Manduley v. Superior Court (People) (2002)

MORGAN VICTOR MANDULEY et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. THE PEOPLE, Real Party in Interest.

MICHAEL ROSE et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent. THE PEOPLE, Real Party in Interest.

[Modification fn. * of opinion (27 Cal.4th 537).]

THE COURT.-

The People have requested modification of the opinion on the ground -- not previously asserted by the parties -- that a violation of Penal Code section 288.5 (continuous sexual abuse of a child) constituted a serious felony and a strike under the Three Strikes law before the passage of Proposition 21, contrary to the contention of petitioners and contrary to the format of the ballot materials indicating that proposed Penal Code section 1192.7, subdivision (c)(35) (referring to Pen. Code, § 288.5), was a new provision. (See Stats. 1998, ch. 936, § 13.5, p. 90; Stats. 1991, ch. 451, § 1, p. 2247; Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 17.) In light of the newly presented material, the People's request for modification of the opinion is granted, as set forth below.

The majority opinion appearing herein at 27 Cal. 4th 537 is modified as follows.

The last sentence of the second paragraph on page 577 is modified to read as follows:

"The serious felonies qualifying as strikes under the initiative include exploding a destructive device causing bodily injury; certain felonies committed in connection with a street gang in violation of Penal Code section 186.22; throwing acid or a flammable substance; assault with a deadly weapon; assault on a peace officer or firefighter; assault with a deadly weapon against a public transit employee, custodial officer, or school employee; discharge of a firearm at an inhabited dwelling, vehicle, or aircraft; rape in concert; shooting from a vehicle; intimidation of victims or witnesses; and terrorist threats. (Pen. Code, § 1192.7, subd. (c), as amended by Prop. 21, § 17.)" [27 Cal. 4th 887b]

The first full paragraph on page 578 is deleted. This paragraph had stated:

"Furthermore, although the continuous sexual abuse of a child under the age of 14 years (Pen. Code, § 288.5) ordinarily might not be considered a crime associated with juvenile or gang offenders, another recent United States Department of Justice report suggests otherwise. According to this report, sexual abuse by juveniles is a serious problem that is underreported, and such abuse involves a wide range of sexual misconduct. (Off. of Juvenile Justice and Delinquency Prevention, Juveniles Who Have Sexually Offended (Mar. 2001) p. 1