SERIES 1100 SEX OFFENSES
F 1120 NOTES
TABLE OF CONTENTS
F 1120 Note 1 Continuous Sexual Abuse—CALCRIM Cross References And Research Notes
F 1120 Note 2 Continuous Sexual Abuse: Due Process Challenge Rejected (PC 288.5)
F 1120 Note 3 Resident Child Molester Statute (PC 288.5) Does Not Preempt PC 288
F 1120 Note 4 Continuous Sexual Abuse: Lewd Acts Must Be On Separate Occasions (PC 288.5)
F 1120 Note 5 Continuous Sexual Abuse: No Specific Intent Required
F 1120 Note 6 Continuous Sexual Abuse: Application Of Ex Post Facto Principles When One of Three Alleged Acts Occurred Before Effective Date
F 1120 Note 7 Continuous Sexual Abuse: Offenses Committed Against Same Victim During Same Time Period
F 1120 Note 8 Challenges To CJ 4.71.5 Rejected (PC 288.5)
F 1120 Note 9 Resident Child Molester Statute Held Constitutional (PC 288.5)
F 1120 Note 10 Sex Crimes: Entrapment
Return to Series 1100 Table of Contents.
F 1120 Note 1 Continuous Sexual Abuse—CALCRIM Cross References And Research Notes
CALCRIM Cross-References:
CALCRIM 1112 [Lewd or Lascivious Act: Child 14 or 15 Years]
CALCRIM 1121 [Annoying or Molesting a Child in a Dwelling]
CALCRIM 1122 [Annoying or Molesting a Child]
CALCRIM 1123 [Aggravated Sexual Assault of Child Under 14 Years]
Research Notes:
See CLARAWEB Forum: CALCRIM Warnings, Sex Offenses—Series 1000.
F 1120 Note 2 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 (1992) 9 CA4th 294, 308; see also, People v. Whitham (1995) 38 CA4th 1282.)
CAVEAT: Counsel should consider whether this issue should be preserved in state court for federal habeas or certiorari. (See generally, FORECITE PG VII(C).)
CALJIC NOTE: See FORECITE F 10.42.6 n1.
F 1120 Note 3 Resident Child Molester Statute (PC 288.5) Does Not Preempt PC 288
People v. Hord (1993) 15 CA4th 711, 720-21.
CALJIC NOTE: See FORECITE F 10.42.6 n3.
F 1120 Note 4 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.”
CALJIC NOTE: See FORECITE F 10.42.6 n4.
F 1120 Note 5 Continuous Sexual Abuse: No Specific Intent Required
People v. Whitham (1995) 38 CA4th 1282 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.
CALJIC NOTE: See FORECITE F 10.42.6 n6.
F 1120 Note 6 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 (1999) 20 C4th 150, 154 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.
CALJIC NOTE: See FORECITE F 10.42.6 n7.
F 1120 Note 7 Continuous Sexual Abuse: Offenses Committed Against Same Victim During Same Time Period
PC 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.) 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, People v. Torres (2002) 102 CA4th 1053 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.
CALJIC NOTE: See FORECITE F 10.42.6 n9.
F 1120 Note 8 Challenges To CJ 4.71.5 Rejected (PC 288.5)
In People v. Crow (1994) 28 CA4th 440, 446-47, the defendant was charged with committing 8 acts of lewd and lascivious conduct within the same period of time. The jury convicted on 3 of the 8 counts. The defendant argued that People v. Jones (1990) 51 C3d 294—which set forth the general rule — doesn’t apply on two bases: 1) in this case the defendant was convicted of only 3 of 8 counts; 2) there were different kinds of acts. The court rejected both of these arguments, holding that CJ 4.71.5 is adequate for purpose of juror unanimity.
Also, People v. Avina (1993) 14 CA4th 1303, 1311-12, held that there is no constitutional proscription against continuous course-of-conduct crimes.
However, since the above may be federal constitutional issues, they may be preserved for federal habeas or certiorari by requesting CJ 17.01 on 14th Amendment federal due process grounds. (See generally, FORECITE F 17.01.)
CALJIC NOTE: See FORECITE F 4.71.5 n1.
F 1120 Note 9 Resident Child Molester Statute Held Constitutional (PC 288.5)
In People v. Gear (1993) 19 CA4th 86, 92-93, the court held that the lack of a juror unanimity requirement in PC 288.5 violates neither the defendant’s right to juror unanimity nor to due process notice of the specific acts which constitute the offense. (See also People v. Grant (1999) 20 C4th 150, 156.)
CALJIC NOTE: See FORECITE F 4.71.5 n2.
F 1120 Note 10 Sex Crimes: Entrapment
See FORECITE F 1000 Note 5.
