P. v. Warner

1
Filed 7/30/03 P. v. Warner CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BRIAN ERIC WARNER,
Defendant and Appellant.
C038245
(Sup.Ct.No. 99F08985)
A jury convicted defendant of three counts of a lewd and
lascivious act upon a child under the age of 14 (Pen. Code, §
288, subd. (a)), and found true the allegation that he had a
prior conviction for child molestation in Nebraska, that was a
serious felony (Pen. Code, § 667, subd. (a), § 667, subds.
(b)-(i), § 1170.12) and qualified him as a habitual sexual
offender (Pen. Code, § 667.71, subds. (c)(4) & (d)). The trial
court sentenced him to three consecutive terms of 25 years to
life, plus five years.

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On appeal, defendant contends his counsel was ineffective
in failing to object to hearsay to prove the corpus delicti and
in failing to move to exclude the victim’s testimony. He
contends there was instructional error in giving CALJIC Nos.
2.50.01, 2.20.1 and 17.41.1. Finally, he contends the
enhancements under Penal Code section 667 and 667.71 must be
reversed because his Nebraska conviction did not have the
specific intent requirement of Penal Code section 288.
We find no ineffective assistance of counsel and no
instructional error. While we find that defendant’s Nebraska
conviction is not a qualifying prior under the habitual sexual
offender law (Pen. Code, § 667.71), it does constitute a serious
felony for purposes of the five-year enhancement of Penal Code
section 667, subdivision (a) and the Three Strikes law (Pen.
Code, § 667, subds. (b)-(i); § 1170.12). We remand for
resentencing.
FACTS
C.H. (mother) was married to defendant. They lived with
mother’s two daughters, five-year-old C. and three-year-old S.
(the minor). One day mother returned from shopping with C.
Defendant was watching television and the minor was on the floor
playing. After mother greeted the minor, the minor responded,
“Daddy touched my vagina today.” Defendant denied it and said
the minor was lying and made it up. He continued to deny it and
got defensive.
Mother called Child Protective Services two days later.
Defendant moved out the next day. The minor was interviewed by

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a MDIC specialist. In the interview, the minor said defendant
touched her private and her butt. When asked if defendant
touched her one time or more than one time, the minor responded,
“[l]ot of more times.” On pictures of an unclothed girl, the
minor pointed out and circled where defendant touched her.
Detective Jennifer Hutchins gave mother a recorder and told
her to make a pretext call, to try to get defendant to confess.
Mother had a conversation with defendant at her house.
Defendant first denied he did anything. When mother pushed him,
he cried and admitted the molestation. He said he put the minor
on the couch, pulled down her shorts, laid her across his lap,
and touched her vagina. Mother not have the recorder yet, so
she did not record this conversation.
She got the recorder and called defendant at work. He
verified touching the minor on the vagina. Mother played the
tape for Detective Hutchins so she would arrest defendant.
Detective Hutchins interviewed defendant. After first
denying any inappropriate behavior, defendant admitted he
touched the minor three times, each about one month apart.
At trial, the minor, then four years old, did not see
defendant in the courtroom. The minor testified she did not
like defendant as he did something bad to her. She also
testified defendant touched her private one time. The touching
occurred in her mom’s room; both her mom and sister were home.
The minor could not recall telling anyone about the touching.
The trial court raised the issue of whether the corpus
delicti had been established as to more than one incident.

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Although in the interview the minor said it happened many times,
the interview was couched in terms of one incident. The
prosecutor argued the corpus delicti had been established. The
minor said defendant touched her private and her butt, lots of
times, so that established at least four touchings.
The trial court denied defendant’s motion to dismiss,
finding there was sufficient evidence beyond defendant’s
admissions and statements to find three acts. The court later
denied defendant’s motion for a new trial based on insufficient
evidence.
DISCUSSION
I
“The corpus delicti, the body or elements of the crime,
must be established by the prosecution independently of and
without considering the extrajudicial statements, confessions or
admissions of the defendant. [Citations.] The elements of the
corpus delicti -- (1) the injury or loss or harm, and (2) the
criminal agency that has caused that injury, loss or harm --
need only be proven by a reasonable probability or, in other
words, by slight or prima facie proof. [Citations.]” (Jones v.
Superior Court (1979) 96 Cal.App.3d 390, 393.)
The only evidence establishing there were three acts of
lewd conduct, other than defendant’s statements, came from the
interview of the minor. Defendant contends this interview was

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inadmissible hearsay.1 Defendant contends he was denied
effective assistance of counsel because counsel failed to object
to hearsay evidence to prove the corpus delicti. (See People v.
Moreno (1987) 188 Cal.App.3d 1179, 1191 [ineffective assistance
of counsel to fail to challenge hearsay used to establish corpus
delicti].)
In his opening brief defendant ignores that the tape was
offered under an exception to the hearsay rule. The People
moved to introduce the tape under Evidence Code section 1360.
Section 1360 allows a court to admit a child’s otherwise
admissible hearsay statement describing an act of child abuse
upon that child provided three conditions are met: (1) the
court finds that the time, content, and circumstances of the
statement provides sufficient indicia of reliability; (2) the
child testifies or there is corroborating evidence of the
hearsay statement; and (3) the proponent of the statement gives
adequate notice of its intent to use the statement.2
1 While defendant states he “does not agree” that the tape
establishes three touchings, he does not properly contend the
tape is insufficient to establish the corpus delicti. (Cal.
Rules of Court, rule 14(a)(1)(B) [“Each brief must: [¶] . . .
[¶] state each point under a separate heading or subheading
summarizing the point, and support each point by argument and,
if possible, by citation of authority”].)
2 Evidence Code section 1360 provides:
“(a) In a criminal prosecution where the victim is a
minor, a statement made by the victim when under the age of 12
describing an act of child abuse or neglect performed with or on
the child by another, or describing any attempted act of child

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In response defendant moved to require the People to
produce the procedures and protocol of the MDIC interview at an
Evidence Code section 402 hearing to ensure validity. The court
put aside the issue until the 402 hearing to determine if the
minor was competent to testify. After the court found the minor
competent to testify, it returned to the defense motion.
Defense counsel indicated he was inquiring of county counsel
abuse or neglect with or on the child by another, is not made
inadmissible by the hearsay rule if all of the following apply:
“(1) The statement is not otherwise admissible by statute
or court rule.
“(2) The court finds, in a hearing conducted outside the
presence of the jury, that the time, content, and circumstances
of the statement provide sufficient indicia of reliability.
“(3) the child either:
“(A) Testifies at the proceedings.
“(B) Is unavailable as a witness, in which case the
statement may be admitted only if there is evidence of the child
abuse or neglect that corroborates the statement made by the
child.
“(b) A statement may not be admitted under this section
unless the proponent of the statement makes known to the adverse
party the intention to offer the statement and the particulars
of the statement sufficiently in advance of the proceedings in
order to provide the adverse party with a fair opportunity to
prepare to meet the statement.
“(c) For purposes of this section, ‘child abuse’ means an
act proscribed by Section 273a, 273d, or 288.5 of the Penal
Code, or any of the acts described in Section 11165.1 of the
Penal Code, and ‘child neglect’ means any of the acts described
in Section 11165.2 of the Penal Code.”

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about the protocol. The tape of the interview was later played
at trial without an objection from the defense.
In his reply brief, defendant recognizes the hearsay
exception of Evidence Code section 1360. He contends the trial
court failed to make the required finding of reliability under
that section and no such finding could be made. He refines his
contention: counsel was ineffective in failing to object to the
tape as inadmissible hearsay because it did not meet the
reliability requirement of Evidence Code section 1360.
Section 1360 is too new to be considered a firmly rooted
hearsay exception and therefore must satisfy the “particularized
guarantees of trustworthiness” standard under the confrontation
clause. (People v. Eccleston (2001) 89 Cal.App.4th 436, 445.)
In Idaho v. Wright (1990) 497 U.S. 805 [111 L.Ed.2d 638], the
Supreme Court identified a number of factors that relate to
whether a child’s hearsay statements about child abuse are
reliable. These factors include the spontaneity and consistent
repetition of the statement, the child’s mental state, the use
of terminology unexpected of a child of that age, and the lack
of motive to fabricate. (Id. at pp. 821-822.) These factors
are not exclusive and “courts have considerable leeway in their
consideration of appropriate factors.” (Id. at p. 822.)
The record does not reveal whether the trial court made an
explicit finding that the minor’s statements on the tape were
reliable. There was, however, no objection to the tape.
Ordinarily, the failure to object to hearsay makes the

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statements competent for purposes of appellate review. (People
v. Moreno, supra, 188 Cal.App.3d at p. 1191.) Thus, we consider
whether a finding of reliability could be made over a defense
objection; in other words, we determine whether counsel was
ineffective in failing to object to the tape on the basis that
the time, content, and circumstances of the minor’s statements
do not provide sufficient indicia of reliability.
The interview began with interview specialist Margo Macklin
asking the minor her name, age, and about her family. Macklin
then tested the minor on colors and the placement of blocks.
Macklin determined the minor knew the difference between the
truth and a lie and said they were going to talk about true
things. Macklin asked the minor if she knew why she was there
and the minor said because “Mommy wants me to see you.” The
minor said, “Mommy said I -- I need to be shy. I need to tell
you Mommy a secret.”
Macklin explained she talked to kids about things going on
with them and whether anyone hurt them or touched them where
they should not be touched. She asked if anything like that
happened to the minor and the minor responded, “Daddy did, and
Daddy lied to Mommy.” In response to the question “what did
Daddy do?” The minor said “Daddy -- Daddy touched me in my
private. . . . And I said, ‘Stop,’ and Daddy didn’t stop.”
Macklin asked where this occurred and the minor said she was
outside and Daddy was naked outside. Her friends laughed. She
then recounted another incident where she punched or bumped a
boy. The minor said defendant touched her “lot of more times.”

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She was on the bed and Daddy took her clothes off and touched
her. Mommy said to put her clothes back on and “Daddy lied to
Mommy.” The minor then described defendant touching her under
her clothes, inside her private and her butt. The minor again
said everyone laughed. She said people saw the touching. She
did not know who the people were; they were dangerous and big
people like adults.
The minor identified on a picture where defendant touched
her. She called her private a vagina and her butt a bootie.
Macklin asked if anyone was home when Daddy touched her and the
minor said she was by herself. When asked where the others
were, the minor said Mommy was at work and “All of us [were]
gone. . . . Everyone went bye-bye.” The minor said defendant
did not say anything when he touched her. “Mommy said, ‘Pull
your pants up.’ Said, If ‘you don’t pull your pants up, I’ll
spank you.’” Then the interview ended.
Defendant contends the minor’s statements on the tape lack
all credibility because they were not coherent and were
inconsistent with what she testified to and what she told her
mother. He contends it is not credible that the minor was
molested in the presence of other people as she said. He argues
evidence cannot be admissible under Evidence Code section 1360
where it is characterized by material that was clearly imagined.
The factors of spontaneous and consistent statements
support a finding of reliability. The minor told Macklin
defendant touched her private in response to a nonleading
question: “What did Daddy do?” Throughout the interview the

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minor maintained the story that defendant touched her. The
statement was consistent with the minor’s earlier spontaneous
statement to her mother that defendant touched her vagina.
Indeed, had defendant challenged the reliability of the minor’s
interview, it is possible the People could have produced
additional evidence of consistent statements. In his interview,
defendant told Detective Hutchins that “the doctor talked to
[the minor], and she’s giving the same story.”
Two other factors identified in Idaho v. Wright, supra, 497
U.S. 805 [111 L.Ed.2d 638] support a finding of reliability.
While the minor did not use terminology unexpected of a child
her age -- her mother testified she taught the minor the word
vagina -- one would not expect a three-year-old to be familiar
with the fondling activity the minor described. There was no
evidence of any motive for the minor to fabricate the story.
Mother testified the minor loved defendant.
The record presents a more mixed picture on the issue of
the minor’s mental state. On the one hand, she was able to
respond to Macklin’s questions directly and was capable of
rational conversation. The court found her competent to
testify, a proper consideration in determining reliability.
(People v. Eccleston, supra, 89 Cal.App.4th at p. 446.) When
Macklin pressed for more details about the molestation, however,
the minor’s answers became more fantastic. She said that people
saw it and laughed; the people were dangerous and big. She
claimed her mother told her to put her clothes back on.
Defendant relies on these statements to show a lack of

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reliability. The determination of reliability is to be made
“from the totality of the circumstances that surround the making
of the statement and that render the declarant particularly
worthy of belief.” (Idaho v. Wright, supra, 497 U.S. 805, 820
[111 L.Ed.2d 638, 655-656].) Taken as a whole, the minor’s
statements are reliable when she is describing where and how
defendant touched her. It is only when pressed for more details
about where the molestation occurred that her answers become
confusing, perhaps reflecting her embarrassment and her mother’s
responses to subsequent acting out.3 Since the record supports
the necessary reliability for admission under Evidence Code
section 1360, there was no ineffective assistance of counsel in
failing to object to admission of the tape.
II
Prior to the minor’s testimony, the trial court held a
hearing under Evidence Code section 402 to determine whether she
was competent to testify. The court found she was capable of
expressing herself and capable of understanding the importance
of telling the truth. (Evid. Code, § 701, subd. (a).) The
court ruled she was not disqualified from testifying.
Defendant contends counsel was ineffective in failing to
move to exclude the minor’s testimony on the ground that she was
unable to perceive and recollect the events as to which she
3 At sentencing mother reported the minor now played the “nasty
game;” she touched other children’s vaginas and penises and
rubbed against them.

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testified. He argues that the minor’s inability to perceive if
defendant was in the courtroom, her recollection of only one
instance of molestation, her testimony that it occurred in a
different location than her mother testified to, her inability
to recall if defendant lived with them, and her lack of any
recollection of giving the interview show that she could not
perceive, recollect and communicate events.
Under the current evidentiary system, a person is
disqualified as a witness only if he is incapable of expressing
himself or is incapable of understanding the duty to tell the
truth. (Evid. Code, § 701, subd. (a).) The trial court made
findings on these issues as to the minor and defendant does not
dispute them. Even though a witness is not disqualified, his
testimony on a particular matter is inadmissible unless the
witness has personal knowledge of that matter. (Evid. Code, §
702, subd. (a).) “Under the Evidence Code, the capacity to
perceive and recollect particular events is subsumed within the
issue of personal knowledge, and is thus determined ‘in a
different manner’ from the capacity to communicate or to
understand the duty of truth. [Citations.]” (People v.
Anderson (2001) 25 Cal.4th 543, 573.) A court may exclude the
testimony of a witness for lack of personal knowledge “only if
no jury could reasonably find that he has such knowledge.”
(Ibid. Original italics.) The capacity to perceive and
recollect is a condition for the admission of testimony on a
certain matter instead of a condition of competency to be a
witness. If there is evidence that the witness has those

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capacities, whether the witness in fact perceived and does
recollect is left to the trier of fact. (Id. at pp. 573-574.)
A motion to exclude the minor’s testimony would be
successful only if no jury could reasonably find she had
personal knowledge of the facts to which she testified. While
the minor had no personal knowledge of her interview or any
statements she made to anyone about the molestation, she did not
testify to these facts other than to state she did not recall
them. She did testify defendant touched her privates one time
at home and her testimony was based on personal knowledge. She
testified it really happened, she remembered it, and it happened
before her baby sister was born. While her details of the
incident varied from other evidence, it was for the jury to
decide whether the minor’s recollections were accurate.
Since a motion to exclude the minor’s testimony would not
have been successful, counsel was not ineffective in failing to
make such a motion.
III
Defendant contends the trial court erred in instructing the
jury in the language of the 1999 version of CALJIC No. 2.50.01.
Defendant contends the instruction diluted the requirement that
the jury find every fact necessary for conviction beyond a
reasonable doubt.
Defendant objects to the portion of the instruction that
reads: “If you find that the defendant committed a prior sexual
offense, you may, but are not required to, infer that the
defendant had a disposition to commit the same or similar type

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sexual offenses. If you find that the defendant had this
disposition, you may, but are not required to, infer that he was
likely to commit and did commit the crime or crimes of which he
is accused. [¶] However, if you find by a preponderance of the
evidence that the defendant committed prior sexual offenses,
that is not sufficient by itself to prove beyond a reasonable
doubt that he committed the charged crimes. The weight and
significance of this evidence, if any, are for you to decide.”
This revised version of CALJIC No. 2.50.01 was approved in
dictum in People v. Falsetta (1999) 21 Cal.4th 903, 924. We
agree with People v. Hill (2001) 86 Cal.App.4th 273, at page
277, that the Falsetta dictum “provides guidance to us” as to
the validity of the instruction. We believe “‘it is improbable
that the California Supreme Court would suggest that an
instruction “adequately sets forth the controlling principles”
for considering other crimes evidence, and then find that same
instruction to be constitutionally defective.’” (Id. at p. 278,
quoting People v. Brown (2000) 77 Cal.App.4th 1324, 1335-1336.)
There was no error in giving CALJIC No. 2.50.1.
IV
Pursuant to CALJIC No. 2.20.1 (6th ed. 1996), the trial
court instructed the jury as follows: “In evaluating the
testimony of a child you should consider all of the factors
surrounding the child’s testimony, including the age of the
child and any evidence regarding the child’s level of cognitive
development. A child, because of age and level of cognitive
development, may perform differently than an adult as a witness,

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but that does not mean that a child is any more or less
believable than an adult. You should not discount or distrust -
- distrust the testimony of a child solely because he or she is
a child. [¶] ‘Cognitive’ means the child’s ability to
perceive, to understand, to remember, and to communicate any
matter about which the witness has knowledge.”4
Defendant contends it was error to give this instruction.
He claims the instruction unfairly enhanced the minor’s
credibility and invaded the jury’s province to determine
credibility. As defendant recognizes, the instruction has been
repeatedly upheld against these challenges. (People v. Jones
(1992) 10 Cal.App.4th 1566, 1572-1573; People v. Gilbert (1992)
5 Cal.App.4th 1372, 1393; People v. Harlan (1990) 222 Cal.App.3d
439, 455-456.) The instruction reflects the modern view that
rejects traditional notions regarding unreliability of child
witnesses, their untruthfulness, susceptibility to leading
questions, or inability to recall prior events accurately.
(People v. Jones (1990) 51 Cal.3d 294, 315.)
We agree with Jones, supra, 51 Cal.3d 294, Gilbert, supra,
5 Cal.App.4th 1372, and Harlan, supra, 222 Cal.App.3d 439, and
reject defendant’s contention that the instruction unduly
enhanced the minor’s credibility or took the issue of her
credibility from the jury. The instruction is directed at how
4 Under Penal Code section 1127f, this instruction is required
in a criminal proceeding in which a child 10 years old or
younger testified upon the request of a party.

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to evaluate a child’s testimony. While it told the jury that a
child witness may perform differently than an adult, that
difference “does not mean that the child is any more or less
credible a witness than an adult.” The jury was not to discount
a child’s testimony solely because he or she was a child, but
was invited to consider the child’s age and cognitive
development in assessing the child’s credibility. There was no
error in giving CALJIC No. 2.20.1.
V
In a final claim of instructional error, defendant contends
the court should not have given CALJIC No. 17.41.1. That
instruction tells the jury: “The integrity of a trial requires
that the jurors, at all times during their deliberations,
conduct themselves as required by these instructions.
Accordingly, should it occur that any juror refuses to
deliberate or expresses an intention to disregard the law or to
decide the case based on penalty or punishment, or any other
improper basis, it is the obligation of the other jurors to
immediately advise the Court of that situation.” Defendant
contends the instruction improperly compromises the private
nature of jury deliberations. The Supreme Court rejected that
contention in People v. Engelman (2002) 28 Cal.4th 436.
VI
The information alleged defendant was a habitual sexual
offender within the meaning of Penal Code section 667.71, that
he had a conviction in Nebraska for sexual assault on a child, a
serious felony under Penal Code section 667, subdivision (a),

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and that due to that conviction he came within the Three Strikes
law. The jury found true the allegation that defendant had a
conviction in Nebraska for sexual assault of a child. This
prior conviction was used to enhance his sentence by five years
under Penal Code section 667, subdivision (a), and to find he
was an habitual sexual offender subject to a sentence of 25
years to life on each count.
Defendant contends these enhancements must be reversed
because the Nebraska conviction does not contain all the
elements of Penal Code section 288; specifically, it has no
specific intent requirement that the act be done “with the
intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires” of the defendant or the victim.
The record revealed defendant was convicted by a plea of no
contest to violating Nebraska Revised Statutes of 1943 section
28-320.01 upon a child under the age of 14. That section
provides: “A person commits sexual assault of a child if he or
she subjects another person fourteen years of age or younger to
sexual contact and the actor is at least nineteen years of age
or older.” (Neb. Rev. Stat., § 28-320.01, subd. (1).) For
purposes of this statute, “sexual contact” is defined as “the
intentional touching of the victim’s sexual or intimate parts or
the intentional touching of the victim’s clothing covering the
immediate area of the victim’s sexual or intimate parts. Sexual
contact shall also mean the touching by the victim of the
actor’s sexual or intimate parts or the clothing covering the
immediate area of the actor’s sexual or intimate parts or the

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clothing covering the immediate area of the actor’s sexual or
intimate parts when such touching is intentionally caused by the
actor. Sexual contact shall include only such conduct which can
be reasonably construed as being for the purpose of sexual
arousal or gratification of either party.” (Neb. Rev. Stat., §
28-318, subd. (5).)
“In proving sexual contact, defined in subsection (5) of §
28-318, the State need not prove sexual arousal or
gratification, but only circumstances which could be construed
as being for such a purpose. [Citations.]” (State v. Osborn
(1992) 490 N.W.2d 160, 167 [241 Neb. 424, 433].)
The requirements for a qualifying prior conviction vary
under the different statutes. To qualify as an enhancement
under Penal Code section 667, subdivision (a), the out-of-state
conviction must be “of any offense committed in another
jurisdiction which includes all of the elements of any serious
felony.” (Pen. Code, § 667, subd. (a)(1).) A qualifying strike
prior “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.” (Pen. Code, § 667, subd.
(d)(2).) A qualifying prior offense for a habitual sexual
offender is “[a]n offense committed in another jurisdiction that
has all the elements of an offense specified in paragraphs (1)
to (13), inclusive, of this subdivision.” (Pen. Code, § 667.71,
subd. (c)(14).)

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While both defendant and the Attorney General assume the
Nebraska statute must contain all the elements of Penal Code
section 288, subdivision (a), that is true only as to the
habitual sexual offender law, which specifies a violation of
section 288, subdivision (a) as a qualifying prior. (Pen. Code,
§ 667.71, subd. (c)(4).) The qualifying prior for the five-year
enhancement is any serious felony. (Pen. Code § 667, subd.
(a).) A qualifying strike prior is any serious or violent
felony. (Pen. Code, § 667, subd. (d)(2); § 1170.12, subd.
(b)(2).) A serious felony includes a “lewd or lascivious act on
a child under the age of 14 years.” (Pen. Code, § 1192.7, subd.
(c)(6).) This language is not limited to violations of Penal
Code section 288, but broadens its scope to all lewd acts upon
children. (People v. Murphy (2001) 25 Cal.4th 136, 143.)
Penal Code section 288, subdivision (a) provides: “Any
person who willfully and lewdly commits any lewd or lascivious
act, including any of the acts constituting other crimes
provided 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 gratifying the lust,
passions, or sexual desires of that person or the child, is
guilty of a felony and shall be punished by imprisonment in the
state prison for three, six, or eight years.” Thus, section
288, subdivision (a) has a specific intent requirement. (People
v. Fox (2001) 93 Cal.App.4th 394, 396-397.)
Defendant is correct that the Nebraska statute does not
have the same specific intent requirement as Penal Code section

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288, subdivision (a). Under the Nebraska statute the test is
objective -- whether the proscribed conduct could be reasonably
construed as being for the purpose of sexual arousal or
gratification. Under Penal Code section 288, subdivision (a),
the test is subjective; defendant must have the intent to
arouse, appeal to or gratify the lust, passions, or sexual
desires. Since the Nebraska statute does not contain an element
of Penal Code section 288, subdivision (a), it is not a
qualifying prior under the habitual sexual offender statute,
Penal Code section 667.71.
To be a serious felony, however, the Nebraska prior need
not contain the same elements as Penal Code section 288,
subdivision (a); it need only be a “lewd or lascivious act on a
child under the age of 14 years.” (Pen. Code, § 1192.7, subd.
(c)(6).) In People v. Murphy, supra, 25 Cal.4th 136, at pages
141-149, the Supreme Court found oral copulation with a child
was unquestionably a lewd act and so qualified as a serious
felony, even though it was a general intent crime. The court
explained the purpose of section 288 by distinguishing between
acts that are inherently lewd and lascivious in the moral sense
and acts that are not inherently lewd and lascivious but may be
punished under section 288. “‘[A]lthough ‘children are
routinely cuddled, disrobed, stroked, examined, and groomed as
part of a normal and healthy upbringing,’ these ‘intimate acts
may also be undertaken for the purpose of sexual arousal. Thus,
depending upon the actor’s motivation, innocent or sexual, such
behavior may fall within or without the protective purposes of

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section 288.’ [Citation.]” (Id. at p. 146.) Some conduct is
lewd or lascivious, regardless of the motivation, because it is
inherently harmful. For example, sodomy on a child is a lewd
act, whether the motivation is sexual or sadistic. (Id. at pp.
147-148.) A serious felony includes conduct that is lewd in the
moral sense, even if it does not fall within Penal Code section
288, subdivision (a). (Id. at pp. 141-149.)
Relying on People v. Murphy, supra, 25 Cal.4th 136, the
court in People v. Fox, supra, 93 Cal.App.4th 394, found an
Oregon conviction for second degree rape, defined as sexual
intercourse with a minor under the age of 14, was a serious
felony, even though there was no specific intent requirement.
The court concluded that sexual intercourse with a child under
the age of 14 was “always harmful, always improper, and always a
lewd and lascivious act regardless of the perpetrator’s intent.”
(Id. at p. 399.)
To qualify as a serious felony, a lewd or lascivious act on
a child under 14 years of age must be lewd or lascivious under
the common and ordinary meaning of those words. (People v.
Murphy, supra, 25 Cal.4th at p. 143.) Penal Code section 288,
subdivision (a) may be violated by “‘any touching’” with a lewd
intent. (People v. Martinez (1995) 11 Cal.4th 434, 442.) The
Nebraska statute is more limited, proscribing only intentional
touching of the intimate parts of a minor, over or under
clothes, or causing the minor to so touch the defendant.
Further, the sexual contact includes “only such conduct which
can be reasonably construed as being for the purpose of sexual

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arousal or gratification of either party.” (Neb. Rev. Stat., §
28-318, subd. (5).) Since the minor would reasonably construe
the touching as sexual, it would always be harmful and improper.
We conclude a violation of this statute is a lewd or lascivious
act under Penal Code section 1192.7, subdivision (c)(6) and
therefore a serious felony. Thus, both the five-year
enhancement of Penal Code section 667, subdivision (a) and the
three strikes sentencing scheme apply. We remand the case for
resentencing.
DISPOSITION
The finding that defendant is a habitual sexual offender
under Penal Code section 667.71 is reversed. His convictions
for three counts of Penal Code section 288, subdivision (a) and
the finding that he has a prior serious felony are affirmed.
The matter is remanded for resentencing.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
DAVIS , J.

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