People v. Grant, No. S057104

• Court: United States State Supreme Court (California)
• Writing for the Court: KENNARD; GEORGE, C.J., and MOSK, J., BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN
• Citation: 20 Cal.4th 150,83 Cal.Rptr.2d 295,973 P.2d 72
• Parties: , 973 P.2d 72, 99 Cal. Daily Op. Serv. 2367, 1999 Daily Journal D.A.R. 3124 The PEOPLE, Plaintiff and Respondent, v. Floyd Love GRANT, Defendant and Appellant
• Decision Date: 01 April 1999
• Docket Number: No. S057104

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83 Cal.Rptr.2d 295 20 Cal.4th 150, 973 P.2d 72, 99 Cal. Daily Op. Serv. 2367, 1999 Daily Journal D.A.R. 3124 The PEOPLE, Plaintiff and Respondent,
v.
Floyd Love GRANT, Defendant and Appellant. No. S057104. Supreme Court of California April 1, 1999.

[20 Cal.4th 152] Diane M. Matsinger, Santa Barbara, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, John R. Gorey, Robert Carl Schneider, Thomas W. Casparian [20 Cal.4th 153] and Deborah Bigbee Sturrock, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Penal Code section 288.5 ¹ provides that any person who resides with or has recurring access to a child under the age of 14, and who molests that child at least three times during a period of not less than three months, is guilty of "continuous sexual

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[973 P.2d 73] abuse," a felony. When, as here, the sexual abuse begins before, but continues after, section 288.5's effective date, does the abusive conduct fall within the statutory language? If so, can a conviction be affirmed under the statute without violating provisions in the state and federal Constitutions prohibiting ex post facto laws? The answer to each of these questions is "yes." I

Section 288.5 became effective on January 1, 1990. Defendant was charged with violating that statute by engaging in "substantial sexual conduct" with his stepdaughter Leah S. "on and between June 6, 1988 and April 4, 1990," while she was under the age of 14. Defendant was also charged under section 288a, subdivision (b)(2), with orally copulating Leah when she was under the age of 16.

At the time of trial, Leah was 19 years old. She testified that defendant began molesting her when she was five years old, and that she began orally copulating him when she was in the sixth grade. ² She and defendant engaged in masturbation and oral copulation between January 1, 1990 (the effective date of section 288.5) and April 4, 1990 (the date of her 14th birthday).

Defendant testified that he started orally copulating Leah in October 1990, when she was 14 years old. He denied engaging in any "substantial sexual conduct" with Leah before that time.

As relevant here, the trial court instructed the jury: "The People have introduced evidence for the purpose of showing that there are more than three acts of substantial sexual conduct upon which a conviction in Count One may be based. Defendant may be found guilty [of violating section [20 Cal.4th 154] 288.5] if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three such acts. It is not necessary that you unanimously concur on which acts constitute the required number. However you must unanimously find that at least one such act occurred between January 1, 1990 [the effective date of section 288.5] and April 4, 1990 [Leah's 14th birthday]."

During deliberations, the jury asked the trial court whether it must unanimously agree that a specific act of substantial sexual conduct occurred between January 1 and April 4, 1990. The court gave this written response: "Assume you have evidence of more than one act of substantial sexual conduct occurring within the period of June 6, 1988 and April 4, 1990. Further assume that you unanimously agree that during that period at least three such acts did in fact occur. That agreement is all that is necessary. You do not need to go the next step and unanimously agree as to which specific acts constitute the necessary minimum of three. [p] However, in this particular case you must unanimously agree that at least one of the substantial acts happened between Jan. 1[,] 1990 and April 4, 1990." The jury found defendant guilty as charged.

Defendant appealed. He contended that the Legislature intended section 288.5 to apply only when all of the requisite acts occurred after the effective date of the statute. A contrary construction, he argued, would violate the federal and state Constitutions' prohibitions against ex post facto laws. The Court of Appeal disagreed and affirmed defendant's convictions. We granted review.

II

Section 288.5, subdivision (a), provides: "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 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

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[973 P.2d 74] in the state prison for a term of 6, 12, or 16 years."

Although the jury must unanimously agree that the defendant molested the child at least three times, it need not agree on precisely when or where the requisite three incidents occurred. (§ 288.5, subd. (b).) Only one violation of [20 Cal.4th 155] section 288.5 can be charged for the continuing sexual abuse of a single victim, and the defendant may not be charged with any other felony sex offenses involving the same victim during the period in which the defendant allegedly violated section 288.5. (§ 288.5, subd. (c).)

The Legislature enacted section 288.5 to remedy certain problems of pleading and proof that had arisen in cases involving child molesters who engaged in repeated lewd and lascivious acts with their victims while living with or having close and continuing contact with them. Before the passage of section 288.5, such crimes were generally charged under subdivision (a) of section 288 (section 288(a)). The latter statute proscribes the willful and lewd commission of "any lewd or lascivious act" on or with a child under the age of 14 years, with "the intent of arousing, appealing to, or gratifying the lust, passions or sexual desires" of the perpetrator or the child. Often, the child in section 288(a) cases would relate multiple acts of molestation over a lengthy period of time but could not recall with specificity where, when, or how individual acts of sexual abuse had occurred. As a consequence, the pleadings in such cases generally omitted such specifics.

Illustrative of these problems in pleading and proving a violation of section 288(a) is People v. Van Hoek (1988) 200 Cal.App.3d 811, 246 Cal.Rptr. 352. There, the Court of Appeal held that the prosecutor's failure in a section 288(a) case to plead and prove a specific instance of molestation violated the defendant's constitutional right to due process of law. The court reasoned: "Where, as here, the evidence is that many of such acts were committed over an extended period of time, it would be impossible for the prosecution to 'select the specific act relied upon to prove the charge' and equally impossible for the jury to 'unanimously agree beyond a reasonable doubt that defendant committed the same specific act.' " (People v. Van Hoek, supra, 200 Cal.App.3d at p. 816, 246 Cal.Rptr. 352.)

The next year, in response to the decision in People v. Van Hoek, supra, 200 Cal.App.3d 811, 246 Cal.Rptr. 352, the Legislature enacted section 288.5. Unlike section 288(a), which proscribes an act of molestation, section 288.5 prohibits a continuing course of conduct: the repeated sexual abuse of a minor by an adult who has regular access to the minor. Thus, to establish a violation of section 288.5, the jury must unanimously agree that during the period alleged in the indictment or information the defendant engaged in a pattern of abuse that included at least three acts of molestation, but it need not agree on when or where these acts occurred. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1296-1297, 45 Cal.Rptr.2d 571; People v. Avina (1993) 14 Cal.App.4th 1303, 1310-1312, 18 Cal.Rptr.2d 511; People v. Higgins (1992) 9 Cal.App.4th 294, 307-308, 11 Cal.Rptr.2d 694; see also People v. [20 Cal.4th 156] Jones (1990) 51 Cal.3d 294, 328-330, 270 Cal.Rptr. 611, 792 P.2d 643 (dis. opn. of Mosk, J.).) ³

Section 288.5 has this legislative declaration of purpose:

"(a) The Legislature finds and declares that because of the court's decision in People v. Van Hoek[, supra,] 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, those of tender years, some of whom are being subjected to continuing sexual abuse by those 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,

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[973 P.2d 75] often is unable to distinguish one incident from another in terms of time, place, or other particulars, and as a consequence prosecutors are unable to provide the specificity of charges necessary to overcome the constitutional due process problems raised in the Van Hoek case within the framework of existing statutory law. As a consequence, some of our most vulnerable children continue to be at risk and some of our worst offenders continue to go unpunished.

"(b) It is the intent of the Legislature in enacting this act to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as 'resident child molesters' by establishing a new crime of continuing sexual abuse of a child under circumstances where there have been repeated acts of molestation over a period of time, and the perpetrator either resides with or has recurring access to the child. It is the further intent of the Legislature that the penalty for this crime shall be greater than...