People v. Jones

Decision Date28 June 1990
Docket NumberNo. S010191,S010191
Citation792 P.2d 643,51 Cal.3d 294,270 Cal.Rptr. 611
CourtCalifornia Supreme Court
PartiesPreviously published at 51 Cal.3d 294 51 Cal.3d 294, 51 Cal.3d 34, 792 P.2d 643, 59 USLW 2118 The PEOPLE, Plaintiff and Respondent, v. Mark E. JONES, Defendant and Appellant.

Gerald T. Blank, San Diego, for defendant and appellant.

Robert Sheridan, San Francisco, Cynthia A. Thomas, Sacramento, and Richard Power, Shingle Springs, as amici curiae on behalf of defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., Harley D. Mayfield, Asst. Atty. Gen., Michael D. Wellington, Louis R. Hanoian, Frederick R. Millar, Jr., and Lilia E. Garcia, Deputy Attys. Gen., for plaintiff and respondent.

Michael D. Bradbury, Dist. Atty., Ventura, and Vincent J. O'Neill, Jr., Chief Deputy Dist. Atty., as amici curiae on behalf of plaintiff and respondent.

LUCAS, Chief Justice.


In this child molestation case, we are presented with difficult questions regarding the extent to which the defendant's due process rights are implicated by the inability of his young accuser to give specific details regarding the time, place and circumstances of various alleged assaults. Frequently, as here, these cases involve the so-called "resident child molester" (see People v. Van Hoek (1988) 200 Cal.App.3d 811, 814, and fn. 1, 246 Cal.Rptr. 352), who either lives with his victim or has continuous access to him or her. In such cases, the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.

Although the cases are widely conflicting, some courts have concluded that prosecutions based on such nonspecific or "generic" (see, e.g., People v. Vargas (1988) 206 Cal.App.3d 831, 845, 253 Cal.Rptr. 894) testimony deprive the defendant of due process by preventing him from effectively defending against such charges, and by precluding a unanimous jury verdict as to each act charged in the information. (See, e.g., People v. Van Hoek, supra, 200 Cal.App.3d at pp. 814-818, 246 Cal.Rptr. 352.) Yet testimony describing a series of essentially indistinguishable acts of molestation is frequently the only testimony forthcoming from the victim. To hold that such testimony, however credible and substantial, is inadequate to support molestation charges would anomalously favor the offender who subjects his victim to repeated or continuous assaults. This opinion attempts to accommodate all legitimate due process concerns without immunizing resident child molesters from prosecution.

The problems we address are not isolated ones peculiar to the present case. According to statistics furnished by the California Department of Justice, in California alone, approximately 22,000 cases of child sexual abuse were reported in 1988. (Cal. Dept. Justice, Child Abuse Central Index, Child Abuse Investigation Reports, 1988.) Thus, the issues we explore have evident societal significance.


Defendant was originally charged with 28 counts of committing, during various time periods alleged in the information, lewd and lascivious acts (hereafter, lewd conduct) on 4 children under the age of 14. (Pen.Code, § 288, subd. (a).) Each count also included allegations that defendant had substantial sexual contact with a child under 11 years old (id., § 1203.066, subd. (a)(8)) and occupied a position of special trust with each child (id., subd. (a)(9)). An amended information was later filed reflecting certain changes in the dates of some offenses. One of the 28 counts was dismissed prior to trial.

The jury was instructed (CALJIC No. 4.71.5) that defendant was charged with lewd conduct during the various periods alleged in the information and that, in order to find him guilty the prosecution must prove beyond a reasonable doubt, and the jury must unanimously agree on, "the commission of the same specific act or acts constituting said crime within the time period alleged." The court further instructed that it was unnecessary for the jury to state in the verdict "the particular act or acts committed and so agreed upon...."

The jury convicted defendant of 12 counts of lewd conduct, finding true 10 allegations of sexual contact with children under 11, and 12 allegations of special trust. More specifically, the jury found as follows with respect to each of the four boy victims:

Kenny H.--Three counts of lewd conduct, each count while Kenny was under eleven years old, and each while occupying a position of special trust.

Andrew R.--One count of lewd conduct, with a "special trust" finding.

Bobby J.--Two counts of lewd conduct, with "special trust" and "child under 11" findings for each count.

Sammy J.--Six counts of lewd conduct, with six "special trust" and five "child under 11" findings.

The jury found defendant not guilty of 12 counts, and it could not reach a verdict as to 3 other counts. Defendant was sentenced to prison for a 15-year term. The Court of Appeal affirmed five counts but reversed seven. Three counts involving Kenny H. were reversed because the trial court allowed a "last minute" amendment to the information after the defense had rested, without allowing defendant to reopen his case. (We do not review that issue here.) Four counts involving Sammy J. were reversed for insufficient evidence. After a more detailed review of the evidence, we will address the merits of the insufficiency issue, and discuss its relationship to the due process issue described above. As will appear, we conclude that the Court of Appeal erred in reversing any of the six counts involving Sammy J.

A. The Molestations

At the time of his arrest, defendant was a 38-year-old public school teacher living in Mira Mesa, California. He had initiated single-parent adoption proceedings in 1983, culminating in the adoption that same year of Sammy and Bobby. When these boys moved in with defendant in August and September 1983, they were 10 and 7 years old, respectively.

In June 1985, a social worker received a report from a neighbor of defendant's that she suspected sexual abuse of Sammy and Bobby. The ensuing investigation revealed that defendant had also been molesting two neighborhood boys, Andrew and Kenny, commencing in 1981 and 1983, respectively.

All four boys testified regarding the molestations, each of which involved defendant orally copulating them on numerous occasions. Because the sufficiency and due process issues pertain primarily to Sammy's molestation, we outline the evidence relating to Sammy in greater detail, italicizing for purposes of clarity the key testimony bearing on frequency and location.

Sammy and Bobby grew up in various foster homes after their mother left them with a "receiving home." In August 1983, defendant visited Sammy in a foster home to explore the possibility of adopting him. The boy was 10 when he moved in with defendant; his brother, Bobby, joined them a month later. According to Sammy, during the first few weeks, he slept with defendant on a king-size waterbed; he later was given his own bed. Defendant first molested Sammy about one month after Sammy came to live with him. The molestations recurred once or twice a month during the entire period in which Sammy lived with defendant (August 1983 through June 1985), although there may have been some "breaks" in the period when no molestation occurred for more than a month. Thus, Sammy believed that no such acts were committed during March and April 1984. Sammy, who was 13 years old and in the 6th grade at the time of trial, confirmed that he knew there were 12 months in a year, and 4 weeks in a month.

The assaults usually occurred in bed while Sammy was awake and involved defendant removing Sammy's underpants, placing his head beneath the covers and orally copulating Sammy for about 20 minutes. Sammy was able to recall being molested in a similar manner (oral copulation by defendant) at five different locations (listed below), although he had difficulty specifying the exact dates or additional details to further identify these acts.

Thus, Sammy recalled that incidents occurred first (1) in the room he shared with his brother, Bobby. The molestations continued after Sammy and Bobby were placed (2) in separate bedrooms. These acts also occurred (3) in defendant's bedroom where Sammy occasionally slept. Additionally, Sammy was assaulted (4) in the shower or bathroom and (5) on camping trips to Pio Pico.

According to Sammy, defendant molested him four to six times on camping trips. On one occasion, while camping over Memorial Day weekend, defendant orally copulated him while they lay in a bed inside the camper. Bobby was sleeping on the floor of the camper and Andrew was sleeping outside. Sammy remembered being molested in a similar fashion on other such camping trips, but he could not remember the exact dates. (He explained that he and Bobby went camping with defendant every other weekend.) These camping molestations always occurred at night inside the camper, while Bobby was sleeping on the floor.

Sammy also remembered being molested eight or ten times in the bathroom or shower. Defendant would dry him off, and then orally copulate him. The last such molestation occurred only a few days before defendant's arrest.

Sammy explained that he had not told anyone about the acts because he loved defendant and wanted to keep living with him, and because he did not want to return to a foster home or adolescent facility. In Sammy's view, defendant was a good father to the boys. As Sammy indicated, "He spanked us when we needed it, though." Sammy felt "uncomfortable" and "confused" about the molestations, but he acknowledged that defendant never used force or threats to accomplish these acts,...

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