Stanford Law School - Robert Crown Law Library

Filed 8/10/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S126233
v.
) Ct.App.
3
C038245
BRIAN ERIC WARNER,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. 99FO8985

A jury convicted defendant Brian Eric Warner of three counts of lewd or
lascivious conduct with a child under 14 years of age. (Pen. Code,1 § 288, subd.
(a).) In addition, the jury found he had suffered a prior felony conviction in
Nebraska for child sexual assault. Because the record does not show defendant’s
Nebraska crime contained all of the elements of any offense in California
amounting to a serious felony, as defined in section 1192.7, subdivision (c), we
conclude defendant was not subject to a serious-felony sentence enhancement
(§ 667, subd. (a)) nor eligible to be sentenced under the three strikes law (§§ 667,
subds. (b)-(i), 1170.12). Accordingly, we reverse in part the judgment of the
Court of Appeal.

1
All further statutory references are to this code unless otherwise stated.
1

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FACTS
Defendant was married to C.H. and lived with her and her two daughters,
C., then five years old, and S., then three years old. S. told her mother that
defendant had touched her vagina. C.H. reported the incident to child protective
services, who contacted police. An investigation led police to focus on three
alleged incidents of lewd or lascivious behavior with S. During a police
interrogation, defendant admitted all three incidents of sexual molestation. He
also admitted the molestations to his wife, who surreptitiously tape-recorded his
admission of one of the incidents. A jury convicted defendant of three counts of
lewd or lascivious conduct with a child under 14 years of age. (§ 288, subd. (a).)
After examining documents from Nebraska, the jury also sustained the allegation
that defendant had previously suffered a conviction in Nebraska for child sexual
assault in violation of Nebraska Revised Statutes section 28-320.01 (1995). The
trial court sentenced him under the habitual sexual offender law (§ 667.71) to
consecutive terms of 25 years to life for the three substantive counts and added a
serious-felony enhancement term of five years for the prior out-of-state conviction
(§ 667, subd. (a)). In the aggregate, defendant was sentenced to 80 years to life.
The Court of Appeal affirmed defendant’s three convictions for violating
section 288, subdivision (a) and the imposition of the serious-felony sentence
enhancement under section 667, subdivision (a), but reversed the finding that
defendant was eligible for sentencing under the habitual sexual offender law. The
court remanded the case for resentencing, noting that defendant was eligible for
sentencing under the three strikes law. On defendant’s petition, we granted review
and limited the issue to whether his prior Nebraska conviction for child sexual
assault qualified as a serious felony for California sentencing purposes. In
addition, at oral argument, we asked the parties to brief the further question
whether, at the time of defendant’s prior conviction, the Nebraska law “contained
2

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the same mens rea element as Penal Code section 288, subdivision (a), in that it
required the defendant to harbor the specific intent to arouse or gratify the sexual
desires of himself or the victim.”
DISCUSSION
For criminal sentencing purposes in this state, the term “serious felony” is a
term of art. Severe consequences can follow if a criminal offender, presently
convicted of a felony, is found to have suffered a prior conviction for a serious
felony. If the present conviction is also for a serious felony, the offender is subject
to a five-year enhancement term to be served consecutively to the regular
sentence. (§ 667, subd. (a).) Even if an offender’s present conviction is not for a
serious felony, a prior conviction for a serious felony renders the offender subject
to the more severe sentencing provisions of the three strikes law. (§§ 667, subds.
(b)-(i), 1170.12.)
Whether a crime qualifies as a serious felony is determined by section
1192.7, subdivision (c) (section 1192.7(c)), which lists and describes dozens of
qualifying crimes. Murder, robbery, kidnapping, and forcible sexual assaults are
of course on the list. At issue in this case are the crimes described in section
1192.7(c)(6): committing a “lewd or lascivious act on a child under the age of 14
years.” Defendant’s three present convictions for violating section 288,
subdivision (a), which required proof he touched a child with lewd intent (People
v. Martinez (1995) 11 Cal.4th 434), indisputably qualify as serious felonies. The
question is whether defendant’s prior felony conviction in Nebraska similarly
qualifies.2

2
The question whether, consistent with due process of law, the jury and not
the trial court must make this finding is not before us. (See People v. McGee
(2006) 38 Cal.4th 682.)
3

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Under our sentencing laws, foreign convictions may qualify as serious
felonies, with all the attendant consequences for sentencing, if they satisfy certain
conditions. For a prior felony conviction from another jurisdiction to support a
serious-felony sentence enhancement, the out-of-state crime must “include[] all of
the elements of any serious felony” in California. (§ 667, subd. (a)(1).) For an
out-of-state conviction to render a criminal offender eligible for sentencing under
the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the foreign crime (1) must
be such that, “if committed in California, [it would be] punishable by
imprisonment in the state prison” (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and
(2) must “include[] all of the elements of the particular felony as defined in”
section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)).3 We now turn to
the question whether defendant’s prior conviction in Nebraska qualifies as a
“serious felony.”
I
In 1996, defendant pleaded no contest in Nebraska to a charge of sexual
assault of a child, in that he, “being a person nineteen years of age or older,
subject[ed] [N.H.] whose date of birth is July 22, 1991, and who is a person of
fourteen years of age or younger, to sexual contact,” a violation of Nebraska
Revised Statutes section 28-320.01. In order to determine whether this Nebraska
crime contains “all of the elements” of a serious felony in California, we must first
determine what elements are required by Nebraska law. At the time of

3
A criminal offender may also be sentenced under the three strikes law if he
or she has a prior conviction for a “violent felony,” as defined in section 667.5,
subdivision (c). (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) No party argues that
the Nebraska crime of which defendant was convicted in 1996 qualifies as a
“violent felony.”
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defendant’s crime, Nebraska Revised Statutes section 28-320.01 provided: “(1) A
person commits sexual assault of a child if he or she subjects another person
fourteen years of age or younger to sexual contact and the actor is at least nineteen
years of age or older.” (Italics added.) At that time, Nebraska Revised Statutes
section 28-318(5) defined “sexual contact” as “the intentional touching of the
victim’s sexual or intimate parts or the intentional touching of the victim’s
clothing covering the immediate area of the victim’s sexual or intimate parts.
Sexual contact shall also mean the touching by the victim of the actor’s sexual or
intimate parts or the clothing covering the immediate area of the actor’s sexual or
intimate parts when such touching is intentionally caused by the actor. Sexual
contact shall include only such conduct which can be reasonably construed as
being for the purpose of sexual arousal or gratification of either party.” (Italics
added.)4
Nebraska Revised Statutes section 28-318(5) does not, on its face, require
that the prohibited touching be for any particular purpose or be accomplished with
any specific intent. The statutory language plainly states the actor must simply act
intentionally; that is, he must intend to touch the victim. The touching cannot be
involuntary or accidental. Instead of requiring specific intent, the statute requires
proof the touching occurred under circumstances in which it “can be reasonably
construed as being for the purpose of sexual arousal or gratification.” (Neb. Rev.
Stats., § 28-318(5).) This plain meaning controls. (Caspers Const. Co. v.

4
After defendant’s crime, Nebraska Revised Statutes section 28-318(5) was
amended to add: “Sexual contact shall also include the touching of a child with
the actor’s sexual or intimate parts on any part of the child’s body for purposes of
sexual assault of a child under section 28-320.01.” (2004 Neb. Laws 943, § 4, eff.
Apr. 16, 2004, italics added.) This amendment is not at issue in this case.
5

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Nebraska State Patrol (2005) 270 Neb. 205, 209 [700 N.W.2d 587, 591] [“In
construing a statute, an appellate court should consider the statute’s plain
meaning”]; see In re Jennings (2004) 34 Cal.4th 254, 263 [we interpret statutes by
giving statutory language its “ ‘plain, commonsense meaning’ ”].)
Consistent with the statute’s plain language, the Nebraska Supreme Court
has never required proof of specific lewd intent to sustain a violation of Nebraska
Revised Statutes section 28-318(5). According to the Nebraska Supreme Court, to
prove “sexual contact” under Nebraska Revised Statutes section 28-318(5), the
state need prove only that the “circumstances and conduct . . . could be construed
as being for such a purpose [of sexually arousing or gratifying either the
perpetrator or the victim].” (State v. Osborn (1992) 241 Neb. 424, 433 [490
N.W.2d 160, 167]; State v. Berkman (1988) 230 Neb. 163, 166 [430 N.W.2d 310,
313].) Of course, the Nebraska Supreme Court is the final arbiter of the meaning
of its state’s laws. (See Cooper v. Swoap (1974) 11 Cal.3d 856, 886 [California
Supreme Court is “the final authority on matters of state law”]; see also Burford v.
Sun Oil Co. (1943) 319 U.S. 315, 325 [recognizing Texas courts alone can give
definitive interpretation of Texas state law].)
Michigan courts, construing similar statutory language, have explicitly
rejected the argument that proof of specific lewd intent is required. The law in
Michigan prohibiting sexual touching of a child, like the law in Nebraska,
provides that “[a] person is guilty of criminal sexual conduct in the second degree
if the person engages in sexual contact with another person” under certain
circumstances, including that the victim is at least 13 years old but less than 16.
(Mich. Comp. Laws, § 750.520c(1)(b), italics added.) “Sexual contact” is defined
in Michigan, as in Nebraska, as “the intentional touching of the victim’s or actor’s
intimate parts or the intentional touching of the clothing covering the immediate
area of the victim’s or actor’s intimate parts, if that intentional touching can
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reasonably be construed as being for the purpose of sexual arousal or
gratification . . . .” (Id., § 750.520a(n), italics added.) Under this definition of
“sexual contact,” according to the Michigan courts, “the defendant’s specific
intent is not an essential element of the crime. The actor must touch a genital area
intentionally, but he need not act with the purpose of sexual gratification. Rather,
it suffices if ‘that intentional touching can reasonably be construed as being for
the purpose of sexual arousal or gratification.’ ” (People v. Fisher (1977) 77
Mich.App. 6, 13 [257 N.W.2d 250, 254].)
The Fisher court explained the Michigan law was deliberately constructed
to omit a requirement that specific intent be proved and that an earlier legislative
proposal to require proof of the actor’s sexual purpose had been rejected. “The
[statutory] language . . . must be read as a substantial lessening of the prosecutor’s
burden of proof: the touching must be intentional, but the actor’s purpose need
not be proven to the jury. On the contrary, the jury may find that the actor’s actual
purpose was other than sexual gratification, e.g., anger, revenge, but still find that
‘sexual contact’ had taken place.” (People v. Fisher, supra, 257 N.W.2d at p. 254,
fn. 2.) Construing an updated (but essentially identical) version of the same
statute,5 the Michigan courts have retained this interpretation, noting that

5
Michigan Compiled Laws section 750.520c prohibits “sexual contact” by
an adult and a minor in many circumstances. Michigan Compiled Laws section
750.520a(n) has been rewritten only slightly since it was interpreted by People v.
Fisher, supra, 257 N.W.2d 250, and now reads: “ ‘Sexual contact’ includes the
intentional touching of the victim’s or actor’s intimate parts or the intentional
touching of the clothing covering the immediate area of the victim’s or actor’s
intimate parts, if that intentional touching can reasonably be construed as being
for the purpose of sexual arousal or gratification, done for a sexual purpose, or in
a sexual manner for: [¶] (i) Revenge. [¶] (ii) To inflict humiliation. [¶] (iii) Out
of anger.” (Italics added.)
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“criminal sexual conduct is a general intent crime; a defendant’s specific intent is
not at issue.” (People v. Piper (1997) 223 Mich.App. 642, 646 [567 N.W.2d 483,
485].)
The People resist the interpretation of Nebraska Revised Statutes section
28-318(5) that requires proof only of general intent to establish the crime of child
sexual assault, but their arguments are unpersuasive. They first contend the phrase
“reasonably construed as being for the purpose of sexual arousal” means a
Nebraska prosecutor must prove the defendant acted with a sexual purpose. As we
have explained, this interpretation is at odds with the plain meaning of the
statutory language and with the decisions of the Nebraska Supreme Court. The
People contend the Nebraska cases were “wrongly decided.” Instead, they argue,
“Nebraska merely requires that the proof of the defendant’s purpose be subject to
a reasonable construction.” To the extent the Nebraska Supreme Court is merely
interpreting Nebraska law, we are not at liberty to disagree with it. But even if we
were, the People propose no explanation, and we are aware of none, why the
Nebraska Legislature would deem it necessary to mandate, in a criminal statute,
that evidence of criminal mens rea be subject to a “reasonable construction.” We
assume the trier of fact in a criminal case must interpret the evidence presented at
trial in a reasonable fashion. In sum, we reject the People’s proposed
interpretation as unreasonable and unsupportable.
II
Having discerned the elements of the Nebraska crime of child sexual
assault of which defendant was convicted in 1996, we turn to whether that crime
contains all of the elements of a qualifying serious felony in California. This
state’s law proscribing comparable conduct is set forth in section 288, subdivision
(a). Unlike the Nebraska law, section 288, subdivision (a) requires proof of
specific lewd intent, providing: “Any person who willfully and lewdly commits
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any lewd or lascivious act, . . . upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person or
the child, is guilty of a felony.” (Italics added.) A violation of this section
requires proof of “the specific intent of arousing, appealing to, or gratifying the
lust of the child or the accused.” (People v. Raley (1992) 2 Cal.4th 870, 907,
italics added.) Because Nebraska Revised Statutes sections 28-320.01 and 28-
318(5) do not require proof of specific lewd intent, the Nebraska offense of child
sexual assault does not include all of the elements of a violation of California’s
section 288, subdivision (a).
Section 1192.7(c)(6), however, in proscribing commission of a lewd or
lascivious act on a child, does more than simply incorporate section 288,
subdivision (a). We discussed the scope of the section in People v. Murphy
(2001) 25 Cal.4th 136 (Murphy). At issue in Murphy was whether the
defendant’s conviction for violating section 288a, subdivision (c)—oral
copulation with a child under 14 years of age—constituted a serious felony under
section 1192.7(c)(6). Based on the use in section 1192.7(c)(6) of the “lewd or
lascivious” act language from section 288, subdivision (a), the defendant argued
the Legislature intended section 1192.7(c)(6) to refer only to violations of section
288, subdivision (a). (Murphy, at p. 144.) We rejected the argument. After
considering a variety of factors indicative of the Legislature’s intent, including
the statute’s plain language, its history, and the structure of section 1192.7(c) in
general, we concluded that, “[a]lthough section 1192.7(c)(6) certainly includes
acts that, because of the perpetrator’s intent, are lewd or lascivious under . . .
section 288, it is not limited to those acts.” (Murphy, at p. 147.) Instead, it
includes all types of felonies that involve lewd conduct with children under 14
years of age. Section 288, we explained, “is part of a statutory scheme that
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recognizes that some touchings of children are always harmful and improper,
whereas others may or may not be, depending upon the actor’s intent. To address
the former, the Legislature passed statutes—like section 288a, subdivision (c)(1)
[oral copulation with a minor]—that precisely describe the inherently harmful
acts and prohibit them in all circumstances. To address the latter, the Legislature
passed section 288. And to implement this statutory scheme, [People v.]
Martinez[, supra, 11 Cal.4th 434] reaffirmed a broad definition of a lewd or
lascivious act that includes any touching committed with the [specific] intent
section 288 describes, so as to extend protection beyond the inherently lewd acts
precisely described and prohibited by the other statutes in the family of felony sex
offenses.” (Murphy, at p. 147.) Accordingly, we held in Murphy that “[a]n act of
oral copulation on a child under 14 years of age by a person more than 10 years
older than the child is a lewd or lascivious act under the common and ordinary
meaning of those words [as used in section 1192.7(c)(6)].” (Murphy, at p. 143;
see People v. Fox (2001) 93 Cal.App.4th 394 [same re sexual intercourse with a
child under the age of 14].)
In sum, certain sexually based offenses require a showing of only general
intent, that is, the intent to commit an act “without reference to intent to do a
further act or achieve a future consequence.” (People v. Atkins (2001) 25 Cal.4th
76, 82.) Other sex crimes, by contrast, require a showing of specific intent,
meaning the intent to “do some further act or achieve some additional
consequence.” (Ibid.) “[R]ape (§ 261), sodomy (§ 286), and oral copulation
(§ 288a) are all general intent crimes and, hence, contain no ‘sexual gratification’
specific intent element . . . .” (People v. Whitham (1995) 38 Cal.App.4th 1282,
1293.) Lewd or lascivious conduct in violation of section 288, subdivision (a), on
the other hand, requires “the specific intent of arousing, appealing to, or gratifying
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the lust of the child or the accused.” (People v. Raley, supra, 2 Cal.4th at p. 907,
italics added.)
No evidence was presented to the jury, or reviewed by the trial court,
shedding any light on the facts underlying defendant’s Nebraska offense.
Although the trier of fact was entitled to examine and consider the entire record
of the prior conviction (People v. Avery (2002) 27 Cal.4th 49, 53), the only
evidence the People introduced to prove the prior conviction was People’s exhibit
No. 4, which included the Nebraska information charging defendant with sexual
contact with a child, a list of potential witnesses to the crime, the clerk’s
transcript indicating defendant’s plea of no contest, and his sentence of three to
five years in prison, less applicable credits. This evidence proved nothing more
than the least adjudicated elements of the crime (People v. Rodriguez (1998) 17
Cal.4th 253, 261-262); certainly no evidence was presented indicating defendant
committed rape, oral copulation, sodomy, or any other sex crime for which only
general intent need be shown. Defendant’s conduct may have been limited to
“the intentional touching of the victim’s clothing covering the immediate area of
the victim’s sexual or intimate parts” under circumstances which could be
“reasonably construed as being for the purpose of sexual arousal or gratification
of either party.” (Neb. Rev. Stats., § 28-318(5).) Were that the case, as we have
explained, without a finding defendant acted with specific lewd intent, his
behavior in Nebraska would not have constituted a violation of section 288 or,
indeed, of any California criminal statute defining a felony. The Court of Appeal
below agreed, concluding that “[d]efendant is correct that the Nebraska statute
does not have the same specific intent requirement as . . . section 288, subdivision
(a).”
The appellate court nevertheless concluded defendant’s felony conviction
in Nebraska qualified as a serious felony conviction under section 1192.7(c)(6)
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because “the minor would reasonably construe the touching as sexual” and thus
the act “would always be harmful and improper.” We disagree. Such a touching
in the abstract, which involves no definite or specific sexual act, no penetration,
and not even necessarily an awareness by the victim that he or she was touched,
does not qualify as one of the proscribed touchings that, according to Murphy, are
“always harmful and improper” and are a felony in this state on a showing of
general intent only. (Murphy, supra, 25 Cal.4th at p. 147.) As we explained in
People v. Martinez, supra, 11 Cal.4th at page 450, “[i]t is common knowledge
that children are routinely cuddled, disrobed, stroked, examined, and groomed as
part of a normal and healthy upbringing. On the other hand, any of these intimate
acts may also be undertaken for the purpose of sexual arousal. Thus, depending
upon the actor’s motivation, innocent or sexual, such behavior may fall within or
without the protective purposes of section 288.” The acts underlying defendant’s
Nebraska crime may have been of this type. Absent a statutory mandate requiring
the trier of fact to find defendant acted with specific lewd intent, his acts—albeit
felonious in Nebraska—would not necessarily constitute a felony in this state. So
far as the record indicates, defendant did not commit an act the character of
which is always considered harmful to children and that would be a crime in this
state even in the absence of specific intent.
Relying on Murphy, supra, 25 Cal.4th at page 145, the People contend
that, even if the actions underlying defendant’s prior conviction in Nebraska
would not come within a particular felony statute in this state, his behavior
nevertheless contains all of the elements of the conduct specified in section
1192.7(c)(6), namely, a “lewd or lascivious act on a child under the age of 14
years.” Because section 1192.7(c)(6) describes conduct rather than “discreet
felony offenses,” the People argue, “it is immaterial whether a prior conviction
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lacks the specific intent present in section 288, subdivision (a), or otherwise
amounts to any other discrete California felony offense.” (Italics added.)
To the extent the People suggest defendant’s Nebraska crime can qualify
as a serious felony under section 1192.7(c) despite lacking all the elements of a
qualifying California felony, they are mistaken. As noted, for purposes of the
three strikes law, to count as a strike, a prior foreign criminal conviction must be
for an offense that, had it been committed in California, would have been a
felony. (§ 667, subd. (d)(2); see also § 18 [felonies are punishable by
imprisonment in state prison].) Nor does Murphy, supra, 25 Cal.4th 136, hold
otherwise. We nowhere suggested in Murphy that conduct qualifying as a serious
felony under the law need not be felonious conduct.
People v. Equarte (1986) 42 Cal.3d 456, cited by the Murphy court in
support, similarly fails to support the People’s argument. In that case, we
addressed whether the defendant’s present crime, assault with a deadly weapon in
violation of section 245, subdivision (a)(1), qualified as a serious felony.
Although that offense is not specifically listed as a serious felony in section
1192.7(c), the trial court had ruled it was such because the defendant used a
deadly weapon, thereby coming within section 1192.7(c)(23): “any felony in
which the defendant personally used a dangerous or deadly weapon.” The
defendant in Equarte argued this latter description referred only to crimes in
which a deadly weapon enhancement—section 12022, subdivision (b)—had been
pleaded and proven.
This court disagreed. In addition to listing specific crimes, we explained,
section 1192.7 also described certain criminal conduct deemed sufficiently
serious to warrant additional criminal sanctions. In support, we highlighted two
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categories of serious felonies set forth in section 1192.7 that do not directly
correspond to specific crimes: residential burglary (§ 1192.7(c)(18))6 and
furnishing certain drugs to minors (§ 1192.7(c)(24)). (People v. Equarte, supra,
42 Cal.3d at p. 464.) Like those categories, we stated, use of a deadly weapon in
connection with some other felony, whether or not charged as an enhancement
under section 12022, may be found to constitute a serious felony if the prosecutor
properly pleads and proves that the defendant personally used such a weapon in
the commission of the offense. (Equarte, at p. 465.) But we nowhere held that
use of a deadly weapon, in connection with conduct not otherwise a felony,
would also constitute a serious felony under section 1192.7(c). Moreover, the
two examples of criminal conduct—residential burglary and furnishing drugs to a
minor—were clearly criminal conduct.
In short, nothing in Murphy, supra, 25 Cal.4th 136, or in People v.
Equarte, supra, 42 Cal.3d 456, supports the proposition that conduct or behavior
not amounting to a felony if committed in California could nevertheless qualify as
a serious felony under section 1192.7(c).
The People also contend that because the Nebraska law prohibits touching
a child in a manner that can be “reasonably construed” as done with a sexual
motive, “the victim is more likely to be aware of [the] sexual purpose” of such a

6
When section 1192.7(c)(18) was first enacted, it included in the definition
of a “serious felony” a “[b]urglary of an inhabited dwelling house, vessel, as
defined in the Harbors and Navigation Code, which is inhabited and designed for
habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the
Health and Safety Code, trailer coach, as defined by the Vehicle Code, or the
inhabited portion of any other building.” (Stats. 1998, ch. 754, § 1.) Proposition
21, which passed on March 7, 2000, amended section 1192.7(c)(18) to read: “any
burglary of the first degree.” (See People v. Garrett (2001) 92 Cal.App.4th 1417,
1420-1421.)
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touching and will be harmed more by such a touching than by a violation of
section 288, subdivision (a), “which can be effectuated through a touching that is
objectively no different than the ‘cuddling’ associated with a ‘normal and healthy
upbringing.’ ” Even if the People were correct, a point we need not resolve here,
we cannot conclude defendant’s prior conviction in Nebraska is a qualifying
serious felony unless it meets the criteria set forth by our Legislature or by the
electorate, having exercised the initiative power. Because no evidence was
presented to prove defendant committed a crime in Nebraska that contains all of
the elements of a felony in California that would qualify as a “serious felony”
under section 1192.7(c), he was not properly subject to a serious-felony sentence
enhancement under section 667, subdivision (a). In addition, the Court of Appeal
erred in finding defendant’s prior Nebraska conviction would, on remand, render
him vulnerable to sentencing under the three strikes law.
CONCLUSION
The Court of Appeal’s decision reversing the trial court’s finding that
defendant was a habitual sexual offender under section 667.71, and its decision
affirming defendant’s three convictions for violating section 288, subdivision (a),
were not included in this court’s limitation of the issues and are therefore
unaffected by our decision today. The judgment of the appellate court affirming
imposition of the five-year serious-felony sentence enhancement under section
667, subdivision (a), as well as its implicit conclusion that defendant’s prior
Nebraska conviction rendered him eligible, on remand, to be sentenced under the
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three strikes law, are reversed, and the case is remanded for further proceedings
consistent with the views expressed herein.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
CHIN, J.
MORENO, J.

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CONCURRING OPINION BY BAXTER, J.
We granted review to decide when a prior out-of-state conviction
constitutes a “lewd or lascivious act on [an underage] child” for serious felony
sentencing purposes (Pen. Code, § 1192.7, subd. (c)(6))1 — a category that
includes sexually motivated touching (§ 288, subd. (a) (section 288(a))) and sexual
penetration. (See People v. Murphy (2001) 25 Cal.4th 136, 141-149.) I agree with
the majority that qualifying foreign convictions must contain “all of the elements”
of such a serious felony in California. (§ 667, subds. (a)(1), (d)(2).) Plainly, the
latter requirement excludes conduct that is not lewd, lascivious, and felonious
because it either lacks sexual intent or is not inherently sexual in nature.
I am less sanguine about the majority’s conclusion that the Nebraska lewd
touching statute under which defendant was previously convicted lacks the same
mens rea as section 288(a), California’s comparable law. (Ibid. [requiring specific
intent to arouse or gratify sexual desires of defendant or victim]; see People v.
Martinez (1995) 11 Cal.4th 434, 444-445.) As explained below, the Nebraska
statute may reasonably be interpreted to require actual sexual intent. Moreover,
the majority fails to persuade me that the Nebraska courts have directly confronted
the issue and squarely rejected actual sexual intent as an element of the Nebraska
offense. Contrary to what the majority seems to imply, several states have lewd

1
All unlabled statutory references are to the Penal Code.
1

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touching laws like Nebraska’s. Hence, the present case may have the unintended
effect under California’s sentencing scheme of treating many recidivist child
molesters as first time offenders, an issue the Legislature may wish to address.
Nevertheless, I am not willing to subject this defendant to serious-felony
consequences without greater certainty under Nebraska law of the requirements
for violating that state’s lewd touching statute. I therefore reluctantly concur in
the outcome of the majority opinion.
DISCUSSION
Three years before he committed the present crimes against his three-year-
old stepdaughter, defendant was convicted under Nebraska Revised Statutes
section 28-320.01 (1995) of felony “sexual contact” with another stepdaughter,
who was then four years old. At that time, and as pertinent here, Nebraska
Revised Statutes section 28-318(5) defined “sexual contact” between an adult and
underage victim as the “intentional touching” of “sexual or intimate parts,”
whether clothed or unclothed, where the act “can be reasonably construed as being
for the purpose of sexual arousal or gratification of either party.” The majority
insists that a statutory violation occurs where the defendant “intend[ed] to touch
the victim” under circumstances which could be “ ‘reasonably construed’ ” as
sexual, and that the act need not be performed “for any particular purpose” or
“with any specific intent.” (Maj. opn., ante, at p. 5.) Under this view of the
Nebraska law, the defendant’s actual intent to achieve sexual arousal is not an
element, and the proscribed touching is criminal if it objectively seems lewd to an
outside observer.
I am not persuaded that this construction is compelled by the statutory
language “on its face.” (Maj. opn., ante, at p. 5.) Nor has the Nebraska Supreme
Court held that “proof of specific lewd intent” is unnecessary under Nebraska
Revised Statutes section 28-318(5). (Maj. opn., ante, at p. 6.) Indeed, defendant
2

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candidly states in supplemental briefing solicited by this court that no Nebraska
decision “specifically considers” the issue. An examination of the two provisions
and relevant case law suggests that Nebraska’s lewd touching statute may, in fact,
contain the same mental state as California’s version of the crime.
One plausible view of the “reasonably construed” language is simply that it
allows the jury to infer actual sexual intent from circumstantial evidence. The
legislative purpose may only have been to ensure that the fact finder need not
accept the defendant’s disclaimers of sexual purpose where it is otherwise clear he
actually had that intent. However, by entirely excising such an intent requirement
from the statute, the majority’s construction would preclude either side from
litigating the issue. It would insulate from conviction those defendants who
intentionally touch a child’s private parts under objectively innocuous
circumstances (e.g., relatives and caretakers), but who actually possess harmful
lewd intent. The majority offers no evidence that Nebraska lawmakers desired
that result.
As judicially construed, Nebraska Revised Statutes section 28-318(5)
sounds more like a specific intent, than a general intent, provision. Though not
fully explored by the majority, Nebraska cases have said that the prohibited act
must be committed “for the purpose of sexual gratification,” with no suggestion
that the defendant’s true state of mind is irrelevant to this determination. (State v.
Max (1992) 1 Neb.App. 257, 265 [492 N.W.2d 887, 893] [allowing expert
evidence on penile nature of anal contact to prove sexual purpose]; accord, State v.
Styskal (1992) 242 Neb. 26, 30 [493 N.W.2d 313, 317] [allowing evidence of prior
touchings of victims’ private parts during dental examinations to prove that
“purpose” and “intent” of subsequent similar act was “for sexual arousal and
gratification”].)
3

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No Nebraska Supreme Court case cited by the majority clearly supports its
contrary view. In State v. Berkman (1988) 230 Neb. 163 [430 N.W.2d 310], for
instance, the defendant caressed and kissed his girlfriend’s 13-year-old daughter,
and rubbed her breasts and vaginal area for over a minute. On appeal, the
defendant claimed the evidence was insufficient to support his lewd touching
conviction because he lacked the requisite intent. The Nebraska high court
rejected the claim. The court emphasized that “[t]he intent with which an act is
committed is a mental process and may be inferred from the words and acts of the
defendant and from the circumstances surrounding the incident.” (Id. at p. 166
[430 N.W.2d p. 313].) According to the court, the intimate nature of the touching
raised a strong inference that it was “intentional and for the purpose of [the
defendant’s] sexual arousal or gratification.” (Id. at p. 167 [430 N.W.2d at
p. 313].) Nothing in this description of the statute suggests sexual purpose and
intent are unnecessary or irrelevant in proving guilt.
The foregoing authorities can be read to suggest that Nebraska Revised
Statutes section 28-318(5) requires actual sexual intent, as “reasonably” inferred
from all the circumstances by the trier of fact. Indeed, this court has described
section 288(a), including the requisite mental state, in language strikingly similar
to that used by the Nebraska courts. Section 288(a) prohibits any sexually
motivated contact with an underage child. (People v. Martinez, supra, 11 Cal.4th
434, 444-445.) We have said that, in determining guilt beyond a reasonable doubt,
the fact finder “ ‘looks to all the circumstances, including the charged act, to
determine whether it was performed with the required specific intent.’ ” (Id. at
p. 445.) Likewise, a particular touching is made criminal in California “by
reference to the actor’s intent as inferred from all the circumstances.” (Id. at
p. 450.) I see no clear sign that Nebraska and California have construed their lewd
4

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touching statutes differently with respect to the mental state needed to commit the
crime.
The majority’s reliance on Michigan law, which defendant cites in his
supplemental briefing, arguably adds little to the analysis. Like Nebraska,
Michigan criminalizes any “intentional touching” between an adult and underage
child of “intimate parts,” whether or not clothed, if the act “can reasonably be
construed as being for the purpose of sexual arousal or gratification, done for a
sexual purpose, or [done] in a sexual manner . . . .” (Mich. Comp. Laws,
§ 750.520a(n).) The majority cites two intermediate court decisions for the
proposition that the Michigan statute describes “ ‘a general intent crime,’ ” and
that “ ‘a defendant’s specific intent is not at issue.’ ” (Maj. opn., ante, at pp. 7-8,
quoting People v. Piper (1997) 223 Mich.App. 642, 646 [567 N.W.2d 483, 485];
see People v. Fisher (1977) 77 Mich.App. 6, 13 [257 N.W.2d 250, 254].)
However, even assuming these principles and authorities are well established in
Michigan, they have never been cited or used by the Nebraska courts in
interpreting the mental state requirements of their own law. As noted earlier,
Nebraska courts have instead described the lewd touching statute in terms echoing
those this court has used under section 288(a).
Moreover, the majority fails to observe that Michigan does not have the
only lewd touching law similar to Nebraska’s. Several other states also ban
“intentional touching[s]” of “intimate” parts that can “reasonably” be “construed”
as having a sexual purpose. (E.g., Md. Crim. Code Ann., § 3-301(f); N.H. Rev.
Stat. Ann., § 632-A:1(IV); R.I. Gen. Laws, § 11-37-1(7); Tenn. Code Ann., § 39-
13-501(6).) Defendant cites no decision from any of these jurisdictions, and I am
aware of none, concluding that specific or actual intent is not an element of these
crimes. In addition, two high court decisions from other states have resisted such
an interpretation under former sexual touching laws similar to Nebraska’s current
5

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statute. (State v. Wield (2003) 266 Wis.2d 872, 880-882 & fn. 5 [668 N.W.2d 823,
827-829 & fn. 5] [sentencing case equating former and current versions of statute
requiring sexual purpose, even though former version said such purpose must
“reasonably be construed” as sexual]; State v. Tibbetts (Mn. 1979) 281 N.W.2d
499, 500 [instructional case invalidating “reasonably be construed” language
appearing in former version of statute because it undermined reasonable doubt
standard].) Against this backdrop, the majority arguably overstates the
significance of Michigan law in deciphering Nebraska law.
In light of the foregoing, I have serious reservations about the majority’s
conclusion that defendant’s prior Nebraska conviction lacks all of the elements of
a lewd act amounting to a serious felony under section 1192.7, subdivision (c)(6).
Nebraska statutory and decisional law suggest the opposite may be true.
That said, I am reluctant to uphold a serious-felony determination based on
a prior foreign conviction where the courts in that particular state have not
precisely defined each element of the crime. The consequences at stake, here and
in other cases, include application of both the five-year serious-felony
enhancement (§ 667, subd. (a)), and the three strikes law (id., subds. (b)-(i)).
Before any California court decides that a foreign conviction qualifies as a serious
felony for such sentencing purposes, it should be more certain than I am now that
the requisite congruity exists. On that basis, I join the majority in reversing the
Court of Appeal judgment insofar as it reaches a contrary result.
BAXTER, J.
I CONCUR:
CORRIGAN, J.
6

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Warner
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 119 Cal.App.4th 331
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S126233
Date Filed: August 10, 2006
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Roland L. Candee

__________________________________________________________________________________

Attorneys for Appellant:

John Ward, under appointment by the Supreme Court, for Defendant and Appellant.

Gary M. Mandinach for the California Public Defender’s Association as Amicus Curiae on behalf of
Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Patrick J. Whalen, Janet E.
Neeley, Stan Cross and Lee E. Seale, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

John Ward
584 Castro Street, #802
San Francisco, CA 94114
(415) 255-4996

Lee E. Seale
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5305

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Opinion Information

Date:	Docket Number:
Thu, 08/10/2006	S126233

Disposition
Aug 10 2006	Opinion: Reversed

Dockets
Jul 13 2004	Petition for review filed   By counsel for appellant {Brian Eric Warner}.
Jul 13 2004	Record requested
Jul 28 2004	2nd record request
Jul 30 2004	Received Court of Appeal record   one doghouse
Aug 27 2004	Time extended to grant or deny review   to 10-8-04
Sep 15 2004	Petition for review granted; issues limited (criminal case)   The issue to be briefed and argued is limited to the following: Does defendant's prior conviction of sexual assault of a child under Nebraska Revised Statutes, section 28- 320.01 qualify as a serious felony for sentencing purposes in California although the Nebraska statute does not include all of the elements of any felony under California law amounting to a "lewd and lascivious act on a child under the age of 14 years" within the meaning of Penal Code section 1192.7, subdivision (c)(6)? Votes: George, C.J., Kennard, Werdegar, Chin, Brown, and Moreno, JJ.
Sep 15 2004	Note:
Sep 15 2004	Note:   Processed grant letter
Oct 4 2004	Counsel appointment order filed   John Ward for Appellant ( Brian Warner).
Oct 27 2004	Change of contact information filed for:   atty John Ward
Oct 27 2004	Request for extension of time filed   for aplt to file the opening brief on the merits, to 12-2-04
Nov 3 2004	Extension of time granted   to 12-2-04 for aplt to file the opening brief on the merits.
Nov 29 2004	Request for extension of time filed   Appellant ( Warner) to Jan. 3, 2005 to file the opening brief on the merits. ok. order prep 12-02-04
Dec 6 2004	Extension of time granted   to January 3, 2005 for appellant to file the opening brief on the merits. No further extensions will be granted.
Dec 21 2004	Request for extension of time filed   by appellant, asking to 1-24-05 to file the opening brief on the merits
Dec 22 2004	Extension of time denied   The application of appellant for an extension of time to serve and file the opening brief on the merits is hereby DENIED. A motion for relief from default must demonstrate good cause for the filing of an untimely brief (see Cal. Rules of Court, rule 45(e).)
Jan 4 2005	Opening brief on the merits filed   by aplt (40k)
Feb 1 2005	Request for extension of time filed   to 3/15/2005 (45 days) to file respondent's answer brief on the merits.
Feb 3 2005	Notice of substitution of counsel   Dep. Atty. Gen.
Feb 4 2005	Extension of time granted   respondent to and including March 15, 2005, to file the answer brief on the merits.
Feb 16 2005	Compensation awarded counsel   Atty Ward
Mar 7 2005	Request for extension of time filed   to 4-14-2005 to file the answer brief on the merits.
Mar 14 2005	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including April 14, 2005.
Apr 14 2005	Answer brief on the merits filed   by Respondent People (Filed in Sacramento)
Apr 27 2005	Request for extension of time filed   by appellant to June 6, 2005, to file the reply brief on the merits.
May 3 2005	Extension of time granted   On application of appeallant and good cause appeairng, it is ordered that the time to serve and file appellant's reply brief on the merits is extended to andincluding June 6, 2005.
May 26 2005	Reply brief filed (case fully briefed)   Appellant (Warner) by counsel.
Jun 27 2005	Received application to file Amicus Curiae Brief   and brief under same cover from CALIFORNIA PUBLIC DEFENDERS ASSOC (CPDA) supporting appellant.
Jul 5 2005	Permission to file amicus curiae brief granted   California Public Defenders Association in support of Brian Warner
Jul 5 2005	Amicus curiae brief filed   California Public Defenders Association in support of Brian Warner. An Answer may be served and filed by any party within 20 days.
Jul 15 2005	Filed:   Appellant's Notice of Joinder to Amicus Curiae Brief by California Public Defenders Association.
Aug 18 2005	Received:   Respondent's letter dated 8-18-2005 requesting clarification [ Received in Sacramento ]
Sep 8 2005	Received:   Letter dated 9/2/2005 from counsel for appellant (Warner) in opposition to Attorney General's letter requesting clarification.
Sep 28 2005	Issues ordered limited   The issue to be briefed and argued is hereby limited to the following: Does defendant's prior conviction of sexual assault of a child under Nebraska Revised Statutes, section 28- 320.01 qualify as a serious felony for sentencing purposes in California as a "lewd and lascivious act on a child under the age of 14 years" within the meaning of Penal Code section 1192.7, subdivision (c)(6), for purposes of Penal Code sections 667, subdivision (a), 667, subdivisions (b) through (i), and 1170.12, subd. (b)(2), even though Penal Code sections 667, subdivision (a), 667, subdivision (d)(2), and 1170.12, subdivision (b)(2), require that a prior felony conviction from another jurisdiction include "all of the elements" of a California serious felony and even though the Nebraska statute does not require that the perpetrator have acted with the specific "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child" (Pen. Code, ? 288, subd. (a))? No other issue is to be briefed or argued. This order supersedes our prior order specifying the issues dated September 15, 2004. The parties are hereby directed to file supplemental briefs addressing the issue specified herein. Petitioner shall file a supplemental opening brief no later than 30 days after the date of this order. Respondent shall file a supplemental answer brief no later than 30 days after appellant files his supplemental opening brief. Petitioner may file a supplemental reply brief no later than 20 days after respondent files his supplemental answer brief. All briefs shall comply with the length requirements of rule 29.1 of the California Rules of Court. No extensions of time are contemplated.
Oct 26 2005	Supplemental brief filed   by counsel for appellant (Warner)
Nov 23 2005	Supplemental brief filed   Respondent 's Answer Brief on the Merits
Dec 14 2005	Supplemental brief filed   Appellant's Supplemental Reply Brief on the Merits (CRC 40.1(b))
Apr 4 2006	Case ordered on calendar   Wednesday, May 3, 2006, at 1:30 p.m., in San Francisco
Apr 26 2006	Filed:   Appellant's additional authority [with permission]
May 3 2006	Cause argued (not yet submitted)
May 4 2006	Supplemental briefing ordered   As announced at oral argument in this matter on May 3, 2006, the parties are directed to submit supplemental briefing on the following issue: Whether, at the time of defendant's prior conviction of sexual assault of a child, Nebraska Revised Statutes section 28-320.01 contained the same mens rea element as Penal Code section 288, subdivision (a), in that it required the defendant to harbor the specific intent to arouse or gratify the sexual desires of himself or the victim. (See People v. Martinez (1995) 11 Cal.4th 434, 444-445.) Briefing is to be simultaneous and in letter form. Initial briefs are to be served and filed in the San Francisco office of the Court Clerk's office on or before May 15, 2006. Simultaneous replies are to be served and filed in the San Francisco office of the Court Clerk's office on or before May 19, 2006. The matter will be deemed submitted upon the filing of the last reply brief.
May 4 2006	Note:
May 15 2006	Supplemental brief filed   Appellant Brain E. Warner, Appellant by John Ward, counsel.
May 15 2006	Supplemental brief filed   The People, Respondent by Lee E. Seale, counsel
May 17 2006	Supplemental brief filed   The People, Respondent by Lee E. Seale, counsel (REPLY)
May 19 2006	Supplemental brief filed   Brian Eric Wraner, Appellant by John Ward, counse. (REPLY)
May 19 2006	Submitted by order
Aug 10 2006	Opinion filed: Judgment reversed   Court of Appeal judgment reversed and remanded. Opinion by Werdegar, J. -- Joined by George, C.J., Kennard, Chin, Moreno, JJ. Concurring Opinion by Baxter, J. -- Joined by Corrigan, J.
Aug 24 2006	Request for modification of opinion filed   The People, respondent, by Rachelle A. Newcomb, Deputy Attorney General - Sacramento [Filed in Sacramento]
Aug 29 2006	Time extended to consider modification or rehearing   Finality of the opinion in the above-entitled case is hereby extended to and including October 10, 2006.
Aug 30 2006	Compensation awarded counsel   Atty Ward
Sep 20 2006	Opinion modified - no change in judgment
Sep 20 2006	Order filed   Opinion modified.
Sep 20 2006	Remittitur issued (criminal case)
Oct 4 2006	Received:   Receipt for remittitur from Third Appellate District, signed for by Theresa Devine, Deputy Clerk.

Briefs
Jan 4 2005	Opening brief on the merits filed
Apr 14 2005	Answer brief on the merits filed
May 26 2005	Reply brief filed (case fully briefed)
Jul 5 2005	Amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website