PEOPLE v. GRANT

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Floyd Love GRANT, Defendant and Appellant.

No. B093884.

Decided: September 26, 1996

Diane M. Matsinger, Santa Barbara, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, Thomas W. Casparian, Deputy Attorney General, for Plaintiff and Respondent.

Penal Code section 288.5 (continuous sexual abuse of a child under age 14) requires three acts within a period of not less than three months.   The statute became effective January 1, 1990.   Here we hold there is no violation of the ex post facto principle if only one of the three acts occurs after the effective date of the statute.   We also conclude the trial court did not err in reinstructing the jury in response to a question during deliberations.   We affirm.

FACTS

Because there is no challenge based on a lack of substantial evidence to support the judgment, only a minimal statement of facts is necessary.

Floyd Love Grant, Leah's step-father, began molesting Leah when she was five years old.   Acts of substantial sexual conduct continued through Leah's 14th birthday on April 4, 1990.   On March 31, 1991, Leah's mother walked in on Grant while he was performing oral sex on Leah. Grant promised that it would never happen again and continued to live with the family.   In fact the molestation stopped for only a week or two.   Finally in May of 1993 Leah told her mother that Grant was continuing to molest her.   Shortly thereafter Grant left the home.

Grant was charged with one count of continuous sexual abuse of a child under age 14 in violation of section 288.5 and one count of oral copulation with a person under age 16 in violation of section 288a, subdivision (b)(2).   The later count related to the incident in which Grant's wife caught him orally copulating Leah.

Grant testified in his own defense at trial.   He admitted that he orally copulated with Leah after she became 14.   But he denied he molested her prior to her 14th birthday.

DISCUSSION

I

 Section 288.5, subdivision (a) provides that a person who either resides in the same home as or has continuing access to a minor under age 14 and who engages in three or more acts of substantial sexual conduct or lewd or lascivious conduct within a period not less than three months is guilty of continuous sexual abuse of a child.1

Grant contends that a conviction under section 288.5 requires proof that all three acts occurred after the effective date of the statute, January 1, 1990.   Over Grant's objection the trial court instructed the jury that it need find only one of the three acts required for conviction occurred after the effective date of the statute.

 Grant relies on the constitutional prohibition against ex post facto laws.  (U.S. Const., art.   I, § 10;  Cal. Const., art I, § 9.) There is no significant difference in interpretation between the federal and state ex post facto clauses.  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 296, 279 Cal.Rptr. 592, 807 P.2d 434.)  “[A]ny statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.”  (Beazell v. Ohio (1925) 269 U.S. 167, 169–70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 217;  Tapia v. Superior Court, supra, 53 Cal.3d at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434.)

 The ex post factor clause is based on the principle that “persons have a right to fair warning of that conduct which will give rise to criminal penalties . . . .”  (Marks v. United States (1977) 430 U.S. 188, 191, 97 S.Ct. 990, 992–93, 51 L.Ed.2d 260, 265.)  “The critical question is whether the law changes the legal consequences of acts completed before its effective date.”  (Weaver v. Graham (1981) 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17, 24 [italics added];  see also Tapia v. Superior Court, supra, 53 Cal.3d at p. 288, 279 Cal.Rptr. 592, 807 P.2d 434.)   A statute does not violate the ex post facto clause merely because it draws on facts antecedent to its enactment.  (People v. Sweet (1989) 207 Cal.App.3d 78, 83, 254 Cal.Rptr. 567.)

 The ex post facto clause does not prohibit prosecution for violation of a statute merely because a person performed some of the elements of the violation prior to the statute's effective date.   Such a rule would serve no purpose.   Once the statute is enacted a person who has performed some acts has fair warning of what further acts are necessary to complete the crime.   He may avoid violating the statute simply by refraining from performing those acts.   If he chooses to continue he will not be punished for past legal acts, but for completing the crime after the effective date of the statute.

Here Grant could have avoided violating section 288.5 simply by refraining from molesting Leah after December 31, 1989.   That he continued to do so was a matter entirely within his own control.   Even if Grant performed only one of the three acts necessary to violate the statute after the effective date, the ex post facto clause will not save him from the consequences.

 Nor is there anything in section 288.5 to support Grant's position as a matter of statutory interpretation.   It is true the defendant is entitled to the benefit of every reasonable doubt in interpreting a statute.   (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617.)   But there is nothing in the language of the statute that can reasonably be construed as requiring all three acts to have occurred after the effective date of the statute.   The plain language of the statute simply requires three acts within a period of not less than three months.   The statute was not meant to criminalize specific acts, but a continuing course of conduct against a victim who sustains cumulative injury.  (People v. Higgins (1992) 9 Cal.App.4th 294, 301, 11 Cal.Rptr.2d 694.)   To construe the statute as requiring all three acts to occur after the effective date would do violence not only to the plain language of the statute but to the intent of the Legislature.

 Grant also points out that a statute should be construed to eliminate doubts about its constitutionality.  (Citing People v. Roder (1983) 33 Cal.3d 491, 505, 189 Cal.Rptr. 501, 658 P.2d 1302.)   But we have no doubts about the constitutionality of requiring only one act after the effective date of the statute.

II

 Grant contends that the jury instructions were inconsistent and misleading, and that the trial court's reinstruction compounded the error.

The court instructed the jury with CALJIC No. 10.42.6, modified by the addition of the last sentence.

“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 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 and April 4, 1990.”

The court also gave the jury CALJIC No. 4.71.5, the standard unanimity instruction, as follows:

“Defendant is accused in Count One of the information of having committed the crime of Continuance [sic] Sexual Abuse, a violation of Section 288.5 of the Penal Code, on or about a period of time between June 6, 1988 and April 4, 1990.  [¶]  In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of specific acts constituting that crime within the period alleged and that at least one of these specific acts occurred between January 1, 1990 and April 4, 1990, the victim's 14th birthday.  [¶] And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act or acts constituting the crime with the period alleged.  [¶] It is not necessary that the particular acts or acts committed so agreed upon be stated in the verdict.”

During deliberations the jury asked whether they “must agree on the same specific act during the period 1–1–90 to 4–4–90․”

The trial court reinstructed the jury as follows:

“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.  [¶] 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.  [¶]  You should disregard the unanimity requirement contained in the attached instruction.”   The court attached a copy of CALJIC No. 4.71.5 previously given.

Grant contends the reinstruction was confusing because the jurors were first told that they were required to unanimously agree and were then told to disregard the unanimity instruction.

But the reinstruction was not confusing.   It made clear that the jury was to disregard the instruction requiring them to agree on the same specific acts constituting the crime.   Instead they were told they did not have to agree on the same specific acts, but they had to agree that at least three acts took place and that at least one of them occurred during the period between the effective date of the statute and Leah's 14th birthday.   There was nothing confusing about the reinstruction.

 Moreover the unanimity portion of the reinstruction was correct.  Section 288.5, subdivision (b) provides that the jury “need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number.”   As a continuous course of conduct crime section 288.5 does not require the jury to agree on specific acts, but only that the defendant engaged in the criminal course of conduct.  (People v. Gear (1993) 19 Cal.App.4th 86, 93, 23 Cal.Rptr.2d 261.)   That holds true even where the course of conduct begins prior to and continues after the effective date of the statute.   Thus the jury need not agree on the specific act or acts that occurred after the effective date of the statute.   The jury only need agree that at least one act occurred after the effective date.

Grant relies on People v. Jones (1990) 51 Cal.3d 294, 321, 270 Cal.Rptr. 611, 792 P.2d 643, where the court stated, “in a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given.”   But the court in Jones was discussing section 288, not the continuous course of conduct crime established by section 288.5.  (See People v. Gear, supra, 19 Cal.App.4th at pp. 93–94, 23 Cal.Rptr.2d 261 [the court rejected the same argument].)

Grant is incorrect in his assertion that the court could have simply answered the jury's question “yes” or “no” or simply referred the jurors to the original instructions.   The original instructions were incorrect in requiring unanimity on specific acts.   A simple “yes” or “no” would have been misleading and reference to the original instructions would have been incorrect.

 Grant argues the reinstruction was prejudicial because the jurors were told to “assume” substantial sexual conduct.   It would have perhaps been better had the trial court used the phrase “if you find” rather than assume.   Nevertheless there was no prejudice.   The context makes it clear to any reasonable juror that the trial court was speaking hypothetically for the purpose of illustration and was not suggesting that jurors lean toward any particular finding.

Finally, Grant contends the trial court's reinstruction was contrary to the theory on which Grant's counsel argued the case;  thus, the reinstruction destroyed counsel's credibility in the eyes of the jury.   But the theory of Grant's case was that he did not molest Leah at all prior to her 14th birthday.   That is the theory Grant's counsel argued to the jury.   It is true Grant's counsel mentioned that there was an instruction that says the jury must unanimously agree on the act that occurred.   But the instruction was by the trial court.   It is hard to see how the trial court's correction of its own mistake could destroy counsel's credibility.

The judgment is affirmed.

STEVEN J. STONE, P.J., and YEGAN, J., concur.

FOOTNOTES

1.   The full text of section 288.5, subdivision (a) is as follows:  “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 in the state prison for a term of 6, 12, or 16 years.”

GILBERT, Associate Justice.