People v. Rodriguez

• Decision Date: 22 July 2002
• Docket Number: No. S098821.,S098821.
• Citation: 122 Cal.Rptr.2d 348,28 Cal.4th 543,49 P.3d 1085
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Luis RODRIGUEZ, Defendant and Appellant.

122 Cal.Rptr.2d 348

28 Cal.4th 543

49 P.3d 1085

The PEOPLE, Plaintiff and Respondent, v. Jose Luis RODRIGUEZ, Defendant and Appellant.

No. S098821.

Supreme Court of California.

July 22, 2002.

Athena Shudde, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Carol Wendelin Pollack and Pamela C. Hamanaka, Assistant Attorneys General, Chung Mar, John R. Gorey and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

CHIN, J.

Penal Code section 288.5¹ punishes the continuous sexual abuse of a child under 14 by any person residing with, or having "recurring access" to, the child. In this case, we must decide whether the quoted phrase has a technical meaning requiring sua sponte jury instructions, or whether the term is so commonly understood that no special instructions are required. We conclude that the trial court in the present case did not err in failing to give clarifying instructions on its own motion.

FACTS

Jose Luis Rodriguez appeals from the judgment entered following his conviction by jury of two counts of continuous sexual abuse of a child. (§ 288.5, subd. (a).) He was sentenced to prison for 28 years. The following facts are largely taken from the Court of Appeal's opinion in this case.

Fernando V. was born in May 1983 and lived in Los Angeles County. Defendant lived four houses from Fernando, in a trailer on the back of a lot. Everyone who lived on the block knew defendant as a soccer coach who participated in soccer activities with neighborhood children. Although his mother believed otherwise, Fernando testified he was not on defendant's soccer team, but his older brother was, and Fernando would watch his brother play. Fernando would also "do whatever [defendant] would tell him to do" and often ran errands for defendant.

Defendant first molested Fernando in 1990 when Fernando was seven years old, and continued to molest him until he was about nine years old. These acts occurred on school days and weekends in the trailer and involved fondling, masturbation, oral copulation and sodomy. At one point, the molestations occurred almost every day. Defendant threatened to shoot Fernando or his mother if he told anyone regarding the acts. Defendant does not presently contest the sufficiency of the evidence establishing these molestations and, accordingly, further details are unnecessary.

Ernesto R. was born in August 1987. From 1990 to 1998, Ernesto lived in his grandparents' house on the same lot where defendant's trailer was located. Defendant regularly used a bathroom inside this house. Ernesto knew defendant was a soccer coach and Ernesto's mother viewed defendant as if he were an uncle to Ernesto and her other children.

About 1994 or 1995, when Ernesto was about seven or eight years old, defendant began molesting him two to three times a week, every week, for about two or three years. The acts involved fondling, oral copulation and sodomy. Defendant threatened to hit Ernesto if he told anyone about these acts.

DISCUSSION

Section 288.5 was adopted in 1989 (Stats. 1989, ch. 1402, § 4, p. 6140) to criminalize "continuous sexual abuse of a child." Subdivision (a) of this section provides in pertinent part that "[a]ny 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 in the state prison for a term of 6, 12, or 16 years." (Italics added.)

The Legislature's accompanying statement of purpose declared that "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, often is unable to distinguish one incident from another ..., and as a consequence prosecutors are unable to ... overcome ... constitutional due process problems...." (Stats.1989, ch. 1402, § 1, subd. (a), p. 6138, italics added, reprinted at Historical and Statutory Notes, 29B pt. 2 West's Ann. Evid.Code (1995 ed.) foil. § 782, p. 631.) The Legislature also declared that it intended the penalty for continuous sexual child abuse "shall be greater than the maximum penalty under existing law for any single felony sex offense." (Stats. 1989, ch. 1402, § 1, subd, (b), p. 6138, reprinted at Historical and Statutory Notes, 29B pt. 2 West's Ann. Evid.Code, supra, foll. § 782, at p. 631.)

Guided by the foregoing express legislative declarations of intent, we turn to the question before us, namely, the sufficiency of instructions that simply use the statutory term "recurring access," without further definition or elaboration. As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning. If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the court's own motion. (People v. Bland (2002) 28 Cal.4th 313, 334, 121 Cal. Rptr.2d 546, 48 P.3d 1107; People v. Smithey (1999) 20 Cal.4th 936, 981, 86 Cal. Rptr.2d 243, 978 P.2d 1171; People v. Estrada (1995) 11 Cal.4th 568, 574-575, 46 Cal.Rptr.2d 586, 904 P.2d 1197.) We must decide here whether the Legislature used the phrase "recurring access" in some technical sense that would require sua sponte instructions, i.e., whether the jury would have difficulty in understanding the statute without guidance. We conclude otherwise.

In the present case, the court instructed the jury based on CALJIC No. 10.42.6, using the statutory language of section 288.5, subdivision (a), and explaining that one element of the offense of continuous sexual abuse was defendant's recurring access to the minor. Defendant failed to request amplification of that term, and accordingly the trial court was not obligated, sua sponte, to define the phrase unless it had a "technical sense peculiar to the law," that is, a "statutory definition differing] from the meaning that might be ascribed to the same terms in common parlance." (People v. Estrada, supra, 11 Cal.4th at pp. 574-575, 46 Cal.Rptr.2d 586, 904 P.2d 1197.)

We discern no meaning, technical or otherwise, of the term "recurring access" other than its commonly understood meaning as an ongoing ability to approach and contact someone time after time. (See Merriam-Webster's Collegiate Diet. (10th ed.1993) p. 6 [the term "access" means "permission, liberty, or ability to enter, approach, communicate with, or pass to and from," or "freedom or ability to obtain or make use of']; id. at p. 978 [the term "recur" means "to occur again after an interval: occur time after time"]; cf. People v. Grant (1999) 20 Cal.4th 150, 155, 83 Cal.Rptr.2d 295, 973 P.2d 72.) As noted, the evidence here indicated defendant, a soccer coach well-known in the neighborhood, molested his two victims several times each week for several years. We think the jury, armed with no more than the statutory language and the jury's own common understanding of its meaning, would have had no difficulty whatever in determining whether or not defendant had recurring access to his child victims.

Defendant relies on People v. Gohdes (1997) 58 Cal.App.4th 1520, 68 Cal.Rptr.2d 719 (Gohdes), to support his position that the court should have given additional instructions. There, the Court of Appeal read into section 288.5's requirement of recurring access a "qualitative" element focusing on the relationship between the defendant and his victim. (Gohdes, at p. 1529, 68 Cal.Rptr.2d 719.) In Gohdes's view, based on its interpretation of the legislative history of section 288.5, a mere acquaintance of the victim such as defendant, lacking either (1) a position of authority or respect as to his child victim, or (2) some recurring relationship with him apart from the ongoing sexual contacts, could not be found guilty of violating the section. To the contrary, we believe the Court of Appeal read too much into the statute and reached a conclusion at odds with the clear legislative intent to provide additional protection for victims of child molestation.

In Gohdes, the defendant had dated the victim's sister for several years and, on her departure from home, turned his attention on Corrine, the underage victim. Over a period of several years, defendant secretly visited Corrine, climbing in her window and engaging in nonforcible sexual activity with her, culminating in intercourse when she was 14. The Court of Appeal upheld a trial court ruling that, despite his frequent visits, defendant had no recurring access to Corrine because he was neither "`an invited guest'" nor held any "`position of trust'" with Corrine's family, and in fact had no "`legitimate purpose'" in visiting her. (Gohdes, supra, 58 Cal.App.4th at p. 1524, 68 Cal.Rptr.2d 719.)

The Gohdes court agreed with the trial court, finding that defendant failed to match any of the ...