Oregon Supreme Ct - Feb 9, 2017

by: Sara Werboff • February 13, 2017 • no comments

California Convictions Were Not "Comparable Offenses" for Purposes of Presumptive Life Imprisonment for Sex Offenders

The court reverses defendant's life sentence and remands for resentencing after concluding that defendant's California convictions are not "comparable offenses" for purposes of ORS 137.719(3)(b)(B). Defendant had three prior California convictions under California Penal Code section 288 for subjecting a victim under the age of 14 to sexual contact. In Oregon, defendant was convicted of several counts of first-degree sexual abuse. The trial court concluded that, although the California statute was broader, both were aimed at the same wrong, and found the California convictions to be predicate offenses for imposing a life sentence. Defendant appealed, and ultimately petitioned for review, arguing that the trial court was required to match the elements of the offenses in order to determine whether it was a predicate offense.

The court conducts its customary statutory analysis to determine whether element-matching is required and concludes that it is. In particular, the context of the statute indicates that a more restrictive meaning of "comparable offenses" was intended. The court therefore concludes that "the term 'comparable offenses' * * * refers to offenses with elements that are the same as or nearly the same as the elements of an Oregon felony sex crime, not to offenses that merely share a core similarity with such an offense."

The court, applying the foregoing rule, concludes that the prior convictions under California Penal Code section 288 are not comparable offenses because that crime can be committed by "even outwardly innocent touching" if done with a sexual purpose, whereas, first-degree sexual abuse requires as a conduct element that the defendant touch a sexual or intimate part. The court also rejects the state's argument that the California offense is comparable to attempted first-degree sexual abuse because in order to prove that offense, the state must corroborate a defendant's intent to touch a sexual or intimate part, and that element is not required under the California offense.

State v. Carlton, 361 Or 29 (2017) (Brewer, J.)