Return to CALJIC Part 9-12 – Contents
F 10.42.6 n1 Continuous Sexual Abuse: Due Process Challenge Rejected (PC 288.5).
A California Court of Appeal has held that lack of unanimity under PC 288.5 does not violate due process. (People v. Higgins (92) 9 CA4th 294, 308 [11 CR2d 694]; see also, People v. Whitham (95) 38 CA4th 1282 [45 CR2d 571].)
CAVEAT: Counsel should consider whether this issue should be preserved in state court for federal habeas or certiorari. (See generally, FORECITE PG VII(C).)
F 10.42.6 n2 Continuous Sexual Abuse Of A Child — Juror Unanimity Required As To Single Victim (PC 288.5(a)).
When an accused is charged in a single count with sexual abuse of more than one child, he is charged with a separate punishable offense as to each child and the jury must unanimously agree as to each child. (See In re Sheridan (64) 230 CA2d 365, 372-74 [40 CR 894].) This rule also applies to PC 288.5 — continuous sexual abuse. PC 288.5 was enacted in 1989 to reach “‘resident child molesters’ by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has reoccurring access to the child.” (Stats. (1989), Ch. 1402 § 1(b), emphasis added.) There is not the faintest suggestion in the grammar of this provision or PC 288.5 that the offense applies to conduct other than continuous sexual abuse of a single child. PC 288.5 in referring in the singular to a resident defendant’s relationship with “the minor child” and “recurring access to the child,” necessarily requires three acts in three months with “a [single] child under the age of 14 years ….” This is amplified by the section’s explicit provision for multiple victims: “A defendant may be charged with only one count under this section unless more than one victim is involved in which case a separate count may be charged for each victim.” (PC 288.5(c).) This plainly says that each alleged victim must be made the subject of a single count. The unless clause, being an exception to the single count requirement, necessarily refers to multiple counts. It cannot be construed to permit the aggregation of multiple victims in a single count, much less change the elements of the offense to permit conviction upon proof of three acts against separate victims.
Accordingly, if the prosecution relies upon acts against multiple victims in a single PC 288.5 prosecution, then the jury must be required to unanimously agree upon a single victim. [See Opinion Bank # O-135 and Brief Bank # B-578 for the opinion in People v. Slemp UNPUBLISHED (C011667), which held that the failure to instruct upon juror unanimity in such a case was reversible error.
F 10.42.6 n3 Resident Child Molester Statute (PC 288.5) Does Not Preempt PC 288.
People v. Hord (93) 15 CA4th 711, 720-21 [19 CR2d 55].)
F 10.42.6 n4 Continuous Sexual Abuse: Lewd Acts Must Be On Separate Occasions (PC 288.5).
Regardless of whether multiple acts during a single incident may constitute multiple convictions under PC 288 (see FORECITE F 10.41 n9 above), separate incidents should be required to satisfy PC 288.5 which requires that the acts be committed “over a period of time.”
F 10.42.6 n5 Continuous Sexual Abuse: Correction Of CJ Omissions And Defects (PC 288.5).
CJ 10.42.6 has several potential defects and omissions, including the failure to require the necessary specific intent for lewd and lascivious conduct and the failure to define substantial sexual conduct so as to require a sexual purpose. FORECITE subscriber Ozro Childs drafted a revised instruction in response to a request by the First District Court of Appeal (Div 2) in People v. Owens (94) 27 CA4th 1155, 1158 [33 CR2d 354]. Owens held that the “tending to prove” language of CJ 10.42.6 was impermissably slanted toward the prosecution. However, the published opinion failed to address other problems with the instruction. These issues are discussed in Mr. Childs’ well-drafted instruction and briefing which are available to FORECITE subscribers. Ask for Instruction Bank # I-861.
F 10.42.6 n6 Continuous Sexual Abuse: No Specific Intent Required.
People v. Whitham (95) 38 CA4th 1282 [45 CR2d 571] held that a violation of PC 288.5 by means of substantial sexual conduct does not require the same specific intent as a violation of PC 288.
F 10.42.6 n7 Continuous Sexual Abuse: Application Of Ex Post Facto Principles When One of Three Alleged Acts Occurred Before Effective Date.
PC 288.5 requires three acts within a period of not less than three months. In People v. Grant (99) 20 C4th 150, 154 [83 CR2d 295] the court held that there is no ex post facto violation if only one of the three acts occurs after the effective date of the statute.
F 10.42.6 n8 “Engaged In” vs. “Committed.”
(See FORECITE F 2.23.1 n1.)
F 10.42.6 n9 Continuous Sexual Abuse: Offenses Committed Against Same Victim During Same Time Period.
PCC 288.5(c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative. (People v. Johnson (2002) 28 C4th 240, 248 [121 CR2d 197].) Therefore, the prosecution may not obtain multiple convictions for both a PC 288.5 violation and the discrete sexual offenses.
Following People v. Johnson (2002) 28 C4th 240 [121 CR2d 197], People v. Torres (2002) 102 CA4th 1053 [126 CR2d 92] held that a defendant cannot be convicted of violations of both PC 288.5 and of multiple counts of other specific felony sex offenses committed against the same victim and in the same time period as the PC 288.5 count. The remedy for the failure to plead these offenses in the alternative, as required by PC 288.5(c), is to reverse the conviction on the PC 288.5 count.
Continuous Sexual Abuse: Defendant Must Have
“Recurring Access” To Child
*Add to CJ 10.42.6:
[Recurring access] as defined in these instructions requires a specific relationship with the child, such as being a babysitter, a father, a regularly visiting relative, a former spouse, a non-live-in-lover, who is in a position to command respect from the child. The defendant must have an ongoing relationship with the child separate and apart from the sexual relationship.
Points and Authorities
One element of PC 288.5 is that the defendant either reside in the same home with the child or have “recurring access” to the child. In People v. Gohdes (97) 58 CA4th 1520 [68 CR2d 719] the court held that a former boyfriend of the victim’s sister who visited the home without invitation or knowledge of the parents did not meet the requirement for a “resident child molester” prosecution. The above instruction is based on Gohdes’ description of the required contact.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
Continuous Sexual Abuse: “Tending To Prove”
*Modify first sentence of ¶ 10 of CJ 10.42.6 to provide as follows [added language is capitalized; deleted language is between <<>>]:
[The People ARE RELYING ON THE THEORY <<have introduced evidence tending to prove>> that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction [in Count[s] _____] may be based.
Points and Authorities
People v. Owens (94) 27 CA4th 1155, 1158 [33 CR2d 354].