California Penal Code Section 288.5 - Interpretation

Penal Code Section 288.5 was enacted in 1989 and "defines the crime of continuous sexual abuse of a child. Any person who either resides in the same home with a 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 the child or three or more acts of lewd or lascivious conduct, is guilty of the offense of continuous sexual abuse. " (People v. Johnson (2002) 28 Cal.4th 240, 242.) The statute was enacted to solve "a recurrent problem in the prosecution of so-called resident child molesters: Because of the age of the victim and the repeated and continual nature of the offenses, trial testimony often failed to identify with specificity the date or place of particular charged acts, and the defense's ability to respond to specific charges arguably was impaired." (Ibid.) In a prosecution under section 288.5, "the trier of fact need unanimously agree only that the requisite number of specified sexual acts occurred, not which acts constituted the requisite number. " (Johnson, supra, at p. 243.) However, section 288.5 "imposes certain limits on the prosecution's power to charge both continuous sexual abuse and specific sexual offenses in the same proceeding." (Johnson, supra, 28 Cal.4th at p. 243.) Section 288.5, subdivision (c) provides that a defendant "may be charged with only one count of continuous sexual abuse unless multiple victims are involved, in which case a separate count may be charged for each victim. " (Johnson, supra, 28 Cal.4th at p. 243.) As relevant to this case, section 288.5, subdivision (c) provides another limitation: "No other act of substantial sexual conduct, as defined in subdivision (b) of Section 1203.066, with a child under 14 years of age at the time of the commission of the offenses, or lewd and lascivious acts, as defined in Section 288, involving the same victim may be charged in the same proceeding with a charge under this section unless the other charged offense occurred outside the time period charged under this section or the other offense is charged in the alternative ...." In Johnson, supra, 28 Cal.4th 240, the California Supreme Court interpreted this portion of section 288.5, subdivision (c), in a case where the defendant was charged with both continuous sexual abuse and specific sexual offenses committed against the same child during the same time period. The charges were not alleged in the alternative, all the charges were presented to the jury, and the defendant was convicted of all the offenses. (Id. at pp. 243-244.) Johnson held that "section 288.5, subdivision (c) clearly mandates the charging of continuous sexual abuse and specific sexual offenses, pertaining to the same victim over the same period of time, only in the alternative ...." (Johnson, supra, 28 Cal.4th at p. 248, italics added.) As a result, a prosecutor "may not obtain multiple convictions" if the defendant has been charged with both continuous sexual abuse and discrete sexual offenses, pertaining to the same victim in the same period of time. (Ibid.) Johnson held the defendant had been improperly convicted of both continuous sexual abuse, and specific sexual offenses committed against the same child in the same time period, because the multiple convictions were "inconsistent" with section 288.5, subdivision (c). (Johnson, supra, at p. 248.)