People v. Higgins

• Decision Date: 02 September 1992
• Docket Number: No. C010490,C010490
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Joseph HIGGINS, et al., Defendant and Appellant.

Page 694

11 Cal.Rptr.2d 694

9 Cal.App.4th 294

The PEOPLE, Plaintiff and Respondent, v. John Joseph HIGGINS, et al., Defendant and Appellant.

No. C010490.

Court of Appeal, Third District, California.

Sept. 2, 1992.

Certified for Partial Publication ^*

Rehearing Denied Sept. 28, 1992.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Sr. Asst. Atty. Gen., Michael J. Weinberger, Supervising Deputy Atty. Gen., Robert D. Marshall, Deputy Atty. Gen., for plaintiff and respondent.

Barry Morris, under appointment by the Court of Appeal, Oakland, for defendant and appellant.

RAYE, Associate Justice.

We are asked to determine the constitutionality of Penal Code § 288.5, the 1989 legislative response to the problems of prosecuting the so-called resident child molester, which defines "the continuous sexual abuse of a child" under 14 years of age as a crime.

A jury convicted 26 year old John Joseph Higgins of one count of continuous sexual abuse of 8 year old Russell R. (§ 288.5) between March 1, 1990, and August 17, 1990, and two counts of committing a lewd act upon 8 year old Jimmy B. (Penal Code § 288, subdivision (a)) with a special finding the oral copulation involved substantial sexual conduct (§ 1203.066, subdivision (a)(8)). Defendant contends Penal Code section 288.5 unconstitutionally deprives an accused of due process by failing to give notice of the specific acts of molestation with which he is charged and deprives the criminal defendant of the right to a unanimous jury verdict by permitting a conviction without unanimity on which acts of molestation occurred. We disagree and, based on our analysis set forth below, conclude the statute survives constitutional scrutiny. In the unpublished portion of this opinion, we find evidence of prior uncharged acts of molestation upon Russell was properly admitted and there was sufficient evidence to support the jury's verdicts that defendant sodomized and orally copulated Jimmy.

This is the tragic, but not uncommon, story of a lonely young boy who endures repeated molestations rather than suffer isolation and his mother's threats and beatings. The story begins in late 1988 when defendant moved his trailer to Nyack and became acquainted with the R. family. He first met Rick R. at the Nyack cafe. Rick was living in Emigrant Gap with his mother and stepfather, Nancy and Wilbur R., his girlfriend, Kimberly Slack, and his 6 year old brother, Russell. Rick's sister, Lia B., and her 6 year old son, Jimmy, and 4 year old son, Joey, lived on the same street in Emigrant Gap. Nancy invited defendant to their home and, over time, began to treat defendant like a son.

When defendant first met Russell his face was bruised in the shape of a handprint. Nancy beat Russell with her hand, a belt, and a crib slat and threatened him with a stick and Rick, like his mother, was very rough with Russell, often making him scream. Nancy frequently asked defendant to watch Russell. Against this backdrop of family cruelty, defendant and Russell began to develop a close relationship.

During the summer of 1989 defendant and his roommate, Jerry, moved his trailer to a vacant gas station in Emigrant Gap, two blocks from the R. house. Rick and Kim moved into a trailer adjacent to defendant's. Russell began visiting defendant often and together they went fishing, four wheeling, and exploring into the mountains. Defendant bought Russell a fishing pole, stuffed animals, and cowboy boots.

Russell spent many nights with defendant and Jerry in the trailer. Defendant touched Russell's penis with his penis, masturbated Russell's penis, and sodomized him. Although the molestations did not occur every time he spent the night in the trailer, Russell could not remember how many times they occurred.

In December 1989 defendant moved an abandoned 1941 Oakland transit bus to the gas station where he and Jerry continued to reside for about a month. Defendant then moved to Boomtown about January 1990. Russell considered defendant his friend and enjoyed going places with him. Russell spent the night with defendant in Boomtown where he was again sodomized and masturbated by defendant. Defendant put lotion on Russell's penis and told him not to tell anyone. Russell complied because he was afraid.

In March 1990 defendant and Jerry moved into a trailer in Truckee. On April 11 Russell and Jimmy and Joey B. went with defendant and Jerry to the Circus Circus casino in Reno and spent the night with them in their trailer in Truckee. Jimmy slept in the bed with defendant. Jimmy was awakened during the night by defendant "sticking his number one up my number two." He said, "You're sick John," to which defendant replied, "Shut up and hump." After removing his penis from Jimmy's anus, defendant flipped Jimmy over and tried to put his penis inside Jimmy's mouth. He touched his mouth and tried to go up and down. Jimmy got away and went into the bathroom crying with a terrible stomach ache.

Defendant moved to the NACO campground where he was employed on April 28. Russell spent every weekend with defendant until school was out in June. During the summer Russell spent more time with defendant, and in August they spent two weeks together. Defendant molested Russell every night he slept in the bus at NACO, approximately 30 or 40 times. The molestations included sodomy, oral copulation, and masturbation. Russell did not tell his mother because he was afraid she would whip him, even though the molestations were painful.

The manager of the campground observed marks and bruises on Russell and asked defendant where they had come from. Defendant replied, "Well, that's sort of normal because he's always beaten." Defendant confronted Wilbur about the bruising, and when Wilbur failed to investigate or inquire about the injuries, he later confronted Nancy. Recalling one of the beatings, Nancy laughed about the incident and Russell's resulting injuries. Defendant threatened to turn her in "if [he saw] anything like that again."

Jimmy joined defendant, Jerry, and Russell for swimming at NACO sometime during the summer of 1990 and then spent the night. He went to sleep on the floor but, awakened by mice crawling on him, he got into bed with defendant and Russell. He testified defendant sodomized him that night. When he returned home the following day, he asked Joey to tell his mother what happened. Defendant was arrested on August 17.

Both Russell and Jimmy were examined by Doctor Paul Rork. Doctor Rork observed a scar and two large folds in Russell's rectum, findings consistent with acts of sodomy between March and August 1990. He did not find any bruising, redness, or irritation to the penis, scrotum, or testes, or anal laxity. He testified the scar could persist for years, but the folds would slowly disappear in six to eight months. Although Jimmy had some slight redness of the anus, the doctor concluded the examination was within normal limits.

Defendant was charged with two counts of committing lewd acts against Jimmy (sodomy and oral copulation) for the events surrounding the trip to Circus Circus between March 1, 1990, and April 28, 1990, one count of committing a lewd act against Jimmy for the events following the swimming at NACO between April 28, 1990, and August 17, 1990, and one count of continuous sexual abuse of Russell from March 1, 1990, to August 17, 1990. At the trial, defendant denied molesting either of the boys. The jury failed to reach a verdict on the one count involving Jimmy at the campground, and defendant was found guilty of the remaining counts.

I

Many courts have lamented the difficulties of prosecuting resident child molesters. (See People v. Jones (1990) 51 Cal.3d 294, 270 Cal.Rptr. 611, 792 P.2d 643; People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190, 1195, 270 Cal.Rptr. 751; People v. Luna (1988) 204 Cal.App.3d 726, 250 Cal.Rptr. 878.) Often child victims are able to offer only "generic testimony"; although they are able to describe "repeated acts of molestation occurring over a substantial period of time," they are "unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults." (People v. Jones, supra, 51 Cal.3d at p. 299, 270 Cal.Rptr. 611, 792 P.2d 643.) Society's interest in protecting its youngest and most vulnerable from sexual molestation collides with our fundamental commitment to assuring a criminal defendant due process of law, including the right to adequately prepare a defense and to have guilt determined by a unanimous decision of his or her peers. Both the courts and the Legislature have grappled with the clash between these important values.

The Legislature offered a solution in 1989, by creating a new and separate crime, the continuous sexual abuse of a child. (§ 288.5) Relying on many of the cases which predate the statute's enactment, defendant contends section 288.5 is unconstitutional. His constitutional challenge to section 288.5 is apparently one of first impression. (People v. Jones, supra, 51 Cal.3d 294, 310-311, 270 Cal.Rptr. 611, 792 P.2d 643; People v. Superior Court (Caudle), supra, 221 Cal.App.3d 1190, 1195, 270 Cal.Rptr. 751.)

Section 288.5 provides in pertinent part: "(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 conduct 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.... [p] (b) 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...