Opinion
PROCEDURAL HISTORY
Appellant James Douglas Shaw was charged in case No. BF118941A with three counts of child molestation in violation of Penal Code 1 sections 647.6, subdivision (c)(2), and 288, subdivision (a), against two victims, B.M. and A.B. It was also alleged that Shaw had suffered three prior convictions in 1985 within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e). Count 2 was alleged as a serious felony within the meaning of section 1192.7, subdivision (c)(6).
In case No. BF119693A, Shaw was charged with three additional counts of child molestation in violation of section 647.6, subdivision (c)(2), and section 288, subdivision (a), involving a different victim, B.B. It was also alleged that Shaw had suffered three prior convictions within the meaning of section 667, subdivisions (c) through (j), and section 1170.12, subdivisions (a) through (e), and that the three 1985 convictions were serious felonies within the meaning of section 667, subdivision (a). A multiple-victim enhancement pursuant to
The court ordered the two cases consolidated for trial. The consolidated information charged as follows:
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The case was tried to a jury, which found Shaw guilty as charged on all counts and found the multiple-victim allegations true. In a bifurcated proceeding, Shaw admitted the prior conviction allegations. He was sentenced to
FACTUAL HISTORY
In 1985, Shaw was convicted in three separate counts of molesting a nine-year-old fourth grader whom he was babysitting. The victim, A.J., testified at trial that Shaw pushed her on the bed and put his hand down her pants and digitally penetrated her vagina. Shaw told A.J. not to tell her parents or they would not love her anymore. In 1996, Shaw molested A.S., a relative, who was around 14 or 15 years old. This molestation was not reported to authorities but was handled within the family. In 2007, Shaw was charged with molesting three additional victims, A.B., B.B., and B.M. The three girls ranged in age from eight to 16 years.
A. B. testified that when she was eight, she was alone with Shaw in the bedroom. Shaw pushed her against the bed and when she fell back, Shaw moved his private parts in a circle between her legs. She said he kept trying to move them toward her, almost pushed them on her and then brushed his private parts against her vaginal area. A.B. said Shaw asked her if it “felt good.” A.B. was afraid and pushed Shaw away and ran out of the room. A.B. reported the molestation to her mother a couple of months later after watching a television show about sexual predators. A.B.’s mother confronted Shaw, but he denied this ever happened. At trial, he testified the two of them were just playing around, roughhousing.
B. M. was friends with Shaw’s stepdaughters. Between December 2005 and January 1, 2006, when B.M. was 16 years old, Shaw took B.M. with him to a ranch for a day of horseback riding. B.M. thought Shaw’s family would be with him, but when he picked her up, he was alone. On the ride to the ranch, Shaw made B.M. uncomfortable by asking her if she was a virgin and by telling her she should lose her virginity to an older man. After they rode for two to three hours in the company of the ranch’s owner, Shaw took B.M. home. On the ride home, Shaw asked B.M. for a hug. He pulled her to the center of the front seat and kissed her. He put his arm around hér, moved his hand to her breast and began rubbing it. When she pushed his hand away, he told her to stop fighting. He also moved his hand up and down her inner thigh, rubbing it. B.M. asked him to stop, but Shaw told her he knew it felt good and that they could pull over anytime.
B.B. was Shaw’s stepdaughter’s good friend. She was 12 when Shaw first molested her. The molestation occurred when they were alone in a trailer at the ranch or in Shaw’s truck or in B.B.’s house. Although B.B. could not remember specific dates, she testified that Shaw touched her breasts, inner thighs, and vaginal area, both over and under her clothes. She testified that he digitally penetrated her a number of times, although not often. She said Shaw often took her to school. It was during these times that Shaw molested B.B. Shaw told B.B. that if she told anyone, people would hate her. After B.B.’s father learned of the allegations made by A.B. and B.M., he asked B.B. a number of times whether she had been touched inappropriately. Since B.B. was embarrassed and was afraid she would lose her friendship with Shaw’s stepdaughter, she initially denied any inappropriate contact. Finally, after Shaw had been arrested on the other charges, B.B. told police what had happened.
Carol W., a cousin of Shaw’s wife, testified about an incident that occurred between her and Shaw in 1999. She was an adult at the time. Shaw came to visit and said Carol needed a massage. She was not interested, but Shaw followed her to the bedroom and pushed her down on the bed. He began rubbing her legs, thighs, and vaginal area. He demanded a kiss and would not let her go. Finally, he left. Carol W. eventually informed police.
Shaw testified in his own behalf. He denied any inappropriate touching of the three victims, although he admitted the prior convictions.
DISCUSSION
I. Statute of limitations, counts 1 and 6
Shaw was charged in count 1 with a felony violation of section 647.6, subdivision (c)(2), annoying or molesting a child under the age of 18 and having been previously convicted of a violation of section 288, subdivision (a). The statute provides that a person found to have violated this section
Shaw relies on section 805, subdivision (a), which provides that “[a]n offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed. Any enhancement of punishment prescribed by statute shall be disregarded in determining the maximum punishment prescribed by statute for an offense.” (§ 805, subd. (a).) He also relies on case authority holding that sentence-elevating enhancements are not elements of the underlying offense. (See
People
v.
Bouzas
(1991)
This issue, the appropriate statute of limitations to be applied to section 647.6, subdivision (c)(2), has been addressed by two other appellate courts in
People v. San Nicolas
(1986)
The court in
San Nicolas
noted that a violation of former section 647a was defined statutorily as an offense with variable punishments according to the criminal history of the defendant. The court also observed that the prior conviction required for the maximum penalty did not work as an enhancement, i.e., an additional term of imprisonment added to a base term, but instead converted what would otherwise be a misdemeanor into a felony
McSherry, a more recent decision, adopted the reasoning of San Nicolas, enhancing the analysis with a reference to the legislative history of subsequent changes to the law. The McSherry court looked directly at the language of the statute, which expressly provides for a maximum sentence of six years. Under section 805, subdivision (a), the applicable statute of limitations is determined by the maximum punishment proscribed. A literal reading of the governing statutes supports a finding that the applicable statute of limitations is three years. (McSherry, supra, 143 Cal.App.4th at pp. 603-604.) Next, the McSherry court noted that, “given the San Nicolas result in 1986, application of the misdemeanor statute of limitations in this case would run afoul of the rule of statutory construction that recognizes that where statutory language has been construed judicially, and the Legislature thereafter amends the statute but leaves the construed language intact, it is presumed the Legislature was aware of the prior construction and adopted it. [Citations.]” (Id,, at p. 603.)
The court explained that section 647.6, subdivision (c)(2), is a subsequent statute on a similar subject that uses substantially similar language to the statute construed by
San Nicolas.
“At the time of
San Nicolas,
section 802, subdivision (b), provided prosecution for a misdemeanor violation of former section 647a committed upon a minor under the age of 11 years, could be commenced within two years after commission of the offense. (Stats. 1985, ch. 1172, § 2, p. 3957.) In 1991, the Legislature amended section 802, subdivision (b), to increase the applicable age of the child from 11 years to 14 years and to add an express reference to section 647.6. (Stats. 1991, ch. 129, § 1, p. 1328.) [f] The Legislature amended section 802, subdivision (b), again in 2002 to increase the limitation period for a violation of section 647.6 when the victim was under the age of 14 years from two to three years. (Stats. 2002, ch. 828, § 2.) By effecting these amendments without disturbing the judicial construction of the limitations period applicable to a violation of the precursor of section 647.6, subdivision (c)(2), the Legislature indicated its intent to adopt the
San Nicolas
result that the applicable statute of limitations
McSherry
also noted that the legislative committee reports prepared in conjunction with the 2002 amendments to section 802, subdivision (b), state that the statute of limitations for child annoyance with a prior conviction was
three years or more. (McSherry, supra,
McSherry
distinguishes
Turner, supra,
The remaining cases cited by Shaw do not require a different outcome. First, as with
Turner,
none of them are directly on point. In
Whitten, supra,
People v. Coronado, supra,
We also reject Shaw’s equal protection argument. In order to prove a violation of equal protection, the proponent of the argument must prove he or she is similarly situated to one treated differently under the statute.
(Cooley v. Superior Court
(2002)
II-IV. *
V. Instructional error allegations
A. Elements of section 647.6, subdivision (c)(2)
Shaw argues that the trial court erred when it instructed the jury that it must find that Shaw’s conduct was motivated by “an unnatural or abnormal sexual interest in
the child’’
(italics added), instead of referencing the protected class as a group, children. He claims that, because section 647.6 protects children as a class, an unnatural or abnormal sexual interest in any one particular child is not encompassed by the statute’s prohibition. As we understand his argument, particularly in light of his analogy to hate crime offenses, Shaw argues that B.M.’s status as a child may not have been the motivating factor for the offense. In a hate crime case, the prosecution must prove that the offense was committed because of the perpetrator’s racial, religious, or other specified bias.
(In re M.S.
(1995)
The case authority Shaw relies upon does not support his novel position.
In re Gladys R.
(1970)
The term “children” in the latter part of the quote reflects the use of the term “children” in the first part of the quote, which refers to the victims of the crime, not the nature of the abnormal or unnatural sexual interest. The statute defines the victim it seeks to protect as “any child.” (§ 647.6, subd. (a)(1).) The quote could have just as easily been written as follows: “When the words annoy or molest are used in reference to offenses against a child, there is a connotation of abnormal sexual motivation on the part of the offender. Although no specific intent is prescribed as an element of this
The term “children” was not used in either Pallares or Gladys R. as defining the scope of the abnormal sexual interest, but in defining the class of victims. The statutory language and intent is clear. A defendant may not in any way annoy or molest a child in order to satisfy his or her own abnormal or unnatural sexual interest. To hold that a defendant might lawfully annoy or molest a child motivated by an abnormal sexual interest toward that child alone is not only ludicrous, but defeats the express statutory purpose of protecting any child in this state against sexual offenses.
Even if the mens rea required for a conviction of section 647.6, subdivision (c)(2), required the jury to find that Shaw’s acts were motivated by an unnatural or abnormal sexual interest toward children generally and not any one particular child, any error was harmless beyond a reasonable doubt. The evidence overwhelmingly established that Shaw had molested at least three children in 1985 and that he had recently molested three additional victims, all children of various ages. There could be no question that Shaw’s abnormal sexual interest extended beyond B.M. to children generally, even in light of the evidence that Shaw had once sexually assaulted an adult woman. B.M. was a minor. Shaw knew this and his conversations with her after the assault acknowledge her youth and innocence. The distinction between “child” and “children” in this case is a distinction without a difference.
B. Unanimity *
VI. Conduct credit *
The judgment is affirmed. Shaw is awarded an additional day of conduct credit. The trial court shall prepare an amended abstract of judgment and distribute it to the appropriate authorities.
Dawson, 1, and Hill, J., concurred.
Appellant’s petition for review by the Supreme Court was denied December 2, 2009, S176954. Kennard, J., was of the opinion that the petition should be granted.