People v. Jones

S010191. 1990.] [No. June PEOPLE, Respondent, Plaintiff and

THE JONES, Defendant and Appellant.

MARK E.

Counsel Appellant. T. for Defendant and

Gerald Blank Sheridan, Amici Curiae and Richard Power as Cynthia A. Thomas Robert Appellant. on behalf of Defendant and General, White Richard B. Attorney Steve K. Van Kamp,

John de General, Harley Mayfield, D. Assistant Attorneys Iglehart, Chief Assistant Hanoian, General, Frederick R. Louis R. Attorney Michael D. Wellington, General, Jr., Garcia, Millar, Attorneys Plaintiff and E. Deputy and Lilia Respondent. O’Neill, J. Bradbury, Attorney D. and Vincent (Ventura),

Michael District Jr., of Plaintiff Attorney, Chief as Amici Curiae on behalf District Deputy and Respondent.

Opinion

LUCAS, C. J.—

I. Introduction case, In this we are dilficult presented questions child molestation the are extent to the defendant’s due regarding process rights impli- which by the inability young give regarding cated of his accuser to details time, and circumstances of various assaults. place alleged Frequently, here, (see these involve “resident child molester” cases the so-called 814, Cal.Rptr. 352]), Van Hoek & fn. (1988) [246 his or access him or her. In who either lives with victim has continuous to cases, to acts of molestation such the victim testifies typically repeated but, lacking any time occurring period meaningful over substantial details, reference, many is unable to furnish dates distin- point acts guishing characteristics as to individual or assaults. concluded

Although widely conflicting, cases are some courts have (see, e.g., People based on such prosecutions nonspecific “generic” Vargas 894]) testimony by of due from deprive effectively him process preventing such charges, jury and a unanimous defending against precluding verdict Hoek, charged as to each act in the (See, e.g., People information. Van Yet 814-818.) a series of pp. describing essentially indistinguishable acts of molestation is testi- frequently mony forthcoming testimony, from the victim. To hold that such however substantial, credible molestation inadequate support charges anomalously would subjects favor the offender who victim to his repeated or continuous assaults. This all opinion attempts accommodate legiti- mate due concerns immunizing without resident child molesters from prosecution.

The we address are not isolated ones to the problems peculiar present case. According statistics furnished the California Department of Justice, alone, 22,000 in California approximately cases child sexual Justice, abuse were in (Cal. Dept. 1988. Child Abuse Central reported Index, Thus, Child Abuse Investigation Reports, 1988.) issues we ex- plore have evident societal significance.

II. Facts Defendant originally charged counts of twenty-eight commit information, ting, time during periods alleged various lewd and las civious acts on 4 (hereafter, conduct) lewd children under the age of 14. Code, (Pen. subd. Each count also (a).) allegations included § defendant had substantial sexual contact with a 11 years child under old 1203.066, (id., (a)(8)) occupied subd. position special trust with § each child (id., (a)(9)). subd. An amended information was later filed certain reflecting changes the dates some offenses. One of the twenty- eight counts trial. was dismissed prior

The jury was instructed No. (CALJIC 4.71.5) that defendant was charged with conduct during lewd the various in the periods alleged infor- that, mation order to him guilty find must prosecution prove doubt, beyond on, unanimously reasonable and the must agree “the commission of the same or acts specific act said crime within constituting the time period alleged.” The court further it was instructed that unneces- sary for jury to state in the “the particular verdict act acts committed and so . . . .” agreed upon conduct, jury

The convicted defendant of 12 counts of lewd finding true 11, allegations of sexual contact with children under and allegations to with respect found as follows the More specifically, trust. special of boy victims: each of the four conduct, Kenny each count while counts of lewd

Kenny H.—Three of trust. old, special a occupying position each while years under eleven and conduct, finding. trust” with a “special count of lewd Andrew R.—One conduct, “child trust” and with Bobby “special J.—Two counts of lewd count. 11” for each findings under conduct, five trust” and six

Sammy “special of lewd J.—Six counts findings. “child under 11” counts, a could not reach and it guilty

The defendant not of jury found a 15- to for prison was sentenced verdict as to 3 other counts. Defendant seven. five counts but reversed The Court affirmed year Appeal term. court H. the trial Kenny were reversed because involving Three counts minute” defense information after the allowed “last amendment to the rested, case. do (We his allowing reopen had without defendant J. reversed Sammy counts were here.) involving review that issue Four evidence, we will a more detailed review of the insufficient evidence. After issue, its relationship and discuss insufficiency address the merits the due issue above. As will we conclude process appear, described Sammy J. involving reversing Court of erred in of the six counts Appeal A. The Molestations arrest, 38-year-old public

At the of his was a school time defendant Mesa, single-parent teacher in Mira He had initiated living California. 1983, year in the that same adoption culminating adoption in proceedings Sammy defendant in Bobby. boys August and When these moved with old, they years were and 7 September respectively. In from a report neighbor June social worker received Bobby. Sammy defendant’s that she sexual abuse suspected had been two ensuing investigation molesting revealed defendant also boys, Kenny, 1981 and neighborhood commencing Andrew respectively. molestations,

All each of which involved boys regarding four testified orally them on numerous occasions. Because copulating sufficiency Sammy’s pertain primarily and due issues detail, molestation, Sammy greater evidence relating we outline the italicizing clarity key for purposes testimony bearing frequency and location.

Sammy Bobby and in grew various foster their up homes after mother left them with a home.” In “receiving visited in August Sammy defendant foster home to explore possibility boy him. The adopting was brother, defendant; he in Bobby, when moved with his them a joined month weeks, Sammy, later. According the first few he with during slept defend- waterbed; ant on a king-size he later bed. given was his own Defendant first molested one him. Sammy Sammy about month after came live with The molestations recurred once or twice a month the entire in during period Sammy which lived with (Aug. through defendant June al- 1985), though there been may have some “breaks” in the when no period molesta- Thus, tion occurred more for than a month. Sammy believed no such acts were during Sammy, committed March and 1984. who April was trial, old 6th years and in the time of grade confirmed that he knew there were 12 in a year, months and weeks in a month. usually assaults Sammy occurred in bed while was awake in-

volved defendant removing Sammy’s his head underpants, placing beneath the covers orally Sammy copulating Sammy about 20 minutes. was able recall molested in being a similar manner (oral by defend- copulation ant) at locations he (listed below), difficulty had although five different dates or specifying exact additional details to identify further these acts. Thus, Sammy recalled incidents in (1) occurred first the room he brother, with shared his Bobby. Sammy The molestations after continued and Bobby were in placed (2) bedrooms. acts also separate These occurred (3) Sammy defendant’s bedroom occasionally where slept. Additionally, Sammy was (4) assaulted shower bathroom and on camping to Pio trips Pico. Sammy, According defendant molested him to six times on camp- four occasion, weekend,

ing trips. On one while over camping Day Memorial orally defendant him they lay while in a inside copulated bed the camper. Bobby was on the sleeping floor of the and Andrew was camper sleeping outside. Sammy remembered being molested a similar fashion on other such but he camping trips, could not remember the exact dates. (He ex- Bobby that he plained every went other camping week- end.) always These camping night molestations occurred at inside the camper, Bobby while sleeping on floor.

Sammy eight also remembered or ten times in the being molested bath- off, dry orally room shower. Defendant would him and then copulate him. days defendant’s only few before occurred molestation The last such arrest. because he about the acts anyone he had not told

Sammy explained him, he did not and because living to keep and wanted loved defendant view, Sammy’s facility. In home or adolescent return to a foster want to indicated, “He boys. Sammy spanked to As good father defendant was and it, “con- Sammy felt “uncomfortable” though.” us we needed when molestations, that defendant never acknowledged he fused” about the but acts, of sex acts and no other kinds accomplish used to these force threats testify Sammy regard- time he called to occurred. that each was agreed acts, and receded a little further became a little dimmer ing these events into background. he molested the four denying

Defendant testified personally, defendant, Andrew, Bobby Sammy boys. According caught to he had other, they he were orally suspected fabricating each copulating cover own misconduct. Defendant also charges molestation to their up Kenny believed involved in the sexual misconduct. Sammy

B. The Counts Applicable Sammy. found of six The six guilty involving counts guilty counts time following involved periods: 1, 1983, 31, 1983;

Count 18—September October 1, 1983, 31, 1983; Count 19—November to December 1, 1984, 29, 1984; 20—January Count to February 1984, 30, 1, 1984; 22—May Count to June 1984, 30, 1, 23—July 1984; August Count 30, 28—May Count to June 1985. chronologically

The Court of 18 and affirmed counts Appeal first counts intervening (19 and last molestations It reversed the charged. 23) insufficiency of the evidence.

C. The Court Appeal Opinion may

For our the Court of be divided into two purposes, Appeal opinion insufficiency somewhat interwoven of evidence issue the due parts, process issue.

1. Evidence Insufficiency of The Court of that in decide whether Appeal stated order to substantial count, evidence one “we must determine whether the supported jurors identify they unanimously could a time so that could on place agree and/or guilt. the acts We are unable to do so. Our is constituting Jones’ concern 19, 20, 22, with counts and 23.”

The court found sufficient evidence to counts 18 28. The support former count was Sammy’s initially that he was supported August molested about one month after he moved in with defendant in The by Sammy’s testimony 1983. latter count supported regarding was Day May molestation on the Memorial occurring camping trip weekend But, “The according 1985. to the Court of remainder of his testi- Appeal, ... mony non-specific.” court that Sammy attested to continuous acknowledged molestations

during the entire period, including four to six incidents while camping, to ten incidents after But “de- eight showering. Sammy because could not the specific jury scribe incidents dates to enable the to differentiate incidents,” the among various there was evidence the insufficient to support as to the judgment remaining counts. Due

2. Process Defendant also that the trial argued refusing court erred to require prosecution select the acts it relied on establish each guilt as to or, alternatively, jury count each require special findings to make Instead, noted, unanimity count. as previously jury the court gave (CALJIC 4.71.5) jury instruction No. unanimous that requiring agreement defendant committed the same act constituting or acts the crime the same alleged within the information. period other Among that the in- arguments, unanimity contended struction was assure case: insufficient to review in this adequate appellate of Sammy’s testimony, because court nonspecific appellate suppos- edly determining from whether sufficient evidence precluded supported act particular each count of which defendant was found underlying guilty. Defendant maintained such review violated due inadequate process.

The Court of would aided Appeal agreed special jury findings have review, but no due its concluded that violation occurred. The court day that a need not or hour jury specify observed verdict the exact when stated, crime occurred. As the “The verdict must contain court of specific selection their unanimous which reflects sufficient information review be court on will the appellate so that constituting the offense acts the present In each verdict.” guilty facts identify supporting those able to in a manner the evidence case, “to review was able Court of Appeal rejected Jones’s accordingly rights,” Jones’ appellate which satisfies due process. he denied appellate claim that had been

III. Discussion

A. Introduction difficult, paradoxical, even cases involve frequently

Child molestation a molested over Sammy, assertedly A victim such young proof problems. home, may in his have residing other adult by substantial a or period parent or identi- way reconstructing, distinguishing no practical recollecting, of (In- all such incidents. or dates” or even fying by “specific incidents to deed, understandably be hard pressed sepa- a victim might even mature time, or circum- repetitive place rate incidents of molestations particular v. Luna 204 748 (1988) stance. See [250 evidentiary standards any constitutional Accordingly, principles 878].) to that resident child molester is we should assure the develop attempt he has merely from criminal because liability repeat- immunized substantial of edly over an time. period molested his victim extended hand, a fair notice of On the other the defendant has due to process right against the him and to defend those charges against opportunity reasonable addition, In the is entitled to a verdict which all charges. defendant concur, doubt, jurors beyond each Final- charged. a reasonable as to count ly, if substan- only the defendant’s conviction can be sustained supported see, tial evidence. As have the weighed foregoing we shall some courts legitimate the in these cases proof arising concerns with difficult problems sufficiently to differentiate inability have concluded that victim’s either (on between various acts of molestation is fatal due insufficiency of a conviction. grounds) sustaining evidence that addressed the

We first some of the decisions have previous review concerns, those and the com- and then reconcile cases foregoing attempt rely. on peting they which policies

B. Case Prior Law early in this is attributable to two difficulty area analytical

Much of court, P. v. Castro Cal. (1901) of this decisions [65 13] Cal. (hereafter Castro) v. Williams P. 323] (hereafter Williams). Castro,

In the information with one of charged count consent, under on age allegedly child committed June raping trial, however, At 1899. evidence regarding acts was separate rape four admitted, months, over a of several none on extending period occurring verdict, 30. Following June the trial court a new trial. We guilty granted affirmed, observing permissible, the variance in was although proof “certainly, all the defendant was not called to defend himself upon against intercourse, of these extending through acts of several respective period act, only charged months. The information one upon allegation (133 case must stand or fall.” Cal. at We p. 13.) although further stated that conviction, any one of the four acts could suffice to sustain the the People trial, should have been at the commencement of the act required, select they relied prove allegations of the information. (Ibid.) Williams, likewise

In the defendant charged and convicted one rape count of of a child age under consent. The victim testified months, she lived with defendant for four an act that of intercourse nearly every day (sometimes occurred or as five six times as well daily), many other We although sexual acts. noted that the have tried People could act, only defendant for each one offense and the separate charged jury was was not instructed it must unanimously that “some de- agree specifically Thus, scribed act had been (133 168.) Cal. at the performed.” guilty verdict could have been even though jurors beyond rendered no two agreed a reasonable doubt one act had been committed. specific

We by continued he “how could defend when inquiring, [the accused] offense, informed as to what out to particular of hundreds testified trial, by the he was a a so prosecutrix, to be tried? Such upon charge by indefinite as to circumstance of time or or any particular, place, except farce, the general designation, judicial would be a if were a it not something Hence, deal great (Williams, worse.” 133 at p. 168.) Cal. we conclud- ined Williams that the must a it People specific offense and charge prove occurred; other are uncharged incidents relevant for the purpose the one offense proving specific charged. We noted that the although partic- ular date or time of (assuming the offense is immaterial it occurred within the statute of the applicable limitations), defendant is nonetheless entitled demand the charge against ordinary him be stated in and concise language, so that he knows the can it. at specific charge against (Id., defend After in such cases be re- pp. 168-169.) suggesting People should be quired (id., p. 169), select trial the offense to we specific proved judgment reversed the conviction.

307 Williams, of Appeal Court several decisions Castro and Following number where the rule applicable the so-called developed “either/or” pleaded of such acts at trial exceeds number adduced sex acts specific on to the acts relied must select Either prosecutor the information: must that it be an instruction jury given must charges, prove the defendant commit- doubt that beyond reasonable agree unanimously 208 (1989) Sanchez (See, e.g., People criminal act. ted the same 721, molesta- 20-count Cal.Rptr. [affirming 746-747 Cal.App.3d [256 446] as- conviction, unanimity instruction 3-year because involving period, tion charged act that defendant committed the determination sured unanimous 767, 772- time (1988) v. Martinez 197 People Cal.App.3d for each period]; instruction, unanimity duty to give 775 Cal.Rptr. sponte 66] [sua [243 acts, charged 200 but information victim testified some regarding where 1101, 1111-1112 v. Callan only 20]; People (1985) Cal.App.3d [220 acts uncertainty to specific instruction saves Cal.Rptr. [unanimity 339] 839, 855-856 (1985) Cal.App.3d v. Gordon relied on People]; where unanimity prejudicial instruction Cal.Rptr. give [failure [212 174] committed]; acts have to which jurors might disagreed as v. Dunnahoo 572-573 (1984) Cal.Rptr. 796] [con- [199 v. Madden unanimity victions affirmed instruction given]; People where fail to give (1981) Cal.Rptr. [error [171 897] acts unanimity instruction sua where information fewer sponte, charged 424-426 evidence]; than shown Alva [same].) 644] cases error in either failing Some found harmless to select instruction, unanimity if give offenses the record indicated credibility the have against resolved basic the defendant and would dispute the evi any convicted various offenses shown have v. (1989) dence to been committed. Moore 211 (People Cal.App.3d 206 134]; (1988) 1415-1416 v. Winkle Cal.Rptr. People [260 822, 828-830 v. 192 Cal.App.3d Cal.Rptr. 726]; People (1987) Schultz [253 v. 147 513]; 539-540 Deletto Cal.App.3d [237 458, 466, 470-473, & fn. 10 Cal.App.3d Cal.Rptr. 233].) For in Winkle a count of example, the court sustained conviction of one defendant, testimony by lewd conduct based on victim that her child uncle, at or at regularly molested her each week her home his workplace. Although no no instruction prosecutorial unanimity election was made and given, was the court concluded that no error prejudicial occurred. defense; in only defendant made a weak to assert an alibi essence attempt credibility, necessarily trial a jury’s involved and the verdict question circumstances, unanimity that it Under such no believed victim. implied Indeed, a young “In a in which child very instruction was needed. situation testifies about a series of similar any molestations without identifying spe- dates, cific the unanimity instruction should given not be as it be would for the confusing jury to be an given instruction them requiring agree act, a specific when there is no act for them to specific agree upon.” (People Winkle, v. supra, at Cal.App.3d p. 830.) indicated,

As a previously unanimity instruction (CALJIC 4.71.5) No. cases, Winkle, in the given present case. But some such as have ob- served that a although prosecutorial election or unanimity instruction can focus the help jury on the same specific act where evidence of several elicited, distinct acts has been nonetheless neither an election nor a unanim- ity very instruction is helpful where the victim is unable to distinguish acts, between a series of any one of which could constitute the charged offense. In a acts, case consisting “generic” evidence of sex repeated it would be for impossible a prosecutor select act he relies on specific prove charge, or for the jury unanimously agree the defendant Winkle, committed the same act. specific (People supra, Hoek, 830; at see v. Van supra, pp. 816-817.) The lower courts have reached varying conclusions as to the conse- victim, quences inability of the of the prosecutor, defendant or jury to focus on a Indeed, criminal act to support conviction. the broad conflict created these decisions induced this court to grant the petition review in this case. cases,

Some their following own interpretation our Castro and Wil- decisions, liams and applying due process have principles, held purely generic testimony outlining repeated and continuous molestations without time, circumstance, distinguishing between place is insufficient to sustain conviction, because the prosecutor cannot prove act corre- information, to the act sponding in the alleged the defendant cannot defend act, against any such and the cannot unanimously beyond agree reasonable doubt that any such act (See occurred. People Vargas, supra, 846-847 pp. [reversing ten-count conviction for molest- ing Luna, over stepdaughter one-year period]; at Cal.App.3d 738-749 pp. [reversing three counts of six-count conviction for molesting stepdaughter three-year over v. Atkins period]; People (1988) 15, 203 19-23 Cal.App.3d two-count [reversing convic- [249 863] tion for molesting Hoek, over stepdaughter two-year period]; v. Van People 200 supra, at Cal.App.3d 814-818 pp. [reversing conviction for molesting daughter ten-year over period]; People Creighton 57 (1976) Cal.App.3d 155, Cal.Rptr. 249]; v. Abdullah 158- Cal.App. [129 P.2d 40].) Hoek, the case leading 200 supra,

In Van decisions, molesting daughter his was accused of the defendant this line of victim, the to the year. According her thirteenth through from her third sweetly talk way: Her father would the same always began molestations of Five six acts her, her, or vagina. her breasts or kiss and then caress to thirteen, the although twelve and when she was intercourse occurred sexual date, holiday, birthday any specific these acts to victim could not link enable to nothing determined “there event. court significant other Thus, is left all that charge. tie to a jury specific the to the instance specific testimony.” amorphous is generic the support charges to [the victim’s] 814.) at (200 Cal.App.3d p. cases that child molester

The Van court the resident acknowledged Hoek hand, “might victim young On the one the perplexing questions. pose distinguish which reference of time detail to meaningful point have this will be problem from another. The concern is that specific one act youn- and the frequent exacerbated the more the molestation repetitive Thus, or more ability the victim. the to establish one ger prosecution’s testimony (200 acts via the of the minor victim decreases.” specific exists, seldom 814.) corroborating at Because evidence p. “[t]o a matter law under circumstances testimony render such as of inadequate like insulate most effectively egre- those here under discussion could the child from gious (Ibid.) molesters prosecution.” But Van Castro and raised insur- Hoek believed our Williams decisions mountable due to these cases. obstacles successful prosecution First, recognized the court (See pp. 814-815) unanimity in gener- instruction and rule” were of little assistance “either/or testimony effectively ic cases. The instruction where the evidence operates acts, discloses failed to the act on several and the have select specific cases, they rely. testimony which But in “there is failure to present here, Where, evidence of act any to crime. as specific support charged many the evidence is that acts were over an extended such committed time, be for ‘select the period it would to impossible prosecution act for specific upon prove charge’ equally impossible relied com- jury ‘unanimously beyond a reasonable doubt agree Williams, (Id., quoting mitted same criminal act.’” 168.) Cal. Hoek and un- Van reasoned that when the victim’s “bland inci- yet occasion and involves accusations numerous specific” dents, unanimously it on one agree would be impossible act is fatal to the charge. impossibility prosecution for each Such and the because in the requiring charges cases “Implicit specificity 310 testimony trial

charges being given at is the funda- supported specific rule, mental due must steeped antiquity, prosecution the a prove specific jurors act the twelve must on one act.” agree Hoek, v. Van 200 (People supra, 817.) at Cal.App.3d p.

In of inability jury unanimously addition to one agree on information, act for each count in the Van Hoek that a posited mount effectively cannot a defense to molestation nonspecific Hoek, a charges. According “virtually Van defendant would be preclud- ed from an presenting alibi defense to the acts unless could for he account every time he in the of .... presence was the victim The defendant would virtually every have to . . . day years account of the last five .” (People Hoek, Also, v. 200 817.) Van at in such supra, Cal.App.3d p. the defendant from precluded attacking cases the victim’s “in other testimony way attack,” than a general challenge and cannot of act to specifics credibility undermine the victim’s as to details. The court concluded that it, acts, the case before “a victim’s blur of nonspecific to a particular occasion.” {Ibid.)

Several cases Hoek following Van not reversed molestation convic on tions due but process grounds, barred retrial of charges on theory that the apparent testimony was insufficient to nonspecific support Luna, v. conviction. (People supra, 743; at v. Cal.App.3d p. People Atkins, at supra, 19; Vargas, Cal.App.3d see supra, Cal.App.3d at 847-854 pp. [following but Luna and inso criticizing Atkins they far as bar retrial].) would courts, case,

Some Court including the of in the have Appeal present court, on called this or the Legislature, to reconsider or redefine the princi- Castro, relied on in ples such cases as Williams Hoek. (See, e.g. and Van People Moreno 800]; fn. 3 Luna, v. Vargas, supra, 854-855; pp. Indeed, 749.) we pp. note that 1989 legisla- tion was new passed which creates a offense sexual “continuous abuse child,” six, punishable by a term of prison years, twelve or sixteen proof three or more lewd or “substantial” sexual acts with child under months, fourteen over a of at least three period jury agree- unanimous Code, ment three or more acts (Pen. such occurred. 288.5.) § The new jury unanimously section recites that the need not “on agree which acts constitute the long unanimously number” as as the requisite agrees that at least three acts occurred within the three-month period. Moreover, the section does contain any requirement particularity Thus, specificity testimony. the victim’s if the constitutional impediments

311 valid, face due Hoek, al., may statute similar are this et by Van discerned words, does legislation of this In passage other challenges. process Winkle, 206 supra, v. (See People also discussion. present render moot our 746-747; Luna, at 204 pp. 826; supra, Cal.App.3d v. at Cal.App.3d p. People Madden, of which at 217-218 pp. 116 Cal.App.3d v. People supra, [each and mentions, excep- conduct” the so-called “continuous finds inapplicable, but unanimity the requirement].) tion and its issue Van Hoek line has taken with

Another recent of cases evidentiary concerns that the due process and has concluded progeny the state’s interest outweigh Williams do not that troubled us in Castro and v. (See People child molesters. convicting resident fully prosecuting Moreno, Moore, 1408-1416; v. supra, at People 211 supra, pp. Cal.App.3d 48, 786-790; 211 (1989) Cal.App.3d at v. Avina pp. People 211 Cal.App.3d 506, v. Coulter 209 178]; People (1989) Cal.App.3d 52-57 Cal.Rptr. [259 207 391]; Cal.App.3d v. Obremski People (1989) 511-514 Cal.Rptr. [257 1346, 715]; v. 204 Jeff (1988) Cal.App.3d 1351-1354 Cal.Rptr. People [255 Sanchez, 208 715]; 339-343 cf. v. People supra, Cal.Rptr. [255 testimony sufficiently spe at 746-747 victim’s Cal.App.3d pp. [finding generic description approxi cific to sustain 20-count conviction despite 1,380 at mately Vargas, v. 206 offenses]; People Cal.App.3d separate supra, Hoek, v. Marti review]; People 854-855 Van but our pp. [following urging Gordon, nez, supra, at 779 supra, Cal.App.3d opn.]; People 197 [dis. v. Osuna [conc, People at 868-873 Cal.App.3d pp. opn.]; Dunnahoo, 429, 433 641]; Cal.App.3d supra, pp. 570-573.) Several of the cite foregoing concurring opinion cases Justice Sims’s Gordon, 839, 865, supra, explained which recent expansion of criminal defendants’ due process rights procedural Williams, at validity casts doubt on the of Castro and protections continued testimony applied least molested children. For example, v. Jeff, was charged niece, 33 counts including rape, of various acts of molestation his against sodomy, The oral and lewd conduct. victim testified to some copulation acts, much oc- generic (e.g., but of her intercourse 1984; curred “a lot” these occurred “more than during summer acts majority, three” times one the Gordon concur- summer). citing Jeff rence, rejected argument pre- that due considerations would id., 341- testimony. (See clude conviction based on such sustaining pp. 342.)

Thus, about lack of a defendant cannot according Jeff, complain nature of charges of the if he is notified the information specificity of, conduct he and if the is accused the evidence elicited at the preliminary of examination informs him the that the will particular prosecutor matters observes, As attempt prove at trial. the information has a “limited Jeff time, offenses; role” of the kinds number of informing defendant and “the and left place, charged circumstances offenses are to the preliminary hearing represents which “the touchstone of due transcript,” process notice v. Jeff, 342; defendant.” 204 at (People supra, Cal.App.3d see also p. v. 43 People Thomas Cal.3d 829 740 P.2d Martinez, 419]; v. People supra, 197 at 779-780 Cal.App.3d pp. opn.]; [dis. Gordon, v. People 165 Cal.App.3d [conc, People at 868-870 supra, pp. opn.]; Dunnahoo, v. 571.) 152 at supra, Cal.App.3d as long concluded that “So the evidence at the presented preliminary Jeff hearing the supports against number offenses defendant charged and information, covers the charged time the a defendant the has all frame[s] the may notice Constitution if requires. defendant demur he or she believes the specificity ability lack of greater hampers the defend against Jeff, the charges.” v. 204 at (People supra, Cal.App.3d p. 342.) evidence, As for substantiality the of the found sufficient generic Jeff testimony that type sodomy identified the of offense oral and (rape, copula tion), (each the general time summer month between first period and fourth and grades, during weekdays), general (usually bed). location the victim’s observed, desirable, As ... specificity “More on depending age Jeff victim, involved, of the the number of incidents similarity of some of the others, incidents to another or and the time between occurrence lapse However, may trial. such always possible.” Jeff, not be v. specificity (People Avina, 204 v. supra, p. 343; see also 211 Cal.App.3d People supra, Cal.App.3d at 56p. should not that a child victim of require [“Courts testify sexual abuse be able about the time the offense more Coulter, victims than the of other precision crimes.”]; types Obremski, 513-514; supra, pp. supra, Cal.App.3d at p. 1354.) A dissenting justice in would have reversed counts based Jeff

generic testimony, unanimously because could out single time, that the agree defendant committed a identifiable act place v. Jeff, or circumstance. (People supra, 345-348.) at pp. case, Obremski, In another recent

defendant was convicted of counts of lewd conduct committed against stepdaughter his over a The victim’s 4-year period. testimony indicated that acts daily, these occurred sometimes frequently, although thrice she could not recount Affirming despite incidents. the conviction Hoek’s due Van testimony, rejected Obremski of the victim’s

nature molester the resident child insulate effectively would analysis one which prosecution. from court, he relied never suggested Obremski

According to the in defend- defense, prejudice he could not claim accordingly alibi on an in these issue primary Obremski observed that the ing against charges. identification, accused. credibility the of accuser and or but cases is alibi of would acts molestation plead prove specific the Requiring People good victims with in those defendants who select prosecuting result Obremski, 207 memories, supra, acts. v. commit the fewest (People who Luna, 748.) 1353; p. v. 204 at supra, Cal.App.3d at see Cal.App.3d p. People Luna, imma- upon in offenses committed adults “Multiple As stated sex likely to very of time are long period ture and inarticulate children over a child is of crimes in child’s mind. The result an the the amalgamation one any testimony the of unlikely approximating to be able to date give the in the case. Where uncomplicated describable offense even separately count of even an not be able to number offenses is so numerous adult would them, will be to a and custom- general, child’s often reduced abbreviated, arily (204 recitation of on a basis.” happened continuing what at Cal.App.3d p. 748.) Analysis

C. synthesize We now ex- some of the and concerns attempt principles cases, in the and to balance due pressed foregoing legitimate the defendant’s rights securing interests of convictions Initially, insufficiency cases. issue appropriate we discuss evidence and then turn to the due After process principles these cases. applicable rules,” suggesting some we next rules the facts of “ground those apply the present case.

1. Insufficiency Evidence

A must be judgment by substantial evidence in supported light the whole record. v. Johnson 26 Cal.3d 578 (People P.2d 16 A.L.R.4th 1255].) previously As noted, cases, below, some Court of the court Appeal including suggest generic testimony be as sub purely regarding molestations cannot regarded evidence, stantial and this defect both reversal of conviction requires Luna, and bars retrial of those v. (See supra, offenses. Atkins, 743; 19.) at at Cal.App.3d p. supra, p. sufficiently courts sub disagree, concluding generic testimony Other Moore, evidentiary from an standpoint. stantial (People 1412; People Vargas, supra, 847- pp. 854.) view,

In our latter line of cases makes more sense. It must be remem- bered that even an act generic testimony of intercourse “once a (e.g., month undifferentiated, for three years”) specific, outlines series of albeit inci- dents, offense, each of which amounts to a each of which could separate course, criminal support separate (Of sanction. prosecutors should exer- cise discretion in limiting charged. number counts No separate valid would served purpose be hundreds or thousands of charging separate molestation, counts of when count in a may even one result substantial punishment.) arises, then,

The question as to the minimum quantum proof necessary to support a conviction on one more counts based such generic testimony. test determining insufficiency for a claim of of proper evidence whether, record,

ain criminal case on the entire trier rational of fact could find the guilty beyond doubt. (People reasonable v. 284, 228, Barnes (1986) 42 Cal.3d 303 P.2d Cal.Rptr. 110]; 721 People [228 Johnson, v. 576-578.) 26 Cal.3d at On we supra, pp. must view the appeal, evidence in the most to the light favorable and must presume of support every of judgment existence fact the trier could reason ably deduce from evidence. (Johnson, 26 Cal.3d at supra, pp. 576-577.) reasonable, credible, we

Although must ensure the evidence is and of value, solid it nonetheless is the exclusive trial or province judge to determine credibility falsity of a witness and the truth of the facts which (Barnes, that determination Cal.3d at depends. 42 supra, p. 303.) Thus, evidence, if the verdict is supported by substantial we must accord due deference trier to the of fact and not substitute evaluation our of a (Id., credibility 303-304; witness’s for that of finder. the fact at see also pp. 143, 745, v. 15 People Mayberry (1975) 150 542 Cal.3d P.2d Cal.Rptr. [125 [reviewing testimony].) claim inherent improbability 1337] The insistence of some cases on a child greater specificity of victim’s testimony may reflect about the persistent credibility doubts of that general Abdullah, testimony. v. (See, 134 158 e.g., People supra, Cal.App. p. are to charges “dangerous,” being easy charge “so and so [molestation 457, difficult to v. 20 471-474 meet”]; (1978) cf. Thomas Cal.3d [143 215, Cal.Rptr. may P.2d be noting subject 573 that children opn., 433] [dis. adults, Yet, fantasies, to suggestion, manipulation by etc.].) explained above, it is credibility not a function reassess the of the proper appellate

315 a child’s testimo Moreover, that well established it is now witnesses. youth. his or her because of merely insubstantial be deemed ny cannot law, competence between is made Thus, no distinction present “under (People witnesses that of other children and young [citations].” 14 (1975) v. Rincon-Pineda Thomas, 471; see People 20 Cal.3d at p. supra, 247, A.L.R.3d 92 538 P.2d 864, 882, fn. 6& Cal.3d [disputing 852-853 at pp. 206 Vargas, 845]; supra, cases is especially molestation testimony in child argument doubt].) to disbelief or subject the unreli regarding notions traditional have undermined

Recent studies untruthfulness, witnesses, leading susceptibility their child ability of studies accurately. “Empirical recall events inability prior questions, traditional assumptions of these indicating results most have produced Crimi Abuse Witnesses Sexual (Foté, Child are unfounded.” completely Problems, and Proposals Their Proceedings: Capabilities, Special nal for Comment, Child 158; also L.Rev. see (1986) Pepperdine Reform Sexual Abuse 437, 459-460; L.Rev. Gate (1985) Golden California Witness, (1986) Direct Examination Myers, Techniques The Child many remembering children in difficulty L.J. [noting Pacific Luna, [observing dates]; People exact victims of credibility extended to “revolutionary change” respect and Practice Myers, Child Witness Law assaults]; generally sexual see 53-120.) pp. the credibili- regarding the modem view Legislature adopted In the 1127f, which provides Penal Code section ty enacting of child witnesses 10 years age in a child of any that “In criminal trial or which proceeding witness, of a the court shall party, testifies as a the younger upon request you testimony In the of a child []|] evaluating instruct the as follows: includ- testimony, the child’s surrounding should consider all of the factors child’s level of any evidence the regarding the of the child and ing age cognitive because of and level of Although, age cognitive development. adult, a from an may differently a child as witness perform development, an less credible witness than that does not mean that a child more or solely testimony or distrust the child adult. You should not discount of (Italics added.) because he or she is a child." Thus, testimony, we must sufficiency generic the of determining Does the youth on factors other than the of the focus victim/witness. date, time, render or circumstance precise place victim’s failure to specify many of the cases make Clearly insufficient? not. As clear, are not charge a child molestation surrounding details particular (People a conviction. unnecessary and are to sustain elements of the offense 316 Moreno, Avina,

v. supra, Cal.App.3d at v. p.792; People supra, 56-57; at v. Cal.App.3d Jeff, 341- pp. supra, at Cal.App.3d pp. 343.) victim, course, must describe the kind act or acts committed

with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various con- types proscribed conduct, intercourse, duct (e.g., lewd oral More- copulation sodomy). over, the victim must describe the number acts committed with sufficient certainty to each of the counts support alleged the information or indict- ment (e.g., “every “twice month” or time we camping”). Finally, went victim must be able to describe general time period which these acts occurred (e.g., my “the summer before fourth grade,” or each “during Sunday after he came morning us”), to live with to assure the acts were committed within the limitation applicable period. Additional details re- time, garding or circumstance place may of the various assaults assist in assessing credibility or substantiality the victim’s but are testimony, not essential to sustain a conviction. Moore,

In supra, one count example, of the information an act of charged rape occurred during period from however, June 1 to August 1985. The victim’s testimony, outlined a series of every undifferentiated “almost rapes night” during period. above, After reviewing many of the conflicting cases discussed the court conviction, sustained the that the ruling evidence of guilt was substantial its despite 1412; character. at nonspecific (Id., p. see also People Vargas, Avina, supra, 850-851; pp. 56.) There,

We concur analysis. with the Moore the victim specified type of conduct involved (rape) (“almost every its frequency night” for three months), and confirmed that such conduct occurred during the limitation more is period. Nothing substantiality to establish the required of the vic- tim’s in child molestation cases.

2. Due Process Concerns cases, In many child molestation two due are specific process rights invoked, defense, namely, the right to a prepare present and the to right discussed, a unanimous jury. (As previously Court of herein Appeal rejected discussed and the additional contention that the defendant’s “ap- due pellate were process” rights implicated. This contention is seemingly by the encompassed general due discussed process principles below.) to Right a. Defend accused of is that one principle due process

The “preeminent” (U.S. of the accusation.” the nature and cause “informed of crime must be be advised an accused Const., requires Due of law VI.) process Amend. opportunity a reasonable him so that he has against the charges by evidence by be taken surprise and not his defense present prepare Thomas, cases at p. 43 Cal.3d supra, trial. (People offered at his cited.) namely, the

Thus, related components, to defend has two right to those right present and the charges, to notice of the right defense charges. observed, suggested it has been

i. to notice—As Right previously are rights protect- due now process under modern a defendant’s procedures and Williams cases were than our Castro greater degree ed to a when in v. Gor- concurring opinion decided. As Justice Sims noted his view, don, 868-869, my “In modern proce- at pages supra, have if not eliminated Williams’ concerns dures criminal cases eroded .... It clear that fair in the indictment about notice [^f] informations, criminal by initiated the transcript modern prosecutions defendant accusatory not the affords preliminary hearing, pleading, notice of the criminal acts which he must defend.” practical against Gordon, at supra, Justice Sims also explained (People that the defendant has no to notice of the time pp. 870-871) right offense, limitation of an so as it occurred within the place long applicable that, . . “Beyond clearly duty . has no period. prosecution provide (Id., science at permit.” more notice than human nature and explicit to Williams’s to Justice Sims the “modern answer” 868.) According non- against rhetorical how defendant can a defense prepare as to inquiry minimum, that, must be molestation “is at a charges in the information alleged to defend all offenses of the kind prepared against to have occurred hearing as are shown evidence the preliminary 870-871; timeframe see (Id., in the information.” pleaded pp. within Luna, at p. 748.) also People In addition the advance notice the information and provided pre- examination, further liminary may the cases observe that defendant learn complaint critical details of the case demurrer to People’s through discovery Jeff, pretrial procedures. (See People supra, Martinez, 342; 779-780 pp. opn.]; [dis. Code, v. Superior cf. Pen. 1002 et Pitchess seq. procedure]; [demurrer § 897, 535-538 522 P.2d Court 11 Cal.3d (1974) Cal.Rptr. 305] [113 [discovery procedure].) that, availability

We conclude of the given preliminary hearing, of child moles discovery demurrer and pretrial procedures, prosecution not, itself, tation does of result in charges based denial of a to fair notice of the process right charges against defendant’s due him. that, by

We note reason of the recent of an initiative measure passage 4, 1990, Primary 115 at the June the defendants in some (Prop. Elec.), future cases Const, have benefit of a Cal. may (see examination preliminary I, 14.1,

art. with dispensing postindictment preliminary hearings § by discovery for the full avail- prosecuted indictment), range felonies Code, 1054.1, able (see of the measure Pen. prior adoption adopting § discovery new criminal But the measure’s does not procedures). passage substantially analysis or change our herein. disposition

First, currently 115 is Proposition subject challenges constitutional which judgment could result it invalid whole or declaring part. (See Raven v. in this Deukmejian (S016137, pending court).*)

Second, are, course, the foregoing pretrial new provisions inapplicable to the case or other cases which have present already to trial. proceeded Third, remains although question ultimately the new open, provisions might be ruled to offenses committed to its enactment. inapplicable prior (See Smith 34 Cal.3d 251 P.2d 149] for [prospective application Prop. 8].)

Fourth, new section 14.1 of article I of the California Constitution does not dispense preliminary entirely, only examinations but in those cases by indictment. prosecuted Recent statistics indicate a clear preference information, by prosecutions perhaps reflecting practical limitations on the ability of hear grand juries to substantial numbers of criminal cases. Ac- Justice, cording statistics the California compiled Department Enforcement, Statistics, Division of Law Bureau of Criminal of approxi- 275,000 mately felony arrests in by way were prosecuted indictment, none of which involved child sexual abuse offense.

Fifth, unavailability of a does not necessari- preliminary examination ly the defendant from the details of the filed preclude learning charges indictment, him. In against every cases indicted defendant is prosecuted Code, entitled to a of the complete transcript proceedings (Pen. 938.1), § *Reporter’s Supreme opinion. Note: See 52 Cal.3d 336 for Court be included must jury the grand examined names of all witnesses and the Moreover, 115 codifies 995a, Proposition (a)). subd. (id., indictment in the § be re- will discovery prosecution procedures. created many judicially counsel, the names things, among other to defense to disclose quired witnesses, any relevant written trial to be called as of all persons addresses witnesses, evi- “[a]ny exculpatory of those recorded statements or (Id., 1054.1.) dence.” § material details of

Sixth, to learn is unable to trial prior a defendant who a showing of trial on may proper a continuance testimony request a victim’s Code, include surprise cause could 1050.) Good (Pen. cause. good § to the informa- amendment last-minute witness’s regarding 149, Cal.Rptr. 69 Cal.2d 159-160 Wrigley (1968) v. (See People tion. [70 116, occurring to acts molestation victim testified 443 P.2d 580] [child v. 59 Cal.2d information]; Murphy (1963) in alleged outside period 306, in infor- change 827-828 382 P.3d 346] [last-minute Trial, ed. (2d 1989) 5 Witkin Cal. Criminal Law mation]; Epstein, & cited.) cases p. § reasons, of Proposi- all the we conclude the recent foregoing passage

For in this case. analysis tion 115 does not affect or alter our fact that the child victim Right ii. Does the present defense— dates, of the cannot recall or relate locations or other details not. Defendant stresses his inevitably offenses a defense? We think preclude But inability generic charges. to assert an alibi defense to as explained decisions, identity several can alibi defense be raised an infrequently Usually, in resident child molester cases. the trial centers on a basic credi bility issue—the victim testifies to a series of molestations and the long defendant denies that occurred. wrongful touchings (E.g., People Moreno, Obremski, 787-788; at supra, Cal.App.3d pp. supra, Dunnahoo, 1353; at p. Dunnahoo, p. 572.) As indicated if the defendant has lived with extensive, victim for an and therefore had continuous uninterrupted period victim, likely access to the neither alibi nor identification is to be wrongful an (152 572.) available defense. tendered,

Even an alibi there is why when defense is no reason counts, be credit the applied would less inclined to defense as to appropriate merely the victim’s has generic testimony because implicated Indeed, the fact challenged by additional counts or offenses not alibi. that the time covering defendant has established an alibi some of the periods in the information could undermine the victim’s testi- alleged significantly mony as to the counts. remaining concerns the earlier some of the due previously, process

As indicated testimony, especial founded on the view that a child’s may cases have been cases, untrustworthy. Yet it is now well settled that ly inherently in sex of children and that young “no distinction is made between the competence Thomas, 471; see also Cal.3d (People supra, of other witnesses.” Code, under 10 not discounted or distrust [testimony Pen. 1127f of child § solely youth].) ed of ground Castro,

Moreover, 133 Cal. contrary supra, to the stated of assumptions 11, Williams, child molestation charges Cal. supra, to defend. opportunity no means the defendant of a reasonable deprive course, has the the witness stand Initially, option taking the defendant credible, testimony If his should directly denying any wrongdoing. cases, In assertions of his accuser. some unspecific young over prevail testimony, if uncorrobo very especially of the child’s nonspecificity rated, the child’s may challenging offer defense counsel fertile field for Practice, Myers, Child Witness Law and credibility. (See generally supra, 181-258 In addition to the defendant’s techniques].) pp. [cross-examination testimony, direct his cross-examination of the child and wit supporting nesses, mandated Penal availability cautionary and the of the instruction 1127f, may be to introduce permitted expert Code section defendant interviews, evidence, character based on standardized tests and personal the effect that his does not include a for deviant personality profile capacity 1136, 1161 (See behavior children. v. Stoll 49 Cal.3d against 698].) 783 P.2d Moreno, 776, 788, As be- supra, explained may introduce evidence merely denying charges, sides the victim’s fabrications and innocent outlining past offering explanations familiarity for the victim’s of or with sexual behavior apparent knowledge or the defendant’s characteristics as well generally physical particular, testimony contradicting any evidence expert refuting physical molestation. trial the defendant

Finally, techniques, the usual defense supplementing available to obtain relief variety has a due remedies procedural process (Pen. from unwarranted demurrers prosecution punishment, including Code, aside the information or indictment 1002 et motions to set seq.), pretrial § (i 1118.1), d., 995), judgment acquittal (id., and motions for § § (ibid.). verdict or new trial (id., 1181.1) modification of § reasons, we decline to follow the thesis of foregoing For all the Hoek, that generic and its progeny Van against to defend right of a due the defendant deprives him. the charges against Jury to Unanimous Right

b. acknowl jury charges, on we necessity As for the of a unanimous cases is of constitutional unanimity in criminal that the edge requirement I, Const., unanimity The standard instruction 16.) Cal. art. origin. (See § But we 4.71.5.) reject CALJIC No. (See codifies principle. necessarily testimony unattainable where jury unanimity contention that is molestation cases. identical offenses is child regarding repeated presented cases, readily not be able to jury may distinguish In such although acts, unanimously certainly agreeing between the various it is capable they took in the number and manner described. place stated, testimony As even describes a series of previously repeated (Ante, acts of molestation. specific, though indistinguishable, pp. 313-314.) unanimity in focusing jury’s instruction assists attention on each by such act related the victim and We see no charged People. instructed, constitutional a impediment allowing jury, so to find a defend- act, ant guilty indistinguishable more than one the three mini- providing mum heretofore discussed are satisfied. prerequisites

For if the victim example, testified that an act of oral occurred copulation once each month for the first three months of and the People charge molestation, three counts of jury’s unanimous conclusion that these three acts took place satisfy would the constitutional requirement unanimity.

Similarly, if an information two charged counts of lewd conduct during time particular the child period, victim testified that such conduct took three times place during that same and the period, jury believed that testi toto, mony in difficulty its in differentiating between the various acts should preclude conviction of the two counts so as there is no charged, long jury possibility disagreement regarding defendant’s commission of Moore, any of these (See acts. v. 211 People at 1414- supra, Cal.App.3d pp. 1415; Moreno, 789-790, v. People 4; supra, at & fn. Cal.App.3d pp. Winkle, Schultz, v. People 830; at v. supra, Cal.App.3d People supra, Deletto, 539-540; at Cal.App.3d pp. supra, 147 at p. 466.)

In a case in jurors which the evidence indicates the might disagree committed, to the particular act defendant unanimity the standard instruc Gordon, tion should be given. (See, e.g., supra, 855-856 separate raised defenses to the two offenses at is- pp. [defendant juror But when there is no reasonable likelihood of as to sue].) disagreement acts, and the is whether or not the defendant in fact particular question them, jury unanimity committed all of should be a modified given which, in instruction addition to a conviction if the unani- allowing jurors acts, mously also if the unani- agree jury allows conviction mously the defendant committed all the acts the victim. agrees described Moore, recently

As out pointed cases, credibility because page usually the “true issue” these “the consistent, jury either will believe the child’s that the repetitive event, pattern of acts occurred or disbelieve it. In either a defendant will have his unanimous verdict and the will have prosecution [citation] beyond a reasonable doubt that the proven defendant committed a specific act, if jury the believes the defendant committed all the acts it necessari- ly he each believes committed act [citations].”

To the extent inconsistent with our v. the cases of opinion, People 831, Luna, Vargas, v. supra, Cal.App.3d supra, Cal.App.3d 726, Atkins, Hoek, and supra, People Van supra, hereby are disapproved.

IV. Conclusion case, the Applying foregoing analysis to the we conclude present that the Court of Appeal improperly reversed defendant’s conviction of 19, 20, counts 22 and 23 pertaining Sammy. Sammy’s testimony to victim was substantial evidence of frequent (once month) or twice each molesta defendant, locations, tions exclusively five separate consisting of oral Moreover, Sammy’s copulation. testimony that these supported finding molestations occurred during periods specified these four counts of information, and well within the Sammy’s inability limitation period. time, specify the exact or circumstance of place these assaults neither denied defendant due nor process testimony rendered his too insubstantial to sup indicated, a conviction. As port previously defendant had the benefit of an unanimity instruction. unqualified Benke, herein,

As Justice to the Court of decision dissenting Appeal “Sammy observed: . . . testified that the molestations took once place twice each month one month after he moved in with starting approximately in August Sammy of 1983. recalled no took place molestations [defendant] in either March or of 1984 . . . . offered no alibi April [H] [Defendant] Sammy’s testimony certainly defense. sufficient if believed to enable the jury to he during conclude had been molested at least once four [each between to differentiate was able jury That the in question]. periods time by the is evidenced Sammy involving and places time periods various unanimity spe- as to required No. 4.71.5 which CALJIC giving court’s of count not guilty finding thereafter and cific offenses [defendant] also (See of 1984.” April March encompassed 21 which of 14 convicted Moreno, [jury at p.793 “ability an indicating him of but acquitted of molestation counts to the according guilt consciously evaluate appellant’s the acts separate instruction”].) unanimity of the requirements to affirm with directions is reversed the Court of Appeal The decision of 19, 20, 22 and 23. as to counts judgment J., J., Arabian, J., Kennard, concurred. Panelli, J., Eagleson, acceptance advocate MOSK, majority unqualified I dissent.The J. time, or circumstance—as place “generic testimony”—unspecific But criminal acts. committing particular sufficient to convict defendant due grave a number of such raises sole reliance on the majority address. Neither that the do not majority adequately concerns embraces—opin- it Appeal opinions nor the line of recent Court opinion in mostly adequately reiterate each other’s conclusions—succeeds ions that constitutionally rights guaranteed two of the most safeguarding important except be free of conviction right all with crime: the to persons charged to The to a defense. jury right present the verdict of a unanimous and upon and convict a charge also to majority permit prosecutor would opinion acts, with the num- on numerous counts for criminal unspecified ber of counts left to the discretion. prosecutor’s each charge

In lieu I that to majority’s approach, propose support be (hereafter 288), prosecution under Penal Code section 288 section criminal act. The evidence specific to the commission of required prove have the act sufficient to allow reason- particularity would to describe with distinguish unanimously the act from other acts and to jurors agree able to I the act be that the defendant committed it. would not neces- require time, I sarily particularity regard in but would some pinpointed require time, before the would be distinguishable to circumstances place to on the defendant’s pass guilt. allowed

If, hand, any distinguishing does not to point on the other the evidence Instead, acts, beyond be prosecution. the accused child molester would not section 288.5 recently enacted Penal Code he could be under prosecuted course of conduct specific section which makes criminal (hereafter 288.5), below, As discussed of a child” identified as “continuous sexual abuse in section safeguards, present section 288.5 has built it certain the state’s interest resident child molesters with prosecuting that balance rights. the defendant’s due process testimony arises from its under- majority’s generic acceptance that arise in evidentiary problems prose-

standable concern with the unique molesters, resident child when the alleged particularly complain- cutions of difficulty children have or articulat- ing young recalling witnesses are who Nonetheless, majority it is to as the ing specifics. hyperbole suggest, opinion testimony as sufficient to {ante, 305), accept generic does refusal molesters, convict would result in the “immunization” of resident child enactment; even with to cases to section 288.5’s regard brought prior mixture of resident child molester case is on a both typical premised testimony, both acts and nongeneric describing specific, distinguishable merely accounts of molestation.1 The standard I would generalized propose an against circumscribe the case accused resident child moles- prosecution’s ter under section so that are brought prosecutors compelled plead jurors agree are criminal acts prove, compelled upon, specific innocent defendant is guilty. of which the presumptively I. The Unanimous Verdict Requirement I, (art. 16) The California Constitution unanimous verdicts requires § entirely testimony, criminal When a conviction is based on generic cases. however, unanimity becomes because no evidence of impossible: specific involving 1A review of recent resident child molesters that in most there decisions shows time, according place which identified the act or various distin (See guishing Hoek circumstances. Van molestation]; People Vargas (1988) recalled three acts of 352] [victim 831, Cal.App.3d Cal.Rptr. distinguishing 847 charac of incidents with [253 894] [evidence 15, presented counts]; People (1988) Cal.App.3d v. teristics on four of ten Atkins 203 19 [249 testimony counts]; (1988) Cal.Rptr. [specific People of five v. Luna 204 on three 863] 726, counts]; Cal.App.3d Cal.Rptr. [specifictestimony People 730-731 at least three [250 878] 721, (1989) testimony v. Cal.App.3d Cal.Rptr. [specific Sanchez 208 746 as to loca [256 446] 309, acts]; People (1988) Cal.App.3d Cal.Rptr. tion and nature v. 204 342 [251 135] Jeff [specific testimony counts]; (1989) People Cal.App.3d on at least two of nine v. Coulter 209 506, 509, time, testimony circumstance]; Cal.Rptr. [specific place 511 as to [257 391] 1400, People (1989) Cal.App.3d Cal.Rptr. [specific v. Moore 211 1404-1405 testi [260 134] mony place times]; (1989) specific People on and circumstance as well as to some v. Avina 211 48, detail]; Cal.App.3d Cal.Rptr. People 52 in events testified to Moreno [259 178] [four 776, (1989) Cal.App.3d Cal.Rptr. spe 211 781 three least incidents described [259 800] [at 1346, time, cifically circumstance]; People (1989) Cal.App.3d place as to v. Obremski 207 eyewitness molestation].) Cal.Rptr. 1349 to one act of Of these cases [255 715] [adult (1988) Cal.Rptr. Cal.App.3d v. Winkle 206 824-825 seems to be with [253 726] kind, testimony may specific appellate out and this be more an artifact of the court’s Moreover, description Winkle contained than a true reflection of the state of the evidence. by physical extensive evidence as well as a confession the defendant.

325 from by are definition jurors precluded criminal acts has been presented, committed. As on which criminal acts the defendant unanimously agreeing Hoek, 817: page “Implicit in v. Van stated charges being supported and the specificity charges in the cases requiring rule, due at trial is the fundamental given specific act and the in that the must antiquity, prosecution prove specific steeped Creighton (Accord, People must on one act.” jurors agree specific twelve 314, on other 249], (1976) Cal.Rptr. disapproved [129 20 Cal.3d grounds (1978) v. Thomas [143 573 P.2d 433]).) “modified una- majority to address this concern with their purport instruction,” which,

nimity “in addition to a conviction if allowing jurors acts, unanimously also a conviction if the agree specific jury allows unanimously agrees the defendant committed all the acts described ante, victim.” To (Maj. opn., p. 322.) understand complete inadequacy answer, of this jury unanimity some discussion of the background problem is in order.

A. The Rule and the Crime Either/Or Continuous-course-of-conduct Exception

Courts have that the long recognized unanimity achievement of true jury more than requires the mere of 12 agreement jurors to a common verdict. (See, v. Williams e.g., People (1901) Cal. 165 P. 323].) The concern [65 that a seemingly unanimous jury may verdict mask substantial disagree- ments among jurors was first raised in cases which evidence of more than one criminal act was presented of a criminal support single charge. rule, For such situations the courts developed the which states “either/or” that “when the accusatory pleading charges single criminal act and the act, evidence shows more than one such unlawful either the prosecution must select the act relied on to or the be prove charge must instructed . . . that it must unanimously beyond a reasonable agree doubt that defendant criminal committed same act.” Gordon (People 839, 853, and cases cited Cal.Rptr. 174].) however,

When a case truly generic relies on testimony, rule either/or cannot because such apply, testimony does not present a set of distinguish- able acts from which the can prosecutor elect or about can jurors which the agree. Recent Court of decisions Appeal differ as to the of the consequence of the inapplicability rule to generic testimony cases. (Compare either/or Hoek, 811, v. Van 200 816 [unanimity instruction not an remedy when adequate acts are with indistinguishable], Winkle, 822, supra, 206 830 [jurors agree need not on specific 326 As

act, only jury”].) will unanimity “confuse the and instruction would the the rule to Hoek that failure of agree I with Van either/or appear, more of that inadequacy a reflection of the remedy testimony is generic of the rule. testimony than of the limitations either/or rule exception apply crime” to the Nor does “continuous either/or do not have to acts exception, jurors agree here. Under that the criminal acts (1) in the two situations: when following order to convict as to be of the same criminal transac closely part are so connected in time hour, same when the criminal (2) acts of in the or tion—e.g., repeated rape course of conduct.” Diedrich activity (People constitutes “continuous 263, 354, 643 A 971].) P.2d continuous- 31Cal.3d (1982) [182 victim crime one committed on the same and course-of-conduct is generally of a injury Examples in terms of that victim.2 described cumulative Ewing include (People course of criminal conduct child abuse continuous 714, contributing and (1977) Cal.App.3d Cal.Rptr. 299]) 717 [140 minor v. Lowell 346- of a delinquency (People 846]). P.2d conduct, contrast, Code lewd or as defined Penal section By lascivious The criminalizes at acts. statute is (a), present subdivision this, “Any shall willfully about who quite making punishable person clear . any added.)3 commit or lascivious act . . .” The lewdly (Italics and lewd testimony is not whether is problem present poses generic case sense, can form testimony in some but whether such abstract acceptable crimi- requires basis of a conviction under a statute that proof particular nal acts. Testimony Jury

B. Problem Unanimity Generic and the maintains use of majority The nonetheless that such opinion claim that because constitutionally majority is permissible. cases, in these ‘the either will “credibility usually the ‘true issue’ 273a, (1), crime of example, Penal Code subdivision defines the child For section which who, abuse, likely “Any punishable: pro person makes under circumstances or conditions suffer, death, bodily willfully permits any or great harm or causes or child to inflicts duce custody any unjustifiable physical pain suffering, having or thereon or mental the care child, injured, willfully willfully permits or person causes or or health such child to be person or health is endan permits placed causes or such child to in such situation that its be gered, . . .” willfully (a), “Any person full: shall Code section reads in who Penal subdivision any including any constituting lewdly other crimes commit lewd or lascivious act the acts thereof, body, provided upon part in Part 1 of this or or member of a code or with to, years, gratifying the age arousing, lust appealing child of 14 the intent of or under child, felony guilty of a passions person or sexual desires of or of such shall be such three, six, years.” eight imprisoned prison shall in the state for a term of be consistent, believe the child’s that the of acts repetitive pattern event, it. In occurred disbelieve either a defendant have unani- will his jury mous verdict and the prosecution beyond will have a proven [citation] act, reasonable doubt that the defendant committed a for if the specific jury believes defendant committed all the it necessarily acts believes he ” ante, committed each act specific (Maj. opn., p. 322), quoting [citations].’ from v. Moore

134].) however, argument

This a ignores, reason for primary a requiring high level of agreement among jurors. The rule that jurors must on agree criminal acts in order to convict has been established not simply to preclude possibility jurors presented multiple acts of a support single criminal charge might actually disagree. unanimity serves requirement an additional purpose: as Wisdom Judge wrote United States v. Gipson Cir. (5th 1977) F.2d like the reasonable doubt standard it is needed “ ‘on the impress trier of fact the necessity of a reaching subjective state ” of certitude on the facts at issue.’ (Id. 457.) To make unanimity certitude, rule an effective means of securing such the rule “requires jurors to be in substantial agreement as to just what did as a step preliminary determining whether the defendant guilty of the crime 457-458, charged.” (Id. at pp. italics added.) therefore, The danger, on relying wholly generic testimony to convict defendant of specific criminal acts is that jurors would no longer need to achieve the subjective state of certitude they they reach when are compelled agree the specific criminal acts instead, committed by defendant; they would need only to agree that the defendant committed some lewd or act, somewhere, lascivious at some time. Testimony pitched such a low level of specificity may be sufficient to convict of a crime defined conduct, continuous course of 288.5, e.g., section it does not suffice when consists, here, the crime solely of the commission of criminal acts.

Thus, the difficulty with the majority’s is its approach implied suggestion that acts can be specific, for purposes of conviction under section without being distinguishable. This approach jurors allows to convict the defendant of “phantom” acts which lie below the threshold of particularity that is the precondition unanimity in any meaningful sense. But indistinguishable acts cannot serve as the tangible core around which 12 minds dedicated to finding specific-act guilt beyond a reasonable doubt can form agreement. reason,

For this the majority’s solution to the generic testimony prob- lem—the modified unanimity instruction—is If jurors untenable. are unable act, they cannot be any single expect- committed agree

to that the defendant jurors “all” the acts. If are pre- the defendant committed agree ed to that C, D, A, B, that unanimously agree acts cannot generic sented with A, D, he they agree how can that committed act act the defendant subjective jurors certitude that lack in decid- committed all four acts? The magically appear committed a act does not ing single whether defendant words, his In other the totality are the of acts. jurors considering when unanimity require- does not address the fundamental modified instruction every count on a act stand behind juror agreement ment that section 288. charged under

Moreover, unanimity is that a modified instruction assuming arguendo testimony, it was curing a valid means of the defects accepted generic case, convictions on gener- not in this and therefore defendant’s based given judged be Nor his be to be harm- ic cannot can omission upheld. all is did believe that committed jury less. It evident the not defendant he him on five counts. they acquitted the acts since charged, with which was they the reacted been jury It is how would have had impossible predict Therefore, unanimity the modified instruction. failure given majority’s instruction, by unanimity majority’s logic, administer the the own modified generic-testimony-based must lead to reversal of the convictions. The view convic- majority’s ignores problem all-or-nothing also tions. a number similar crimes charged against When defendant is victim, likely guilty same he is or else jurors largely are believe either however, of our innocent. This unstated runs counter one presumption, must convicted process: most fundamental notions of due be Thus, the beyond charge. a reasonable doubt of each independently based prosecutor may attempt charges purely to “piggyback” information, testimony, has on those jury given about which the been little has testimony, charges more about which supported told be a compromising been deal more. result will further good the reasonable doubt standard.

C. Section 288 in Relation to Section 288.5

What effort due majority’s most about the to lower perhaps perplexing Legislature’s it own ignores standards under section is that molestation. Section solution to the resident child problem prosecuting 288.5, resides in the same “any enacted who either punishes person child, over a house with the minor child or has access to the who recurring time, duration, than three in three period engages less months .” . . . age more a child of 14 acts of substantial conduct with under 288.5, (§ unanimously agree only requisite “need (a).) subd. Jurors number of acts not on constitute the num- occurred[,] requisite which acts (Id., ber.” subd. (b).) clear,

As the bill that introduced section 288.5 makes the new statute was intended “to overcome the due raised in the Hoek problems Van statutory case within the framework of law.” Bill No. 2212 existing (Assem. (1989-1990 1.) has chosen to address the Reg. Sess.) Legislature § substantial constitutional problems raised Van Hoek and its progeny a creating continuous-course-of-conduct crime—the crime of resident child above,

molestation. As discussed a continuous-course-of-conduct crime is a well recognized to the rule that exception jurors must on the agree particular criminal acts committed by the defendant before him. convicting The continuous-course-of-conduct crime does not require jury unanimity act, on a specific because it is not the act that is criminalized. The actus reus of such a crime is a series of acts a occurring over substantial time, period of generally on the same victim generally resulting cumulative injury. The agreement for conviction required is directed at the actus appropriate reus: unanimous assent that the defendant in the engaged criminal course of conduct.

The difference the majority’s between solution to the resident child mol- ester problem and that of the Legislature is far more than semantic. The 288.5, Legislature, in section enacting created several safeguards designed to balance the state’s interest in compelling prosecuting resident child molester with the protection of a criminal defendant’s rights. Primary among these safeguards is the limitation that the defendant be charged with only one count victim. per Although penalties violation of section 288.5 6, 12, are severe—with possible or 16 year sentences—the one-count-per- victim provision is a significant restriction on overzealous prosecutors, who may be tempted compile multitude of convictions based on potentially exaggerated estimates of the frequency the criminal conduct by victims concededly unable to recall specifics.

Section 288.5 would also require jurors agree defendant commit- ted at least three acts of sexual abuse before convicting him on a given count. The three-act requirement thus sets a baseline for the crime of con- abuse, tinuing sexual making clear that a may not be convicted of that crime without substantial evidence that he engaged in a repetitive pattern of abusive acts.

Finally, section 288.5 requires that the defendant have had three months’ continuous access to the victim. The continuous-access makes requirement clear that the situation, statute targeted was at the resident child abuse where problems arise, with generic testimony are most likely to transient contact with the only who have

to be used individuals against victim. alleged 288.5, are thus two conjunction, aspects read in

Section has evidence strong scheme. When a single legislative prosecutor molestation, under section with its may he his case bring acts of child has evi- strong When the demanding requirements. prosecutor more proof and lascivious acts committed some of lewd type dence that the defendant child, the case testimony, may bring he but has the child’s crime, re- with relaxed proof 288.5 as a course-of-conduct under section discussed above. safeguards but with the built-in quirements Under their havoc with this scheme. majority legislative The would play all of the incentives and of section has prosecutor construction case under a resident child molestation bring none of the disincentives to may 288.5. He his case prove against section rather than section this virtually and his discretion is unfettered testimony, defendant with generic may He use under many charge. generic as to how counts he can alleged between the defendant and the section 288 even when the contact brief, place and the for the time potential pinpointing victim has been therefore severe- majority’s holding today The greater. the acts presumably and limitations ly thoughtful balancing incorporated undermines the 288.5, Legis- from our usual of deference to the policy section and deviates crimes. in matters to the creation and definition of relating lature II. Present a Right to Defense defending against gener- The also belittle the difficulties of majority grave First, establish an alibi: testimony. they inability ic dismiss the accused’s to be raised in the resident “only identity can an alibi or defense infrequently credibility a basic issue— Usually, child molester cases. the trial centers on a molestations and the defendant denies long the victim testifies to series of ante, 319.) The any wrongful touchings (Maj. opn., p. occurred.” credibility general. of child witnesses majority stress competence the defendant does have an Finally, majority opportunity contend it attention to the defense—chiefly, calling “nonspe- a present appears, character evidence cificity” testimony by presenting expert of the child’s behalf, via revelation of his of the child witness impeachment own fabrications. past far testimony are generic

But the problems defending against purely faces have us believe. The defendant majority more serious than the would defense, credibility but an alibi only not in presenting obstacles great unable defendant is “The explains, Hoek court As the Van defense as well. credibility victim’s act to undermine of the attack specifics act did the particular convince the might certain details which Hoek, 817.) .” v. Van . . (People occur. can be a burglary se: per an alibi defense no right It is true there is (See, is unknown. its commission date of although precise prosecuted But 178].) 211 Cal.App.3d v. Avina (1989) e.g., People evidence— likely tangible physical to be there is burglary in the case of to mount the opportunity a defendant gives the stolen e.g., goods—that for explanation an alternative for may example, defense. He present, viable goods. of the stolen his possession however, make can testimony, faced with person Unable to cross-exam- credibility. his accuser’s

most attack on generalized show, molestation, he can never details of the ine the child as to the story impossible, render the child’s physically that these details example, by recommended contradictory. stratagems The trial unlikely, or highly in an adult value: whereas a lack of specificity are of dubious majority child credibility, his a witness’s likely would raise about questions witness lack of a may by jury reflecting simply be seen vagueness well testimony character And cognitive development. generalized expressive an earnest child vic- may jury by little a given weight impressed be tim/witness.4 moreover, assertions, credibility or

Contrary majority’s general to the is not that point of children as witnesses is not the issue: competency lie, lie, and should therefore be they may children or lie but that frequently, The Child (See Meyers, adults. held to the same standards as approximately Cross-Examination, Examination, and Im- Direct Techniques Witness: 801, 872, are eight 18 Pacific L.J. over (1986) peachment [children children, truth,” although “bending younger of cognitively capable short, court, In likely consciously may suggestion].) not lie in be prone testimony generic innocent defendant faced with purely the presumptively his Sixth Amendment of such as to problems magnitude impair confronts the defendant can a defense. The standard I right present propose—that is tried under a con problems present It that the same are when defendant is true some of charge. the defendant is not asked to defend tinuous-course-of-conduct But such situations acts, against single against charges indistinguishable of tens or hundreds of criminal but Thus, charge engaged particular he does not find that he in a course of criminal conduct. charges unspe Kafkaesque predicament having to numerous himself in the to answer criminal cified misdeeds. under section 288 acts testimo- particular supported be convicted distinguish- those acts in sufficient detail to make them ny that describes him better opportunity challenge able—will with a somewhat provide credibility.5 child victim/witness’s Sufficiency

III. the Evidence “The test to determine a claim of insufficient evidence in a crimi proper whether, record, nal on the entire a rational trier of fact could find case is v. Barnes guilty beyond (People (1986) reasonable doubt.” appellant 284, 228, v. Johnson 110];People Cal.3d 721 P.2d Cal.Rptr. [228 576-578 606 P.2d 16 A.L.R.4th Cal.3d above, jury unanimity generic As true is when 1255].) explained impossible evidence is the sole basis of a conviction for criminal committing specific say jurors agree acts. But to as a matter of law that 12 could not achieve beyond ment reasonable doubt on the evidence is tantamount to presented the evidence declaring jury unanimity insufficient. Lack violates plainly unanimity due is likewise evidence that does allow process; insufficient. majority

The addition to its irrelevant opinion, lengthy though largely credibility, discussion of the argues child/witness’s clear, not insufficient because make many of cases the particular “[a]s details a child molestation are not elements of the surrounding charge ante, unnecessary (Maj. offense and are to sustain a conviction.” opn., But 315.) testimony. this formulation misconstrues the dilemma of generic prove need to acts of lewd or lascivious conduct were axiomatic, committed itself; arising from the statute the is question whether the courts should accept nonspecific to these acts. prove above, As such is insufficient as a matter of law because explained proof are unable jurors unanimity to achieve true to convict a defendant of spe- cific criminal acts.

IV. Charging Sentencing Arbitrariness in and Finally, majority scarcely significant the mention the of problems charg- and that will if its In ing sentencing inevitably arise standard is the adopted. notice, majority opinion problem addressing The also discusses the of insufficient it in availability adequate procedures—e.g., preliminary pretrial terms of the or lack of the hear ing—that charges brought against can inform the him. I defendant of the nature of the view problem indistinguishable general problem presenting the of notice as of a defense. from the means, proceedings, through provide particular Pretrial whatever must notice of the criminal charged, (See prepare acts with which the defendant is him a In re so as to enable to defense. pre Hess 45 Cal.2d to P.2d must be sufficient to allow accused 5] [notice availability pare defense].) procedures problem pretrial The of additional cannot cure the of product procedures insufficiently specific allegations. if notice the end of those is the victim’s November between acts committed alleged counts 19 to 23 case present But the 30, 1984, omitted. April March and of 1984 with August and so as to amount periods into two-month offenses charged division of could arbitrary; prosecutor purely five defendant was against counts counts, two, his whim. according into ten period have divided is convicted will of on which defendant charges the number Because sentence, creates the majority’s approach his length influence the of strongly Anchoring each arbitrary sentencing. disproportionate risk of serious act, I propose, distinguishable in a criminal specific, criminal count discretion. prosecutorial such abuses unfettered would avoid dilemma is to admonish only response prosecutors, to this majority’s of separate the number limiting “exercise discretion parenthetically, ante, neither (Maj. 314.) pro- The exhortation charged.” opn., counts any as to what a reasonable exercise vides prosecutors guidelines be, nor for abuse of discretion discretion would establishes standard While court. most will prosecutors would be reviewable an appellate not, restraint, do mixture of doubtless exercise the few who for whatever motives, be undeterred self-seeking misguidedly altruistic will majority’s admonition.

V. to the Present Case Application Here the evidence on counts to 23 consisted prosecution’s almost exclusively of generic testimony of several acts of oral copulation, time, is, fact, undifferentiated as to There circumstance. no place Sammy, indication the record that who was ages between occurred, 12 when the molestations was incapable remembering specific Rather, the prosecutor any inquiry incidents. seems to have abandoned broad, in favor designed general about to elicit re- specifics questions thereby number of sponses, maximizing against convictions with the least On such it is difficult to prosecutorial testimony, say effort. exactly what it thought agreeing. the reasons under given, seeking

For a conviction section prosecution acts, 288 should be evidence of criminal required present particu- time, lar this distinguishing as to or circumstances. stan- place Applying dard, I would conclude that convictions on counts 19 to 23 relied exclusive- ly testimony, lacked evidence distinguishable of specific, I acts. would therefore affirm the Court of Appeal’s judgment reversing the

conviction on those counts.

Broussard, J., concurred.

Case Details

Case Name: People v. Jones

Court Name: California Supreme Court

Date Published: Jun 28, 1990

Citation: 792 P.2d 643

Docket Number: S010191

Court Abbreviation: Cal.