Filed 10/8/14 P. v. Clapham CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138849
v.
RICHARD ALLEN CLAPHAM,                                               (Sonoma County
                                                                     Super. Ct. No. SCR-499844)
         Defendant and Appellant.


         Defendant Richard Clapham appeals from an order denying his motion for
resentencing under Penal Code section 1170.126, the Three Strikes Reform Act of 2012
(the Reform Act).1 He contends the court erred when it determined that one of his prior
strike convictions disqualified him from resentencing under the Reform Act. We agree
with the trial court that Clapham’s prior conviction for assault with the intent to commit a
lewd or lascivious act on a child under age 14 makes him ineligible for resentencing
under section 1170.126, so we affirm.
                                                 BACKGROUND
         In 2007, Clapham entered a no contest plea to indecent exposure and admitted
prior strikes that include a 1995 conviction for assault with intent to commit a lewd and
lascivious act on a child under the age of 14 (§§ 220, 228). He received an indeterminate
sentence of 25 years to life in prison.




         1
          Unless otherwise noted, further statutory references are to the Penal Code.
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       On January 3, 2013, defendant moved to vacate his sentence and for resentencing
under the Reform Act. After a hearing, the court denied his motion because his 1995
strike conviction was a sexually violent offense as specified by Welfare and Institutions
Code section 6600.1, and therefore Clapham was disqualified from resentencing under
the Reform Act. The court alternatively found that a post-sentence probation report
related to the 1995 conviction supported a finding that the offense was forcible, and for
that reason as well found Clapham ineligible for resentencing. Clapham filed this timely
appeal.
                                      DISCUSSION
                                    I. The Reform Act
       Voters approved the Reform Act in 2012, thereby amending the “Three Strikes”
law so that an indeterminate prison term of 25 years to life may be imposed as a third
strike only where the conviction is a serious or violent felony or the prosecution pleads
and proves other specified factors. (Prop. 36, as approved by voters, Gen. Elec. (Nov. 6,
2012); §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C).) The Act also added section
1170.126, which allows felons sentenced under the previous version of the Three Strikes
law to petition for resentencing if they would not have received an indeterminate life
sentence under the Reform Act. (§ 1170.126, subds. (a)-(b).)
       Consideration of a request for resentencing under the Reform Act is a two-step
process. First, the court determines whether the inmate is eligible for resentencing under
section 1170.126, subdivision (e), which depends on both the nature of the offense for
which he or she was sentenced to life (§ 1170.126, subd. (e)(1)-(2)) and the nature of his
or her other crimes that qualified as strikes (§ 1170.126, subd. (e)(3)).2 A defendant who


       2
        Subdivision (e) of section 1170.126 provides: “An inmate is eligible for
resentencing if: [¶] (1) The inmate is serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of
Section 1170.12 for a conviction of a felony or felonies that are not defined as serious
and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7. [¶] (2) The inmate’s current sentence was not imposed for any of the offenses
appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of
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has been convicted of one of the offenses identified in these provisions is ineligible for
resentencing under the Reform Act. As relevant here, disqualifying strikes include prior
convictions for any “ ‘sexually violent offense’ as defined in subdivision (b) of Section
6600 of the Welfare and Institutions Code.” (§§ 667, subd. (e)(2)(C)(iv)(I), 1170.12,
subd. (c)(2)(C)(iv)(I); see § 1170.126, subd. (e)(3).) If the court finds the defendant does
not have a disqualifying conviction, it proceeds to resentencing unless it determines that
to do so would pose “an unreasonable risk of danger to public safety.” (§ 1170.126,
subd. (f).)
       This appeal concerns only the first step of the analysis under the Reform Act. The
specific question is whether Clapham’s prior conviction for assault with intent to commit
a lewd and lascivious act on a child under 14 years old is a “sexually violent offense”
within the meaning of Welfare and Institutions Code section 6600, subdivision (b),3 and
therefore disqualifies him for resentencing under section 1170.126, subdivision (e)(3).
       Clapham observes that section 6600, subdivision (b) classifies assault with intent
to commit another specified offense (including child molest) as a sexually violent offense
only when it is “committed by force, violence, duress, menace, [or] fear of immediate
and unlawful bodily injury on the victim or another person.” (§ 6600, subd. (b).)
Although one may reasonably question whether sexual assault of a child is ever non-


subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12. [¶ ] (3) The inmate has no prior
convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.2.” (Italics added.)
       3
         Hereinafter section 6600, subdivision (b). It provides: “ ‘Sexually violent
offense’ means the following acts when committed by force, violence, duress, menace,
fear of immediate and unlawful bodily injury on the victim or another person , . . . and
that are committed on, before, or after the effective date of this article and result in a
conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a
felony violation of Section 261, 262, 264.1, 269, 286, 288, 288a, 288.5, or 289 of the
Penal Code, or any felony violation of Section 207, 209, or 220 of the Penal Code,
committed with the intent to commit a violation of Section 261, 262, 264.1, 286, 288,
288a, or 289 of the Penal Code.”
                                              3
violent, the People concede it is technically possible, if unlikely, that an assault with
intent to commit a lewd act on a child in violation of section 220 may be committed
without the actual application of force (or, presumably, fear). (See CALCRIM 890
[offense requires only “an act that by its nature would directly and probably result in the
application of force to a person”; People v. Colantuono (1994) 7 Cal.4th 206, 219.)
Since the offense may not involve the use of force, defendant argues, his 1995 conviction
does not, without more, establish that he suffered a disqualifying prior strike.
       There may have been some merit in this argument had the Legislature not in 1996
enacted Welfare and Institutions Code section 6600.1 (hereinafter section 6600.1).
(Stats. 1996, ch. 461, § 3.) It provides: “If the victim of an underlying offense that is
specified in subdivision (b) of Section 6600 is a child under the age of 14, the offense
shall constitute a ‘sexually violent offense’ for purposes of Section 6600.” (§ 6600.1,
italics added.) Section 6600.1 thus expanded the offenses that fall within Section 6600,
subdivision (b) as sexually violent to encompass the specified underlying crimes when
perpetrated against children under 14, whether or not committed by force. Clapham’s
1995 strike is for such an offense, so he is statutorily ineligible for resentencing under the
Reform Act.
       Clapham attempts to obscure this conclusion by arguing that the pertinent clause
of the Reform Act (§1170.126, subd. (e)(3)) disqualifies an inmate from eligibility for
resentencing only if he or she has suffered a prior conviction for an offense listed in
sections 667, subdivision (e)(2)(C)(iv) 1170.12, subdivision (c)(2)(C)(iv), including
sexually violent offenses “as defined by subdivision (b) of section 6600.” He argues that
the absence of an explicit reference in these provisions to section 6600.1 “clearly
indicates section 6600.1 was not intended to serve as a factor defining ‘a sexually violent
offense’ for the purposes of these three statutes.” We disagree. The Legislature is
presumed to know existing law when it enacts a new statute (Arthur Andersen v. Superior
Court (1998) 67 Cal.App.4th 1481, 1500–1501), and this rule of interpretation applies no
less to initiative measures enacted as statutes. (People v. Bustamente (1997) 57
Cal.App.4th 693, 699 & fn. 5.) To accept Clapham’s construction of the 2012 Reform

                                              4
Act, we would have to pretend that section 6600.1 did not expressly expand the list of
crimes qualifying as sexually violent offenses “for purposes of section 6600.” (§ 6600.1.)
We are not free to ignore the clear statutory language.
        Clapham also disputes the applicability of section 6600.1 on the ground that his
no contest plea to assault with intent to commit a lewd and lascivious act on a child
younger than 14 years old does not necessarily establish that his intended victim was
actually younger than 14. (See Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 185–
186 [defendant who believes his victims were underage may be convicted of attempt to
commit sexual crimes against minors whether or not victims were in fact under the
statutory age].) Clapham did not raise this factual claim in his motion for resentencing or
at his eligibility hearing, even when invited to do so by the trial court, so it is forfeited.
In any event, Clapham implicitly confirmed that his victim was under the age of 14 when
he acknowledged at his 1995 change of plea and sentencing that his conviction subjected
him to section 288.1,4 which applies only to offenses against children under 14. The
court correctly found Clapham statutorily ineligible for resentencing under the Reform
Act.5
                                           DISPOSITION
        The order denying Clapham’s resentencing motion is affirmed.




        4
        Section 288.1 provides that “Any person convicted of committing any lewd or
lascivious act including any of the acts constituting other crimes provided for in Part 1 of
this code upon or with the body, or any part or member thereof, of a child under the age
of 14 years shall not have his or her sentence suspended until the court obtains a report
from a reputable psychiatrist, from a reputable psychologist who meets the standards set
forth in Section 1027, as to the mental condition of that person.”
        5
        We therefore need not address defendant’s further argument that the court
erroneously considered hearsay statements in a post-sentence probation report that
identified the victim as a 10-year-old child. Nor, in light of our conclusion on the merits,
do we address the People’s contention that the denial of a petition for resentencing under
the Act is unappealable, a question currently pending before the Supreme Court in Teal
v. Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708.
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                                _________________________
                                Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Pollak, J.




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