People v. Gear

• Citation: 19 Cal.App.4th 86,23 Cal.Rptr.2d 261
• Decision Date: 01 October 1993
• Docket Number: No. D016208,D016208
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Kevin GEAR, Defendant and Appellant.

Page 261

23 Cal.Rptr.2d 261

19 Cal.App.4th 86

The PEOPLE, Plaintiff and Respondent, v. Kevin GEAR, Defendant and Appellant.

No. D016208.

Court of Appeal, Fourth District, Division 1, California.

Oct. 1, 1993.

Review Denied Dec. 29, 1993.

[19 Cal.App.4th 87] Jan Stiglitz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., and Raquel Gonzalez, for plaintiff and respondent.

TODD, Acting Presiding Justice.

The sole issue presented in this appeal is the constitutionality of PENAL CODE SECTION 288.5¹, which created the crime of "continuous sexual abuse of a child."

A jury convicted Kevin Gear of one count of section 288.5. The jury also found true an allegation that Gear occupied a position of special trust to the victim within the meaning of section 1203.066, subdivision (a)(9). The trial court sentenced Gear to the middle term of 12 years in prison on the section 288.5 count. Gear appeals, contending section 288.5 is unconstitutional because it (1) violates his right to jury unanimity on the actus reus of the crime, and (2) deprives him of due process of law by not providing adequate notice of the specific acts that formed the basis of the charge.

FACTS

Gear and his wife Deborah lived in a house in El Cajon with three children of the marriage and two of Deborah Gear's children from a prior marriage, including Ameris D.

In the spring or early summer of 1990, as Ameris was completing the sixth grade, Gear began to molest her. During the first incident, Gear called Ameris into the garage, had her sit on a stool, unzipped his pants and put his penis in her mouth. Gear told Ameris not to tell anyone about the Ameris testified Gear also had her orally copulate him a number of times in the master bathroom while she sat on the toilet seat. Ameris said Gear had her orally copulate him about 15 times in the garage and five times in the master bathroom. One time in the bathroom, Gear put his penis on Ameris's breast and ejaculated on her breast.

incident. About a month later, Gear again called Ameris into the garage and had her orally copulate him. This conduct was repeated a couple of weeks later.

At various times, Gear also touched Ameris's breast, both over and under her clothing. Twice, Gear unzipped Ameris's pants and put his hand inside the pants and felt around her vagina. On two other occasions, Gear tried to "French kiss" Ameris while she was watching television.

Ameris also testified about an incident in which Gear called her into the master bedroom where he was lying on the bed and told her to take off her clothes and get in bed with him. She complied. After she lay there for a couple of minutes, Gear told her to get dressed and leave. This incident occurred about three months after the first oral copulation.

Generally, the oral copulation incidents took place while Deborah Gear was away from the house, and the other incidents occurred at night after Deborah Gear had gone to bed and Ameris was in her bed.

On July 19, 1991, Gear felt Ameris's breast through her clothing while she was folding laundry. The next night mother and daughter were together in the kitchen when Deborah Gear, sensing that Gear was hurting Ameris, asked her daughter if Gear had ever hit her while she was gone. Ameris told her mother Gear had touched her in places she did not want to be touched. Deborah told Ameris she would not let Gear hurt her again. On July 21, Deborah telephoned her brother and told him to contact the police.

Testifying in his defense, Gear denied all of Ameris's accusations. Also testifying for the defense were a number of character witnesses who said Gear never exhibited any sexual interest in children. The defense also called witnesses who questioned Ameris's credibility.

DISCUSSION

I

Gear first attacks the constitutionality of section 288.5 ² on the ground that the statute and the concomitant jury instruction (CALJIC No. 10.42.6) ³ deprived him of his The general rule is that the jury must unanimously "agree upon the commission of the same act in order to convict a defendant of a charged offense." (People v. Masten (1982) 137 Cal.App.3d 579, 588, 187 Cal.Rptr. 515, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8, 250 Cal.Rptr. 635, 758 P.2d 1165.) Essentially, an "either/or" rule has evolved:

right to a unanimous jury verdict (Cal. Const., art. I, § 16) by allowing a conviction without requiring jury unanimity as to which three underlying acts occurred. This attack is without merit.

"[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed ... that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act." (People v. Gordon (1985) 165 Cal.App.3d 839, 853, 212 Cal.Rptr. 174, fn. omitted.)

This fundamental rule has presented vexing proof problems in cases involving resident child molesters--those persons who reside with a minor or have unchecked access to a minor and are charged with repeatedly sexually molesting the minor over a prolonged period of time. As the Supreme Court explained in People v. Jones (1990) 51 Cal.3d 294, 305, 270 Cal.Rptr. 611, 792 P.2d 643, young victims of such molestations "may have no practical way of recollecting, reconstructing, distinguishing or identifying by 'specific incidents or dates' all or even any such incidents." A series of cases predominantly from the Court of Appeal for the Fifth Appellate District highlighted the problems of proof and instructions in the resident child molester class of cases. Generally, the Fifth District held that where a unanimity instruction had been given and the evidence of the several acts of molestation did not present a distinguishing characteristic or individualizing aspect, there was a violation of due process. (See People v. Van Hoek (1988) 200 Cal.App.3d 811, 816, 246 Cal.Rptr. 352; People v. Atkins (1988) 203 Cal.App.3d 15, 19, 249 Cal.Rptr. 863; People v. Luna (1988) 204 Cal.App.3d 726, 746, 250 Cal.Rptr. 878; People v. Vargas (1988) 206 Cal.App.3d 831, 845-846, 253 Cal.Rptr. 894.) ⁴ In Van Hoek, the defendant was accused of molesting his daughter from her third through her thirteenth year. The daughter testified the molestations always began in the same way--her father would talk sweetly to her, kiss her and then caress her breasts or vagina. When the daughter was twelve and thirteen, five or six acts of sexual intercourse occurred, but she could not link them to any specific date or significant event. The Fifth District found the failure to allege and prove specific acts of molestation constituted a deprivation of due process because the defendant was not afforded an opportunity to prepare an adequate defense. (200 Cal.App.3d at p. 818, 246 Cal.Rptr. 352.) The Fifth District also found that it was impossible for the jury to unanimously agree upon any specific acts to support a conviction under section 288 when testimony of the victim is generic "Implicit in the cases requiring specificity of charges and the charges being supported by specific testimony given at trial is the fundamental due process rule, steeped in antiquity, that the prosecution must prove a specific act and the twelve jurors must agree on one specific act." (Id. at p. 817, 246 Cal.Rptr. 352, relying upon People v. Williams (1901) 133 Cal. 165, 65 P. 323 and People v. Castro (1901) 133 Cal. 11, 65 P. 13.)

and consequently unspecific as to time or place. (Id. at p. 816, 246 Cal.Rptr. 352.)

Section 288.5, creating the new crime of continuous sexual abuse of a child, was the Legislature's response to Van Hoek, supra, 200 Cal.App.3d 811, 246 Cal.Rptr. 352. (Stats.1989, ch. 1402, § 1(a), p. 6138 ["The Legislature finds and declares that because of the court's decision in People v. Van Hoek, 200 Cal.App.3d 811, 246 Cal.Rptr. 352, there is an immediate need for additional statutory protection for the most vulnerable among our children ... some of whom are being subjected to continuing sexual abuse...."].)

Gear attacks the statute as abrogating his constitutional right to a unanimous jury verdict because the statute and the jury instruction do not require the jury to unanimously agree on which three acts of molestation constitute the crime. In mounting this attack, Gear virtually ignores the established continuous-course-of-conduct exception to the requirement of jury unanimity on which specific acts the defendant committed.

The continuous-course-of-conduct exception "arises ... when, as here, the statute contemplates a continuous course of conduct of a series of acts over a period of time." (People v. Thompson (1984) 160 Cal.App.3d 220, 224, 206 Cal.Rptr. 516.) In Thompson, the continuous-course-of-conduct exception was applied to spousal battering. (Id. at p. 225, 206 Cal.Rptr. 516.) It also has been applied to varying crimes that cover " 'repetitive or continuous conduct' " (ibid.) such as child abuse (§ 273a) (People v. Ewing (1977) 72 Cal.App.3d 714, 717, 140 Cal.Rptr. 299); misdemeanor child annoyance or molestation (former § 647a) (People v. Moore (1986) 185 Cal.App.3d 1005, 1015, 230 Cal.Rptr. 237); 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 (People v. Morrison (1921) 54 Cal.App. 469, 471, 202 P. 348); contributing to the delinquency of a minor (People v. Lowell (1946) 77 Cal.App.2d 341, 345-347, 175 P.2d 846); and dissuading a witness from testifying (People v. Salvato (1991) 234 Cal.App.3d 872, 879, 285 Cal.Rptr. 837).

The crime of continuous sexual abuse of a child (§ 288.5) is a...