rptr. 520, 646 P.2d 191.) "Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma." ( Ibid . ) However, the use of a disjunctive such as the word "or" denotes alternative or separate categories. ( Ibid. )
Applying the last antecedent rule to subdivision (c)(2) of section 647.6, the phrase "involving a minor under 14 years of age" modifies the immediately preceding phrase "or a felony conviction under Section 311.4." The statute’s use of the word "or" "indicates an intention to use it disjunctively so as to designate alternative or separate categories." ( White v. County of Sacramento, supra , 31 Cal.3d at p. 680, 183 Cal.Rptr. 520, 646 P.2d 191.) The phrase "involving a minor under 14 years of age" therefore does not extend to other clauses in section 647.6, subdivision (c)(2).
There is an exception to the last antecedent rule "which ‘provides that " ‘[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be applicable to all.’ " ’ " (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 726, 118 Cal.Rptr.3d 123.) We are aware of no case that applies the exception to disregard the effect of clauses, like those in section 647.6, subdivision (c)(2), that are written "disjunctively so as to designate alternative or separate categories" (White v. County of Sacramento , supra , 31 Cal.3d at p. 680, 183 Cal.Rptr. 520, 646 P.2d 191 ).
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This limiting application of the phrase is further apparent because other age requirements are mentioned within section 647.6, subdivision (c)(2) ’s specification of prior offenses. For example, "a previous felony conviction under Section 261, 264.1, 269, 285, 286, 287, 288.5, or 289, or former Section 288a," are all modified by the clause "any of which involved a minor under 16 years of age."
The trial court correctly determined that Graves should be punished per section 647.6, subdivision (c)(2) based on his prior convictions, which did not require proof that the convictions involved a minor under 14 years of age. Graves had prior convictions for felony annoying or molesting a child under 18 in violation of section 647.6, subdivision (c)(2) in 2012, and felony annoying or molesting a child in violation of section 647.6, subdivision (c)(1) in 2007. These two prior felony convictions for violating section 647.6 authorized the court to impose a four-year sentence on Graves under subdivision (c)(2).
G. The Sentencing Enhancement for a Prior Prison Term Must Be Stricken
The sentence imposed included a one-year enhancement under section 667.5, subdivision (b) due to Graves’s incarceration in state prison for two prior violations of section 647.6. Effective January 1, 2020, section 667.5 was amended to limit the prior prison terms that qualify for the enhancement to those served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b); Stats. 2019, ch. 590, § 1.) Under the new law, prison terms served for violations of section 647.6 no longer qualify for enhancement under section 667.5, subdivision (b).
When the Legislature acts to lessen or eliminate the prescribed punishment for an offense, the reduction must be applied in all cases that are not yet final when the statute becomes effective. ( In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ; accord, People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.) Such is the case here. The People agree, and so do we.
The one-year enhancement imposed for Graves’s prior service of a term in state prison must be stricken, and we will remand for resentencing to allow the trial court to exercise its sentencing discretion in light of this modification. ( People v. Navarro (2007) 40 Cal.4th 668, 681–682, 54 Cal.Rptr.3d 766, 151 P.3d 1177.)
III. DISPOSITION
The one-year enhancement of sentence imposed under section 667.5, subdivision (b) for Graves’s prior service of a term in state prison is stricken. The judgment in all other respects is affirmed. The case will be remanded for resentencing on both counts to allow the trial court to exercise its discretion in light of this modification.
We concur:
Petrou, J.
Jackson, J.