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Name: People v. Cornett
Case #: A123957
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 12/06/2010
Subsequent History: rev. granted 3/23/11 (S189733)

The crime of molestation of a child “10 years of age or younger” (Pen. Code, sec. 288.7, subd. (b)) requires that the victim not have passed her tenth birthday. Appellant was convicted of molesting his step-daughter who was 10 years and 11 months old at the time of the molestation. In this case of first impression, the appellate court considered the interpretation of statutory language which refers to a victim of a certain age or younger. In this case, the statute at issue was Penal Code section 288.7, subdivision (b), but the court noted there are 10 Penal Code provisions which use the same language. The statute says “Any person 18 years of age or older who engages in oral copulation or sexual penetration … with a child who is 10 years of age or younger is guilty of a felony….” Courts in other jurisdictions are divided on whether such language includes children who have passed the particular birthday but have not reached their next birthday. The court noted the legislative history did not shed light on the issue, and neither interpretation would lead to absurd results. So, the court relied solely on the language of the statute and the rules of statutory construction. In light of the explicit language of the statute and the rule of lenity, the court concluded the victim’s age precluded her from being a victim of a violation of section 288.7, subdivision (b). The court distinguished some of the cases from other jurisdictions holding otherwise because in those cases either extrinsic evidence of legislative intent was available or the rule of lenity did not apply in the jurisdiction. [Ed. note: Calif. Supreme Court reversed. The Court unanimously concluded that “the statutory phrase ’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.”]