High Court Sets Limits on Padding Terms of Repeat Sex Offenders

The state Supreme Court set limits Thursday on the additional amount of time in prison a repeat offender may be required to serve for past sex crimes against minors.

In a unanimous decision, the court held that a defendant who commits a single sex act may be convicted of both sodomy with a child under 14 and lewd conduct.

But, it said, only one such conviction may be used to lengthen any future sentence he may receive for another serious crime. State law allows judges to impose additional time in prison for prior felony convictions.

The justices, interpreting provisions of a state statute governing multiple offenses, said that while the law in certain cases permits more than one conviction based on a single act, it bars “multiple punishments” for a single act.

Five-Year Term

In an opinion by Justice Stanley Mosk, the court held that if a defendant convicted of sodomy and lewd conduct is found guilty in a future crime, he is subject to only one five-year additional term for a each previous criminal act.

In a concurring opinion, Justice Malcolm M. Lucas agreed that a single criminal act could result in more than one conviction but said the court was “premature” to hold that using all the convictions to enhance future sentences would be impermissible “double punishment.”

That issue should not arise until a future conviction actually occurs, Lucas said. “What valid purpose is served by assuring a defendant that, if he chooses to commit such an offense, his enhanced punishment will not be as severe as he might have feared?”

Rehearing Possible

State Deputy Atty. Gen. Shirley A. Nelson agreed that the decision was “premature” and said she would consider asking the justices for a rehearing. She expressed concern also about the potential impact of the decision but said it was unclear how many prosecutors around the state were now seeking sentencing enhancements for each prior conviction in such cases.

Michael Pescetta of the state public defender’s office, which had asked the court for the limitation on future sentences, welcomed the decision as a way of “clearing up” unresolved questions that have sometimes caused confusion in lower courts.

The court’s ruling came in the case of Lawrence D. Pearson, a Stockton cab driver who was convicted in 1982 of sodomy and lewd conduct in single acts against a 12-year-old boy and a 7-year-old boy.

Double Punishment

The trial court sentenced Pearson to eight years in prison for lewd conduct but set aside sentencing for sodomy so that the defendant would not be punished twice for the same act.

The justices rejected Pearson’s contention that one of the two convictions associated with each act should be set aside. They noted that the law permits multiple convictions for a single act, among other reasons to ensure that if one conviction is reversed, another valid conviction may still stand to prevent a defendant from going free.

Under the law, lewd conduct is not necessarily a “lesser included offense” of sodomy and thus defendants may be convicted of both crimes even when they commit one act, the justices said.

But the court agreed that Pearson should not be under the threat that if he is convicted in the future, his sentence could be lengthened five years for each past conviction for a single act. In his case, that might have meant an addition of 20 years, rather than 10 years, if he is convicted in the future.

“A defendant’s status as a repeat offender relates to the number of wrongful acts he committed, not to the number of his convictions,” Mosk wrote.

Pearson’s attorney, Brian DeAmicis of Sacramento, called the decision “by and large a loss,” because Pearson would not benefit unless he is convicted of a serious crime in the future. “Hopefully, he will not ‘re-offend,’ ” DeAmicis said.