*1 Dist., F006430. Fifth Jan. 1988.] [No. PEOPLE,
THE Plaintiff and Respondent, MARTINEZ,
LEO REYES Defendant and Appellant.
Counsel Bell, Jr., Defender, the Court State Public under appointment Frank O. Defender, Zall, for State Public Harvey and R. Deputy Appeal, and Appellant. Defendant General, White, Steve Chief Assistant Attorney
John K. Van de Kamp, General, V. C. McNally, Spanos James T. Paul Attorney George Bishop, General, Attorneys for Plaintiff Bangle, Janet G. Deputy Respondent.
Opinion of lewd BALLANTYNE, J. was convicted of 20 counts Defendant Code, 14 years (Pen. and lascivious acts with child under age § subd. The found as to each count allegations true the (a)).1 special victim had trust position respect defendant occupied special 1203.066, subd. acts of sexual conduct. (§ committed substantial examine de- the trial court three (a)(9).) psychiatrists After appointed defend- conducted a on their the court denied hearing reports, fendant and years. him ant’s and sentenced for probation prison application timely Defendant filed a notice of appeal. Facts C., victim, While growing
At trial the Linda old. the time of mother, she (whom lived in her up, Linda had Sonora with statutory All Penal Code unless indicated. further references are to the otherwise to live with the brother after he came “Dad”), to as and her older referred summer months seventh family grade. During when was sixth or in defendant’s house. Linda mother and defendant lived her she was 10 or out not her real father when She found defendant was were, i.e., if he she related but to relate to him as years old continued defend- and her mother moved out of always as she had. Linda fewa they living fall of December were house ant’s Linda, her her mother and away from defendant on the street. houses same in 1980 1981. brother moved to Jamestown or during molested her summer 1978. Linda testified defendant his, room; or in the living acts occurred in her of molestation bedroom During with defendant. when she was alone day night happened *4 undressed, and acts Linda was completely that occurred within this period her and mouth and licked her breasts with his hands his caressed or Penthouse Playboy magazines Sometimes defendant showed her vagina. women engaged of men and pictures women undressed pictures her to Linda these would activity. pictures help in sexual Defendant told occasionally out the pictures later. Defendant acted things understand Linda, not his touching vagina penis apparently her and her anus with forced Linda to masturbate Sometimes defendant achieving penetration. until her against legs him and sometimes he on of Linda and rubbed got top day.” never told de- mostly every Linda ejaculated. “It would happen time, I a long like this “it such activity happened fendant she didn’t because wrong.” didn’t know it was activities, and her moth- ultimately
Linda did tell her mother about these her er at Linda recanted accusation family initiated discussion which had Linda that her mother would because she was afraid. Defendant told every told the same time she anyway. thing her Defendant Linda believe a 13-year-old tell At 14 Linda asked said she was someone. going age natural, and her friend if behavior her girlfriend defendant’s toward her from it defendant tried to prevent told Linda was not. Linda testified ultimately daugh- Linda talked with defendant’s eldest any friends. having marriage. ter from a prior of molestation Linda’s and defendant the acts separated,
After mother clean, to defendant’s house to visit or to continued when Linda went to had worked as a horse (defendant defendant to “see the horses” accompany Linda in the art Defendant had coached boxing.” “for trainer), old; her lessons occurred two boxing since she was about 11 boxing occasions, the Linda these times a week. When defendant molested on three her as occurred while Linda and activities were the same those had Linda refused to undress were with defendant living except mother her after she started her panties keeping and insisted on completely 12. age at periods menstrual friend, her tutor of Linda told private her after talking
Sometime family respite pro- from the women ultimately told some molestation had Linda attended after she classes offering gram, group parenting related in the group 16. Another woman a child at about age had molestation, nodding agree- Linda to be appeared and when incident of like that had if ment, something asked Linda group a third member of the “they had to story her to the group, After Linda told to her. happened it.” report Linda’s came to an end when finally of Linda
Defendant’s molestation Between June 1978 defendant. restraining order got mother Linda did not molest- get never a month which December 1979 there was defendant, January Then at least once in 1980. and she was molested ed dolls, etc., Linda such as bought presents, “kind Defendant it of stopped.” and to her silence. gain had been molested to “reward” her when she M., mother, and the been married to defendant Linda’s had once Sophie and defendant family separated as a until together Sophie three lived *5 1980, January Sophie time June 1978 to During period, the relevant 1978. them molested defendant and once saw being that Linda was suspected had taken Linda over to his house but was house. Defendant defendant’s back,” her get daughter. Sophie so went to “taking long Sophie too to come and Linda. the and a window saw defendant through knocked on door sofa, naked from on the and defendant was lying Linda was undressed and a towel and Linda pushed down. Defendant covered himself with waist did not Sophie report out of the room but refused to answer knock. Sophie’s think she could make herself because she did not this incident pólice time with defendant Linda to be sad after appeared spending understood. and nervous in school. and she was sad and denied ever molesting the stand in his own behalf
Defendant took and that he Linda to clean his house paid Linda. Deféndant admitted he did not on drives to Modesto but stated riding took Linda horseback and Defendant testified he and Linda were her of those occasions. molest that he had acknowledged participated friends. He on cross-examination Linda until 1979. youth boxing program
Discussion I. brief, strictly mathematical in his opening As defendant out points 200 acts of testimony separate in excess of analysis suggests of Linda’s 772 was charged 32 Defendant of months. over a occurring period
molestation 288, subd. (§ conduct and lascivious 20 counts of lewd and convicted of returned the verdict forms amended and the information as (a)); both monthly time sequential covered the first 19 counts establish jury 1978, 1978, 30, 1, (count June frames, June period beginning 1, 1979, December of December continuing through period I), frame be 13-month time 31, 1979, XX covered the Count (count XIX). 1, now con 1, 1980, Defendant 1981. February January tween must sua jury, sponte, to instruct the trial court’s failure tends the victim by the acts testified to the numerous on which of unanimously agree 20 counts with each of the verdict on guilty basis for their constituted the reversal. that requires error charged prejudicial defendant was which We agree. offense criminal accusatory charges single pleading
Where the committed, either act was such unlawful more than one the evidence shows charge act relied prove elect the specific must prosecution CALJIC Nos. in the words of substantially must be instructed doubt beyond a reasonable unanimously agree 4.71.52that it must 17.01 or v. Diedrich act. (People criminal committed the same that defendant 354, v. 971]; 643 P.2d 280-282 Cal.Rptr. 31 Cal.3d (1982) [182 174]; People Cal.Rptr. (1985) Cal.App.3d Gordon [212 281].) 560-563 Cal.Rptr. Cal.App.3d Metheney case No. 17.01 in an appropriate with CALJIC duty Since the to instruct one, instruction does failure to request a defendant’s a sua sponte v. Madden (People review. appellate a waiver constitute 897].) Cal.Rptr. Cal.App.3d unani- that the fundamental principle The well-established not of recent convicted of is acts a defendant is mously on the act or agree *6 The genesis in California. by decisional law and is well origin developed the California decisions of vintage is found two the doctrine of election v. Court, People P. v. Castro Cal. Supreme 13] of____. charged the offense “The defendant is provides: 17.01 2 CALJIC No. any beyond he committed doubt that may guilty proof if the shows reasonable He be found agree acts, jurors guilty, all the must to find the defendant but in order one or more of such necessary particular act or acts com- that the act or acts. It is not that he committed the same in the verdict.” agreed upon be stated mitted so charged the informa- provides: “Defendant No. 4.71.5 [Count-of] CALJIC of_, the a violation of section-of the crime the commission of tion with Code, In order period between-and--[U] of time Penal on or about beyond a reasonable necessary prosecution prove guilty, for the it is find the defendant period al- constituting crime within the said specific of a act doubt the commission [or acts] unanimously agree upon And, you the guilty, find the defendant leged. in order to [H] period al- constituting crime within the said specific act commission of the same acts] [or agreed upon be stat- neccessary committed so particular the act or acts leged. It is not that [H] ed in the verdict.” Castro, convict- In P. 133 Cal. Wiliams 323]. The victim June 1899. to have been committed alleged ed of rape over occurring period intercourse acts of sexual to four specific testified conviction, Court stated: the Supreme In the reversing months. several bar, the defendant in the case at jury to the given “Under the instructions convicted, acts of intercourse of the various any if one should have been but, doubt; a reasonable beyond was established by sworn to the prosecutrix all of against himself called to defend upon the defendant was not certainly, intercourse, of several through extending period these acts respective act, the allegation that only upon one charged months. The information the sworn to any one of the acts Possibly, or fall. case must stand the act charged the state as have been selected could prosecutrix state, The at the selected. acts could not be so the entire four pleading, trial, to select particu- have been required should commencement of the information. allegation make good lar act which it relied to upon to make such that the failure done; conceding and even This was not of demand error because of want at that time did not constitute election election, still, when the case to make the of the defendant part upon form, court, their minds should have directed jury, to the some went the state to it was incumbent act of intercourse which particular evidence, be returned a verdict of could guilty before establish Castro, 133 Cal. supra, defendant. This was not done.” (People at pp. 12-13.) Williams, 13-year-old of a child. rape
In defendant was convicted during four months that she lived with the defendant for victim testified every day her had sexual intercourse with almost which defendant if they that found day. five or six times a was instructed sometimes any the victim at time within had had sexual intercourse with indictment, In revers- find defendant guilty. three then it should conviction, acts was a Court stated: “Each of these ing either, offense, for and separately and the defendant could be tried separate agree even must all each of them. The were not told A guilty had verdict of some described act been performed. specifically instruction, jurors no two although have rendered under such an could doubt, all, the truth of the or at beyond were convinced a reasonable Even worse than that was of these offenses. separate as to one charge, attempt prove, there was every As to offense which possible. *7 have his may established by be met proof, and which could crime, which, in defense, of continuous yet evidence upon general denial, may he have only he meet his things, personal the nature of could informed as to when he was not And how could he defend been convicted. offense, testified to the prosecutrix, out of hundreds what particular trial, as to circumstance a so indefinite charge to be tried? Such a upon was 774 designation, would place, except general
of time particular, farce, a v. (People if it not deal worse.” judicial something great be a were Williams, v. 90 (1979) 133 at Alva p. 168.) (See People Cal. also supra, 418, sex acts unlawful [multiple 424-426 Cal.App.3d Cal.Rptr. 644] [153 408, 418- v. 21 (1971) Cal.App.3d a five-month Gavin period]; People over v. 75 Dutra narcotics]; People 420 of [possession Cal.Rptr. 518] [98 311, to the [contributing delinquency 321-322 P.2d Cal.App.2d [171 41] v. of sex Ruiz People a minor where there are several acts perversion]; acts an hour of 48 P. within 694-696 (1920) Cal.App. 327] [several intent to assault with commit rape].) at facts are the facts in the matter very
The in the Alva case similar to Alva, with his 12- hand. In the father had acts of sexual intercourse multiple charged five-month He in three sepa- over a was year-old daughter period. incest, intercourse, and counts unlawful sexual lewd lascivi- rate child, act five-month As occurring period. ous acts each during case, make did not an election nor did court People instant in unani- an instruction that the must be give indicating appropriate the same act order to agreement mous that the defendant had committed trial find him held that the court’s guilty. Appeal, reversing, Court its as to the manner in which to task failure instruct approach only faced criminal when one act of continuous conduct proof charged a five-month time each count was occurring period within reversible error. that, “In a case where a defendant respondent argues as contribut with an unlawful continuous course of conduct such
charged abuse, an a minor or child such instruction is not ing delinquency of Diedrich, v. 31 Cal.3d at (Citing supra, p. appropriate.” People v. at Ewing (1977) 299].) People Cal.App.3d p. Cal.Rptr. all, herein, are lewd and charged We First the crime persuaded. child, was not as within the ambit of the coming lascivious acts with listed Ewing crime” either the Diedrich or cases. “continuous exception Madden, Furthermore, this 3d court People supra, Cal.App. as it related to recently argument multiple dealt with course-of-conduct acts as follows: “Insofar as cases cited herein be read as might sexual of conduct holding that sex offenses constitute continuous course multiple act, be be single Multiple or a we sex acts cannot held to continu disagree. In theory there one sexual abuse. ous conduct on a act of being ., . . v. Perez 23 Cal. committed numerous 3d during victim some upon single uninterrupted period sexual offenses be 45-60 Our held that the defendant could con minutes. Court So also in the punished victed and each separate act/offense. [Citations.] *8 was) Madden in fact (and here could have Each appellant case. instant as the is that insofar The problem offenses. several sexual charged concerned, all of the was not told jury are oral charges copulation of 218, omitted.) fn. (Id. act.” at p. a specific had to on jurors agree law enforce- confront the severe problems are not unmindful of We victims the specifics young from these obtaining ment and prosecutors have their desire to and which fuels a offense necessary to prove particular This is not sexual offense. a course-of-conduct crime considered this type protections basic constitutional discarding these for justification sufficient long-established policy from crime. Such a departure accused of for those to address. Legislature or our leave to our court high feel to compelled we election compel failure the court to We that the conclude in each count on act were proceeding to which specific as prosecution its task it should approach to the manner which instruct the as or to error was prejudicial criminal conduct faced of continuous proof court, in the trial For the judgment. guidance reversal of the and requires matter, contention we will discuss the additional a retrial in this the event of the defendant. raised
II. lascivious con- defendant with lewd and charging the 20 counts Each of trust with respect position special he had alleged occupied duct also victim, an act of substan- and had committed stepparent, specifically 1203.066, subdivision of section meaning tial conduct within sexual Thus, according true. these special allegations found each of (a)(9). 1203.066, rendered statu- of section provisions made four specific unless the trial court torily ineligible probation findings.' 4, 1981, 1064, section Statutes of chapter 1203.066 was added
Section 1, alleged latest occurrences of molestation January 1982; the effective two January prior some occurred information in accor court proceeded the trial Although date of the statute. effective hearing psychiatrists’ conducting the statute dance with the terms of re findings all four of the unable to make the court found itself reports, statutory provi under that for probation avoid ineligibility quired to his case of this section contends application Defendant now sion. (U.S. facto laws. ex post proscription violated the constitutional Const., I, Const., I, 9.) art. cl. and Cal. art. § § are as follows: section 1203.066 The pertinent provisions to, nor be granted shall not Section Notwithstanding probation “(a) *9 for, nor shall a be suspended or sentence imposition shall execution this section be provisions the defendant within finding bringing for, of the following persons: Section stricken to pursuant an trust and commits position special A who “(9) person occupies means that ‘Position of trust’ special act of substantial sexual conduct. by reason of authority in a who by a occupied person position position over victim. Position of is exercise undue influence that able to position includes, to, aby natural authority is not limited the position occupied but relative, mem- household parent, foster adoptive parent, stepparent, parent, adult, leader, ber, is adult athletic youth recreational director who adult doctor, teacher, counselor, leader, coach, or em- religious adult manager, ployer. not apply of subdivision shall
“(c) (7), (8), (9), (10) (a) Paragraphs findings: the court makes all of following The defendant is the victim’s natural “(1) parent, adoptive parent, step- relative, member of victim’s has lived in or is a household who parent, household. of the defendant is not best interest “(2) Imprisonment child. feasible in a treatment recognized Rehabilitation of defendant is
“(3) molestation, and defendant is designed to deal with child if the program household, to deal with remain program specifically designed family. within the molestation There is victim if there is no no threat of harm child
“(4) physical its to this subdivi- upon making findings pursuant The court imprisonment. jail is not from the defendant to precluded sentencing prison, sion state its on the record retains the discretion not to. court shall reasons it on the defendant.” imposes for whatever sentence ex facto laws are parameters proscription against post Court in defined the United States now well established. As 17, 23, 101 S.Ct. v. Graham U.S. L.Ed.2d Weaver “. . . for a law 960], penal two critical elements must be criminal present is, it facto-, be ex it must be events post retrospective, apply offender enactment, disadvantage it and must its occurring before 33 Cal.3d re omitted; In Stanworth see also (Fns. affected it.” *10 783, v. Castro 1311]; Morris 654 P.2d Cal.Rptr. 180 943, 946-947 33, Cal.App.3d re 37; In Duarte Cal.App.3d most claims have surfaced ex facto post The area in which 176].) Cal.Rptr. statutes, i.e., in custody, changes whether is release from in recent review, rules, parole eligibility, parole which affect or guidelines credits, to facto when applied ex effect post have availability of conduct or adoption. their enactment were committed to prior whose crimes inmates Stanworth, re at supra, page In Court stated the California Supreme As judicial us cast the issue before light “Some is 181: additional and Youth in the Federal Parole Commission changes recent treatment of decision, an ex rejected Ninth Circuit Act. In a Weaver pre- Corrections changes guide- in parole facto claim and post approved application rather than deter- general special greater emphasis lines which placed However, that a shift other have found rence factors. courts [Citations.] determinations violated to various factors in weight given making parole before the ex facto when to defendants convicted post prohibition applied changes. enactment [Citations.]” for statutorily ineligible 1203.066 renders proba
Because section its necessarily ineligible to prior tion a class of offenders who were and, enactment, are the statute disadvantaged it is clear such offenders date, 1203.066 to crimes before its effective section applied occurring ex laws. this Importantly, ques violates facto proscription post merely and not the context of general, tion be answered since, out, statutorily case point case as the this his for under the law that existed at the time offenses ineligible probation time, subject were committed. At that have been would 1203, provisions (e)(5), “(e) Except of section subdivision which provided: if justice in unusual cases where the interests of would best be served any shall not be to person granted probation granted probation, following persons: never convicted once in this
“(5) previously Unless has person which, felony of a or in if commit- place public state other offense state, felony, any ted in this have been as a who person would punishable violence, burglary has been convicted of with force or explosives, rape murder, murder, murder, assault with intent to commit attempt commit extortion, trainwrecking, escape from the state a viola- kidnapping, prison, 288a, conspiracy tion of Section or a commit one or more such crimes.” for reflected in section subdivi- statutory ineligibility probation felony with a only
sion to those conviction. (e)(5), applies persons prior Since be said of law of all convicted this cannot as matter persons 288, 1203.066 virtually section since section alfects the entire violating violating class of convicted of section the fact that defendant persons would have been under either the old law or the new ineligible probation does not vitiate the ex facto effect of section 1203.066 when post applied 1, 1982, occurring January crimes before and its court was error. use Therefore, conclude that 1203.066 to we section offenses application *11 occurring before its effective date violates the constitutional proscription by ex facto laws of its limitation the trial stringent virtue on post court’s grant discretion to probation. judgment reversed.
Reid, J.,* concurred. Acting
HAMLIN, J., P. I dissent. in court here confronts a case which the molestation has been so consistent the that minor victim cannot recall distinct and identifiable acts within this of Unfortunately, course conduct. this is not unusual in the molester,” is, a prosecution of “resident child that a who either person resides the same home with minor virtually the or otherwise has un- checked the sexually access to minor and who abuses the minor on repeated occasions over of time. prolonged period If a child has molested on a regular basis and in consistent man- ner, work,” e.g., “every day my mommy went “every weekend dad,” stay when I my would “two or three times week when visit,” Johnny may would come to the child meaningful have no reference detail point of time or which distinguish one act from specific another. Obviously, the more frequent repetitive and the and youn- molestation the victim, ger the likely the less it that becomes the can prosecution establish one or more testimony acts via the specific the minor victim. Since many aberrant leave practices no permanent physical evidence and since children witnesses, are usually outside molested the presence testimony the may minor victim be the only evidence on which the can prosecution base case; its rendering such testimony as a inadequate matter law under like circumstances those here under effectively discussion could insulate the most child egregious molesters from prosecution.
* Assigned by
Chairperson
Council.
Judicial
circumstances,
that either
majority’s requirement
Under these
trial
it
on which relies or
acts of molestation
elect the
prosecutor
specific
(or
4.71.5
No. 17.01 or
CALJIC
language
jury
court instruct
acts the
unanimously agree
their equivalent)
v. Wil
scrutiny.
People
Neither
does not bear close
defendant committed
on prosecutorial
P.
which focuses
323],
I Court in decid- believe the concerns expressed Williams, courts when consid- by subsequent Castro and ing recognized *12 either or a ering the of as election prosecution multiple requiring offenses instruction, unanimity process were due considerations grounded upon it the due light linchpin of criminal as then existed. The of procedure analysis ability those cases is the of a shapes permeates that process criminal to a defense to the meaningfully present prepare (See v. 152 against him. Dunnahoo charges People Cal.App.3d state, abstract, It Cal.Rptr. 796].) enough not to the simply [199 the of right charged a criminal defendant has to be convicted act, unanimity, a he particular right nor that has the to a instruction on act, nor he has elect right to the to the compel prosecutor All evidence of which he intends to rest his case. of these lead principles back has inexorably ability ability to the defendant’s to defend. If that curtailed failure to of the give adequate state’s the defendant notice him, if lack spe- as made can be shown to charges against charges mounted, a cificity so that defense cannot be the defendant should be enti- tled to dismissal him resultant charges against or reversal Penal 1004 which conviction. Code section Existing procedures, including charging a criminal defendant to demur to a when the permits complaint allegations considered in light transcript preliminary hearing certainty, do of the defendant’s protection sufficient ensure provide rights timely People forum in fashion. Jordan (See appropriate 570].) 369-370 Cal.Rptr. Cal.App.3d as the at long presented hearing So evidence the preliminary supports frame charged number offenses defendant and covers the time information, or time has all the notice the charged frames Constitution Should a defendant in requires. such circumstances feel the defense, lack greater his specificity hampers ability may to prepare demur; to the extent the success demurrer depends upon offer of defense, proof his intended concerning such offer in camera making ensures the defendant would not be compelled prematurely disclose his defense strategy gain the constitutionally notice of the adequate charges against him to which he is (Cf. entitled. v. Collins (1986) Cal.3d 393- 722 P.2d Cal.Rptr. 173].)
There is in this record nothing that defendant suggest was at surprised trial. He elected to stand on his denial that he had ever molested Linda. jury’s truth, Thus the task was to decide who was telling victim or defendant. Necessarily there jury unanimity on this issue. Nothing more was required logic or law. The absence of an election and the failure to instruct on unanimity that the majority deems reversible were, error in my opinion, irrelevant under the facts of this case. Respondent’s petition review the Court was denied April 27, 1988.