Filed 6/18/14; pub. order 7/11/14 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                           G048804

         v.                                             (Super. Ct. No. 12WF1796)

RANDY THANH HUYNH,                                      OPINION

    Defendant and Appellant.



                  Appeal from an order of the Superior Court of Orange County, Lance
Jensen, Judge. Affirmed.
                  Tony Rackauckas, District Attorney, and Matthew Lockhart, Deputy
District Attorney, for Plaintiff and Appellant.
                  Frank Ospino, Public Defender, Mark S. Brown, Assistant Public Defender,
and Scott Van Camp, Deputy Public Defender, for Defendant and Respondent.
                  The issue in this case is simply, what does “previously convicted” in
Penal Code section 667.61, subdivision (d)(1), mean (all further statutory references are
to the Penal Code)? The Orange County District Attorney argues “previously convicted”
means a defendant was convicted of a qualifying offense but it is immaterial whether the
qualifying offense occurred before or after the currently charged offense and
the trial court erred in dismissing the section 667.61, subdivision (d)(1), allegation.
Randy Thanh Huynh responds “previously convicted” means a defendant was convicted
of a qualifying offense before the commission of the currently charged offense and the
court properly dismissed the section 667.61, subdivision (d)(1), allegation. We agree
with Huynh and affirm the trial court’s order dismissing the section 667.61,
subdivision (d)(1), allegation.
                                           FACTS
              Julie N. was born late September 1993. On May 26, 2009,
Sergeant Michael Parsons went to Julie’s high school because she had written an essay
explaining a family member had sexually assaulted her. Parsons took Julie, who was
15 years old and in the 10th grade, to Child Abuse Services Team (CAST) a couple
weeks later to be interviewed. Julie stated she was at her grandmother’s house in a
locked bedroom when Huynh led her to the bed, pushed her down, laid on top of her, held
her down, and kissed her on the lips. Huynh rubbed his non-exposed penis on her
making thrusting motions and rhythmic sounds. She told him to stop but he refused. She
told him that he was hurting her, and Huynh said she was lying. He tried to put his
tongue in her mouth. When she resisted, he got up and unlocked the door, and she left
the room. Julie said she was in sixth or seventh grade, which would have made her 11 or
12 years old, when this happened.




              A July 2012, felony complaint charged Huynh with committing a forcible
lewd act on a child under 14 years old (§ 288, subd. (b)(1)), between January 1, 2002, and

                                              2
December 31, 2005, and alleged he committed the offense against more than one victim
(§ 667.61, subds. (b), (e)(5)).
              At a preliminary hearing in March 2013, in addition to Parson’s testimony
concerning Julie, the prosecutor also offered Parson’s testimony concerning Vicki N.’s
and Jenny N.’s 2007 CAST interviews where they stated Huynh sexually assaulted them
at the same location and in the same manner. The prosecutor offered into evidence
Huynh’s Tahl form (In re Tahl (1969) 1 Cal.3d 122), where in June 2008 he pleaded
guilty in case No. 07WF2276 to committing five offenses (§ 288, subd. (b)(1)) and
related enhancements (§ 1203.066, subd. (a)(7) & (8)) against Vicki and Jenny between
January 1, 2002, to December 31, 2003.
              An information charged Huynh with committing a forcible lewd act on a
child under 14 years old (§ 288, subd. (b)(1)), between January 1, 2002, and
December 31, 2005, and alleged he committed the offense against more than one victim
(§ 667.61, subds. (b), (e)(5)). Huynh filed a demurrer to the information on the grounds
the information alleged only one victim. The prosecutor conceded, and the trial court
sustained the demurrer.
              An amended information charged Huynh with committing a forcible lewd
act on a child under 14 years old (§ 288, subd. (b)(1)), between January 1, 2002, and
December 31, 2005, and this time alleged “that prior to the commission of the above
offense,” Huynh suffered a conviction of violating section 288, subdivision (b) (§ 667.61,
subds. (a), (d)(1)). Huynh filed a motion to dismiss the section 667.61,
subdivision (d)(1), allegation pursuant to section 995. The prosecutor opposed Huynh’s
motion to dismiss. Huynh replied.


              At a hearing on Huynh’s motion, the trial court indicated it had read and
considered the written submissions and applicable case law. After hearing extensive



                                            3
argument from counsel, the court granted Huynh’s motion to dismiss the section 667.61,
subdivision (d)(1), allegation pursuant to section 995 because the court concluded
section 667.61 is a recidivism statute. The Orange County District Attorney appealed
from the order dismissing the section 667.61, subdivision (d)(1), allegation.
                                       DISCUSSION
              In its opening brief, the District Attorney argues section 667.61 is
unambiguous and its plain language requires only a prior conviction and not a prior
conviction that preceded the currently charged offense. The District Attorney adds
section 667.61 is not an anti-recidivism statute and reliance on extrinsic evidence is
improper.
              In its respondent’s brief, the Public Defender contends section 667.61,
subdivision (d), is an anti-recidivist statute and requires the prior conviction to precede
the currently charged offense. The Public Defender analogizes to other anti-recidivism
statutes and asserts “every statute in the history of California” requires the prior
conviction to precede the currently charged offense.
              In its reply brief, the District Attorney responds section 667.61 is
unambiguous and it is not an anti-recidivist statute but instead an alternative sentencing
scheme designed to separate an incurable class of people from society.
The District Attorney adds that Huynh is now convicted of five sexual offenses and “the
order of the commission of the offenses is immaterial[]” as section 667.61,
subdivision (d)’s plain language does not require the prior conviction to precede
the currently charged offense. The District Attorney disputes Huynh’s claim all other
statutes require the prior conviction to precede the currently charged offense and to
impose such a requirement would lead to illogical and inconsistent results.
              As we explain below, we agree with Huynh that the prior conviction must
precede the currently charged offense under section 667.61, subdivision (d)(1).



                                              4
              “‘In construing a statute, our task is to determine the Legislature’s intent
and purpose for the enactment. [Citation.] We look first to the plain meaning of the
statutory language, giving the words their usual and ordinary meaning. [Citation.] If
there is no ambiguity in the statutory language, its plain meaning controls; we presume
the Legislature meant what it said. [Citation.] “However, if the statutory language
permits more than one reasonable interpretation, courts may consider various extrinsic
aids, including the purpose of the statute, the evils to be remedied, the legislative history,
public policy, and the statutory scheme encompassing the statute.” [Citations.]’
[Citation.]” (People v. Yartz (2005) 37 Cal.4th 529, 537-538.) Statutory interpretation is
a question of law that we review de novo. (Coito v. Superior Court (2012) 54 Cal.4th
480, 488.)
              Section 667.61, part of what is commonly known as the “One Strike” law,
was enacted in 1994. Although one early California Supreme Court case referred to
section 667.61 as an enhancement (People v. Rayford (1994) 9 Cal.4th 1, 8 (Rayford)),
subsequent California Supreme Court authority refers to section 667.61 as an alternate
sentencing scheme (People v. Anderson (2009) 47 Cal.4th 92, 102; People v. Acosta
(2002) 29 Cal.4th 105, 118-120 & fn. 7 (Acosta) [disapproving Rayford on this point]).
              Section 667.61, subdivision (a), as relevant here, provides: “[A]ny person
who is convicted of an offense specified in subdivision (c) under one or more of the
circumstances specified in subdivision (d) or under two or more of the circumstances
specified in subdivision (e) shall be punished by imprisonment in the state prison for
25 years to life.” Section 667.61, subdivision (c), includes, among other offenses, lewd
or lascivious acts (§ 288, subd. (b)(4)).


              Nearly all section 667.61, subdivision (d)’s triggering circumstances relate
to the manner in which the currently charged crime was committed. One of the
circumstances listed in section 667.61, subdivision (d), however, the one at issue here,

                                              5
states, “The defendant has been previously convicted of an offense specified in
subdivision (c), including an offense committed in another jurisdiction that includes all of
the elements of an offense specified in subdivision (c).” (§ 667.61, subd. (d)(1), italics
added.)
              Based on section 667.61, subdivision (d)’s plain language and giving the
words their usual and ordinary meaning, we conclude “previously convicted” means a
defendant’s conviction for a qualifying offense must chronologically precede the
currently charged offense. The word “previously” can only be interpreted to mean a
defendant’s qualifying conviction must chronologically precede the currently charged
felony. We agree with the District Attorney that the plain language of section 667.61,
subdivision (d), is unambiguous but disagree as to its meaning. We conclude “previously
convicted” means what the Legislature said and the order of the commission of the
offenses is material.
              Our conclusion is buttressed by extrinsic aids. In People v. Wutzke (2002)
28 Cal.4th 923, 929-930 (Wutzke), the California Supreme Court stated “section 667.61
ensures serious sexual offenders receive long prison sentences whether or not they have
any prior convictions. [Citation.]” (Italics added, fn. omitted.) Citing to 667.61’s
legislative history, the court stated, “According to a general statement of purpose in the
legislative history, the targeted group preys on women and children, cannot be cured of
its aberrant impulses, and must be separated from society to prevent reoffense.” (Wutzke,
supra, 28 Cal.4th at pp. 929-930.)
              Although the Legislature clearly intended to separate serious
sexual offenders from society for qualifying offenses under triggering circumstances that
concern primarily the manner in which the currently charged crime was committed,
section 667.61, subdivision (d)(1), does not concern the manner in which the offense was
committed. Section 667.61, subdivision (d)(1), relates to recidivism. Although we agree
with the District Attorney that section 667.61 cannot be classified wholly as an

                                             6
anti-recidivism statute, section 667.61, subdivision (d)(1), certainly can be classified as
an anti-recidivism subdivision. Acosta, supra, 29 Cal.4th 105, is instructive.
              In Acosta, the California Supreme Court addressed issues concerning the
Three Strikes law and the One Strike law. The court stated the purpose of the
“Three Strikes law ‘is to provide greater punishment for recidivists. [Citation.]’”
(Acosta, supra, 29 Cal.4th at p. 127.) The court added, “The purpose of the One Strike
law is to provide life sentences for aggravated sex offenders, even if they do not have
prior convictions. [Citations.]” After explaining nearly all section 667.61’s triggering
circumstances related to the manner in which the defendant committed the specified
sexual offense, the court noted one of section 667.61, subdivision (d)’s triggering
circumstances relates to recidivism, section 667.61, subdivision (d)(1). (See People v.
DeSimone (1998) 62 Cal.App.4th 693, 697.)
              Section 667.61, subdivision (d)(1), is designed to punish a sexual offender
for having suffered a previous sexual offense conviction. Because section 667.61,
subdivision (d)(1), is an anti-recidivism subdivision that exposes a defendant to 25 years
to life for a “previous conviction,” we conclude that to impose increased punishment for
recidivism requires that the “prior conviction” chronologically precede the currently
charged offense.
              Numerous cases, including the California Supreme Court in Wutzke, supra,
28 Cal.4th at pages 929-932, and this court in People v. Luna (2012) 209 Cal.App.4th
460, 468-471, have discussed section 667.61’s legislative history. We too have reviewed
the legislative history, which is silent on the issue before us. We found nothing in the
legislative history and the District Attorney cites to nothing that persuades us “previously
convicted” means anything other than what its plain language requires.
              The District Attorney relies on People v. Rogers (2013) 57 Cal.4th 296, a
capital case, to argue the “prior conviction” need not precede the currently charged
offense. In Rogers, the California Supreme Court, interpreting section 190.2, the death

                                              7
eligibility statute, stated, “[N]umerous decisions of this court have concluded the
controlling factor under the express language of section 190.2[, subdivision] (a)(2) is
whether ‘[t]he defendant was convicted previously of murder in the first or second
degree’ [citation]. The ‘order of the commission of the homicides is immaterial.’
[Citations.]” (Id. at p. 343.) The court rejected defendant’s analogy to habitual criminal
statutes and explained section 190.2, unlike anti-recidivist statutes, is not directed at
deterring misconduct. (Ibid.) The District Attorney’s reliance on Rogers is inapt because
unlike section 190.2, section 667.61, subdivision (d)(1), is an anti-recidivist subdivision
as we explain above.
              Additionally, other California authority requires the prior conviction to
precede the currently charged offense. In People v. Thomas (2012) 53 Cal.4th 771, 820
(Thomas), the California Supreme Court interpreted section 190.3, the statute governing a
capital case’s penalty phase, which specifies the aggravating factors the trier of fact must
consider in deciding whether the penalty is death or life without the possibility of parole.
In that case, the court stated, “Defendant is correct that prior felony convictions are not
admissible under section 190.3, factor (c), unless the conviction preceded the commission
of the capital crime. [Citations.]” (Thomas, supra, 53 Cal.4th at p. 820.)
              Similarly, in People v. Flood (2003) 108 Cal.App.4th 504 (Flood), the
Third District Court of Appeal concluded the Three Strike law did not apply because
defendant committed his “prior conviction,” the serious or violent felony, after he
committed the charged offense. The court stated, “The word ‘previously’ means the
conviction for a serious or violent felony must precede the present felony; the present
felony must be committed after the serious or violent felony conviction.” (Id. at p. 507.)
              We find Flood instructive as it concerned the Three Strikes law, an
alternative sentencing scheme that punishes recidivists. (People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 527.) Contrary to the District Attorney’s assertion
otherwise, section 667.61, subdivision (d)(1), too is an alternate sentencing scheme that

                                               8
punishes recidivism, and like Flood, the “previous conviction” must precede the currently
charged offense. Here, it did not.
              The District Attorney also complains interpreting section 667.61,
subdivision (d)(1), in the manner we have will lead to illogical and inconsistent results as
evidenced by the facts in this case. Here, the currently charged offense occurred before
the 2008 prior conviction but was not discovered until after the 2008 conviction when in
2009 Julie wrote a school essay detailing the sexual abuse. The District Attorney asserts
that if five-year-old Julie would have reported the incident when it occurred, there would
be no issue. We agree with the District Attorney that the applicability of prior
convictions, especially in the sexual offense context when incidents often go unreported
for months or years, the District Attorney is faced with pleading challenges. But its
concern does not overcome section 667.61, subdivision (d)(1)’s plain language.
              The District Attorney’s concern though does dovetail with another of its
contentions. The District Attorney contends that had the Legislature intended
section 667.61 to be a recidivism statute and to require the “previous conviction” to
precede the currently charged offense it would have said so. As we explain above, we
conclude the Legislature did say so when it exposed sexual offenders to increased
punishment for a previous sexual offense conviction. If the Legislature had intended for
a conviction to apply regardless of whether it occurred before or after the currently
charged offense, it would not have used the word “previously.”




              For example, the Legislature amended the driving under the influence
statutes from “‘prior offenses’” to “‘separate violations.’” (People v. Snook (1997)
16 Cal.4th 1210, 1218 (Snook); People v. Baez (2008) 167 Cal.App.4th 197, 204 [citing
Snook].) We invite the Legislature to similarly amend section 667.61, subdivision (d)(1),



                                             9
to allow a “previous conviction” that occurred subsequent to the currently charged
offenses if that is what the Legislature intended.
                                       DISPOSITION
              The order is affirmed.




                                                     O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



MOORE, J.




                                             10
Filed 7/11/14




                              CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              FOURTH APPELLATE DISTRICT
                                       DIVISION THREE




THE PEOPLE,


   Plaintiff and Respondent,                            G048804


       v.                                               (Super. Ct. No. 12WF1796)


RANDY THANH HUYNH,                                      ORDER DIRECTING
                                                        PUBLICATION OF OPINION
   Defendant and Appellant.


                  The Orange County Public Defender has requested that our opinion filed
June 18, 2014, be certified for publication. It appears that our opinion meets the
standards set forth in California Rules of Court, rule 8.1105(c). The request is
GRANTED.
                  The opinion is ordered published in the Official Reports.




                                                11
                      O’LEARY, P. J.


WE CONCUR:




RYLAARSDAM, J.




MOORE, J.




                 12
