Lead Opinion
Penal Code section 288.5
Facts
Jose Luis Rodriguez appeals from the judgment entered following his conviction by jury of two counts of continuous sexual abuse of a child. (§ 288.5, subd. (a).) He was sentenced tо prison for 28 years. The following facts are largely taken from the Court of Appeal’s opinion in this case.
Fernando V. was bom in May 1983 and lived in Los Angeles County. Defendant lived four houses from Femando, in a trailer on the back of a lot. Everyone who lived on the block knew defendant as a soccer coach who participated in soccer activities with neighborhood children. Although his mother believed otherwise, Femando testified he was not on defendant’s soccer team, but his older brother was, and Fernando would watch his brother play. Fernando would also “do whatever [defendant] would tell him to do” and often ran errands for defendant.
Defendant first molested Femando in 1990 when Fernando was seven years old, and continued to molest him until he was about nine years old. These acts occurred on school days and weekends in the trailer and involved fondling, masturbation, oral copulation and sodomy. At one point, the molestations occurred almost every day. Defendant threatened to shoot Fernando or his mother if he told anyone regarding the acts. Defendant does not presently contest the sufficiency of the evidence еstablishing these molestations and, accordingly, further details are unnecessary.
Ernesto R. was bom in August 1987. From 1990 to 1998, Ernesto lived in his grandparents’ house on the same lot where defendant’s trailer was located. Defendant regularly used a bathroom inside this house. Ernesto knew defendant was a soccer coach and Ernesto’s mother viewed defendant as if he were an uncle to Ernesto and her other children.
About 1994 or 1995, when Ernesto was about seven or eight years old, defendant began molesting him two to three times a week, every week, for
Discussion
Section 288.5 was adopted in 1989 (Stats. 1989, ch. 1402, § 4, p. 6140) to criminalize “continuous sexual abuse of a child.” Subdivision (a) of this section provides in pertinent part that “[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.” (Italics added.)
The Legislature’s accompanying statement of purpose declared that “there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by thоse commonly referred to as ‘resident child molesters.’ These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another . . . , and as a consequence prosecutors are unable to . . . overcome . . . constitutional due process problems . . . .” (Stats. 1989, ch. 1402, § 1, subd. (a), p. 6138, italics added, reprinted at Historical and Statutory Notes, 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. §782, p. 631.) The Legislature also declared that it intended the penalty for continuous sexual child abuse “shall be greater than the maximum penalty under existing law for any single felony sex offense.” (Stats. 1989, ch. 1402, § 1, subd, (b), p. 6138, reprinted at Historical and Statutory Notes, 29B pt. 2 West’s Ann. Evid. Code, supra, foll. § 782, at p. 631.)
Guided by the foregoing express legislative declarations of intent, we turn to the question before us, namely, the sufficiency of instructions that simply use the statutory term “recurring access,” without further definition or elaboration. As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is
In the present case, the court instructed the jury based on CALJIC No. 10.42.6, using the statutory language of section 288.5, subdivision (a), and explaining that one element of the offense of continuous sexual abuse was defendant’s recurring access to the minor. Defendant failed to request amplification of that term, and accordingly the trial court was not obligated, sua sponte, to define the phrase unless it had a “technical sense peculiar to the law,” that is, a “statutory definition differing] from the meaning that might be ascribed to the same terms in common parlаnce.” (People v. Estrada, supra, 11 Cal.4th at pp. 574-575.)
We discern no meaning, technical or otherwise, of the term “recurring access” other than its commonly understood meaning as an ongoing ability to approach and contact someone time after time. (See Merriam-Webster’s Collegiate Diet. (10th ed. 1993) p. 6 [the term “access” means “permission, liberty, or ability to enter, approach, communicate with, or pass to and from,” or “freedom or ability to obtain or make use of’]; id. at p. 978 [the term “recur” means “to occur again after an interval: occur time after time”]; cf. People v. Grant (1999)
Defendant relies on People v. Gohdes (1997)
In Gohdes, the defendant had dated the victim’s sister for several years and, on her departure from home, turned his attention on Corrine, the underage victim. Over a period of several years, defendant secretly visited Corrine, climbing in her window and engaging in nonforcible sexual activity with her, culminating in intercourse when she was 14. The Court of Appeal upheld a trial court ruling that, despite his frequent visits, defendant had no recurring access to Corrine because he was neither “ ‘an invited guest’ ” nor held any “ ‘position of trust’ ” with Corrine’s family, and in fact had no “ ‘legitimate purpose’ ” in visiting hеr. (Gohdes, supra,
The Gohdes court agreed with the trial court, finding that defendant failed to match any of the “obvious situations” involving true recurring access, such as those involving babysitters or “regularly visiting relatives or friends, etc.” (Gohdes, supra,
The Court of Appeal in the present case outlined the various letters and memoranda from the Office of the Attorney General, which sponsored the legislation enacted as section 288.5, material that supposedly reflects that office’s “gradual development of a broad view, articulated in cоmmon parlance, concerning the scope of persons governed by that section.” Assuming, as both parties seem willing to do, that we properly may rely on these materials (but see People v. Johnson (2002)
Indeed, although initial drafts of the proposed legislation applied to persons “who occupy positions of trust and confidence,” (Deputy Atty. Gen. Edgar Kerry, mem. to Asst. Atty. Gen. Arnold Overoye, Aug. 25, 1988, p. 1) and persons “in a position of special trust with continuing access” (Cal. Dept. Justice, Legis. Proposal, Sept. 23, 1988) to the child victim, ultimately the phrase “recurring access” was chosen by the drafters, it being deemed “broader in its scope” than the earlier proposals. (Deputy Atty. Gen. Edgar Kerry, mem. Nov. 14, 1988, p. 3.) As the present Court of Appeal opinion observed, Gohdes “resurrects ‘position of trust’ and relationship considerations which the Attorney General rejected in his final draft of the proposed legislation” submitted to the Legislature.
In short, as made clear by the legislative declarations accompanying it, section 288.5 was enacted to broaden, not narrow, the reach of this state’s
Defendant observes that section 288.5, subdivision (a), in addition to requiring residence with or “recurring access” to the victim, also requires the defendant to have committed, over a defined period of time, “three or more acts of substantial sexual conduct” or “three or more acts of lewd or lascivious conduct” with the child victim. Defendant echoes the observation of an appellate case that, accordingly, section 288.5 “is [not] aimed ... at the stranger who happens to encounter the same victim three times.” (People v. Avina (1993)
Despite the concerns raised by the concurring and dissenting opinion, we see no “surplusage” problem requiring some special definition of “recurring access” that would require sua sponte instructions. Section 288.5 relates to “continuous sexual abuse” and accordingly requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have “recurring access” to, the child. Contrary to the concurring and dissenting opinion, not every person who manages to molest a child three times during the requisite period necessarily would have an ongoing ability to approach and contact the child time after time. (See, ante, at p. 547.)
We conclude that “recurring access” is a commonly understood term requiring no sua sponte dеfinitional instructions. The judgment of the Court of Appeal so holding is affirmed.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
Unless otherwise indicated, all statutory references are to the Penal Code.
Concurrence Opinion
I write separately to clarify my position with respect to a point of disagreement between the majority and our concurring and dissenting colleague. I disagree with the concurring and dissenting opinion’s implication that the statutory term “recurring access” would be reasonably understood by jurors to denote such intermittent “access” as is necessarily implied by discrete instances of actual contact. (See cone. & dis. opn., post, at p. 554.) I join the majority, rather, in its determination that the term’s commonly understood meaning is “an ongoing ability to approach and contact someone time after time.” (Maj. opn., ante, at p. 547, italics added.) As the majority correctly points out, “not every person who manages to molest a child three times during the requisite period necessarily would have an ongoing ability to approach and contact the child time after time.” (Maj. opn., ante, at p. 550.) Accordingly, not every person who manages to molest a сhild three times during the requisite period necessarily would be guilty of violating Penal Code section 288.5, and the concurring and dissenting opinion errs to the extent it suggests that a reasonable juror could conclude otherwise. (See cone. & dis. opn., post, at pp. 554-555.)
Concurrence Opinion
I concur in the majority opinion’s result. I disagree, however, with its reasoning. As elaborated below, if the term “recurring access” in Penal Code section 288.5 (all statutory references are to this code) is not given a special meaning, it will be rendered surplusage. I therefore conclude that “recurring access” has a particular meаning in the context of the statute that differs significantly from the commonly understood meaning, requiring the trial court to instruct the jury sua sponte as to that meaning. Because I also conclude the lack of such instruction was harmless beyond a reasonable doubt in the present case, I would affirm the Court of Appeal judgment upholding defendant’s conviction.
The rule for determining when a statute requires a supplementary sua sponte instruction by the trial court is settled: “ Tf the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’ [Citations.] [f] . . . A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (People v. Estrada (1995)
In the present case, we are asked to interpret the meaning of “recurring access” in section 288.5, which provides in pertinent part: “Any person who
The evident solution to the surplusage problem was proposed by People v. Gohdes (1997)
Although the court observed that this relationship is often characterized by the adult’s being “in a position to command respect or obedience from the child” (People v. Gohdes, supra,
This intеrpretation of the phrase “recurring access” is consistent with the declared legislative intent of section 288.5. The Legislature stated in the uncodified portion of the statute enacting section 288.5 that it was its intent “to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters.’” (Stats. 1989, ch. 1402, § 1, p. 6138, italics added.) This statement of legislative intent also makes clear that the statute was enacted in reaction to People v. Van Hoek (1988)
The Legislature in its statement of intent declared that “ ‘resident child molesters’ . . . reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time . . . .” (Stats. 1989, ch. 1402, § 1, p. 6138.) In other words, the term “recurring access” was part of the legislative definition of “resident child molester.” This context strongly indicates that “recurring access” signifies legitimate access that is the functional equivalent to that established by residing with the victim.
The above conclusion is also in accord with our pronouncement in People v. Grant (1999)
Contrary to the majority’s implication, the Attorney General does not take issue with Gohdes, as interpreted narrowly. As the Attorney General states: “Insofar as Gohdes concluded the Legislature contemplated ‘recurring access’ required something more than access to commit the forbidden acts, it is consistent both with the Court of Appeal оpinion and respondent’s position.” The Attorney General argues, and the Court of Appeal held, however, that the above is not a technical meaning, and therefore requires no sua sponte instruction. In order to assess the validity of this argument, we must examine more closely the commonly understood meaning of “recurring access.”
The definition of “access” quoted by both the Attorney General and majority is “permission, liberty, or ability to enter, approach, communicate with, or pass to and from,” or “freedom or ability to obtain or make use of.” (Merriam-Webster’s Cоllegiate Dict. (10th ed. 1993) p. 6.) The term “recur” means “to occur again after an interval: occur time after time.” (Id. at p. 978.) The majority apparently accepts the Attorney General’s argument that the term means no more or less than the dictionary definition, and would be understood as such by the jury. But according to that definition, anyone who has committed three or more acts of substantial sexual conduct with a child under the age of 14 has had recurring access to that child, i.e., has had the “ability to . . . approach” a child “time after time.” (Id. at pp. 6, 978.) A reasonable juror cоuld therefore conclude that such a person has had “recurring access” to the child within the meaning of section 288.5. But as the Attorney General concedes, that conclusion would be erroneous. In other words, nothing in the commonly understood meaning of the term “recurring access” would prevent a reasonable juror from subsuming that term entirely within the “three acts” requirement, thereby abolishing “recurring access” as an independent element of the crime. In order to bridge the gap between the legal meaning of “recurring access” within the context of section 288.5 and the commonly understood meaning, a jury instruction is required. (People v. Estrada, supra,
The majority’s response to this position is the cryptic assertion that “not every person who manages to molest a child three times during the requisite period necessarily would have an ongoing ability to approach and contact the
I therefore conclude that the phrase “recurring access” means some kind of repeated legitimate means of access used to perform the sexual misconduct. I further conclude that this understanding of the term gives it a special meaning requiring a sua sponte jury instruction by the trial court, so that the jury is not misled to believe that the commission of three acts alone is sufficient to find “recurring access.” I now turn to the question whether the failure to so instruct in this case is prejudicial.
Instructional error that omits an element of a crime is harmless if it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Flood (1998)
I would therefore require courts to issue a sua sponte instruction that “reсurring access” for purposes of section 288.5 means that the defendant
The majority refers to various internal memoranda from the Attorney General’s Office to demonstrate how broadly the Attorney General conceived the term “recurring access.” But there is no indication that these memoranda were presented to the Legislature, and therefore they are not indicative of legislative intent. Moreover, nothing in these memoranda suggests that the term “recurring access” was intended to be redundant.