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State v. Carlton

Supreme Court of Oregon, En Banc

February 9, 2017

STATE OF OREGON, Respondent on Review,
v.
DONOVAN ROBERT CARLTON, aka Norman Spencer, Petitioner on Review.

          Argued and submitted November 10, 2016

         On review from the Court of Appeals. [*] (CC 10CR0836; CA A150855)

          Ingrid A. MacFarlane, Chief Deputy Defender, Salem, argued the cause and fled the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Robert M. Wilsey, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part and affirmed in part, and the case is remanded to the circuit court for further proceedings.

         Case Summary:

Defendant, who was convicted of first-degree sexual abuse, was sentenced under ORS 137.719 to life imprisonment without the possibility of parole because of three previous convictions for comparable offenses in California.

         Held:

(1) The term "comparable offenses" in ORS 137.719 refers to offenses with elements that are the same as or nearly the same as the elements of an Oregon felony sex crime; and (2) Defendant's previous convictions under Cal Penal Code § 288(a) are not comparable for purposes of ORS 137.719(3)(b)(B) to his current convictions under ORS 163.427(1)(a)(A).

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed in part and affirmed in part, and the case is remanded to the circuit court for further proceedings.

          BREWER, J.

         The issue in this criminal case is whether defendant's previous convictions under a California criminal statute were for "comparable offenses" to a qualifying Oregon offense under ORS 137.719(3)(b)(B), [1] for purposes of the imposition of life sentences on his current convictions for the Oregon offense of first-degree sexual abuse.[2] The trial court imposed life sentences for defendant's current offenses after concluding that they were comparable to defendant's prior California offenses, and the Court of Appeals affirmed. State v. Carlton. 275 Or.App. 60, 364 P.3d 347 (2015). Because we conclude that the prior offenses were not comparable to a qualifying Oregon offense, we reverse the decision of the Court of Appeals, and we affirm defendant's convictions but reverse his sentences and remand to the circuit court for resentencing.

         FACTS

         Defendant was charged with three counts of first-degree sexual abuse for putting his hands down the pants of a 7-year-old girl, referred to as A, in multiple incidents. One of the counts also charged defendant with touching As breast.[3] While investigating defendant's conduct, police discovered that he had been using an alias and actually was Donovan Robert Carlton, a convicted sex offender from California. Under the name Carlton, defendant had three prior convictions for violating California Penal Code section 288-two in 1986, and one in 1993-by subjecting a victim under the age of 14 to "sexual contact."

         In his 1986 conviction, defendant was found guilty in Count 1 of committing the offense of "lewd and lascivious conduct upon a child, " when he

"did willfully and lewdly commit a lewd and lascivious act upon and with the body and certain parts and members thereof of [D], a child under the age of fourteen years, to wit: NINE (9) years of age, with the intent of arousing, appealing to and gratifying the lust, passion and sexual desires of the said defendant and of said child."

         Defendant was found guilty in Count 3 of violating the same statutory provision, in the same manner, but involving a different child. Although the court initially suspended imposition of sentence in that case, it later revoked defendant's probation and imposed a six-year prison term. In 1993, defendant was sentenced to an additional six-year prison term for yet another conviction of violating Cal Penal Code § 288(a).[4]

         The jury in this case returned a guilty verdict against defendant on all three counts. Before sentencing, the state submitted a memorandum recommending that defendant be sentenced to consecutive life prison terms under ORS 137.719 on Counts 1 and 2, and to a concurrent life term on Count 3. In support of its recommendation, the state relied on defendant having been twice convicted of violating Cal Penal Code § 288(a) in 1986 and having been once again convicted of the same offense in 1993. According to the state, those convictions were for offenses that were comparable to defendant's current offenses for purposes of ORS 137.719(3)(b)(B). In his reply memorandum, defendant asserted that the California offenses were not comparable to first-degree sexual abuse under ORS 163.427 because the Oregon offense had different elements from the California offense, which swept more broadly.

         The trial court agreed with defendant that the California offense was broader than Oregon's crime of first-degree sexual abuse in two respects. First, the court noted that, unlike ORS 163.427, the California offense did not require the touching of a sexual or other intimate part of a victim. Second, the court noted that the California offense did not require touching for the purpose of arousing or gratifying the sexual desire of the actor or the victim but, instead, could be proved if touching occurred for the additional purpose of appealing to or gratifying the "passion" of the actor or the victim. Despite those differences, the court concluded that the offenses were comparable, because (following Court of Appeals case law) both offenses were "aimed at the same wrong." Accordingly, the trial court imposed a life sentence on each count in this case under ORS 137.719(1).

         Defendant appealed, arguing as pertinent here, that the trial court erred in relying on his California convictions to impose life sentences for his current Oregon offenses under ORS 137.719.[5] The Court of Appeals issued a written opinion affirming the sentences. In the opinion, the Court of Appeals reviewed the text of Cal Penal Code § 288 and ORS 163.427, and, relying on dictionary definitions of the word "comparable, " held that, as pertinent here, that term "means having enough like characteristics or qualities to make comparison appropriate." Carlton, 275 Or.App. at 65. The Court of Appeals ultimately concluded that the offenses were comparable:

"The text of ORS 163.427, read with the definition contained in ORS 163.305(6), and [Cal Penal Code § 288] is similar in several respects. In general, both the Oregon and California statutes aim to proscribe physical contact with children under the age of 14 made with the intent of arousing or gratifying the sexual desires of the perpetrator or the victim. Furthermore, even though, unlike the Oregon statute, a conviction under [Cal Penal Code § 288] does not require that a defendant touch a specific sexual or intimate part of a child, it nevertheless requires that the touching have a sexual purpose, i.e., that it constitutes a 'lewd and lascivious act.' See People v. Martinez, 11 Cal.4th 434, 444, 45 Cal.Rptr.2d 905, 903 P.2d 1037 (1995) (explaining that 'sexual gratification must be presently intended at the time such "touching" occurs' but that a 'lewd or lascivious act can occur through the victim's clothing and can involve "any part" of the victim's body'). The statutes need not be identical given the broad definition of 'comparable.' See [State v. Escalera. 223 Or.App. 26, 32, 194 P.3d 883 (2008), rev den, 345 Or 690 (2009)]. It is sufficient that the statutes share enough like characteristics for them to be worthy of comparison, which they do. Id. (clarifying that 'comparability does not require that the foreign statute have the same use, role, or characteristics' (emphasis added)). Thus, we readily conclude that the statutes in question are comparable for the purposes of ORS 137.719."

Id. at 66-67. Accordingly, the court upheld defendant's sentences. Id. at 68.

         On review, defendant asserts that, because the California criminal statute captures a broader spectrum of conduct than any qualifying Oregon offense, the trial court and the Court of Appeals erred in concluding that the California offenses were comparable, and this case should be remanded for resentencing. The state responds that the Court of Appeals used the correct definition of "comparable" in its analysis, and that the trial court properly imposed life sentences in this case, because first-degree sexual abuse (ORS 163.427) and attempted first-degree sexual abuse (ORS 161.405) are comparable to defendant's California offenses.

         ANALYSIS

         We review for errors of law the trial court's conclusion that defendant's prior California offenses were "comparable, " within the meaning of ORS 137.719(3)(b)(B), to a qualifying Oregon offense. See State v. Gaines. 346 Or 160, 162, 206 P.3d 1042 (2009). In interpreting a statute, a court's task is to ascertain the meaning most likely intended by the legislature that enacted it. Id. at 171. The best evidence of legislative intent is the text of the statute itself, considered in its context. When appropriate, a court also may consider legislative history and canons of statutory construction. Id. at 171-73.

         ORS 137.719(1) prescribes as the presumptive sentence for a felony sex crime, "life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence." Pursuant to ORS 137.719(4), "sex crime" is defined under ORS 163A.005(5), which includes "sexual abuse in any degree." ORS 163A.005(5)(d). Under ORS 137.719(3)(b)(B), a prior sentence ...


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