People v. HigginsPeople v. Higgins
- Reporters:
- , , , ,
- Before:
- Raye
Opinion
RAYE, J.We are asked to determine the constitutionality of Penal Code section 288.5, the 1989 legislative response to the problems of prosecuting the so-called resident child molester, which defines “the continuous sexual abuse of a child” under 14 years of age as a crime.
A jury convicted 26-year-old John Joseph Higgins of one count of continuous sexual abuse of 8-year-old Russell R. (
When defendant first met Russell his face was bruised in the shape of a handprint. Nancy beat Russell with her hand, a belt, and a crib slat and threatened him with a stick and Rick, like his mother, was very rough with Russell, often making him scream. Nancy frequently asked defendant to watch Russell. Against this backdrop of family cruelty, defendant and Russell began to develop a close relationship.
During the summer of 1989 defendant and his roommate, Jerry, moved his trailer to a vacant gas station in Emigrant Gap, two blocks from the R. house. Rick and Kim moved into a trailer adjacent to defendant’s. Russell began visiting defendant often and together they went fishing, four wheeling, and exploring into the mountains. Defendant bought Russell a fishing pole, stuffed animals, and cowboy boots.
Russell spent many nights with defendant and Jerry in the trailer. Defendant touched Russell’s penis with his penis, masturbated Russell’s penis, and sodomized him. Although the molestations did not occur every time he spent the night in the trailer, Russell could not remember how many times they occurred.
In December 1989 defendant moved an abandoned 1941 Oakland transit bus to the gas station where he and Jerry continued to reside for about a month. Defendant then moved to Boomtown about January 1990. Russell considered defendant his friend and enjoyed going places with him. Russell spent the night with defendant in Boomtown where he was again sodomized and masturbated by defendant. Defendant put lotion on Russell’s penis and told him not to tell anyone. Russell complied because he was afraid.
In March 1990 defendant and Jerry moved into a trailer in Truckee. On April 11 Russell and Jimmy and Joey B. went with defendant and Jerry to the Circus Circus casino in Reno and spent the night with them in their trailer in Truckee. Jimmy slept in the bed with defendant. Jimmy was
Defendant moved to the NACO campground where he was employed on April 28. Russell spent every weekend with defendant until school was out in June. During the summer Russell spent more time with defendant, and in August they spent two weeks together. Defendant molested Russell every night he slept in the bus at NACO, approximately 30 or 40 times. The molestations included sodomy, oral copulation, and masturbation. Russell did not tell his mother because he was afraid she would whip him, even though the molestations were painful.
The manager of the campground observed marks and bruises on Russell and asked defendant where they had come from. Defendant replied, “Well, that’s sort of normal because he’s always beaten.” Defendant confronted Wilbur about the bruising, and when Wilbur failed to investigate or inquire about the injuries, he later confronted Nancy. Recalling one of the beatings, Nancy laughed about the incident and Russell’s resulting injuries. Defendant threatened to turn her in “if [he saw] anything like that again.”
Jimmy joined defendant, Jerry, and Russell for swimming at NACO sometime during the summer of 1990 and then spent the night. He went to sleep on the floor but, awakened by mice crawling on him, he got into bed with defendant and Russell. He testified defendant sodomized him that night. When he returned home the following day, he asked Joey to tell his mother what happened. Defendant was arrested on August 17.
Both Russell and Jimmy were examined by Doctor Paul Rork. Doctor Rork observed a scar and two large folds in Russell’s rectum, findings consistent with acts of sodomy between March and August 1990. He did not find any bruising, redness, or irritation to the penis, scrotum, or testes, or anal laxity. He testified the scar could persist for years, but the folds would slowly disappear in six to eight months. Although Jimmy had some slight redness of the anus, the doctor concluded the examination was within normal limits.
Defendant was charged with two counts of committing lewd acts against Jimmy (sodomy and oral copulation) for the events surrounding the trip to Circus Circus between March 1, 1990, and April 28, 1990, one count of
I
Many courts have lamented the difficulties of prosecuting resident child molesters. (See People v. Jones (1990) 51 Cal.3d 294 [270 Cal.Rptr. 611, 792 P.2d 643]; People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1195 [270 Cal.Rptr. 751]; People v. Luna (1988) 204 Cal.App.3d 726 [250 Cal.Rptr. 878].) Often child victims are able to offer only “generic testimony”; although they are able to describe “repeated acts of molestation occurring over a substantial period of time,” they are “unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.” (People v. Jones, supra, 51 Cal.3d at p. 299.) Society’s interest in protecting its youngest and most vulnerable from sexual molestation collides with our fundamental commitment to assuring a criminal defendant due process of law, including the right to adequately prepare a defense and to have guilt determined by a unanimous decision of his or her peers. Both the courts and the Legislature have grappled with the clash between these important values.
The Legislature offered a solution in 1989, by creating a new and separate crime, the continuous sexual abuse of a child. (
Penal Code
While the Legislature responded
to Van Hoek
by creating a new crime, the Supreme Court abrogated its holding in
People
v.
Jones, supra,
51 Cal.3d 294, 320-321. Leaving constitutional scrutiny of the newly enacted
Nor was the court in
Jones
persuaded that generic testimony eroded the sanctity of a unanimous verdict. While acknowledging unanimity is constitutionally required (See
Jones,
for most practical purposes, renders Penal Code
The constitutionality of
In two cases reaching opposite results in the wake of Van Hoek, the courts reiterated the recurring problems in prosecuting resident child molesters and described the obvious analogies to other continuous-course-of-conduct crimes. In People v. Luna, supra, 204 Cal.App.3d 726, the court echoed Justice Hamlin’s dissent in People v. Martinez (1988) 197 Cal.App.3d 767 [243 Cal.Rptr. 66], lamenting: “ ‘The court here confronts a case in which the molestation has been so consistent that the minor victim cannot recall distinct and identifiable acts within this course of conduct. Unfortunately, this is not unusual in the prosecution of a “resident child molester” .... [ft] If a child has been molested on a regular basis and in a consistent manner ... the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another. Obviously, the more frequent and repetitive the molestation and the younger the victim, the less likely it becomes that the prosecution can establish one or more specific acts via the testimony of the minor victim. Since many aberrant practices leave no permanent physical evidence and since children are usually molested outside the presence of witnesses, the testimony of the minor victim may be the only evidence on which the prosecution can base its case; rendering such testimony inadequate as a matter of law under circumstances like those here under discussion could effectively insulate the most egregious child molesters from prosecution.’ ” (204 Cal.App.3d at p. 738.)
Sharing Justice Hamlin’s concerns, the court wrote: “It may well be time to redefine the crime resulting from acts of child molestation in continuum and the type of proof necessary to sustain a conviction in these cases.” (204 Cal.App.3d at p. 738.) Nevertheless, compelled by precedent and the absence of “sex crimes in continuum to constitute a single offense,” the court reversed several counts. The court concluded, “A case can be made for recognizing the repeated sexual abuse of helpless children as a part of the conglomerate continuous-crime exception that applies to pandering
(People
v.
White
(1979) 89 Cal.App.3d 143, 151 []), child abuse
(People
v.
Ewing
(1977) 72 Cal.App.3d 714, 717 []), and contributing to the delinquency of a minor
(People
v.
Lowell
(1946) 77 Cal.App.2d 341, 346-348 []). . . . ffl However,
until the Legislature or a
higher court reexamines the matters of proof, due process, and the element of continuum as they relate to the
Similarly, in
People
v.
Moreno, supra,
211 Cal.App.3d 776, the defendant argued the generic testimony offered to sustain nine counts of various lewd and lascivious acts made it impossible for the jury to unanimously agree he committed the same specific criminal act. In a lengthy but pertinent footnote, the court observed: “The penal statutes appellant was found to have violated describe criminal offenses consisting of an ‘act.’ For example, Penal Code section 288a, subdivision (a) defines ‘oral copulation’ as ‘the act of copulating the mouth of one person with the sexual organ or anus of another person.’ Subdivision (b) of the statute provides that, except as provided in
The Legislature responded to the judicial prodding, and by enacting Penal Code
In People v. Thompson, supra, 160 Cal.App.3d 220, the court found the crime of spousal battery a continuous-course-of-conduct crime by also analogizing to child abuse. “Both the victim of spousal and of child abuse are likely to be unwilling to report their abuse to the authorities due to fear of physical and/or emotional retaliation on the part of the attackers. Both patterns of behavior are based on controlling another individual through violence. We see no ‘conceptual difference’ between the two crimes.” (Id. at p. 226.) Nor do we see any conceptual difference between sexual or other kinds of abuse of children.
In
Jones,
the Supreme court noted “that in 1989 legislation was passed which creates a new offense of ‘continuous sexual abuse of a child.’ ”
(People
v.
Jones, supra,
51 Cal.3d at p. 310.) Defendant has not suggested any constitutional impairment unique to the prosecution of sexual child abuse to justify disparate treatment from the prosecution of the broader category of child abuse. We believe the problems of proving specific occurrences of abuse of children, whether sexual or not, are nearly identical. The Legislature has the prerogative to proscribe a course of conduct, rather than specific acts, a prerogative exercised by adoption of Penal Code
Moreover, Penal Code
“
“Finally,
Somewhat ironically, defendant launches his constitutional attack against one of the very safeguards incorporated for an accused’s benefit. Relying on federal precedent, he complains the statute deprives an accused of the constitutional right to a unanimous jury finding on the three required predicate acts of molestation. Since the statute dispenses with a unanimity finding, defendant argues the jurors may disagree on which acts are committed and yet agree to an aggregate number of acts. He insists U.S. v. Echeverri (3d Cir. 1988) 854 F.2d 638 is controlling. While his argument is alluring at first blush, upon closer examination we do not find it compelling.
In
Echeverri,
the defendant was convicted on five drug-related charges, including one count of operating a continuing criminal enterprise (CCE). The CCE statute provides in relevant part, “a person is engaged in a continuing criminal enterprise if. . . such violation is a part of a continuing series of violations . . . .” (
We disagree that the criminal conduct in
Echeverri
is indistinguishable from
Beros.
In
Beros,
an officer of the Teamsters Pension Fund was indicted on several counts of “ ‘embezzling, stealing, abstracting or converting to his own use’ funds of the Teamsters Joint Council 40 and of the Pension Fund, in violation of
The court in Echeverri does not discuss, or even mention, the continuous-course-of-conduct exception to the unanimity requirement. Rather, the court focused on earlier cases which engrafted the predicate finding of three separate violations, and applying the basic principles underlying the unanimity requirement, decided the jury was required to unanimously agree on which three violations constituted a series, and therefore, a criminal enterprise. The court failed to discuss whether Congress intended to proscribe a course of conduct, rather than specific acts.
We need not probe the legislative intent behind the federal statute, a task inappropriate in this forum. Although on its face the CCE statute appears to proscribe a course of conduct, it is not our province to investigate congressional intent. Rather, we reject defendant’s argument that Echeverri, predicated on a federal statute, is dispositive here. Echeverri did not address the focal issue of this case: whether the California Legislature defined a course-of-conduct crime which falls within the well recognized exception to the unanimity requirement.
Interestingly, the federal courts consistently have rejected the unanimity argument in a slightly different CCE context. Under the CCE statute, the continuing series of violations must be undertaken “in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management. . . .” In
U.S.
v.
Jackson
(3d Cir. 1989) 879 F.2d 85, 88, the court held: “As the First and Seventh Circuits explained in
Tarvers
and
Markowski,
the five or more persons requirement of a CCE offense simply defines the size of the enterprise. This establishes that the organization in which the defendant played a leadership role was sufficiently large to warrant the enhanced punishment provided by the CCE statute. . . . While the jury must reach a
The court found the identities of the underlings peripheral to the conduct which the CCE statute is designed to punish and deter. Admittedly, the court did not defect from the Echeverri rule of unanimity on the predicate acts. It did, however, focus on the legislative objective to define the size of the enterprise. It deferred to the legislative design requiring the jurors to find the requisite number of underlings without requiring unanimity in their identities.
The same deference is appropriate in this case. Our Legislature has defined a threshold number of acts to constitute “continuous sexual abuse.” Clear in its objective to proscribe a course of conduct, rather than a specific act, the Legislature included the three-act finding requirement. Like the size of the CCE enterprise, the number of acts of molestation is an essential element of the crime; unanimity on which acts, like unanimity on which underlings, is not.
A more recent federal case,
U.S.
v.
Horton
(4th Cir. 1990) 921 F.2d 540, 546, provides another apropos analogy. A jury convicted Horton of first degree murder, but did not unanimously agree on whether he was the perpetrator or an aider and abettor. The court held: “If this verdict were held non-unanimous, then the government would seldom be able to convict the perpetrators of group violence of primary criminal conduct short of proving each individual’s precise role in the crime. The division of roles may be murky, even where the active participation of group members is clear. By rendering aiders and abettors guilty as principals,
Similarly, proof of specific acts of molestation by a resident child molester may be murky, even where evidence of the cumulative conduct is clear. By criminalizing a course of conduct, Penal Code
In essence, defendant urges us to declare Penal Code
Similarly, in the context of a continuing-course-of-conduct crime, defendant’s asserted deprivation of due process is utterly without merit. Here, the prosecution exercised commendable discretion by charging one count of continuous sexual abuse of a child, rather than 30 to 40 counts of molestation under Penal Code
II-IV *
The judgments are affirmed.
Marler, J., † and Nicholson, Acting P. J., concurred.
A petition for a rehearing was denied September 28, 1992.