People v. Avina, A056572

• Court: California Court of Appeals
• Writing for the Court: WERDEGAR; WHITE, P.J., and CHIN
• Citation: 18 Cal.Rptr.2d 511,14 Cal.App.4th 1303
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hector Adolfo AVINA, Defendant and Appellant.
• Docket Number: No. A056572,A056572
• Decision Date: 09 April 1993

Page 511

18 Cal.Rptr.2d 511 14 Cal.App.4th 1303 The PEOPLE, Plaintiff and Respondent,
v.
Hector Adolfo AVINA, Defendant and Appellant. No. A056572. Court of Appeal, First District, Division 3, California. April 9, 1993.

Page 512

[14 Cal.App.4th 1306] James B. Laflin, under appointment by the Court of Appeal, Berkeley, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, and Ronald A. Bass, Asst. Attys. Gen., Ronald E. Niver, Clifford K. Thompson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

WERDEGAR, Associate Justice.

Hector Adolfo Avina appeals his conviction on one count of continuous sexual abuse of a child (Pen.Code, § 288.5). ¹ He contends he was deprived of his right to a unanimous jury verdict by an instruction, derived from language in the statute, allowing conviction without jury unanimity on which individual acts of abuse occurred. We find ourselves in agreement with the only previous decision on this point, People v. Higgins (1992) 9 Cal.App. 4th 294, 11 Cal.Rptr.2d 694, that section 288.5 does not unconstitutionally deprive a defendant of a unanimous jury verdict. We affirm.

FACTS

Defendant was charged with a single count of continuous abuse occurring during 1990. The victim, Yesenia A., turned 10 years old in July 1990. She lived with her mother, father and three siblings in a mobile home. From April [14 Cal.App.4th 1307] 1989 until October 1, 1990, defendant lived with the family, first sleeping in the mobile home, then later in a cabin on the property.

On the night of September 30, 1990, Yesenia's mother was in bed when she heard the sound of a door and got up to investigate. She saw defendant walking around the corner outside. Yesenia, who had been asleep earlier, was now awake. When questioned, Yesenia admitted defendant had been in the children's bedroom. The mother became suspicious and asked if she could look at Yesenia's private parts; the mother noted stickiness between Yesenia's legs and a streak of blood on her vagina. Later that night, Yesenia told her mother defendant had put his private parts on her private parts and that this had happened before. Defendant left the next day.

Yesenia also testified in detail to the above incident; she stated it was the last time she saw defendant; she placed the incident in October 1990. She was sleeping in her bedroom with her younger brother. Defendant woke her up, pulled her pajamas up and her underwear down, pulled her legs off the bed, and "put his privates in my private." He moved up and down, hurting Yesenia a little. When he stopped, he readjusted her clothes and put her back in bed. He did not say anything.

According to Yesenia, defendant had done the same thing to her many times before. She said he had done it more than five times and had done it twice each week. Most of the incidents occurred in her bedroom, but sometimes he molested her in the cabin where he was living; most of the molestations were at night, but some occurred after school when Yesenia's mother was not home. Defendant always did the same thing he did the last time. Defendant told her not to tell her parents because they would not like her anymore and would hit her. Except for the last incident, Yesenia did not testify to any specific incident of molestation.

Yesenia could not remember the first time she was molested. She testified she was nine years old when the molestation started, which would place the start between July 1989 and July 1990. Her testimony was inconsistent, however, when she was asked whether she had been molested

Page 513

during the third grade (the 1989-1990 school year). ²

A prosecution expert testified to the results of a medical examination of Yesenia. She found only "remnants" of Yesenia's hymen, indicating it had [14 Cal.App.4th 1308] been worn away through repeated penetrating injury, consistent with penetration by a penis and inconsistent with an isolated accident. The injury resulted from "a chronic situation; in other words, it happened a lot of times."

Defendant denied ever having touched, fondled or had intercourse with Yesenia. He testified he was in Mexico from late October 1989 to March 1990. His wife corroborated this testimony, but Yesenia's mother testified defendant did not travel to Mexico during the period (April 1989--October 1, 1990) he stayed at her house. Defendant also testified that while he lived with Yesenia's family, he worked during the afternoon, arriving home after Yesenia's father.

In argument to the jury, the prosecutor did not attempt to pick out three specific instances of molestation. He argued there was a series of molestations, "as many as 20 or 30," occurring between January 1, 1990, and defendant's departure on October 1, 1990. The defense attorney argued it was implausible defendant would have molested Yesenia in her bedroom where her brother and sometimes her grandmother were also sleeping; Yesenia, he argued, would have cried out in pain and awakened them. He also argued Yesenia testified only to molestation while she was in the fourth grade (which she entered in the fall of 1990) and, hence, not to a period of three months or more as required by the statute.

DISCUSSION

Section 288.5 was enacted in 1989 in order to remedy some of the problems of pleading, proof and jury instruction that had arisen in the prosecution of "resident child molesters" under section 288. (See People v. Jones (1990) 51 Cal.3d 294, 328-330, 270 Cal.Rptr. 611, 792 P.2d 643 (dis. opn. of Mosk, J.); People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1195, 270 Cal.Rptr. 751.) It provides a severe penalty (6, 12 or 16 years in prison) for anyone who, while residing with or having recurring access to a child under the age of 14, engages, over three months or longer, in three or more acts of substantial sexual conduct, as defined in section 1203.066, subdivision (b), or lewd acts under section 288. (§ 288.5, subd. (a).) Only one count of section 288.5 may be charged for each victim, and no other felony sex offense may be charged involving the same victim and occurring within the charged time period. (§ 288.5, subd. (c).)

Subdivision (b) of section 288.5 provides: "To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number." [14 Cal.App.4th 1309] The jury in this case was so instructed. Defendant contends subdivision (b), and the instruction taken from it, are deprivations of his right to a unanimous jury verdict under article I, section 16 of the California Constitution.

When the evidence tends to show a larger number of distinct violations of the charged crime than have been charged and the prosecution has not elected a specific criminal act or event upon which it will rely for each allegation, the court must instruct the jury on the need for unanimous agreement on the distinct criminal act or event supporting each charge. (People v. Davis (1992) 8 Cal.App.4th 28, 41, 10 Cal.Rptr.2d 381; People v. Salvato (1991) 234 Cal.App.3d 872, 879, 285 Cal.Rptr. 837; People v. Moore (1986) 185 Cal.App.3d 1005, 1014, 230 Cal.Rptr. 237.)

"Neither instruction nor election are required, however, if the case falls within the continuous course of conduct exception.

Page 514

This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when ... the statute contemplates a continuous course of conduct of a series of acts over a period of time. [Citation.]

"This second category of the continuous course of conduct exception has been applied to a limited number of varying crimes, including pimping (People v. Lewis (1978) 77 Cal.App.3d 455, 461 [143 Cal.Rptr. 587] ), pandering (People v. White (1979) 89 Cal.App.3d 143, 151 [152 Cal.Rptr. 312] ), failure to provide for a minor child...