PEOPLE v. PAGART

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Court of Appeal, First District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Oscar Joseph PAGART, Defendant and Appellant.

No. A059736.

Decided: December 13, 1993

Eleanor M. Kraft, (under appointment by the Court of Appeal), Cutten, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Peggy S. Ruffra, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Appellant Oscar Joseph Pagart was convicted by a jury of continuous sexual abuse of a child during the years 1985 through 1991.  (Pen.Code, § 288.5.) 1  Appellant was rendered statutorily ineligible for probation upon the jury's findings that he had substantial sexual conduct with a victim under the age of 11, and occupied a position of special trust and committed an act of substantial sexual conduct.  (Section 1203.066, subds. (a)(8), (a)(9).)   Appellant is serving a 12–year prison sentence.

Appellant claims his conviction under section 288.5 violates federal and state constitutional prohibitions of ex post facto laws by punishing him for conduct beginning before the 1990 effective date of the statute, and demands that we strike the section 1203.066, subdivision (a)(8), special allegation finding substantial sexual conduct with a victim under 11 years old because the victim was 11 years old when the underlying offense became law.   Appellant also challenges a jury instruction defining “reasonable doubt” and the admission of evidence of molestation perpetrated in a county distinct from the county charged in the information.

In the published portion of this opinion, we conclude that application of section 288.5 to a continuous course of conduct initiated before the statute's enactment but completed after its effective date does not violate the constitutional rule against ex post facto legislation.   However, we modify the judgment to strike the contested special allegation because it does operate ex post facto since the victim was 11 years old in January 1990, when the special allegation concerning substantial sexual conduct with underage victims became effective.   The judgment is otherwise affirmed, and appellant remains ineligible for probation and subject to the prison sentence imposed by the trial court.

I. FACTS

Crystal M. testified of ongoing sexual abuse by appellant beginning in 1985, when she was seven years old, and continuing through 1991, when she was almost thirteen years old.   Appellant was a friend of Crystal's mother.   Crystal and her two brothers would often stay with appellant, who lived in a tent lodge and camper bus in Mendocino County.

The children stayed with appellant for a few days to a week out of every month.   Appellant slept with Crystal in his bed, repeatedly molesting her whenever she stayed with him, and touching her “pretty much every night.”   When Crystal was seven years old, appellant started the abuse by kissing her chest and lips, touching her vagina, and forcing her to touch his penis.   Later, beginning when Crystal was about 10 years old, appellant put his penis in her mouth, digitally penetrated her, and placed the tip of his penis in her vagina, ejaculating between her legs.

Crystal's family moved to Humboldt County in August 1990, a month after Crystal turned 12 years old.   Appellant visited the family during the Christmas holiday that year.   On Christmas Eve, appellant pulled Crystal into bed with him, put his penis in her vagina, and ejaculated.   Several months later, around May of 1991, Crystal traveled with appellant to Mendocino County to retrieve some family items from storage.   Appellant took Crystal to his camper bus and there put his penis in her vagina and ejaculated.   In July 1991, Crystal told her mother of appellant's abuse, and the police were notified.

A physician expert in childhood sexual assault examined Crystal in July 1991 and found she had sexually transmitted genital warts and a notched hymen.   The expert concluded that Crystal's medical condition was consistent with her report of chronic sexual abuse.   Appellant was visually examined for genital warts in August 1991.   No warts were discovered, but a physician explained that appellant could be a carrier of the wart virus without external signs.   The nurse who examined appellant also testified that appellant had two tattoos on his penis:  the word “love” at the head and a question mark at the base.   Earlier in the trial, Crystal had testified that she saw a tattooed question mark and “love ya” script on appellant's penis.

Appellant denied having sexual contact with Crystal and presented several character witnesses who testified on his behalf.   Appellant explained Crystal's familiarity with his tattoos as learned from both Crystal's mother, who talked about the “love” tattoo in front of the children, and previous court proceedings in which the nurse testified about the tattoos.

The jury found appellant guilty of continuous sexual abuse of a child under the age of 14 for conduct occurring from 1985 through 1991.2  (Section 288.5.)   The jury also found true special allegations that appellant had substantial sexual conduct with a child under the age of 11, and occupied a position of special trust and committed an act of substantial sexual conduct.  (Section 1203.066, subds. (a)(8), (a)(9).)   Appellant was statutorily ineligible for probation under both special allegations and was sentenced to the middle term of 12 years in state prison.   This appeal followed.

II. DISCUSSION

 A. Penal Code Section 288.5 Is Not Ex Post Facto as Applied to Appellant's Continuous Course of Conduct Initiated Before Section 288.5's Enactment but Completed After Its Effective Date.

 The federal and state Constitutions each declare that no ex post facto law shall be passed.  (U.S. Const., art. I, § 10, cl. 1;  Cal. Const., art. I, § 9.)   The standards are the same under both provisions:  “ ‘ “any statute [1] which punishes as a crime an act previously committed, which was innocent when done;  [2] which makes more burdensome the punishment for a crime, after its commission, or [3] 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.” ’ ”  (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, 279 Cal.Rptr. 592, 807 P.2d 434 fn. omitted, quoting Collins v. Youngblood (1990) 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30.)

 Appellant argues that his conviction under section 288.5 violates constitutional prohibitions against ex post facto legislation.   As this district has previously observed, “[s]ection 288.5 was enacted in 1989 in order to remedy some of the problems of pleading, proof and jury instruction that had arisen in the prosecution of ‘resident child molesters' under section 288” which proscribes individual lewd and lascivious acts upon children.  (People v. Avina (1993) 14 Cal.App.4th 1303, 1308, 18 Cal.Rptr.2d 511.)  Section 288.5 permits prosecution upon proof of at least three instances of substantial sexual conduct or lewd acts perpetrated over a period of at least three months with a child under the age of fourteen with whom the perpetrator resides or has recurring access.   Since section 288.5 criminalizes a continuous course of conduct, rather than distinct acts, the jury “need unanimously agree only that the requisite number of acts occurred [and need] not [unanimously agree] on which acts constitute the requisite number.”  (People v. Avina, supra, at pp. 1308–1313, 18 Cal.Rptr.2d 511;  § 288.5, subd. (b).)  The maximum penalty under section 288.5 is 16 years in state prison, twice the maximum authorized under section 288 for a single offense.  (Sections 288, subd. (b), 288.5, subd. (a).)

The People acknowledge that section 288.5 establishes a new crime with greater potential punishment, and concede that section 288.5 could not be applied retrospectively to conduct completed before the statute's January 1, 1990, effective date.   The question, however, is whether one may be punished for a continuous course of conduct initiated before a criminal statute's enactment and completed after its operative date.   We are persuaded the answer is yes.

A law does not operate ex post facto unless it “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 emphasis added.)   Where an offense is of a continuing nature and extends beyond enactment of a criminal statute, the new statute may be applied to the offense without violating the ex post facto prohibition.  (1 LaFave & Scott, Substantive Criminal Law (1986) § 2.4, subd. (b), p. 142.)   For example, “[i]t is well established that a statute increasing a penalty with respect to a criminal conspiracy which commenced prior to, but was continued beyond the effective date of the statute, is not ex post facto as to that crime.”  (United States v. Campanale (9th Cir.1975) 518 F.2d 352, 365, cert. den. (1976) 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638.)   Accordingly, federal sentencing guidelines have been applied to conspiracy “straddle offenses” that began before the guidelines' effective date but were completed after it.  (U.S. v. Kohl (9th Cir.1992) 972 F.2d 294, 297 [collecting cases].)   Simply put, “ex post facto” means “after the fact”;  it does not mean “during the fact” and does not encompass continuing offenses.

Here, appellant's sexual abuse of Crystal was a continuing offense which extended from 1985 through 1991 and bridged the 1990 effective date of section 288.5.   While acts perpetrated before 1990 would not alone support appellant's conviction under section 288.5, they do support the conviction when coupled with proof that the pre–1990 acts constituted an ongoing course of conduct which continued beyond the statute's operative date.

 Appellant next maintains that evidence of pre–1990 acts “contaminated” the verdict because we cannot be certain the jury did not rely exclusively upon those acts to convict.   Appellant speculates that the jury could have found the requisite number of lewd and lascivious acts from his pre–1990 conduct alone.   In theory, appellant is correct.   In practice, the supposition is absurd.   The prosecution presented evidence of continuous sexual abuse over six years, to which appellant interposed a single defense:  innocence.   The case turned upon the credibility of accuser and accused, and there was no significant differentiation between evidence of pre-statute conduct and post-statute conduct.   The jury's choice was between believing Crystal's account of repetitive abuse from 1985 through 1991, or believing appellant's unqualified denial of all wrongdoing.   As defense counsel argued to the jury, it was appellant's word against Crystal's word, and only one could be believed.   Given the state of the evidence and the nature of the defense, there is no possibility the jury convicted appellant upon pre–1990 conduct alone.   Application of section 288.5 did not violate the constitutional rule against ex post facto legislation.

B.–C.***

 D. Appellant's Substantial Sexual Conduct With the Victim When She Was Under 11 Years Old Occurred Before the Section 1203.066, Subdivision (a)(8), Special Allegation Concerning That Conduct Became Effective and Must Be Stricken as an Ex Post Facto Law.

 Appellant asks us to strike the jury's finding that he had “substantial sexual conduct with a victim under the age of 11 years” in violating section 288.5.  (Section 1203.066, subd. (a)(8).)   Appellant argues as follows:  (1) section 1203.066, subdivision (a)(8), applies to one involved with a victim under 11 years old at the time one is violating section 288.5;  (2) section 288.5 was not violated until 1990 or later, when it became operative;  (3) Crystal was no longer under 11 years old in 1990;  (4) therefore, it was legally impossible for appellant to have substantial sexual conduct with a victim under 11 years old when he violated section 288.5.   The People attack the second premise, maintaining that section 288.5 was violated by a continuous course of conduct begun in 1985 and completed in 1991.   The People are correct, but there is a related infirmity in the jury's finding under the special allegation which compels us to strike it.

Section 1203.066 was amended in 1989 to include the newly established section 288.5 as a predicate offense.  (Stats.1989, ch. 1402, § 12, pp. 6167–6168.)   Accordingly, it was not until 1990 that the special allegation precluded probation for one who had substantial sexual conduct with a victim under 11 years old while continuously abusing the child within the meaning of section 288.5.  (Section 1203.066, subd. (a)(8).)   The People rightly point out that appellant violated section 288.5 by a continuous course of conduct from the time Crystal was age 7 until she was almost age 13, but his substantial sexual conduct with Crystal when she was under 11 years old occurred before the special allegation concerning that conduct became effective.   Application of the special allegation to appellant violates the proscription against ex post facto laws and must be stricken.   However, we need not remand the case for resentencing since appellant was also found statutorily ineligible for probation because he occupied a position of special trust and committed an act of substantial sexual conduct.  (Section 1203.066, subd. (a)(9).)   Appellant's prison sentence remains unaltered.

III. DISPOSITION

The judgment is modified to strike the special allegation pursuant to Penal Code section 1203.066, subdivision (a)(8).   As so modified, the judgment is affirmed.

FOOTNOTES

1.   All further statutory references are to the Penal Code, unless otherwise indicated.

2.   The abstract of judgment incorrectly lists the years of the crime's commission as 1985 through 1989.   It is clear that appellant was charged, tried, and convicted for an offense committed from 1985 through 1991.

FOOTNOTE.   See footnote *, ante.

STRANKMAN, Presiding Justice.

NEWSOM and STEIN, JJ., concur.