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Name: People v. Cornett
Case #: S189733
Court: CA Supreme Court
District CalSup
Opinion Date: 04/30/2012

The phrase “10 years of age or younger” in Penal Code section 288.7 includes children who have not yet reached their 11th birthday. Appellant was convicted of a violation of Penal Code section 288.7, subdivision (b). The victim was 10 years and approximately 11 months old at the time of the molestation. The Court of Appeal agreed with appellant’s argument that the conviction had to be reversed because the victim was not “10 years of age or younger.” The Supreme Court reversed, concluding that “10 years of age or younger” includes children younger than 10 years of age and children who have reached their 10th birthday but who have not yet reached their 11th birthday. In common parlance, a person reaches an age on the anniversary of his birth and remains that age until reaching the next anniversary. Recognizing some latent ambiguity in the statutory language, the court examined the legislative history of the statute in an effort to determine intent. Varying descriptions in legislative analyses were imprecise and did not support any legislative intent that children under 11 years of age should be excluded from the protection of the statute. The Legislature has made clear in other contexts that the statement of an age includes up to the next birthday. The rule of lenity was not applicable because appellant’s proposed construction of the statute was improbable and would impede the protective function of the statute.