People v. Whitham, No. F020739

• Court: California Court of Appeals
• Writing for the Court: DIBIASO; Although we do not publish the first section of this opinion, which addresses Whitham's claim the trial court erred in removing her appointed counsel, we commend Judge Schultz for his articulate, thoughtful, and sensitive handling of the iss
• Citation: 38 Cal.App.4th 1282,45 Cal.Rptr.2d 571
• Parties: , 95 Cal. Daily Op. Serv. 7788, 95 Daily Journal D.A.R. 13,307 The PEOPLE, Plaintiff and Respondent, v. Sally Ann WHITHAM, Defendant and Appellant.
• Docket Number: No. F020739
• Decision Date: 29 September 1995

Page 571

45 Cal.Rptr.2d 571 38 Cal.App.4th 1282, 95 Cal. Daily Op. Serv. 7788, 95 Daily Journal D.A.R. 13,307 The PEOPLE, Plaintiff and Respondent,
v.
Sally Ann WHITHAM, Defendant and Appellant. No. F020739. Court of Appeal, Fifth District, California. Sept. 29, 1995.
Certified for Partial Publication ^*
As Modified on Denial of Rehearing Oct. 30, 1995.
Review Denied Jan. 4, 1996.

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[38 Cal.App.4th 1285] Kyle Gee, under appointment by the Court of Appeal, Oakland, for defendant and appellant.

[38 Cal.App.4th 1286] Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, W. Scott Thorpe and Janet G. Bangle, Deputy Attorneys General, for plaintiff and respondent.

OPINION

DIBIASO, Associate Justice.

On October 5, 1993, a jury convicted appellant Sally Ann Whitham of murdering 11-year-old Denise Z. by the administration of poison. (PEN.CODE, §§ 187¹, subd. (a); 190.2, subd. (a)(19).) Whitham was also convicted of holding Denise and her sister, Crystal Z., in involuntary servitude (§ 181) and of physically and sexually abusing both girls (§§ 273a, subd. (1) [now § 273a, subd. (a) ]; 273d; 288, subd. (a); 288.5; 289, subd. (a)).

The People sought the death penalty, but the jury deadlocked following the penalty phase of trial. Whitham was ultimately sentenced to prison for life without the possibility of parole plus a consecutive determinate term of 50 years 8 months. This timely appeal followed.

In the published portion of this opinion, we hold that: (1) the "substantial sexual conduct" means of violating section 288.5, the "resident child molester" statute, does not require the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the perpetrator or the child; and (2) subdivision (b) of section 288.5, which expressly dispenses with the need for jury unanimity on the identity of the specific acts constituting the crime, does not trench upon either the Constitution of California or the due process clause of the Constitution of the United States.

Although we do not publish the first section of this opinion, which addresses Whitham's claim the trial court erred in removing her appointed counsel, we commend Judge Schultz for his articulate, thoughtful, and sensitive handling of the issue. In fact, Judge Schultz' management of the long and arduous case in its entirety was extraordinary.

STATEMENT OF FACTS ², ^*

38 Cal.App.4th 1287

DISCUSSION

I. Removal of Defense Counsel *

II. Instructional Error

Whitham contends the trial court misinstructed the jury with respect to the intent element of section 288.5.

A. Background

Counts III and IV of the amended information charged Whitham with the continuous sexual abuse of Denise Z. and Crystal Z., respectively, in violation of section 288.5. Subdivision (a) of this statute 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

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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."

At all relevant times, subdivision (b) of section 1203.066 defined "substantial sexual conduct" as "penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender." ⁶

At trial, the People requested that the court instruct the jury on continuous sexual abuse of a child according to CALJIC No. 10.42.6 (1993 rev.). ⁷ During the instructional conference, the court noted that the People had a [38 Cal.App.4th 1288] choice of theories, i.e., substantial sexual conduct or lewd and lascivious conduct. The prosecutor asserted that the People possessed evidence supporting both theories, and he asked to proceed on both. The court responded that doing so would complicate the instructions about intent, because the court believed substantial sexual conduct required a general intent but lewd and lascivious conduct required a specific intent. The prosecutor stated that if the People were required to elect between the two theories, they would choose substantial sexual conduct, as it could be based on penetration of the vagina without any specific intent. The prosecutor claimed the evidence established penetration of the vaginas of Denise and Crystal with fingers and a mallet, and he voiced a concern that instructions on specific intent would permit the defense to successfully argue the acts in issue were done for punishment and without any sexual purpose.

The People subsequently elected to proceed solely on the theory Whitham violated

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the statute by engaging in substantial sexual conduct. The court determined that this means of violating section 288.5 required no specific intent and consequently instructed the jury as follows:

[38 Cal.App.4th 1289] "The defendant is accused in Counts III and IV of the Information of the crime of continuous sexual abuse of a child, a violation of Section 288.5(a) of the Penal Code.

"Every person who resides in the same home with a minor 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 the child under the age of 14 years at the time of the commission of the offense is guilty of the crime of continuous sexual abuse of a child, a violation of Section 288.5(a) of the Penal Code.

" 'Substantial sexual conduct' means penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender. It is no defense to this charge that the child under the age of 14 years may have consented to the substantial sexual conduct.

"In order to prove such crime, each of the following elements must be proved: One, a person was at the times in question a resident in the same house with a minor child, that should be a minor child under the age of 14 years; and two, such person over a period of time not less than three months in duration engaged in three or more acts of substantial sexual conduct with the child under the age of 14 years at the time of the commission of the sexual conduct.

"The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct upon which a conviction in Counts III or IV may be based. Defendant may be found guilty 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."

The trial court defined general criminal intent for the jury in the words of CALJIC No. 3.30. Counts III and IV were included among the charges which the jury was told required a general criminal intent.

In his summation, the prosecutor relied on the testimony of Crystal Z. and one of Whitham's sons to establish counts III and IV. ⁸ Defense counsel countered that if, in fact, Crystal and Denise were molested, their father was the perpetrator.

[38 Cal.App.4th 1290] B. Analysis

Whitham contends a violation of section 288.5 by means of substantial sexual conduct requires the same specific intent as a violation of section 288. ⁹ Section 288 proscribes the commission of any lewd or lascivious act on a child under the age of 14 "with the intent of arousing, appealing to, or gratifying

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the lust, passions, or sexual desires" of the perpetrator or the child. Although currently there is disagreement about what type of touching is required to violate the statute (contrast, e.g., People v. Wallace (1992) 11 Cal.App.4th 568, 575-579, 14 Cal.Rptr.2d 67 with People v. Pitts (1990) 223 Cal.App.3d 606, 887-890, 273 Cal.Rptr. 757), it is settled that section 288 is a specific intent crime (see, e.g., People v. Jones (1954) 42 Cal.2d 219, 223, 266 P.2d 38; People v. Mansell (1964) 227 Cal.App.2d 842, 847, 39 Cal.Rptr. 187). Thus, if Whitham is correct, the trial court erred by failing to instruct on the " 'sexual gratification' specific intent element" found in section 288.

In People v. Avina (1993) 14 Cal.App.4th 1303, 18 Cal.Rptr.2d 511, Division Three of the First District Court of Appeal rejected a claim that the trial court should have instructed on section 288 as a lesser included offense of section 288.5. Comparing the two statutes, the appellate court said:

"Section 288 requires the specific intent of 'arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant] or of the child....' A conviction for section 288.5, in contrast, could be based upon a course of substantial sexual conduct within the meaning of section 1203.066, subdivision (b), which requires no specific intent. As the Attorney General points out, such acts could be engaged in for nonsexual purposes, for example for the infliction of pain, or to appeal to the sexual interest of a third person." (People v. Avina, supra, 14 Cal.App.4th at p. 1313, 18 Cal.Rptr.2d 511.)

[38 Cal.App.4th 1291] There was no instructional error in the instant case if we apply the reasoning of Avina. However, Whitham maintains we should disregard the opinion because its conclusion--that the "substantial sexual conduct" aspect of section 288.5 requires no specific intent--is not "logically or legally defensible." As Whitham sees it, three possible interpretations of intent arise under section 288.5. The first is that there is...