People v. Gohdes

• Decision Date: 07 November 1997
• Docket Number: No. B108485,B108485
• Citation: 68 Cal.Rptr.2d 719,58 Cal.App.4th 1520
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8564, 97 Daily Journal D.A.R. 13,805 The PEOPLE, Plaintiff and Appellant, v. David GOHDES, Defendant and Respondent.

Page 719

68 Cal.Rptr.2d 719

58 Cal.App.4th 1520, 97 Cal. Daily Op. Serv. 8564,

97 Daily Journal D.A.R. 13,805

The PEOPLE, Plaintiff and Appellant, v. David GOHDES, Defendant and Respondent.

No. B108485.

Court of Appeal, Second District, Division 2, California.

Nov. 7, 1997.

Review Denied Feb. 25, 1998.

Gil Garcetti, District Attorney of Los Angeles County, Diana L. Summerhayes, Brent Riggs and Fred Klink, Deputy District Attorneys, for Plaintiff and Appellant.

Alvin S. Michaelson, Janet I. Levine and Leonard B. Levine, Los Angeles, for Defendant and Respondent.

ZEBROWSKI, Associate Justice.

Defendant David Gohdes was charged with the crime of "continuous sexual abuse of a child" in violation of Penal Code section 288.5 ("section 288.5"). Defendant filed a motion to set aside the charge pursuant to Penal Code section 995 on the grounds that the evidence was insufficient to prove a necessary element of the claimed offense. The trial court granted the motion and dismissed the charge. The People appeal.

Section 288.5 provides that: "(a) Any 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 contact with a child under the age of 14 years at the time of the commission of the offense, ... 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...." (Italics added.)

The issue in this case is whether sufficient evidence was presented at the preliminary hearing on the section 288.5 charge to support the "recurring access to the child" element of the offense. We agree with the trial court that the facts the People set forth at the Penal Code Section 995 hearing do not amount to "recurring access" within the meaning of the statute and that the charge was therefore properly dismissed. We shall therefore affirm.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

The preliminary hearing was held in July 1996. Corrine S., who was eighteen at the time of the hearing, was the only witness. The evidence showed the following:

Corinne was about 8 years old when she first met defendant, who was then seeing her older sister. Defendant dated the older sister for about four years. By the time Corrine was 11 or 12, her older sister had run away and was therefore no longer living in the family home. Corrine lived in a room behind a garage, the room in which her older sister formerly lived, while her parents lived in the house upstairs. In the summer of 1991, when Corrine was 12 years old, defendant came to her window late at night. Corinne was initially frightened, but calmed when she realized it was defendant. Defendant did not come into the room on this occasion but instead talked to her from outside the window while standing on some logs. After Corinne and defendant talked for about an hour, Corinne opened the window. Defendant and Corinne then kissed, and he left.

Within six months, defendant returned. Corrine was then 12 or 13 years old and in eighth grade. Defendant arrived at her window about 2 or 3 a.m. On this occasion, he climbed in the window and they talked for a long time. He then returned on other occasions. On either the second, third, or fourth occasion, defendant and Corinne began engaging in fondling and other sexual conduct short of intercourse. Defendant continued to come to Corinne's room at nighttime, probably 10 to 15 times, and maybe more, and the sexual activity continued. Sometimes she would not see him for a week and sometimes she would not see him for months at a time. Corinne testified that defendant generally came about once a month. ¹ He never threatened her, and she was initially flattered by his attention.

In 1992 the family moved to a different home where somebody standing at Corrine's bedroom window would be visible from the street. Defendant nevertheless came to that house as well, probably ten or more times. ² The sexual conduct continued. Corrine was 14 the last time defendant he came to her room, which was in February 1993. This final time was the only time Corinne and defendant had intercourse. Corinne believed that defendant was 24 years old at this time. The intercourse was "partly [her] idea." Prior to the intercourse, defendant said "I thought we were going to wait until you were 18 to do this." This occasion was the only time Corinne saw defendant naked. Defendant's visits were infrequent after this occasion.

Corinne's parents did not know that defendant was coming to her room. He never had a key to the house, and he had no right to be in her house. He never lived with her and from 1991-1993 was never invited to her house. Defendant was not her teacher, counselor, advisor, or family member. He had previously been her sister's boyfriend, but was not during the time in question. Corrine was using drugs during this period. She smoked marijuana, drank alcohol, and consumed hallucinogens. She began using cocaine about a year later.

At the preliminary hearing, defendant moved to dismiss the section 288.5 charge for insufficient evidence. Defendant argued that the evidence could not support a finding of "recurring access." In granting the motion, the magistrate observed: "288.5 was enacted for specifically the residential child molester or an individual who enjoys a specific position of trust in the family and, therefore, has unlimited access to the child. I do not find that to be the case here. [p] He was not an invited guest in the home. He was not an uncle who came at holidays. He was none of the things that I believe 288.5 does specifically direct its attention to; however, I do believe it would be a violation of 288(a), and I would allow you to amend to conform with proof at this time."

The People then moved to amend to allege other felony charges against defendant. ³ The court then considered additional authorities on the section 288.5 question regarding "recurring access," but stood by its initial ruling, stating: "I do not believe that the defendant enjoyed a position of trust at the time of the incident. [p] If the molestations had occurred when the defendant was dating the victim's older sister, then I believe that would be a different situation, but the molestations occurred after the older sister and the defendant ceased their relationship. And based on the facts that were presented, even more so after the relationship was broken off, I do not believe that the defendant enjoyed any position of trust whatsoever with the family. He was no longer an invited guest into the home, and he no longer enjoyed a relationship with the family at that time."

"As a matter of fact, the evidence did show that, in fact, there were a lot of bad feelings about the defendant after the breakup with the victim's older sister. [p] With regard to recurring access, I have researched the issue, and I do not believe that the legislative intent of Penal Code section 288.5 is this situation. I believe that the intent of the statute is when the molester has access to the child for a legitimate purpose, for baby-sitting, a family friend, even a worker in the home, and abuses the child during the otherwise legitimate visit.

"Here the defendant sneaked in at night, took great care to wake no one and left before being discovered. I do not believe that availability to the victim due to the placement of her room in the household is tantamount to recurring access. And I think she was available because she was isolated in a certain portion of the garage of the house. She was certainly available because of that seclusion, but I do not believe that that is tantamount to recurring access under any circumstances."

The People then amended to allege other charges, and the magistrate held defendant to answer. The People thereafter refiled an information charging a section 288.5 violation in addition to other charges. Defendant was arraigned on these charges. Defendant again moved to dismiss the 288.5 charge based on the lack of recurring access. Noting this was a "novel issue" and one of first impression, the trial court stated its reasoning in granting the motion: "I don't think there is any question, but that if the conduct is to be believed, that the conduct is illegal under some other statute. I don't believe it falls within the purview of this particular statute per se. I think you have to read the phrase 'recurring access' within the context of the statutory language and its intent. And I think when you do that, you can conclude that this conduct here does not fall within the umbrella of this particular statute."

ISSUE ON APPEAL

The key issue on appeal is whether the evidence in this case would support a finding of "recurring access" within the meaning of section 288.5.

DISCUSSION

The trial court did not err in dismissing the section 288.5 charge.

Penal Code section 288.5 provides: "(a) Any 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 contact with a child under the age of 14 years at the time of the commission of the offense, ... 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 question is the Legislature's intent in applying the statute only to a defendant who "either resides in the same home with the minor child or has recurring access to the child...." (Italics added.) "The fundamental purpose of statutory construction is...