Sex Offenses, generally
Category > Sex Offenses, generally
Updated 3/6/2024Arranging a meeting with a minor for lewd purposes was a lesser included offense of meeting with a minor for lewd purposes.Defendant’s conviction for arranging a meeting with a minor for lewd purposes under Penal Code section 288.4 (a) was reversed because it was a lesser included offense of the crime of meeting with a minor for lewd purposes under section 2884 (b). A conviction for the latter offense precluded a conviction for the former.id: 26589
Updated 2/4/2024Defendant’s aggravated sexual assault by means of rape conviction was vacated where defendant was also convicted of rape, a necessarily included offense. Defendant was convicted of both rape and aggravated sexual assault of a minor by means of rape. The two convictions were improper since multiple convictions may not be based on necessarily included offenses. The aggravated sexual assault conviction was vacated even though it was the greater offense since rape carries the longer prison term after adding the applicable enhancements.id: 27288
The trial court erred in failing to hold a hearing on the relevance of the alleged rape victim’s sexual conduct earlier in the day as an alternative explanation of her injuries.Defendant sought to present evidence of the complaining witness’s sexual conduct on the morning of the day on which the acts charged against him occurred. The trial court erred by denying the motion without conducting a hearing concerning the relevancy of the witness’s sexual conduct earlier that day as an alternative explanation for her oral and vaginal injuries. However, the error was not prejudicial since the court eventually held a hearing, following the new trial motion which established the earlier sexual conduct could not have caused the vaginal injuries and the omission of an alternate explanation for her oral injuries was harmless beyond a reasonable doubt. Finally, the court did not abuse its discretion in excluding the evidence to the extent it was offered to corroborate the defendant’s testimony.id: 21632
Defendant was improperly convicted of two counts of rape based on a single act of intercourse. Defendant was improperly convicted of both rape of an intoxicated person (Penal Code section 261, subd.(a)(3) and rape of an unconscious person (Penal Code section 261, subd.(a)(3) and (a)(4)) based on a single act of intercourse. The judgment was modified to reflect a single count of Penal Code section 261, subd.(a)(3) (and (a)(4).id: 24289
Defendant was improperly convicted of both rape of an unconscious person and rape of an intoxicated person where there was only one act of intercourse.Defendant was convicted of the rape of an unconscious person under Penal Code section 261, subd.(a)(4)(A) and the rape of an intoxicated person under section 261, subd,(a)(3) based on a single act of intercourse. However, the counts involve one offense of rape. Only one conviction was proper.id: 24133
Defendant was improperly convicted of two rape counts based on a single act.Defendant was improperly convicted of both rape of an unconscious person and rape of an intoxicated person based on a single act of intercourse. The two convictions must be consolidated into a single count reflecting rape under both provisions. id: 24011
Defendant who entered an unmarried woman’s bedroom after seeing her boyfriend leave late at night and then had sex with her pretending to be her boyfriend, was not guilty of rape of an unconscious person.Penal Code section 261, subd.(a)(5) expressly provides that sexual intercourse by impersonation is rape only when the victim is married and the perpetrator impersonates the victim’s spouse. To prevent this provision from being superfluous, section 261, subd.(a)(4) is interpreted to hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim’s spouse is not guilty of rape of an unconscious person. Because the prosecutor relied on that theory, the rape conviction was reversed even though the prosecutor also presented the valid theory that the victim was unconscious because she was asleep.id: 23030
Defendant was improperly convicted of two counts of indecent exposure where he exposed himself to two people during one uninterrupted period. Defendant exposed himself to two people during a single uninterrupted incident. He could only properly be convicted of one count of indecent exposure.id: 22911
First degree burglary and assault with intent to commit rape are lesser included offenses of assault with intent to commit rape during a burglary.Defendant’s convictions for first degree burglary and assault with intent to commit rape were dismissed because, under the statutory elements test, they were lesser included offenses of assault with intent to commit rape during the commission of first degree burglary.id: 22561
An out-of-state misdemeanor indecent exposure conviction cannot be used to elevate a violation of section 314 to felony status.Defendant was convicted of indecent exposure and was found to have a prior indecent exposure conviction. However, the prior Washington state misdemeanor conviction did not render defendant subject to felony sentencing under Penal Code section 314. The language of the statute suggests the Legislature did not intend for an out-of-jurisdiction misdemeanor indecent exposure conviction to be used to elevate a violation of section 314 to felony status.id: 22196
A victim is not 10 years of age or younger for purposes of Penal Code section 288.7, subd.(b) where she has passed her 10th birthday. Defendant was convicted of violating Penal Code section 288.7, subd. (b) which addresses an adult having sex “with a child who is 10 years of age or younger.” The victim in the present case was 10 years and 11 months old at the time of the molestation. The conviction was reversed because the statute excludes children who have passed the 10th anniversary of their birth. id: 21893
Court erred in requiring defendant to submit to AIDS blood testing where he was convicted of attempted sex offenses.Defendant was convicted of attempted forcible sodomy (Penal Code section 286, subd. (c)) and attempted forcible oral copulation (section 289, subd. (c)). The trial court erred in ordering defendant to submit to testing for the presence of AIDS antibodies pursuant to Penal Code section 1202.1. The offenses for which he was convicted, to wit, attempted sodomy and attempted forcible oral copulation are not offenses specified in the statute and the statute did not apply to defendant. Had the Legislature meant to include attempts it could easily have done so.id: 9940
Admission of alleged molest victim's mother's testimony under section 1360 was improper for lack of notice and unavailability, and absent a showing of reliability, it violated the confrontation clause.Evidence Code section 1360 creates a hearsay exception for statements made by certain child victims of abuse or neglect, providing that various requirements are met. Among other things, if the child does not testify at the proceeding the statement is admissible only if he or she is unavailable as a witness. Additionally, the proponent of the evidence must inform the adverse party of his or her intention to admit the child's statement sufficiently in advance of the proceeding to provide a fair opportunity to prepare to defend against it. Because neither the notice nor unavailability requirements were met in the present case, the challenged statements were not properly admitted under section 1360. Moreover, because there was an insufficient showing the statements were reliable, their admission violated defendant's rights under the confrontation clause of the federal constitution.id: 16582
Due process was not violated by the young victim's failure to give specific details as to each charged rape although a modified unanimity instruction should have been given.Defendant was convicted of 15 counts of forcible rape against his 15 year-old daughter. He argued his due process rights were violated because the victim failed to give specific details regarding the time and circumstances of each count for which he was charged. However, as long as the victim specified the type of conduct, its frequency, and that it occurred during the limitation period, nothing more was required. The trial court should have given a modified unanimity instruction detailing the prerequisites noted above. However, any instructional error was harmless where there was no reasonable possibility the jury failed to unanimously agree that defendant committed each act for which he was convicted.id: 17090
Attempted rape does not require AIDS test under section 1201.1 but the matter was remanded to allow the victim to request an AIDS test under another statute.Defendant was convicted of attempted rape. The sentencing court erred in ordering defendant to submit to an AIDS test pursuant to Penal Code section 1201.1 because attempted rape is not one of the offenses enumerated in that provision. However, the court may order AIDS testing under Health and Safety Code section 121055 if requested by the victim of a sexual assault. The matter was remanded to allow the prosecutor and/or victim to petition the court for an order requiring defendant be tested for AIDS under section 121055.id: 9922
Although the sexual assault victim was transported to two places only one section 667.8 enhancement was proper.Penal Code section 667.8 provides for a three-year enhancement if a kidnapping was committed for the purpose of effecting a sexual assault. Appellant argued the court violated the prohibitions against multiple punishment in section 654 by imposing three year enhancements on both count 2 (sodomy at the second location at Coyote Lake) and count 4 (sodomy in the motel room). The Court's statements established it believed appellant harbored a single criminal objective. The court mentioned that appellant had a plan in mind, that he had a purpose to fully execute his plan, and that he <i>resumed</i> his sexually assaultive behavior. Only a single enhancement was proper.id: 9916
A showing of need must be made before a support person may accompany a sexual assault victim to the witness stand.Defendant argued that Penal Code section 868.5 allowing support persons for sexual assault victims is unconstitutional as applied because the support person's presence actually influenced the victim's testimony. He claimed that a support person should only be permitted to accompany the witness at the stand if a showing of necessity is made in advance. The court agreed that the use of the statutorily authorized special procedure must be based on a showing of the need of the individual witness. However, the lack of a showing in the instant case was not prejudicial given the substantial evidence of defendant's guilt separate and apart from the victim's testimony.id: 9914
A defendant cannot be convicted of both continuous sexual abuse and procurement of the same child during the same time period.Procurement of a child under Penal Code section 266j is a sex offense, and a defendant cannot be convicted of both continuous sex abuse under section 288.5, and procurement of the same child.id: 18588
The court prejudicially erred in allowing an expert to present inadmissible profile evidence regarding the behavior of rapists.Defendant was convicted of several sex offenses against a single victim. The trial court allowed the prosecution to call a special agent with the California Department of Justice to testify as an expert on the issue of the behavior and conduct of rapists. In response to the prosecutor's hypothetical questions the witness stated defendant's conduct was the most prevalent type of conduct associated with rapists. However, the testimony constituted inadmissible profile evidence which overlooked the fact that certain behavior is consistent with both innocent and illegal behavior. The jury was invited to conclude that if defendant engaged in this behavior, he was a rapist. The error was prejudicial where the jury's verdict depended largely on whether it found the alleged victim or defendant more credible.id: 16515
Court erred in finding defendant ineligible for probation under section 1203.066, where there was no finding that he committed "substantial sexual conduct." Defendant was convicted of three counts of committing lewd acts upon his 10 year-old daughter. The trial court relied on Penal Code section 1203.066 to find him ineligible for probation. However, that provision did not limit the court from granting probation since the prosecutor did not allege and the jury did not find the defendant committed "substantial sexual conduct" as required by section 1203.066. The matter was remanded for resentencing in light of factors that might support a grant of probation.id: 16770
An honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication.Because actual consent of the victim is not a defense to a charge of rape by intoxication, a belief in the existence of such actual consent is irrelevant. However, an honest and reasonable but mistaken belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication.id: 15358
Defendant may not be charged with continuous sexual abuse of a child under section 288.5, and a separate sex offense with the same victim in the same time period.A defendant may not be charged with continuing sexual abuse of a young child based upon acts committed within a specified time period under Penal Code section 288.5, and a separate sex offense with the same victim in the same time period. The conviction for the latter offenses was stricken.id: 14845
Application of amended Penal Code section 803, subdivision (g) allowing 15 year old child molest charge to be revived violates ex post facto principles.Recently enacted amendments to Penal Code section 803, subdivision (g) make clear the Legislature's intent to authorize prosecution of specified offenses committed prior to 1988, as to which the statute of limitations had run as of January 1, 1994, including the 15 year-old child molestation charges in the instant case. However, if either the original version of section 803, subdivision (g) or the 1996 amendments to that section are construed to have such retrospective application, it would violate the ex post facto clause of the state and federal constitutions.id: 9920
Trial court erred in considering trustworthiness of the proffered evidence as a criterion in ruling on the admissibility of the prior sexual conduct of a sexual assault victim.While strictly precluding admission of the victim's past sexual conduct to prove consent, Evidence Code section 1103, subdivision (c)(4), allows the admission of evidence of prior sexual history relevant to the credibility of the victim utilizing the appropriate in-camera hearing procedure. Defendant made an offer of proof identifying five people who could testify the victim regularly traded sex for drugs. The trial court improperly excluded testimony of two of the witnesses based on the sole criterion that they were unbelievable. The law does not permit the judge to make a credibility determination at the in-camera hearing. Instead, the evidence must be evaluated under Evidence Code section 352. The error was harmless where it did not likely affect the verdict.id: 10010
Battery is a lesser included offense of forcible sodomy.Battery is a lesser included offense of forcible sodomy. However, there was insufficient evidence to require a sua sponte giving of a battery instruction where there was no substantial evidence showing defendant was guilty of battery but not forcible sodomy.id: 16664
That defendant orally copulated one victim and fooled around with the second victim did not support a conviction of attempted oral copulation of the second victim.Evidence was insufficient to support the conviction for attempted oral copulation of Jeanine. Evidence showed that he did commit an act of forcible oral copulation against another victim, Laurie, and that Jeanine told rescuers that defendant made her fool around with him although she had not been raped. While it was clear that defendant committed a forcible sexual attack of some kind against Jeanine, this evidence did not support the conviction of attempted oral copulation.id: 10000
Use of original instruction on section 1108 evidence was prejudicial error.In a prosecution for sex offenses, evidence of prior sex offenses was admitted pursuant to Evidence Code section 1108. The jurors were instructed with CALJIC 2.50.01 (before its 1999 revision), 250.1, and 250.2. The instructions were prejudicially erroneous because there is reasonable likelihood the jurors interpreted them to authorize a conviction of the current crimes based merely on proof by a preponderance of the evidence that the defendant committed the prior crimes, a constitutionally impermissible result.id: 15398
Trial court abused its discretion in admitting evidence of a 23 year old violent sex crime pursuant to Evidence Code section 1108.Defendant, a mental health nurse was charged with sex crimes against two women who were patients at the hospital. Evidence Code section 1108 allows bad conduct evidence to be admitted to prove predisposition to commit sex crimes. The trial court abused its discretion in allowing evidence of defendant's 23 year old violent sex offense conviction pursuant to section 1108. Evidence regarding the 1972 offense was inflammatory, remote and there was no significant probative value in admitting the facts of that case. The only factor favoring admission was that it did not consume much time. The evidence should not have been presented and defendant's convictions were reversed.id: 15391
Court's reduction of failing to register as a sex offender to a misdemeanor was authorized and the prosecution's failure to object waived any claim of error.Defendant was charged with failing to register a change of address by a sex offender under Penal Code section 290, subdivision (g)(2), and a strike prior was also alleged. The trial court reduced the charged offense to a misdemeanor pursuant to Penal Code section 17. The prosecution appealed arguing section 290, subdivision (g)(2) is not a wobbler offense subject to reduction. Because the Legislature included an alternative sentence of no more than one year in county jail the offense was a wobbler and the county jail sentence was therefore authorized. Because there was no objection by the prosecution, any claim of error was waived.id: 9942
Court erred in allowing the truth of the priors to be decided by the jury where defendant admitted his prior child molest convictions.Where an alleged prior felony conviction is an element of the pending offense, Article 1, section 28 subdivision (f) of the California Constitution requires that the earlier conviction be proved to the trier of fact in open court. If only a factor to be considered at sentencing the defendant can admit its truth and prevent the jury from hearing about it when the charge is read or at any other time during trial. A prior conviction alleged under Penal Code section 667.51 (repeated child molest violations) is an allegation for purposes of punishment and is not an element of the pending charge. Therefore, the court erred in allowing the truth of the priors to be decided by the jury.id: 9938
Defendant's child molest conviction in Nebraska qualified as a serious felony under section 667, subd.(a), but because the elements were different, did not qualify him as a habitual sexual offender under section 667.71.Defendant's prior child molest conviction in Nebraska served as the basis of a serious felony enhancement under Penal Code section 667, subd.(a), as well as a habitual sexual offender finding under Penal Code section 667.71, subds.(c)(4) and (d). Defendant argued reversal of the enhancements was required because the Nebraska convictions did not contain all of the elements of section 288, specifically it did not require a specific intent to arouse. Since the Nebraska statute did not contain an element of section 288, subd.(a), it is not a qualifying prior under the habitual sexual offender statute. To be a serious felony, however, it need not contain the same elements - it need only be lewd act on a person under 14. Violation of the Nebraska statute is a lewd act under section 1192.7. Moreover, the record of conviction showed the victim was four years-old. The offense therefore qualified as a serious felony under section 667, subd.(a).id: 17922
Provision providing extension of limitations period for specified sex crimes is not retroactive.Penal Code section 803, subdivision (g), effective January 1, 1994, establishes an additional one year limitations period for the prosecution of specified sex crimes if they involved substantial sexual conduct and if the original limitations period triggered by the commission of the crime as specified in sections 800 or 801 has expired. The additional period of limitations begins to run from the date a person of any age reports he or she was the victim of a specified sex crime while under the age of 18. The Legislature did not intend section 803, subdivision (g) to apply retroactively to crimes as to which the original period of limitations had expired before the January 1, 1994 effective date of section 803, subdivision (g).id: 9986
Sex offender's failure to register within 10 days of moving is not a continuing offense and proving a completed violation before section 290, subdivision (f) became effective violated ex post facto principles.Defendant, a convicted sex offender, was charged under Penal Code section 290, subdivision (f) with failing to notify law enforcement of his new address within ten days of moving. The provision was amended effective January 1, 1995, to mandate felony punishment. The prosecutor proved a violation in late 1994 but did not prove a violation in 1995. He argued the conduct occurred in 1994 and 1995, and prosecution was proper because the offense was a continuing one. However, the failure to register is not a continuing offense and the crime is complete when the tenth day after the move expires and the registrant has not given notice. Conviction under section 290, subdivision (f) violated ex post facto principles.id: 9556
Defendant, in a sex case, may rebut section 1108 evidence by introducing evidence of good behavior under similar circumstances.When the prosecution introduced evidence under Evidence Code section 1108 of the defendant's commission of another sexual offense or offenses, the defendant is not precluded from introducing evidence of specific instances of his good behavior under similar circumstances.id: 15365
Under the Sexually Violent Predators Act a defendant is entitled to confront and cross-examine witnesses at the probable cause hearing.The trial court erred by denying defendant's motion to confront and call witnesses at the Welfare and Institutions Code section 6602 probable cause hearing. However, the error did not require reversal because he was subsequently found to be an SVP after a trial at which he was able to cross-examine the prosecution's witnesses, and call his own witnesses.id: 15397
Sexual propensity evidence under section 1108 is inadmissible unless the defendant first places his character at issue.Evidence Code section 1108 does not allow a psychiatrist called as an expert witness to render an opinion about the accused's sexual proclivities during the prosecution's case-in-chief. Section 1108 permits the prosecution to prove a defendant's sexual propensity through evidence of specific instances of conduct. It does not alter section 1102's rule that opinion about a defendant's character is inadmissible unless the defendant first places his character in issue.id: 15387
Court may not require sex offender to register based on the facts where registration was not part of the plea bargain.When a defendant agrees to a plea bargain by which he pleads guilty to an offense not specifically included in the sex offender registration statute (Penal Code section 290), and the registration requirement is not included in the plea bargain, the sentencing court may not subsequently require the defendant to register based on the facts underlying the offense.id: 15362
Defendant who made late-night visits to minor by climbing through her window did not have recurring access to the child within the meaning of section 288.5.In order to be convicted of continuous sexual abuse of a child pursuant to Penal Code section 288.5, a defendant need have recurring access to the child. Defendant did not live with the victim and was not an invited guest in her home. Instead, he would visit her in the middle of the night by climbing through her bedroom window. This evidence did not support the recurring access element of section 288.5.id: 15366
Child molest charges were time-barred since section 803, subdivision (b) only tolls the statute of limitations where prosecution has commenced and the 1994 arrest did not commence the prosecution.Pursuant to Penal Code section 804, subdivision (d), "prosecution for an offense" commences when, among other times, an arrest warrant is issued. The prosecution argued defendant's arrest amounted to a satisfaction of that rule, which would have rendered the instant prosecution timely. However, the statutory language is clear and section 804, subdivision (d) may not be interpreted to read the word "warrant" out of existence. Moreover, section 803, subdivision (b) tolls the statute of limitations during such time as the prosecution is pending. However, the prosecution cannot be pending until it has commenced. Since the prosecution had not commenced, the statute was not tolled and the prosecution was time-barred.id: 15360
Three year-old sex victim's statements could not be used at the preliminary hearing to prove the corpus delicti where there was no confession.Penal Code section 1228 allows testimony from a victim that would otherwise be inadmissible to be admitted in child sex crime cases, but solely for the purpose of establishing the corpus delicti. In the instant case the three year-old victim testified at the preliminary hearing that defendant molested her. However, section 1228 comes into play to prove the corpus delicti only if the People had a confe7ssion to introduce. While the officer testified that defendant confessed, a transcript of his statements to police showed he admitted touching the victim's vagina while bathing her but he had no lewd intent in doing so. This statement did not qualify as a confession. Therefore, section 1228 did not permit the otherwise incompetent statements of the victim to prove the corpus delicti.id: 10007
The trial court's failure to impose a sex offender fine pursuant to section 290.3 is not an unauthorized sentence subject to correction on appeal absent an objection by the prosecutor.The omission of a sex offender fine pursuant to Penal Code section 290.3 on a silent record does not constitute an unauthorized sentence that may be corrected on appeal. Instead, it is presumed that the trial court made the requisite findings to support its judgment. In the present case, the trial court's implied findings were supported by substantial evidence.id: 17758
It was improper to base two separate violations of section 288, subd. (a) on a single brief episode.Defendant argued it was improper to make separate true findings as to two different violations of Penal Code section 288, subd. (a) because both touchings were part of a single violation of that provision as they were directed toward a single victim, took place in the same room, and occurred within a brief period of time. The court relying on <U>People v. Bevan</U> (1989) 208 Cal.App.3d. 393, found that it was improper to fragment the single offense into multiple crimes for purposes of either conviction or punishment.id: 9964
Extended limitations period for a sex offense on a minor is not implicated where the offense is reported by someone other than the victim.Penal Code section 803, subdivision (g) enlarges the period of limitations for prosecution of specified sex offenses to allow a criminal complaint to be filed within one year of the date of a report to a law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim ... of a specified sex offense. Section 803, subdivision (f) is not implicated where, as here, the report of those offenses to a law enforcement agency is made not by the victim, who is unaware she was so victimized, but by a person other than the victim.id: 9958
Threat of restriction did not constitute force to establish forcible rape.Fourteen year old victim agreed to have sex with her stepfather because she did not want to be placed on restriction. A threat of restriction does not constitute force within the meaning of Penal Code 261(2). However, other evidence including defendant's pushing victim's hands away from her vagina constituted force greater than that necessary to accomplish the intercourse.id: 10006
Evidence of prior rape was inadmissible to prove consent.The trial court erred by admitting evidence of a prior rape conviction to prove whether his present victim consented to the intercourse.id: 9952
Kissing victim, touching her breasts and placing her hand on defendant's penis constituted a single crime.Defendant was charged in count one with placing his hand under victim's shirt and touching her breasts, in count two with kissing her on the lips, and in count three with grabbing her hand and placing it on his penis. Defendant's conduct amounted to a single criminal offense. Therefore, the conviction and punishment for the duplicate offenses were reversed.id: 9968
Child molester may not be punished separately for each undefined lewd act.Defendant was convicted of four counts of Penal Code section 288(a) where, in one incident, he touched the young victim's breasts, french kissed her, placed his mouth on her breasts, and engaged in unlawful sexual intercourse. The sexual intercourse is considered to be a defined sexual crime for purposes of section 288 and the other offenses are considered undefined lewd acts. There was no error in punishing defendant for the unlawful sexual intercourse. However, Penal Code section 654 prohibits separate punishment for the attendant undefined acts.id: 9926
People failed to show the appointment of counsel for child molest victims was necessary to prevent psychological harm to the children.Defendants argued that appointment of counsel for minors unconstitutionally interfered with defendant's rights to effective assistance of counsel to prepare a defense, and compulsory process. The court found appointment of counsel for the minors (pursuant to Penal Code section 288, subdivision (d)) was constitutionally and statutorily permissible, but that proper procedures were not followed where the People did not show the appointment of counsel to be necessary to prevent psychological harm to the child. Moreover, the trial court may not appoint counsel for the minors who will interfere arbitrarily with defense access to those children.id: 9978
Whether child molest victims are subject to sufficient duress for section 288, subdivision (b) is a question of fact to be determined by the jury.Defendant was charged with several counts of lewd acts on children by use of force pursuant to Penal Code section 288, subdivision (b). Psychological coercion may be enough to establish force in such cases. However, the trial court erred in determining as a matter of law that the minor victims of the charged sex offenses were not subjected to duress, when the issue is a factual one to be resolved by the jury.id: 10015
Court should have held a hearing to determine whether evidence that a child molester had been molested was relevant to the defense.After a minor was charged with molesting two young children, he told police that defendant had molested him on three occasions. The trial court erred when it refused to hold a hearing pursuant to Evidence Code section 782 on the admissibility of evidence that the minor had been previously molested where the evidence suggested the acts of prior molestation were similar to the acts charged. Moreover, the prosecutor compounded the error by arguing to the jury that if they believed the victim molested other children, he must have learned that behavior from being molested by the defendant.id: 9941
Psychological coercion without more does not constitute duress within the meaning of section 288, subdivision (b).Appellant was convicted of child molestation through use of force or duress under Penal Code section 288, subdivision (b). However, there was no evidence that defendant threatened the victim and she stated she was never consciously afraid defendant would harm her. The victim did testify that she felt pressured psychologically and was subconsciously afraid of defendant but there was no evidence defendant was aware of or sought to take advantage of such fear. Psychological coercion without more does not constitute duress within the meaning of section 288, subdivision (b). The conviction was amended to reflect a violation of section 288, subdivision (a).id: 9987
Sexual battery is not a lesser included offense of rape, and the juvenile court's judgment finding sexual battery was invalid where the minor was given no notice and did not consent to the finding.The trial court erred in characterizing sexual battery as a lesser included offense of rape under Penal Code section 261. The court lacked jurisdiction to sustain the petition on the unchanged crime of sexual assault, having acquitted him of the section 261 charges. Therefore, the judgment of wardship entered upon a finding of the court that he had committed the lesser offense of sexual battery was invalid because he was given no notice and did not consent to the court's finding of an offense which was not charged in the petition. The minor's silence at the time the decision was announced did not support an inference of his consent to the sexual battery finding.id: 9992
Jail employee may not be convicted of sodomy committed while confined in county jail.Defendant, a civilian employee for the Yuba County Jail was improperly convicted of Penal Code section 286, subdivision (e)<197>sodomy committed while confined in county jail. The People argued the statute must be read to prohibit any act of sodomy occurring in a penal institution. However, viewing the clear language of section 286, subdivision (e) in its grammatical posture compels the conclusion that it applies only if the perpetrator is confined in a state prison or local detention facility.id: 9966
Evidence that the victim was partly unclothed was insufficient to establish an actual or attempted sex offense.Other than the victim's partly clothed body there was no evidence of a sexual assault on her. The evidence was therefore insufficient to support a finding of first degree murder based on rape or attempted rape of the victim. However, the insufficiency of evidence supporting a rape/murder theory was harmless as the prosecution also relied on a premeditated murder theory which was supported by the evidence.id: 9955
Penal Code section 288.5, subd.(c) precluded convictions for both the continuous sexual abuse charge and the individual sexual offenses.Penal Code section 288.5, subd.(c) clearly mandates the charging of continuous sexual abuse of a child and specific sex offenses, pertaining to the same victim over the same period of time, only in the alternative. The multiple convictions for the latter offenses were reversed.id: 16858
Sodomy cannot be committed on a victim who is already dead.The pathologist testified that semen was found in the murder victim's anus. Defendant argued the evidence was insufficient to support a conviction of sodomy or the sodomy<197>murder special circumstance because the evidence did not establish the victim was alive at the time of the penetration. While it is true that sodomy cannot be committed on a dead person, absent evidence suggesting the assailant intended to have sex with a corpse, the jury could reasonably have inferred the assailant engaged in sexual conduct while the victim was alive.id: 9997
Where the evidence shows the defendants did not touch the children, aiding and abetting a child molest is an improper theory if there is no evidence the children had a lewd intent.In a prosecution for multiple child molest counts under Penal Code section 288 where there is no evidence, and the prosecution does not proceed on the theory that the children had the requisite lewd intent (thereby supporting an aiding and abetting theory), the jury must be instructed that A's liability is as a principal, predicated on the theory of constructive touching or use of the child as the innocent agent (instrumentality) by which A committed the offense.id: 9648
Updated 3/7/2024Defendant’s communication with a police officer pretending to be a minor supported his conviction under section 288.3 for contacting a minor for lewd purposes. Defendant exchanged sexually explicit messages over the course of five months with a law enforcement agent the officer believed was a 13 year-old girl. He argued the evidence was insufficient to support his conviction for contacting a minor with the intent to have sex under Penal Code section 288.3, subd. (a) because he never communicated with an actual minor. However, defendant had ample reason to understand that he was communicating with a minor, and the evidence supported the conviction.id: 26243
Updated 3/5/2024The enhanced term under section 647.6, (c)(2) did not require proof that the victims in the prior offenses were under the age of 14.Defendant was convicted of felony annoying or molesting a child under 18 in violation of Penal Code section 647.6, (c)(2). The court also found that he had two prior felony convictions within the meaning of section 647.6, (c)(2) and enhanced his term on that basis. Contrary to defendant’s claim, the enhanced term under section 647.6, (c)(2) did not require proof that the victims in the prior cases were under the age of 14.id: 26687
Updated 2/26/2024Intent to sexually exploit the minor is not a second intent element under Penal Code section 288.Defendant was convicted of committing lewd acts on a female family member before and after the victim’s 14th birthday. Contrary to defendant’s claim, intent to sexually exploit the minor is not a second intent element of the crime of committing lewd acts against a minor.id: 26365
Updated 2/23/2024Attempted aggravated sexual assault is a crime. Defendant argued he was improperly convicted of attempted aggravated sexual assault upon a child under the age of 14 by an adult because there is no such crime. However, there is such a crime under Penal Code sections 269 (a)(1) and 664, and the evidence supported defendant’s conviction.id: 26939
Updated 2/22/2024There was no due process violation regarding notice of the charges where the changed dates were still within the period alleged in the information.Defendant paid 17 year-old J.A. to send him photos or videos of J.A. copulating her infant daughter. Defendant argued a due process violation where J.A. changed her testimony after the preliminary hearing regarding the timing of the photos she sent defendant. However, while the testimony differed as to the specific dates, these dates remained within the time period alleged in the information.id: 27069
Defendant was properly convicted of rape of an unconscious person and rape of an intoxicated person based on the same act of intercourse.Defendant was properly convicted of both rape of an intoxicated person and rape of an unconscious person based on the identical act of sexual intercourse. However, multiple punishment is barred by Penal Code section 654.id: 25239
Trial courts should inquire into defendant’s financial circumstances before imposing a sexual offender fine, but trial counsel was not ineffective for failing to object.Defendant’s convictions of Penal Code sections 228, subd. (a) and 288.3 triggered the imposition of sex offender fines for each count pursuant to section 290.3. He argued on appeal that trial counsel rendered ineffective assistance by failing to object to the imposition of fines based upon his inability to pay. However, the record does not show why counsel failed to object, and there may have been valid reasons. Going forward, trial courts should inquire sua sponte into a defendant’s financial circumstances before imposing a sexual offender fine.id: 25934
A defendant can violate section 288, subd.(a) with text messages to young victims, and the sexual intent and touching need not be simultaneous. A defendant may commit the crime of attempted lewd and lascivious acts on a child under 14 by communicating with the victim via text messaging. Moreover, the sexual intent and the touching required by section 288, subd.(a) need not occur simultaneously.id: 24982
A defendant can be properly convicted of both rape of an intoxicated person and rape of an unconscious person based on the same act.Defendant was properly convicted of both rape of an intoxicated person under Penal Code section 261, subd.(a)(3) and rape of any unconscious person under section 261, subd.(a)(4)(A) where the convictions were based on the same act because the statutes describe different offenses. A defendant can properly convicted, although not punished for, both.id: 25064
Misdemeanor sexual battery is not a lesser included offense of sexual battery by misrepresentation of professional purpose.Every defendant who commits sexual battery by misrepresentation of professional purpose (Penal Code section 243.4, subd.(c)) also commits misdemeanor sexual battery (section 243.4, subd. (e)(1)). However, lack of consent may be shown in other ways to prove the misdemeanor offense. And the charge of sexual battery under section 243.4, subd.(c) does not need to contest the consent issue on any basis other than the alleged fraudulent representation. Accordingly, misdemeanor sexual battery cannot be deemed a lesser included offense of sexual battery by misrepresentation of professional purpose.id: 24708
Misdemeanor sexual battery encompasses a nonconsensual sexual touching where the absence of consent is due to incapacity. Defendant argued his conviction for sexual battery had to be reversed because there is no crime of sexual battery of an intoxicated or unconscious woman. However, misdemeanor sexual battery as defined in Penal Code section 243.4, subd.(e) encompasses a nonconsensual sexual touching where the absence of consent is due to incapacity. id: 21861
Defendant could not be convicted of two counts of rape based on a single act of intercourse.Defendant was convicted of rape of an intoxicated woman and rape of an unconscious woman based on a single act of sexual intercourse. Under the circumstances, only one rape conviction was proper.id: 21954
Sexual battery applies to a defendant who gropes a woman who is unable to resist due to intoxication. Defendant argued that reversal of his misdemeanor sexual assault battery count was required because there is no crime of sexual battery of an intoxicated or unconscious woman. He was convicted based on evidence that he had his hand on the drunken woman’s breast as he and another man transported her from the hotel bar to a room where she would spend the night. Contrary to defendant’s claim, section 243.4 applies to sexual groping of a victim who is unable to resist due to intoxication. id: 21956
Laws criminalizing sexual conduct with people incapable of consent do not violate a defendant’s right to privacy. Defendant argued the statutes criminalizing sexual acts with people incapable of consent due to a development disability are unconstitutional because they violate both parties right to privacy. However, the Penal Code provisions designed to protect the developmentally disabled from sexual exploitation, when there is evidence the victim lacked the ability to consent, do not violate a defendant’s right to privacy.id: 24163
Defendant could not be convicted of both continuous sexual abuse and intercourse with a child for conduct that occurred during the same time period.Defendant was charged with continuous sexual abuse of a child in violation of Penal Code section 288.5 and sex with a child under 10 in violation of section 288.7. However, the prosecution was statutorily prohibited from charging both counts in a manner that led to dual convictions for conduct that occurred during the same period. id: 24148
Defendant was properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person based on the same act. A defendant may, consistent with Penal Code section 954, be convicted of both oral copulation of an unconscious person (Penal Code section 288a, subd.(f) and oral copulation of an intoxicated person (section 288a, subd.(i)) based on the same act. The statutes describe different offenses and defendant can be convicted of both, although not punished for both.id: 23841
Evidence did not support the convictions for sexual battery by fraud against two victims who knew defendant was sexually motivated when he touched them.Defendant lured women into his beauty salon after hours by promising facial treatments, but he then switched to “European massage” that resulted in vaginal touching. He was convicted of four counts of sexual battery by fraud. The evidence supporting his convictions involving two of the women who were tricked into believing defendant was conducting an accepted massage practice. However, the evidence did not support the convictions involving two women who clearly knew defendant’s actions were sexually motivated but remained on the table due to the fear of consequences. Those two convictions were reduced to the lesser included offenses of misdemeanor sexual battery.id: 23634
Defendant was properly convicted of contacting a minor to commit sexual penetration where the 16 year-old victim lived in Indiana and the two engaged in online cybersex.Defendant was convicted of violating Penal Code section 288.3, which prohibits contacting a minor for purposes of committing various crimes including sexual penetration with a person under 18. Defendant was 59 and the victim was 14 when they met online (he pretended to be 16) and they began having cybersex (watching pornography together online and masturbating) when she was 16. He was in California and she was in Indiana. He argued she was not a minor because the age of consent in Indiana is 16. However, the victim’s age under California law controls. Moreover, defendant could be found to have intended sexual penetration even though he was thousands of miles away. Finally, the conviction did not violate the intent of Prop 83 which was to protect California minors.id: 23688
California’s incest prohibition does not violate a defendant’s right of liberty under the 14th Amendment.Defendant was convicted of incest and assault arising from a sexual encounter with his sister. He argued the incest statute, Penal Code section 285, violates the right of liberty under the due process clause of the 14th Amendment by criminalizing consensual sexual activity between adults. His argument was based on Lawrence v. Texas (2003) 539 U.S. 558. However, California’s interest in protecting the integrity of the family unit and protecting against inbreeding are sufficiently important to justify section 285's incest prohibition.id: 23152
Defendant who was charged with rape of an unconscious person was not entitled to an instruction on his good faith, but mistaken belief that the victim had consented to the intercourse.Defendant was convicted of the rape of an unconscious woman. He argued the trial court erred by failing to instruct on mistake of fact regarding the issue of consent. However, consent is not an issue for this crime and defendant was not entitled to the instruction. id: 23031
“10 years of age or younger” as described in section 288.7 is another way of saying “under 11 years of age.” Penal Code section 288.7 makes it a felony punishable by an indeterminate life term, for any adult to engage in specified sexual conduct “with a child who is 10 years of age or younger.” That phrase includes children younger than 10 years of age and children who have reached their 10th birthday but who have yet reached their 11th birthdayid: 22691
Violations of section 288, subd.(a) based on generic testimony may be charged along with a violation of section 288.5 where the abuse continues beyond the three month period.Defendant argued that he could not be convicted of continuous sexual abuse (Penal Code section 288.5) and three counts of lewd acts (section 288, subd.(a) based on generic testimony that described a single continuous course of conduct against a single victim. However, there was only one count of continuous sexual abuse. Violations of section 288, subd.(a) based on generic testimony may be charged in addition to a violation of section 288.5 where the abuse continues beyond the three month period required for a conviction under section 288.5. id: 22811
Penal Code section 288.3, which prohibits contacting minors to commit a sex offense does not violate free speech or freedom to travel rights.Defendant was convicted of contacting or communicating with a minor with the intent to commit an enumerated offense in violation of Penal Code section 288.3, subd.(a). The provision does not violate a defendant’s First Amendment right of free speech because the only time a communication is criminal is when it is motivated by an intent to commit a sex crime. It does not restrict defendant’s freedom to travel as it restricts movement only to the extent that movement involves contact with a minor. Moreover, the provision is not vague, and does not violate equal protection or the single subject rule.id: 22353
Consent of the victim is not a defense to the crime of aggravated lewd acts on a child under 14.Defendant was convicted of committing lewd acts against two children under the age of 14 by the use of force or duress, in violation of Penal Code section 288, subd.(b)(1). The Court of Appeal erroneously found that consent is a defense to an aggravated lewd act because consent is logically inconsistent with the perpetrator’s use of force or duress. However, a victim’s consent is not a defense to the crime of lewd acts on a child under 14 under any circumstances.id: 22004
Penal Code section 288.5, which defines a continuous course of conduct offense does not violate a defendant’s right to a unanimous jury verdict.Defendant argued that Penal Code section 288.5, which defines a continuous course of conduct offense, violates his right to a unanimous jury verdict. However, the Legislature’s decision to dispense with the unanimity required for the three predicate acts is not unconstitutional, and neither does the continuous course of conduct exception violate Apprendi v. New Jersey (2000) 530 U.S. 466. id: 21447
Lewd conduct under section 288 is not a necessarily included offense of either rape or sodomy, which require only a general intent.Defendant argued he could not be convicted of lewd or lascivious conduct under Penal Code section 288 absent evidence separate from, and independent of, the evidence of rape and sodomy. However, lewd conduct with a child is not a lesser included offense of either rape or sodomy, which require only a general intent. A conviction for lewd conduct can be obtained at trial and upheld on appeal by the same evidence used to show the defendant raped and sodomized the child.id: 18379
The trial court erred in instructing the jury that "hardship" may be a form of "duress" for purposes of forcible sex offenses.Defendant was convicted of multiple counts of forcible oral copulation and forcible digital penetration against two victims. Both convictions require proof that the acts were accomplished by duress or another listed form of unlawful pressure. The trial court erred in instructing that "duress" may be based on the threat of hardship to the victim and her family. The Legislature previously removed "hardship" from the definition of duress. Including hardship in the definition of duress was prejudicial in light of the prosecutor's emphasis on "hardship" in her closing argument.id: 16574
Evidence of sexual misconduct against an uncharged victim, standing alone, may constitute sufficient corroboration under section 803, subd.(g).Penal Code section 803, subd.(g), permits the filing of a section 288 charge after the expiration of the six year statute of limitations if 1) the filing occurs within one year of the victim's report of the crime to law enforcement, 2) the crime involves "substantial sexual conduct", and 3) there is independent evidence that clearly and convincingly corroborates the victim's allegation. Evidence of defendant's sexual misconduct against an uncharged victim, standing alone, may constitute sufficient corroboration.id: 16489
Section 803, subd.(g) which extends the statute of limitations in certain sex cases is an exception to section 805.5, and applies to molestations which occurred before 1985.Defendant was charged with child molestations allegedly committed between 1955 and 1973. The question was whether the Legislature's expressed intent to apply Penal Code section 803, subd.(g) to offenses committed before 1994 and to "revive any cause of action barred by section 800 or 801" allows the prosecution for offenses committed between 1955 and 1973. Defendant argued that section 805.5, subd.(c)(1) makes section 803, subd.(g) inapplicable to crimes for which the statute of limitations expired before Jan. 1, 1985. However, section 803, subd.(g) is an exception to section 805.5 and is not governed by it.id: 16571
The child molest prosecution was timely under section 803, subd.(g) even though charges were filed more than one year after the report to the victim's counselor as required under section 803, subd.(f).Defendant was convicted of committing a lewd act on a child. The case was prosecuted under the extended statute of limitations established by Penal Code section 803, subd.(g). Defendant claimed the action was not filed within one year of the victim's report to her clinically licensed social worker as required by section 803, subd.(f). He claimed that because the social worker was a responsible adult within the meaning of section 803, subd.(f) that limitations period was triggered and the charge had to be brought within one year. However, if, as in this case, an action is timely under section 803, subd.(g), it does not matte that it would be untimely under section 803, subd.(f).id: 17020
Section 803, subd.(f) exception to statute of limitations in molest cases requires, among other things, proof by a preponderance, that a 288 offense was committed in the six year limitations period. In order to invoke the Penal Code section 803, subd.(f) exception to the six year statute of limitations in child molest cases, the state must prove by a preponderance of the evidence that the defendant committed at least one Penal Code section 288 offense within the six year limitations period. The record contained overwhelming evidence that defendant committed hundreds of acts described by the victim with the requisite intent during the relevant time period.id: 16825
Information was not facially deficient in charging molest offenses where the record showed they were either committed within the statutory period or fell within the section 803, subd.(f) exception. Defendant argued the accusatory information charging counts 3-17 was deficient on its face for failing to show the charged child molest acts occurred within the six year statute of limitations. However, the record showed that none of the 15 charged offenses were time-barred, either because they occurred within the statutory period set forth in Penal Code section 800 or because they fell within the exception set forth in Penal Code section 803, subd.(f).id: 16824
Refiling of previously dismissed child molest charge under 1996 amendment to section 803, subd.(g) did not violate separation of powers doctrine since the dismissal had not become a final judgment before the refiling provision became effective.In 1994, the Legislature enacted Penal Code section 803, subd.(g), in an attempt to revive an expired statute of limitations for certain sex offenses committed against minors. In 1996 and 1997, section 803, subd.(g), was amended to authorize in certain circumstances the filing of a molestation charge even where an accusatory pleading charging the same offense was previously dismissed as time-barred by the courts. The refiling legislation cannot be applied retroactively to reopen court cases that had already been dismissed, if the dismissals had become final judgments before the refiling provision became effective. In the present case, the reinstituted complaint satisfied the requirements of the 1996 refiling provision that was already in effect when the Court of Appeal finally upheld the prior dismissal. Hence the prosecution was not barred by the separation of powers doctrine.id: 16620
Because sexual battery is not a lesser included offense of sexual battery by fraud, the trial court exceeded its jurisdiction by modifying the verdict to the former after finding the elements of the latter were not proven.Defendant was a medical doctor who was convicted of sexual battery by fraudulent representation (Penal Code section 243.4, subd.(c)) following a medical examination of an office assistant which involved inappropriate conduct. The trial court later found the conviction was “contrary to law” because defendant’s misrepresentation to the victim did not involve the touching used by the prosecutor to convict defendant. The trial court then modified the verdict to reflect the lesser included offense of sexual battery under section 243.4, subd.(e)(1). However, the trial court lacked jurisdiction to convict defendant of sexual battery because it was not a lesser included offense of the charged offense.id: 20835
The trial court could not grant probation under section 1203.066 which requires a finding that it be in the best interest of the child molest victim where the victim was no longer a child at the time of the sentencing.Defendant pled guilty in 2006 to charges of child molest against the daughter of his live-in girl friend in 1995. The victim was 11 years old at the time of the offenses. Defendant argued for probation under Penal Code section 1203.066, but the request was denied since the trial court could not find it would be in the "best interests of the child" who was now 22 years old. Defendant argued the probation analysis should focus on whether it would have been in the victims's best interest at the time of the offense, in 1995. However, the court found that it could not grant probation in a case where the molestation victim was no longer a child at the time of sentencing.id: 20105
The prosecutor was not required to accept defendant's offer to stipulate that he had suffered a conviction that subjected him to the section 290 requirements.Defendant was charged with failing to register as a sex offender. He sought to exclude evidence of the nature of his prior conviction by offering to stipulate that he had a conviction which subjected him to the registration requirement. He argued his status as a sex offender was thereafter irrelevant. However, the prosecutor was not required to accept the stipulation. While the jury need not be informed of defendant's specific sex offense conviction, it was entitled to know defendant's duty to register derived from his status as a sex offender.id: 18455
Failure to register as a sex offender is a felony not a wobbler.Defendant pled guilty to failure to register as a sex offender pursuant to Penal Code section 290, subdivision (f). Contrary to defendant's claim, the offense is not an alternative felony - misdemeanor ("wobbler"), but, rather, is a straight felony.id: 9959
Once the section 290.3 sex offender fine is imposed the court must also impose the section 1464 and Government Code section 76000 penalty assessments.Defendant was convicted of several sex offenses. He was sentenced to prison, and the court additionally imposed a Penal Code section 290.3, subd.(a) sex offender fine. Once the sex offender fine was imposed, the trial court was duty bound to impose the additional section 1464, subd.(a) and Government Code section 76000, subd.(a) penalty assessments. The failure to impose the penalty assessments was jurisdictional error which could be raised for the first time on appeal.id: 17821
Supreme Court strikes down Texas law prohibiting sexual intimacy by same-sex couples.By a 6-3 vote, the Supreme Court overruled Bowers v. Hardwick, 478 U.S. 186 (1986), and held that the Constitution bars a state from criminalizing consensual sexual intimacy between members of the same sex. Five members of the Court agreed that the Texas "Homosexual Conduct" law violated the substantive due process guarantee. Justice O'Conner found that the statute violated the Equal Protection Clause.id: 20151
Supreme Court finds that Alaska's Megan's Law does not violate Ex Post Facto ClauseAlaska's Sex Offender Registration Act requires a sex offender who lives in that state to provide the authorities with his address and other information. Some offenders must update the information yearly for 15 years; more serious violators have a lifetime registration requirement and must update the information every quarter. The information is maintained in a central registry, and much of it is published on the Internet. The Act's requirements apply retroactively to all sex offenders, and failure to register is a criminal offense. In Doe v. Otte, 259 F.3d 979 (9th Cir.2001), the Ninth Circuit held that the Act's effects were punitive and that its application to sex offenders who committed their offenses before the Act's passage violated the Ex Post Facto Clause. In a 6-3 decision, the Supreme Court reversed, finding that the Act creates a nonpunitive regulatory scheme and therefore does not implicate the Ex Post Facto Clause.id: 20150
Supreme Court holds Megan's Law does not deprive non-dangerous sex offenders of due process.The Second Circuit held that Connecticut's Megan's Law deprived non-dangerous convicted sex offenders of a liberty interest by requiring them to register and then publishing their names without giving them an opportunity to show that they are not currently dangerous. The Supreme Court unanimously reversed. In an opinion joined by seven other justices, the Chief Justice held that because the registry requirement is triggered by a sex offender's conviction, and not by a finding of dangerousness, the State need not give the offender an opportunity to prove that he is not dangerous.id: 20149
The trial court did not err in preventing the defense from asking whether the witness involved in reporting the child molestation had a morbid fear of sexual matters. In a child molestation case, the trial court was not required to allow the defense to inquire into whether a witness who was involved in the reporting of the molestation had a morbid fear of
sexual matters. The defense had hoped to use this questioning to establish the adult witness had influenced the child to falsely report the child molest incident. While earlier case law permitted such questioning, it was based on attitudes and assumptions that have since been discarded or disapproved. The trial court did not abuse its discretion in preventing this questioning.id: 19839
For purposes of Penal Code section 288, subd.(b)(1), the term "duress" continues to include the threat to inflict "hardship."The 1993 amendments to the rape and spousal rape statutes to delete the term "hardship" from the definition of "duress" in rape, and incorporate that definition into spousal rape did not alter the previously existing judicial definition of the term "duress" as used in Penal Code section 288, subd.(b)(1), which did, and continues to, include a threat of hardship.id: 18024
Sex offender registration requirement is not cruel or unusual as applied to misdemeanor possession of child pornography since the requirement is not regulatory and does not constitute punishment.Defendant argued that California's law requiring lifelong registration as a convicted sex offender constitutes cruel or unusual punishment under the California Constitution as applied to a person convicted of the misdemeanor of possession of child pornography as a first offense. (Penal Code section 311.11, subd.(a).) However, registration for convicted sex offenders is not a punitive measure subject to either state or federal proscriptions against punishment that is cruel and/or unusual. The holding in In re Reed (1983) 33 Cal.3d 914, that the registration requirement is cruel or unusual as applied to the misdemeanor of engaging in or soliciting prostitution under Penal Code section 647, subd.(a) is overruled. id: 17961
Defendant was properly sentenced under both the habitual sex offender law and the one strike law.Defendant argued the trial court, after sentencing him under the habitual sexual offender law (Penal Code section 667.71) had to strike the finding under the one strike law (section 667.61). People v. Snow (2003) 105 Cal.App.4th 271, supports this position. However, the court declined to follow Snow and held the one strike law finding must stand because 1) it is not inconsistent with sentencing under the habitual sex offender law, and 2) in the event the habitual sex offender law finding is subsequently invalidated, it facilitates sentencing under the one strike law.id: 17916
Defendant entered an inhabited dwelling house for purposes of the child molest statute even though he did not proposition the minor until he was out on the front porch.Defendant was convicted of felony child molestation under Penal Code section 647.6, subd.(b). That provision applies to offenders who enter an inhabited dwelling house without consent. Defendant argued the provision did not apply to him since he withdrew to the house's front porch before propositioning the minor. However, the defendant who entered the dwelling without consent could not escape punishment simply because he lured the victim outside the four walls of the house and onto the front porch.id: 17867
Trial court did not err in excluding evidence of child molest victim's prior sexual contacts because the incidents were dissimilar to the charged offenses and likely to confuse the jury.Defendant was convicted of two counts of lewd conduct with a child under Penal Code section 288, subd.(a), and one count of possessing child pornography under section 311.11, subd.(a). He argued the trial court erred in excluding evidence of the child victim's other sexual contacts because those contacts were relevant to the child's "knowledge" of an erect penis. However, the prior contacts were dissimilar to the charged crimes. Because the relevance of the prior incidents was minimal, and the risk of confusing the jury was so palpable, the court did not err in excluding the evidence.id: 17771
Continuous sexual abuse of a child is an offense covered by Welfare and Institutions Code section 707, subd.(b).The minor argued the juvenile court erred by finding his continuous sexual abuse of a child (Penal Code section 288.5, subd.(a)) was an offense covered by Welfare and Institutions Code section 707, subd.(b). The juvenile court was entitled to look beyond the pleadings to the facts in makings its section 707 determination. The evidence showed the minor's repeated assaults on his niece constituted forcible rape, which is listed as a section 707, subd.(b) offense. That a portion of the offense was committed before the minor was 16 did not remove it from section 707, subd.(b) since at least two months of the continuous sexual abuse occurred when he was 16.id: 17775
Indecent exposure conviction was valid even though no one actually saw defendant's genitals.Defendant's conviction for indecent exposure under Penal Code section 314, subd.(1) was valid even though there was no evidence that anyone actually saw his naked genitals. The evidence established that defendant exposed himself in the presence of others. Visual observation of the exposed genitals is not an element of the offense. Moreover, the trial court did not err by refusing to give a special instruction defining exposure of one's person as the display of the person's naked genitalia.id: 17685
Evidence supported the charges that defendant aided and abetted her boyfriend in molesting her daughter as she stood next to the bed and allowed it to happen.Defendant's boyfriend was charged with molesting defendant's five year-old daughter. Defendant was also charged as an aider and abettor. The trial court erred in granting the Penal Code section 995 motion to dismiss the charges against defendant. She had knowledge of the event as she stood next to the bed when the boyfriend was touching the girl's vaginal area under the sheets. Moreover, she had a duty to protect her daughter from the molestation, and by watching it happen, she encouraged the crime.id: 17679
Defendant may be convicted of sex crimes against the mentally disabled, where despite the victim's youth, he or she was unable to give consent due to the mental impairment.Defendant was charged with several counts of oral copulation of a person incapable of giving consent because of a mental disorder or physical disability under Penal Code section 288a, subd.(b). The charges all arose from conduct with a 14 year-old who suffered from a degree of mental impairment. The trial court dismissed the information after concluding the minor's consent was lacking because he was a minor, not because he had a mental disorder. The court's ruling was erroneous where the evidence showed that, regardless of the victim's age, he was unable to give consent due to his disability and defendant knew, or should have known this.id: 17432
Assault with intent to commit rape, sodomy or oral copulation under section 220, though not specifically listed, requires an enhancement under section 12022.3.Defendant was convicted of assault with intent to commit rape, sodomy, or oral copulation under Penal Code section 220, He argued the trial court improperly enhanced his sentence under Penal Code section 12022.3 because section 220 was not specifically listed in that section. However, section 12022.3 provides for a sentence enhancement for an attempt to commit rape, sodomy or oral copulation. Since an assault is defined as an attempt coupled with the present ability to commit a violent injury, defendant's violation of section 220 translates into an attempt to commit rape, sodomy or oral copulation for which section 12022.3 requires an enhancement.id: 17363
The "reasonably should have known" language in the rape of an intoxicated person provision did not render the statute void for vagueness.Defendant was convicted of the rape of an intoxicated person pursuant to Penal Code section 261, subd.(a)(3). He argued the provision is unconstitutionally vague because of the disjunctive "reasonably should have known" language. However, a jury can determine whether a defendant reasonably should have known that a person's level of intoxication was such as to prevent him or her from resisting an act of sexual intercourse. This is especially true in light of the common indications of intoxication - odor of alcohol, slurred speech, and unsteadiness.id: 17145
Instruction on rape of an intoxicated person does not allow a conviction on the basis of civil negligence.Defendant was convicted of rape of an intoxicated person under Penal Code section 261, subd.(a)(3). He challenged the accompanying CALJIC instruction (10.02) arguing the "reasonably should have known" language impermissibly allowed the jury to convict him on the basis of civil negligence without a finding of criminal culpability. However, rape of an intoxicated person is a general intent crime and the jury was instructed that defendant was required to commit an intentional act, in other words, mere negligence would not suffice. In addition, section 261, subd.(a)(3) uses a criminal negligence standard rather than a civil negligence standard on the accused's knowledge of the victim's disabling intoxication.id: 17146
Affidavit in support of a search warrant to test a defendant's blood for HIV may rely on hearsay.Penal Code section 1524.1, authorizes the court to issue a search warrant to test a criminal defendant's blood for HIV when certain sex offenses are charged. The warrant may be issued if, after considering supporting and rebutting affidavits and medical reports, the court finds probable cause to believe 1) the defendant committed the offense charged, 2) a body fluid capable of transmitting the virus has been transferred to the victim. Affiants may rely on hearsay in submitting an affidavit to obtain a section 1524.1 search warrant.id: 17104
Defendant cannot be convicted of continuous sexual abuse of a child under section 288.5 and specific sex offenses committed against the same victim in the same time period.A defendant cannot stand convicted of both a violation of Penal Code section 288.5 (continuous sexual abuse of a child) and of multiple counts of other specific felony sex offenses committed against the same victim and in the same time period as the section 288.5 count. The appropriate remedy for the failure to plead the offenses in the alternative, as required by subdivision (c) of section 288.5, was to reverse the conviction on the section 288.5 count.id: 17031
Court did not err in granting the prosecutor's motion to dismiss the continuous sexual abuse count and sentencing on the lewd conduct counts where the improper pleading could have been addressed by way of a demurrer.Defendant argued that by charging him and proceeding with the continuous sexual abuse count, the prosecutor was barred under Penal Code section 288.5, subd.(d) from obtaining the conviction of three lewd conduct counts because they were alleged in the alternative, were alleged and proven to have been committed during the same time period, and involved the same victim. He claimed the court erred in granting the prosecutor's motion to dismiss the continuous abuse count allowing the conviction and sentence on the lewd act counts. However, the impropriety of not charging the continuous abuse and lewd conduct offenses in the alternative appeared on the face of the record and should have been addressed by way of a demurrer. By failing to demur, defendant cannot later claim the prosecution lost its right to proceed on all counts and elect to seek conviction of the specific sexual offenses.id: 16954
Annoying or molesting a child provision is not overbroad since it is construed to apply only to sexual forms of expression.Defendant argued the offense of annoying or molesting a child under Penal Code section 647.6 is facially overbroad and violative of the First Amendment because it can be applied to nonsexual forms of expression. However, as judicially construed, the statute proscribes only that conduct, including speech, which is motivated by an abnormal sexual interest.id: 16545
Phrase "during the commission of a burglary" for the one strike law includes the time the burglar remains on premises after the entry and extends until he reaches a place of temporary safety.Penal Code section 667.61, the one strike law, mandates indeterminate life terms for those who, among other things, commit a rape "during the commission of a burglary". Defendant argued the rape occurred after the burglary since the burglary was complete the moment he entered the structure with the intent to commit a theft or other felony. However, the phrase "during the commission of a burglary" includes the period of time that a burglar remains on the premises after entry and extends until the burglar has reached a place of temporary safety.id: 16497
Trial court may not defer entry of judgment for a child molester absent the prosecutor's consent.A trial court may not defer entry of judgment for a child molester absent the prosecutor's consent. The statute which precludes a judge from doing so (Penal Code section 1000.12) does not violate the separation of powers doctrine.id: 16461
Evidence of rape victim's sexual encounter with a stranger on the night before the alleged rape was inadmissible to prove consent.Defendant was charged with the rape of a hitchhiker in his truck. The trial court did not err in denying defendant's new trial motion based on the discovery of another man who had sex with the victim the previous night in his car. The evidence fell within the prohibition of Evidence Code 1103 subdivision (b)(1), as evidence offered to prove consent. By tending to show the complaining witness' pattern of promiscuous behavior, it permits an inference that she consented to sexual activity on the occasion of the alleged offense.id: 16418
Under section 261 a rape is committed if a victim is forced to continue with sexual intercourse against her will.During deliberations, the jury sent a note stating "If, after penetrating, the female changes her mind and says 'stop' and the male continues, is this still rape?" In response to the inquiry the court instructed on rape in the language of the statute as set forth in CALJIC 10.00. And, the court emphasized that all of the elements of rape had to be present in order to make a finding of rape. The court's instruction was not improper.id: 15394
Evidence of uncharged sex offenses was properly admitted under section 1108 where the acts were not especially graphic and in light of their close resemblance and temporal proximity to the charged crimes.Defendant argued the court erred in admitting evidence of his uncharged sexual misconduct under Evidence Code section 1108, which permits evidence to establish criminal propensity. However, before such evidence may be introduced it must be admissible under section 352. Section 352 did not bar the evidence where the charged offenses were as graphic as the uncharged offenses. In addition, the uncharged acts had great probative value given their close resemblance and temporal proximity to the charged crimes.id: 15368
Evidence showed defendant had a diagnosed mental disorder for SVP purposes where his alcoholism caused him to lose control.Defendant argued there was insufficient evidence to show he had a "diagnosed mental disorder" under the Sexually Violent Predator law since the law requires evidence that a person lacks "volitional control." However, the evidence showed defendant suffered from paraphilia and that his alcoholism caused him to lose control, become dangerous to others, and become predisposed to act on his paraphiliac interests. Substantial evidence supported the court's determination.id: 15369
Fact that the prosecution could not prove the fictitious victims were under age 14 did not preclude conviction for attempting to seduce minors.Defendant was charged with multiple counts of attempting to seduce minors through Internet communications under Penal Code sections 664 and 288.2, subd.(a). The person with whom he was communicating was an adult who pretended to be the fictitious young victims. Defendant argued the evidence did not support the charges because the prosecution could not prove the intended victims were over 14 years old. However, if defendant had the intent to complete the offenses, the impossibility of doing so did not exonerate him from the attempt charges.id: 15370
Good-faith mistake about the victim's age is not a defense to a charge under section 288, subd.(c)(1).A reasonable, good-faith mistake about the age of a 14 or 15 year-old victim is not a defense to a charge under Penal Code section 288, subd.(c)(1) - lewd act upon a 14 or 15 year-old by a person at least 10 years older.id: 15372
Instructions taken from Evidence Code section 1108 do not lower the prosecution's burden of proving the current offenses beyond a reasonable doubt.Defendant was convicted of two counts of lewd acts with a child. At trial, the prosecution presented evidence of his prior sexual misconduct pursuant to Evidence Code section 1108. Contrary to defendant's claim, CALJIC Nos. 2.50.1 and 2.50.01 (which are based on section 1108) do not unconstitutionally lower the prosecution's burden of proving the current sex offenses beyond a reasonable doubt by permitting prior sex offenses (proved by a preponderance of the evidence) to show that he actually committed the current crime.id: 15373
Lack of actual consent is not an element of rape by intoxication.Because Penal Code section 261, subd.(a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication, the lack of actual consent is not an element of the crime. Therefore, the trial court properly denied the defendant's request for an instruction to the contrary.id: 15374
Mandatory consecutive sentencing provision of section 667.6, subdivision (d) applies to indeterminate sentences imposed under the one strike law.The trial court sentenced defendant to two terms of 25 years to life for the forcible, oral copulation of Jane Doe 1 and Jane Doe 2. However, the trial court erroneously concluded the mandatory terms of Penal Code section 667.6, subdivision (d) did not apply to indeterminate sentencing under section 667.61 (the one strike law) and imposed concurrent terms. The judgment was modified to provide consecutive life sentences.id: 15375
Masturbating the victim constituted mutual masturbation for purposes of the extended statute of limitations set forth in section 803, subd.(g).Defendant argued the extended statute of limitations under Penal Code section 803, subd.(g) did not apply to the masturbation alleged as to counts 2 and 3 because the provision expressly excludes "masturbation that is not mutual." However, defendant's act of masturbating the victim fell within the definition of mutual masturbation set forth in section 803, subd.(g), and thus qualify for the extended statute of limitations described in that section.id: 15376
Minor's age is only one factor to consider in determining whether he is capable of possessing the specific intent to arouse his sexual desires.The fact that the defendant is 11 years old is only one factor to consider in determining whether he is capable of possessing the specific intent to arouse his own sexual desires. Contrary to his claim, there was sufficient evidence that the minor possessed the requisite specific intent required under Penal Code section 288, subd.(a).id: 15377
Minors have no constitutionally protected privacy right to engage in consensual sexual intercourse.Penal Code section 261.5, subdivision (b), makes it a misdemeanor for "any person" to have sexual intercourse with a minor who is no more than three years older or younger than the perpetrator. The statute does not infringe upon a constitutional privacy right of minors to engage in consensual sexual intercourse. Moreover, the statute is not unconstitutional as applied to defendant who was a minor himself at the time of the offense, and therefore, an individual within the class of persons protected by the statute.id: 15378
Police reports summarizing expected testimony of prior sex victims constituted adequate notice under section 1108.Defendant argued that Evidence Code section 1108, subdivision (2) requires the prosecution to present a detailed statement of the substance of the witness' testimony that is expected to be offered. However, no such "detailed" statement of the proposed evidence is necessary. Instead, section 1108, subdivision (b) simply requires the prosecution to disclose the statements of witnesses or summarize the substance of any testimony expected to be offered. The police reports summarizing the expected testimony of the prior sex offense victims satisfied the prosecution's burden.id: 15380
Prior rape conviction under former statute was a qualifying prior under the SVP law.Defendant argued his 1974 conviction of rape by force under former Penal Code section 261, subdivision (3) could not be used at his Sexually Violent Predator trial because that former provision was not one of the qualifying offenses enumerated in section 6600, subdivision (b). However, the Legislature intended to include in section 6600 prior convictions which occurred before section 261 was amended to its current form but which described all the elements of an offense described by section 261, subdivision (a)(2). Moreover, defendant's 1976 Oklahoma conviction for rape was also a qualifying prior.id: 15381
Provision preventing expungement in child molest cases was not punitive and did not violate ex post facto principles.Defendant who was denied expungement of his conviction by an amendment to Penal Code section 1203.4, enacted after he pled guilty, was not subjected to an ex post facto law because the provision was not punitive in intent, nature or effect.id: 15383
Section 288.2 prohibits Internet communications intending to seduce a minor.Penal Code section 288.2, subd.(a), prohibits sending, by any means, specified harmful matter to a minor "with the intent or purpose of seducing a minor." The phrase "by any means" includes Internet communications.id: 15384
Sex Offender is required to register a second residence if he has one.Defendant was convicted of failing to register as a sex offender under Penal Code section 290. He argued the trial court's instruction imposed an additional obligation on him to report a second place of residence if he had more than one residence, because section 290 does not require registration of a second residence. However, based upon the intent and language of the statute, the instruction correctly stated that a defendant is required to register an additional place of residence if he has one.id: 15385
Withdrawal of consent nullifies the earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconcensual intercourse.The crime of forcible rape under Penal Code section 261, subd.9ap(2) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will.id: 15386
The fact that there was prior penetration with consent does not negate rape if the victim is forced to submit to continued intercourse after withdrawing her original consent.Following an inquiry from the jury, the court correctly instructed the jury that when a victim is forced to submit to continued intercourse for a period after she has revoked her original consent, the crime of rape is committed.id: 15388
A prosecutor may properly charge a separate offense that occurred one day after the alleged period of continuous sexual abuse.Under Penal Code section 288, a prosecutor need only allege the minimum period of time necessary to prove the elements of the offense. Given evidence showing a forcible rape on February 17, the prosecutor alleged a period of abuse through February 16, and the individual rape on February 17. This charging decision was not arbitrary or capricious. Moreover, defendant benefitted from the decision to allege a period of abuse much longer than necessary to establish continuous sexual abuse.id: 15356
Amended provision denying expungement to child molest convictions did not deprive defendant of the benefit of his plea bargain.Defendant argued the amendment to Penal Code sections 1203.4 which denies expungement to those convicted of violating section 288 deprived him of the benefit of his plea bargain. However, there was no express provision in the plea bargain which referred to expungement.id: 15357
Attempted sexual battery is not a lesser included offense of assault with intent to commit rape.Defendant argued his conviction of attempted sexual battery must be reversed because it is a necessarily included offense of assault with intent to commit rape, and a defendant cannot be convicted of both a greater and necessarily included offense. However, attempted sexual battery is not a lesser included offense of assault with intent to rape.id: 15359
Child molest charges were timely under section 803, subdivision (g) where the complaint was filed within a year of the time the conduct was reported.Penal Code section 803, subdivision (g) allows an otherwise time-barred action for sexual abuse to proceed if the prosecution files a criminal complaint within one year of the victim's allegation to the police. The case was certified to the superior court more than one year after the conduct was reported. However, because the complaint was filed less than one year after the victim reported defendant to the police, the action was timely under the express terms of section 803, subdivision (g). Moreover, contrary to appellant's claim, section 803, subdivision (g) does not only apply in cases where a defendant admits his guilt, even though some corroboration is required.id: 15361
Date of first e-mail transmission which began a five month period of contact demonstrated the charged offenses occurred within the limitations period.Defendant was charged with attempting to seduce minors through Internet communications. He argued the victim (the adult pretending to be the two young victims) did not identify the date of each Internet conversation and therefore there is no evidence of the time each offense occurred. However, the victim testified defendant's first e-mail contact was on September 6, 1997. This contact began a five-month period of e-mail contact and demonstrated the charged offenses occurred within the limitations period.id: 15364
Evidence of multiple sex acts against the victim's will satisfied the corpus delicti rule regarding the oral copulation charge despite the lack of semen found in the victim's mouth.Defendant argued the prosecution failed to establish the corpus delicti of oral copulation because no semen was found in the victim's mouth. However, the threshold of proof required to satisfy the corpus delicti rule is low. The evidence showed that multiple sex acts occurred and that the sex acts were committed against the victim's will. The circumstantial evidence was sufficient to satisfy the corpus delicti rule in relation to the oral copulation charge.id: 15367
Attempted forcible oral copulation is accomplished by a request for oral copulation along with the attempted or actual use of force.Defendant argued the evidence at the penalty phase was insufficient as a matter of law to establish defendant was guilty of attempted forcible oral copulation of June M. because the victim escaped from the car before any direct acts of the crime were demonstrated. However, a demand for oral copulation that follows or is accompanied by the actual or attempted use of force amounts to more than mere preparation.id: 15316
No ex post facto violation where abuse began before, but continued after the effective date of section 288.5.Penal Code section 288.5 provides that any person who resides with or has recurring access to a child under the age of 14, and who molests the child at least three times during a period of not less than three months is guilty of "continuous sexual abuse," a felony. When the sexual abuse begins before, but continues after, section 288.5's effective date, the abusive conduct falls within the statutory language and does not violate ex post facto principles.id: 15286
Provision reviving an expired statute of limitations period in child molest cases does not violate ex post facto principles.Penal Code section 803, subdivision (g) permits prosecution of alleged child molesters after the statute of limitations has expired in those cases, as long as the prosecution begins within one year of the complaint and there is corroboration of the alleged act. By its own terms, the new law applies whether the crime occurred before or after section 803, subdivision (g) became effective. Defendant argued the provision constituted an impermissible ex post facto law. However, the Court found the new expanded statute of limitations does not retroactively alter the definition of a crime or increase the punishment for the crime of child molestation.id: 15287
Provision prohibiting transmission of harmful matter in an attempt to seduce a minor does not violate the Commerce Clause.Penal Code section 288.2 prohibits sending, by any means, specified harmful matter to a minor for purposes of seduction. Defendant argued the provision violates the Commerce Clause by unduly burdening interstate commerce. However, the provision does not impose a burden upon any protected right of commerce, and its enforcement is not likely to burden interstate commerce.id: 15256
Statute prohibiting transmission of matters to minors for purposes of seduction prohibits activity rather than speech and does not violate the First Amendment.Penal Code section 288.2 prohibits sending defined harmful matters to minors for the purpose of seducing them. The provision does not violate the First Amendment because the person charged is not a "discourser" seeking merely to communicate indecency to other adults and innocently running afoul of an overbroad statute. Rather, the statute punishes those who seek sexual activity, and who have identified intended victims for pursuit and seduction.id: 15261
No equal protection denial in preventing expungement for child molesters while the procedure remains available to convictions involving other serous offenses.Defendant argued the amendment to Penal Code section 1203.4 which prevents expungement of child molest convictions denies equal protection of the law since people convicted of other heinous offenses, including murder, mayhem, and rape can still obtain the benefit of expungement. However, under the rational basis standard both the high rate of recidivism for child molesters and the particular interest society has in protecting its children justify the different treatment of those convicted of molesting children.id: 15275
Defendant convicted of filming sexual conduct with a minor for noncommercial purposes was subject to provision denying probation eligibility even though that provision did not apply to the greater offense of filming for commercial purposes.Penal Code section 1203.065, subdivision (a) expressly prohibits a grant of probation following a conviction of filming sexual conduct with a minor for a non-commercial purpose in violation of section 311.4, subdivision (c). However, there is no similar probation ineligibility for a conviction of filming such conduct for a commercial purpose. Defendant challenged the provision since it did not apply to the more serious offenses of commercial filming, which carried an increased sentence. The court found the provisions were unambiguous and not absurd (though perhaps unwise). It is up to the Legislature to consider deleting section 311.4, subdivision (c) from the list of offenses in section 1203.065, subdivision (a).id: 15159
"Sexual penetration" for purposes of section 289 refers to penetration of the external genitalia rather than penetration of the vagina.Defendant argued that "sexual penetration" under Penal Code section 289 requires penetration of the vagina. However, the definition of sexual penetration in section 289, subd.(k)(1) describes "penetration, however, slight, of the genital opening." This refers to penetration of the labia majora, rather than penetration of the vagina.id: 14842
A child who has a consensual sexual relationship with a parent is a victim and cannot be considered an accomplice to the parent's crime.A child under 18 who has an incestuous sexual relationship with an adult is a victim, not a perpetrator of the incest, and this conclusion applies even when the child consents to the sex. Therefore, a child in this situation can never be an accomplice, and accomplice instructions are not appropriate.id: 14843
Admitting hearsay statements of an alleged molest victim under age 12 did not violate defendant's right of confrontation where the circumstances provided sufficient indicia of reliability.Evidence Code section 1360 establishes a procedure whereby evidence of a statement made by a victim under the age of 12 that would otherwise be treated as hearsay may be admitted in criminal prosecutions for specified sex offenses if the trial court determines the circumstances provide sufficient indicia of reliability. In the present case, the victim's statements were spontaneously reported to her third grade teacher, and her level of knowledge of various sex acts pointed to personal knowledge and trustworthiness. Use of the section 1360 procedure did not violate defendant's right to confront and cross-examine the witnesses against him.id: 14844
Spousal rape victim's allegation was corroborated by defendant's violation of a domestic violence TRO, for purposes of provision extending the statute of limitations.Penal Code section 262, subd.(b) provides the six year statute of limitation of section 800 applies to the charge of spousal rape. The requirement that the rape be reported does not apply if the charge is corroborated by admissible independent evidence. Defendant argued the court erred in denying his motion to dismiss due to the lack of corroborating evidence. However, defendant's violation of a domestic violence restraining order was relevant to the charge of spousal rape and thus could be used under section 262, subd.(b) to corroborate his wife's allegations for purposes of proceeding with prosecution. Moreover, defendant's statement to the police also corroborated the allegation. He first denied the claim, but then admitted it claiming the act to be consensual. He therefore admitted the act of intercourse occurred and described the same location as his wife (a field). Moreover, the court did not err in failing to instruct the jury that it had to find the victim's testimony was corroborated since this was a legal question to be resolved by the trial court before trial.id: 14848
Use of a weapon after a series of sex crimes can properly be found to have occurred in the commission of the crimes under section 12022.3 and the one strike law if the defendant uses the weapon to maintain control of the victim.The jury found defendant, who wielded a knife against the victim after the sexual assaults were completed, used the weapon "in the commission of the offenses" within the meaning of Penal Code sections 12022.3, and 667.61, subd.(e)(4) (the one strike law). For purposes of these provisions, the use of a deadly weapon after the completion of sexual offenses, occurred "in the commission" of such offenses if the offenses posed a greater threat of harm because the defendant used a deadly weapon to threaten or maintain control over his victim.id: 14850
Sentencing under both the three strikes law and the habitual sexual offender statute did not violate section 654.A sentencing court should apply both the three strikes law and the habitual sexual offender statute in determining the sentence of a defendant who meets the criteria of both statutes.id: 14809
Child molest victim's complaint two months after the last act was admissible under the fresh complaint doctrine even though disclosure was elicited by questioning from an adult who witnessed the child's strange behavior.Defendant lived with his girlfriend and her minor daughter. After the cohabitation stopped the minor disclosed the fact that defendant had molested her on several occasions. The victim's complaint that acts of molestation had occurred was admissible under the fresh complaint doctrine even though the disclosure was elicited by questioning from an adult who observed the victim to be withdrawn and crying and asked what was wrong. Moreover, even though the complaint was made two months after the last act of molestation, it was fresh for purposes of the fresh complaint doctrine because the victim's delay in disclosing the molestation was reasonable under the circumstances.id: 13046
Expert testimony which assisted the jury in assessing the victim's credibility was admissible under section 801 subdivision (a).A school psychologist testifying for the prosecution stated that the victim had a learning disability which affected his ability to sequence events and put them in chronological order. The testimony concerning the extent of the victim's disabilities as established by the standardized tests was at the very least helpful to the trier of fact in assessing the victim's credibility and was admissible under Evidence Code section 801, subdivision (a).id: 13025
Provision allowing for support persons for sexual assault victims did not impermissibily suggest defendant was guilty before any evidence was taken.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand erodes the presumption of innocence because the presence of a support person suggests that the witness is too traumatized to face the defendant and the jury and testify without help because the crime really happened. However, the presence of a support person at the stand does not necessarily rob an accused of dignity or brand him or her with an unmistakable mark of guilt and does not deprive defendant of a fair trial.id: 12793
Slight evidence showed victim was alive during the intercourse which established the corpus delicti for rape.As evidence of rape the People showed spermatozoa present on victim's body, medical testimony that she was probably alive when stabbed, and medical testimony that she could have survived 10 minutes after being stabbed and beaten on the head. Only slight evidence is required to establish the corpus delicti which may be inferred from circumstantial evidence and the foregoing evidence was sufficient to support the finding of rape.id: 9996
Supreme Court upholds requiring defendant to give notice of defense evidence under rape shield law.Michigan's rape shield statute prohibits a defendant from producing, at trial, evidence of an alleged rape victim's past sexual conduct. However, the statute permits a defendant to introduce evidence of his <i>own</i> past sexual conduct with the victim, if he files a written motion and offer of proof within ten days after he is arraigned. The trial court may then hold an <i>in camera</i> hearing to determine whether the proposed evidence will be admitted. The Michigan Court of Appeals struck down the notice-and-hearing requirement, ruling that it was a <i>per se</i> violation of the Sixth Amendment. In a 7-2 opinion written by Justice O'Connor, the Supreme Court reversed, holding that a <i>per se</i> prohibition against enforcing notice requirements by precluding evidence could not be squared with <i>U.S. v. Nobles</i>, 422 U.S. 225 (1975), and <i>Taylor v. Illinois,</i> 484 U.S. 400 (1988), which upheld orders precluding a defendant from presenting evidence where he had not complied with a pretrial discovery request. The case was remanded to the Michigan Court of Appeals to determine whether or not preclusion was justified in this <i>particular</i> case. Justice Blackmun concurred in the judgment, and Justices Stevens and Marshall dissented.id: 9998
Testimony on child sexual abuse accommodation syndrome was admissible on the issue of delay in reporting the incidents.The trial court, after hearing victim's testimony and arguments concerning the propriety of testimony on child sexual abuse accommodation syndrome, limited the psychologist's testimony to be used to rehabilitate the victim's credibility insofar as it is related to his delay in reporting the incidents. The court instructed that the expert may present that evidence only by rendering his opinion of victims as a class and not to this victim in particular. The expert's testimony did not exceed these boundaries.id: 9999
The AIDS testing mandate of section 1202.1 applies to a conviction under section 288.5 based on multiple acts of lewd conduct under section 288.The AIDS testing mandate of Penal Code section 1202.1 applies to a conviction under section 288.5 based on three or more acts of lewd or lascivious conduct under section 288. Moreover, the AIDS testing mandate is not punishment and such testing is not barred under either the proscription against ex post facto laws or Penal Code section 3, which provides that no part of the code is retroactive unless expressly so declared.id: 10001
The probability that an undefined sex act may occur in the same transaction as the defined sex act did not insulate the defined sex act from separate punishment.Defendant argued that touching of the young victim's penis was done to facilitate the oral copulations and sodomies that followed shortly thereafter. Therefore, he claimed the trial court violated Penal Code section 654 by sentencing him for the undefined lewd acts (touching the penis) as well as the defined lewd acts (oral copulation and/or sodomy). However, the court found that the touching of the victim's penis was not merely incidental to or facilitative of the later acts. Therefore, the prohibition against multiple punishment for the same act did not apply.id: 10002
The term sexual organ in section 288a, the oral copulation statute, includes a man's scrotum as well as his penis.Penal Code section 288a defines oral copulation as the act of copulating the mouth of one person with the sexual organ or anus of another person. Defendant's act of forcing the victim to lick his scrotum constituted forced oral copulation under section 288a.id: 10003
The substantial sexual conduct means of violating the resident child molester statute does not require a specific intent to arouse.Defendant was convicted of being a resident child molester under Penal Code section 288.5. He argued a violation of section 288.5 by means of substantial sexual conduct requires the same specific intent as a violation of section 288. However, the substantial sexual conduct means of violating section 288.5, does not require the specific intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the perpetrator or the child.id: 10005
Traditional definition of lewd act - any touching with specific intent - is legally correct.Prior to 1993, the definition of a lewd act for purposes of Penal Code section 288 has been touching, innocuous or not, coupled with specific intent. In <i>People v. Wallace</i> (1992) 11 Cal.App.4th 568, the court found the act itself need be lewd. The 1993 CALJIC reflected the new definition. The trial court in the instant case rather than selecting one definition presented both to the jury. Defendant argued this was erroneous because the jury may have convicted defendant based upon the traditional improper definition. However, the Court of Appeal found the traditional definition is legally correct. While the court should not have presented two definitions of lewd act to the jury, the conviction could not have been based on a legally erroneous theory.id: 10008
Trial court did not prejudicially err in excluding testimony of a psychotherapist that the child molest victim was lying.The trial court did not prejudicially err in excluding testimony of a family psychotherapist that the alleged child molest victim was lying. While expert opinion in this area is admissible on the issue of the victim's ability to tell the truth, defendant's offer of proof was narrowly directed to the truth of the allegation and the court had no discretion to admit the evidence. Moreover, the court did not err in finding the psychotherapist-patient privilege required exclusion of the evidence. Since evidence of the victim's emotional state was before the jury, and the expert's testimony would have been substantially cumulative, the evidence was not of such value or importance that it could outweigh the psychotherapist-patient privilege.id: 10009
Trial court had no duty to define the term residence for purposes of re-registering as a sex offender after residence change.Defendant was convicted of failing to re-register as a sex offender, within 10 days of an address change, in violation of Penal Code section 290, subdivision (a)((g)(2). He argued the trial court erred by failing to define the term residence. However, the term residence as used in section 290 is not synonymous with the term domicile and the court had no duty to define the term. The trial court did agree to define residence while deliberations continued, but the jury reached a verdict before a definition was fashioned. Contrary to defendant's claim, Penal Code section 1138 did not require that deliberations stop while the parties agreed on the appropriate definition and defendant waived any error by failing to object to continued deliberations.id: 10011
Trial court may consider defendant's prior prison term as an aggravating factor at sentencing on a child molest conviction under section 647.6 where the same prior elevated the current offense to felony status.Defendant pled guilty to a felony violation of Penal Code section 647.6, child molest with a prior conviction under section 288, subdivision (a). At sentencing on a violation of section 647.6, the trial court may use defendant's service of a prior prison term as a factor in aggravation of the base term when that prison commitment resulted from the same prior which elevated the current offense to felony status. <i>People v. Jones</i> (1993) 5 Cal.4th 1142 does not abrogate California Rules of Court, rule 421(b)(3) when the prior prison term considered is part of the sentence-elevating prior offense.id: 10012
Victim's accusation of molestation for each day of a stated period gave defendant sufficient notice of the basis of the charges.The trial court erred in dismissing all but two counts of the 145 count information in the resident child molester case. The victim testified to a daily practice of molestation over a defined period of time (namely, from the time her family moved to Saratoga until November, 1986). This testimony was specific and gave defendant notice of the basis of the charges.id: 10013
Violation of a position of trust is a proper aggravating factor in a resident child molestation case.Defendant argued that in a resident child molestation case, the occupation of a position of trust is a factor which is present in virtually all cases. Consequently, it is not a factor which makes this particular case distinctively worse than the average case of resident child molestation and the court erred in using it as the single aggravating factor. However, since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such sentencing factor is not an element of the crime and may be used in aggravation.id: 10014
Misdemeanor sexual battery under section 243.4, subdivision (d) does not require actual contact with the skin.Defendant was convicted of violating Penal Code section 243.4, subdivision (d), which defines misdemeanor sexual battery. He argued the evidence did not support the conviction because the alleged touchings did not involve contact with his or the victim's skin. However, unlike section 243.4, subdivisions (a), (b), and (c), subdivision (d) does not require actual contact with the skin.id: 9973
Multiple child molest counts were properly charged separately where they were not preparatory to or necessarily associated with the other charged acts.Pursuant to a proper search, the police found a videotape of defendant molesting an 11 year-old boy. The defendant was charged with 30 counts of Penal Code section 288, subdivision (a), based upon acts committed on the videotape. The acts included kissing, sodomy, oral copulation and masturbation. Defendant argued that certain of the counts were incidental to others and the People therefore improperly divided a single crime into multiple offenses. However, the record showed all acts were separate and not preparatory to or necessarily associated with any of the other charged acts. Moreover, separate punishment was not improper where none of the acts were necessary for, or incidental to, any of the others.id: 9974
Neither battery nor misdemeanor child molestation are necessarily included lesser offenses of lewd conduct upon a minor.Penal Code section 288(a) proscribes the touching of a child with a lustful intent. Battery, while lacking the elements of age and lustful intent, adds the element of force to the nature of the touching, and therefore is not a necessarily included offense within section 288(a). Likewise, misdemeanor child molestation under section 647.4 requires neither touching nor a lustful specific intent and provides the additional element that the child can be between the ages of 14 and 18. Section 647.6 is therefore not a necessarily included lesser offense of section 288(a).id: 9975
One can commit the crime of attempted child molestation by speaking to the victim over the telephone.Defendant argued the evidence was insufficient to support the crime of attempted child molestation because he committed the acts over the telephone and was not present to see the victim. However, defendant's physical presence was unnecessary to commit the offense. Defendant called the victim and ordered him to commit lewd acts. This went beyond mere preparation with the intent to commit the offense.id: 9976
Penetration by foreign object statute includes acts defendant forces the victim to perform.While undressing, defendant directed the victim at gunpoint to lie down on the blanket, insert two fingers of one hand in her vagina, and a finger from her other hand in her anus. Defendant argued this conduct did not establish penetration by a foreign object pursuant to Penal Code section 289, subdivision (a). However, section 289, subdivision (a) contemplates the punishment of a defendant who forces a victim to penetrate the victim's own anus or genitals.id: 9977
Person who commits sodomy on a child can be convicted of both sodomy and lewd conduct.A defendant who commits an act of sodomy on a child can be convicted of both sodomy under Penal Code section 286, subdivision (c) and lewd and lascivious conduct under section 288, subdivision(a).id: 9979
Physician's testimony that vaginal adhesions may have been caused by sexual abuse established the corpus delicti of the child molest offenses.Defendant who was charged with molesting a young girl argued there was insufficient evidence of the corpus delicti as to the ten offenses and consequently the court erred in admitting his extrajudicial inculpatory statements. However, a physician testified as to adhesions in the minor's vaginal area and that the size of her hymen was in the upper normal range for her age. He testified these factors were consistent with her being a victim of repeated sexual abuse. This testimony was sufficient to establish the corpus delicti for the offenses.id: 9980
Prior felony indecent exposure conviction can be proven in open court if it is an element of the charged felony.Pursuant to Penal Code section 314, the crime of indecent exposure is elevated from a misdemeanor to a felony upon the second and each subsequent conviction. Defendant in the instant case was charged with section 314 and he had also suffered prior felony and misdemeanor indecent exposure convictions. If, as here, the prosecution charges the prior felony conviction, then Article 1, section 28(f) of the California Constitution (allowing proof of the priors in open court), is applicable when the charged prior felony is an element of the current felony offense.id: 9981
Procedure allowing support persons for sexual assault victims was not an impermissible infringement on the confrontation clause.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand violates a defendant's right to a fair trial by interfering with his right to confront witnesses. He claimed the provision singles out one class of witness, prosecuting witnesses, for special treatment and the special treatment injects into the trial extra-evidentiary factors that skew the truth-finding process. The court found the procedure has an effect on jury observation of demeanor. However, not all infringements on the confrontation clause are impermissible. In light of the valid state concern for minor witnesses, it is much less intrusive on the jury's ability to observe the witness' demeanor to have the witness accompanied at the stand than to have him or her testify via closed circuit television or some other means.id: 9982
Prosecuting resident child molester based on continuous sexual abuse of a child is not unconstitutional.In 1989 the Legislature enacted Penal Code section 288.5 in response to the problems of prosecuting the so-called resident child molester. The provision defines the continuous sexual abuse of a child under 14 years of age as a crime. Defendant argued the provision violated due process principles. However, the Legislature has the prerogative to proscribe a course of conduct, rather than specific acts. The three-act requirement sets a baseline for the crime of continuing sexual abuse, making clear that a defendant may not be convicted of that crime without substantial evidence that he engaged in a repetitive pattern of abusive acts.id: 9983
Provision allowing for support persons for sexual assault victims did not impermissibily suggest defendant was guilty before any evidence was taken.Defendant argued that Penal Code section 868.5 which allows a support person to accompany a sexual assault victim to the witness stand erodes the presumption of innocence because the presence of a support person suggests that the witness is too traumatized to face the defendant and the jury and testify without help because the crime really happened. However, the presence of a support person at the stand does not necessarily rob an accused of dignity or brand him or her with an unmistakable mark of guilt and does not deprive defendant of a fair trial.id: 9984
Provision in resident child molester statute dispensing with the need for jury unanimity on the identity of the specific criminal act is not unconstitutional.Defendant was convicted of being a resident child molester under Penal Code section 288.5. He argued that subdivision (b) of the statute is unconstitutional because it permits conviction upon a finding of three acts without requiring the jurors to unanimously agree on the same three acts. However, subdivision (b), which expressly dispenses with the need for juror unanimity on the identify of the three acts constituting the crime does not violate the California Constitution or the due process clause of the United States Constitution.id: 9985
Psychologist's testimony regarding child molest victim's delay in reporting the incident was properly admitted.During defendant's child molest case, the prosecutor called an expert to explain the behavior of the victims in failing to report the incidents. The court instructed the jurors that the expert testimony could not be considered as proof that a molestation in fact occurred. The doctor made clear that she interviewed none of the victim's in the case. Neither the testimony nor the instructions led the jury to believing that the children had in fact been molested.id: 9988
Resident child molester statute did not deprive defendant of due process by failing to give him notice of the specific acts of molestation with which he was charged.Penal Code section 288.5, the 1989 legislative response to the problems of prosecuting the resident child molester did not deprive defendant of due process by failing to give notice of the specific acts of molestation with which he was charged and did not deprive him of the right to a unanimous jury verdict by permitting a conviction without unanimity on which acts of molestation occurred. The prosecution charged but one count of continuous sexual abuse of a child rather than multiple counts of molestation based on the victim's testimony. The information framed the charges within a specific time from March 1, 1990 to August 17, 1990. The information coupled with the victim's testimony at the preliminary hearing adequately apprised defendant of the nature of the charges. Due process required nothing more.id: 9989
Section 654 does not bar separate punishment for two rapes committed within a few moments of each other.Defendant was convicted of two rapes as he forced himself upon the victim while she was lying on her back and then turned her over and raped her from behind. Penal Code section 654 did not bar multiple punishment simply because the defendant had the sole aim of achieving sexual gratification.id: 9990
Sex offender's sentence may be enhanced under section 667.6, subdivision (b) with out-of-state prior convictions.Defendant was convicted of two counts of forcible rape and one count of forcible oral copulation. His sentence was enhanced by the finding of prior sex offenses resulting in prison terms under Penal Code section 667.6, subdivision (b). He argued the 20-year enhancement of his sentence must be stricken because, in his view, section 667.6, subdivision (b) does not authorize the use of foreign convictions such as his 1987 Arizona conviction for sexual assault. However, section 667.6, subdivision (b) authorizes the use of foreign convictions of comparable violent sex offenses.id: 9991
Sexual battery is not a lesser included offense of forcible oral copulation.Sexual battery is not a lesser included offense of forcible oral copulation, and the trial court did not err in failing to so instruct.id: 9993
Sexual battery is not a lesser included offense of sexual penetration with a foreign object.Sexual battery (Penal Code section 243.4) is not a lesser included offense of sexual penetration with a foreign object (section 289, subd. (a)). Although every penetration would involve a touching of the foreign object to the skin, that touching would not necessarily be the touching as specified in section 243.4, subd. (e), since it would be neither direct nor through the clothing of the perpetrator.id: 9994
Sexual contact between minors where one is over fourteen is within the purview of section 288, subdivision (a).A minor who is age fourteen or older violates Penal Code section 288, subdivision (a) when he engages in sexual conduct with a willing partner who is under 14 years of age.id: 9995
Defendant may be convicted of both section 288 subdivisions (a) and (b) where separate acts support the charges.Defendant may be convicted of both crimes under Penal Code section 288, subdivision (a) and 288, subdivision (b), where as here the proof consists of different acts. Touching the victim's genital area, constituted a crime under subdivision (a). Requiring the victim to orally copulate defendant, constituted the act under subdivision (b).id: 9943
Defendant properly received consecutive sentences for each of eight counts of rape where his penis repeatedly came out of the victim's vagina and he repenetrated during a single incident.The record established that defendant's penis kept coming out of the victim's vagina because she was moving and defendant was hurting her. He put his penis back inside her vagina eight or nine times and threatened to kill her if she did not stop moving. Defendant argued he should have been punished for only one count of rape rather than eight counts. However, defendant's penetrations were clearly volitional, criminal and occasioned by separate acts of force and separately punishable by consecutive sentences.id: 9944
Defendant was not a relative of the seven-year-old child molest victim for purposes of the exception to the probation ineligibility provision.Defendant pled guilty to molesting a seven-year-old boy he met at a wedding reception. The court found defendant statutorily ineligible for probation pursuant to Penal Code section 1203.066, subd. (a)(8), which applies where the victim is under the age of 11. He argued the court erred in denying probation because defendant discovered that he was a distant cousin of the victim and there is an exception to the probation ineligibility where the defendant is a relative of the victim (section 1203.066, subd. (c)(1)). However, defendant, whose only relationship to the victim was by marriage to the victim's distant cousin, was not a relative within the meaning of the exception.id: 9945
Defendant was not deprived of his right to a unanimous jury where he was convicted of three of eight charged child molest counts and there was no way to determine whether the jury agreed on the same three acts.Defendant was charged with eight counts of committing lewd acts on his 13 year-old stepdaughter from January 1, 1990 to September 11, 1990. He was convicted on three of the eight charges. He argued he was deprived of his constitutional right to have his guilt decided by a unanimous jury because there is no way to determine whether the jury unanimously agreed on the same three specific acts to support those convictions. However, the victim testified that prior to her 14th birthday on September 12, 1990, defendant committed five acts of intercourse, probably ten acts of touching her breasts, and at least three acts of touching her vagina. These acts are all proscribed by Penal Code section 288, subdivision (a) and they occurred within the three-year statute of limitation period. Therefore, the evidence was substantial and instruction of the jury with CALJIC 4.71.5 was sufficient to protect his right to a unanimous jury. Contrary to defendant's claim, there is no requirement the reviewing court be able to determine whether the jury relied upon evidence of one type of lewd act as opposed to another.id: 9946
Defendant's wandering into the apartment without clothes on established his intent to commit rape for corpus delicti purposes.There was ample evidence of the crime of attempted burglary before the defendant's statements were admitted. His intent to commit rape was established for corpus delicti purposes when he attempted to enter an apartment, without weapons or clothing, not knowing who might be within.id: 9947
Determination of defendant's ability to pay is not a predicate to levy of a fine pursuant to Penal Code section 290.3.Defendant was convicted of assault with intent to commit rape and at sentencing the trial court imposed a $100.00 fine under Penal Code section 290.3. Defendant argued the fine was improperly imposed because the court had a duty to determine whether he had the ability to pay the fine before its imposition. However, such prior determination is not a predicate to levy of the fine. Moreover, even if the court were required to initially determine the defendant's ability to pay, his failure to object or present contrary evidence waived the right to complain on appeal.id: 9948
Evidence Code section 1108, which permits evidence of other sex offenses when a current sex offense is charged, subject only to the restrictions of section 352, does not violate due process.Evidence Code section 1108, enacted in 1995, provides that where a defendant is charged with a sex offense, evidence of another sex offense is not made inadmissible by section 1101. Defendant argued the statute, which permits the admission of character evidence to prove disposition, violates due process. However, evidence of a prior act is still subject to exclusion under Evidence Code section 352, and therefore does not violate due process. Moreover, section 1108 does not violate equal protection principles by treating sex offenses different from other crimes because the Legislature has determined the seriousness of sex offenses provides a rational basis for any distinction.id: 9949
Evidence established defendant was more than 10 years older than the child molest victim given his physical appearance before the jury and testimony that he married the young victim's mother when he was an adult.Defendant was convicted of 29 counts of molesting his stepdaughter along with two separate enhancements due to his position of trust and substantial sexual conduct. He argued the prosecution failed to present evidence of his age, because his age - which must be 10 years older than the victim's - is an element of the offense. However, the jury received proper instructions requiring it to find defendant guilty only if he was 10 years older than the victim. Moreover, each juror observed him during the four-day trial and heard him describe the victim as his stepdaughter who was a very little girl when he, as an adult, first met and married his wife. The guilty verdict reflects the reasonable conclusion he was obviously 10 years older than the victim and his apparent age was corroborated by other testimony.id: 9950
Evidence of defendant's prior consensual intercourse with rape victim's roommate was irrelevant.Defendant was convicted of forcible rape. He argued the court erred in excluding proffered evidence that a month prior to the rape, he and the victim's roommate engaged in consensual sex. He suggested the jury could have concluded that he, in a drunken stupor, reasonably believed he was having intercourse with the roommate. However, while he had been drinking, there was no evidence that he was intoxicated or that he had mistaken the roommate for the victim. Moreover, testimony was undisputed that the victim screamed and resisted and that defendant threatened to use weapons on her. Because there was no evidence of consent any prior relationship defendant had with the victim's roommate was irrelevant.id: 9951
Evidence supported rape in concert conviction where the second man merely stood by the door.Defendant argued the trial court could not validly find that he committed rape in concert with another because the second man merely stood by and did not actively assist in committing the rape. However, the two men entered the house together, concealed their identities, and conferred briefly before the rape. The second man stood forebodingly at the door, sealing off the possible escape. Clearly the second man's presence contributed toward terrorizing the victim and overcoming her resistance, thereby facilitating defendant's rape.id: 9953
Evidence supported the finding of intent to rape for the attempted rape special circumstance where victim's body was found in a position suggesting rape and defendant's body hair was found in her clothing.Evidence supported the jury's finding of intent to rape. The victim's body was found in a position and state of dress suggestive of rape or sexual assault. Body and pubic hairs similar to defendant's, and unlike those of others possibly involved in the crimes, were found in the victim's panties, pajama top and socks. The jury could rationally conclude defendant partially unclothed himself and the victim for the purpose of sexual intercourse.id: 9954
Exception to statute of limitations for sex offense against a child does not require a preexisting conviction within the limitations period.Penal Code section 288 offenses ordinarily must be commenced within six years of the offense. Section 803 provides an exception and allows the complaint to be filed within one year of a report of an enumerated offense by a child where one offense is outside the normal limitations period and one offense is within the normal period. Defendant argued the two charged counts allegedly committed in 1985 were barred by the statute of limitations because section 803 requires that the alleged crime committed within the limitations period (section 803, subdivision (f)(2)), means defendant was convicted of at least one crime within that period. However, the statute is clear and the word committed does not require a preexisting conviction.id: 9956
Expert testimony on Child Sexual Abuse Accommodation Syndrome was properly admitted for the limited purpose of explaining why the child molest victim did not immediately report the incident.Defendant was convicted of two count of child molestation. He argued the admission of expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) bolstered the victim's version of the events and violated his constitutional right to confront witnesses and to due process. However, the CSAAS testimony was properly admitted for the limited purpose of explaining why the victim did not immediately inform anyone of the molestation and the court specifically instructed the jury as to its limited use. Moreover, defendant's right to meaningfully cross-examine the victim was not impaired by the introduction of the testimony as he vigorously cross-examined the victim, attacking her creditability. Finally, the introduction of CSAAS testimony to rehabilitate the victim's testimony after rigorous cross-examination did not violate due process.id: 9957
Forcible oral copulation does not require a specific intent and the only specific intent involved in lewd touching is the intent to arouse or gratify sexual desires.Defendant was convicted of multiple sex offenses against his daughter including forcible oral copulation and lewd acts with a minor. All counts were allegedly committed by use of force, violence, menace, duress or fear of immediate and unlawful bodily injury. He argued the court erred by not instructing the jury sua sponte that he specifically intended to commit each offense by force, violence, duress, etc. However, this element of the various offenses does not require a specific intent. It describes types of intimidating conduct by the defendant and not any particular state of mind of the defendant.id: 9960
Fresh-complaint doctrine has been revised and under generally applicable evidentiary rules, the freshness of a complaint and volunteered nature are no longer prerequisites to admissibility.Under the fresh-complaint doctrine, evidence that the alleged victim of a sex offense disclosed the incident to another person shortly after its occurrence is admissible to establish such complaint was made. The Supreme Court found the historic premise of the doctrine - that it is natural for a victim to disclose the offense - is outdated. However, the limited, non-hearsay evidence that in the past has been admitted under the fresh-complaint doctrine nonetheless is, in general, properly admissible at trial under generally applicable evidentiary standards. Under such standards the timing of the complaint and the circumstances under which it was made are not necessarily determinative of the admissibility of evidence of a complaint. The freshness or volunteered nature of the complaint are not essential prerequisites to its admissibility.id: 9961
Generic testimony of victims in resident child molest cases does not deny defendant due process.Given the availability of the preliminary hearing, demurrer and pretrial discovery procedures, the prosecution of child molestation charges based on generic testimony does not, of itself result in the denial of a defendant's due process right to fair notice of the charges against him. Moreover, the fact that the child cannot recall or relate specific dates, locations or other details of the offenses does not inevitably preclude a defense.id: 9962
In a continuous sexual assault on a child each distinct act of fondling may constitute a separate violation of section 288.Defendant was convicted under Penal Code section 288 for each act of sexual intercourse, oral copulation and sexual fondling of his girlfriend's 11 year-old daughter. He argued the fondling activities are necessarily indivisible from other sex crimes committed on the same occasion and that the number of convictions is limited to the number of nonfondling crimes. However, consistent with <i>People v. Harrison</i> (1989) 48 Cal.3d 321, each distinct lewd act can result in a separate violation of section 288.id: 9963
It was not improper to charge both forcible child molest and a violation of the resident child molester provision.Appellant argued the People could not charge a violation of Penal Code section 288 in conjunction with a section 288.5 (resident child molester) charge. He claimed the language of section 288.5 precludes such duplication of charges and that section 288.5 is the only count which could properly be charged. However, nothing precludes the charging of a combination of the two provisions so long as the crimes charged involved different time periods and the time period for the section 288.5 offense is at least three months in duration.id: 9965
Lack of specificity in charging molestation counts did not deny appellant due process where his principal defense was the denial of sexual intercourse with the victim.Appellant was charged with four counts of child molestation alleged to have occurred within about a two month time period. The defense was not based principally on appellant's alibi (an alibi for which he himself could not even establish a firm time frame). Rather, it rested on the personal denial of any sexual intercourse with victim at any time. There was no due process violation where appellant could show no substantial prejudice arising out of the purported vagueness in the information and in the evidence concerning chronology.id: 9969
Lewd acts on minors are violent felonies for purposes of the five year subordinate term limit.Defendant was convicted of eight counts of lewd acts on minors under Penal Code section 288, subdivision (a). He was sentenced to the upper term on one count as the principal term and received consecutive terms stayed to one-third of the mid-term of six years on the other counts for a total sentence of 20 years. He argued section 288, subdivision (a) does not define a violent felony which falls outside the five year limit for subordinate terms established in section 1170.1. However section 667.5 subdivision (c)(6) expressly provides the term violent felonies includes lewd acts on children as defined in section 288. The sentence was therefore proper.id: 9970
Lewd conduct is not a lesser included offense of indecent exposure.Lewd conduct is not a lesser included offense of indecent exposure since it is possible to commit indecent exposure without violating the lewd conduct provision - Penal Code section 647, subdivision (a).id: 9971
Defendant charged with continuous sex abuse of a child under 14 can also be charged with lewd acts against the same child.Defendant was convicted of a continuous sex abuse of a child under age 14 (Penal Code section 288.5) and five lewd acts with the same child (section 288, subdivision (a)). He argued counts 2 through 6 must be reversed because section 288.5 prohibits prosecution of any other felony sex offense occurring with the same victim during the same period of time as charged in the section 288.5 prosecution. However, subdivision (c) of section 288.5 explicitly permits such alternative charges. Moreover, the lewd acts under section 288, subdivision (a) are not lesser offenses necessarily included therein although they are alternative in that they may not result in double punishment, they are not alternative in the sense that commission of one constitutes an acquittal of the other.id: 9906
"Resident child molester" statute does not unconstitutionally deprive a defendant of a unanimous jury verdict.Defendant was convicted of one count of continuous sexual abuse of a child under Penal Code section 288.5 - the "resident child molester" statute. He argued he was deprived of his right to a unanimous jury verdict by an instruction, derived from language in the statute, allowing conviction without jury unanimity on which individual acts of abuse occurred. However, in a prosecution for a course of conduct offense, where the evidence shows only a single course of conduct, the jury need not be instructed on a need for unanimity as to the conduct supporting the conviction.id: 9907
A child under the age of 14 can be held accountable for a violation of Penal Code section 288, subdivision (a).Penal Code section 288 subdivision (a) can be legally applied to a child under the age of 14. Although the victim must be under 14, there is no minimum age specified for the offender.id: 9908
A conviction may be obtained in a resident child molester case where the jury unanimously agrees the defendant committed all the acts described by the victim.In a case in which the evidence indicates the jurors might disagree as to the particular act the defendant committed, the standard unanimity instruction should be given. But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.id: 9909
A criminal defendant may be convicted of multiple counts of section 289 where he commits identical sex acts which are briefly interrupted by his use of force and the victim struggles.The offense described by Penal code section 289<197>penetration, however slight, of the rectal or genital openings of another with a foreign object<197>is complete the moment penetration occurs. Each similar sexual penetration which occurs during a continuous sexually assaultive encounter may constitute a separate statutory violation. Moreover, section 654 does not preclude separate punishment for each conviction.id: 9910
A defendant convicted of rape in concert can be ordered to undergo AIDS testing under section 1202.1.Defendant pled guilty to rape while acting in concert in violation of Penal Code section 264.1. He appealed an order requiring him to undergo AIDS testing pursuant to section 1202.1, arguing that section 264.1 is not specifically listed in section 1202.1 as one of the offenses on which an order for compulsory AIDS testing can be based. However, a violation of section 264.1 can form the basis for an AIDS test where, as here, the section 264.1 violation derives from the defendant's personal participation in the rape.id: 9911
A minor may not raise the mistake-of-age defense to the section 288 charge.A juvenile court found the minor had committed lewd acts upon a child under the age of 14. The minor argued that a reasonable, good-faith belief that the victim is 14 years old or older should be a defense to a minor in a Penal Code section 288 charge. However, allowing the minor to raise the mistake-of-age defense to a section 288 charge runs contrary to the purpose of the statute.id: 9912
A minor with the requisite intent may be adjudged responsible for violating sections 288, subdivision (a) and 288a, subdivision (b)(1).A minor under the age 14 may be adjudged responsible for committing a lewd act on another person under age 14 (Penal Code section 288, subdivision (a)) and participating in oral copulation with a person under the age of 18 (section 288a, subdivision (b)(1)). Evidence established that the 13 year old juvenile knew the wrongfulness of his act where he admitted asking the nine year old victim to meet him behind the bushes and that when he pressed down on her shoulders she may have felt intimidated. Moreover, the victim's testimony that the juvenile had an erection was substantial evidence of his lewd intent for purposes of section 288, subdivision (a).id: 9913
Allegation that a rape occurred between June 1 and August 31 did not deny defendant due process.The information alleged that a rape occurred between June 1, 1985 and August 31, 1985. Time is only an essential allegation if the defense is alibi, which was not the case in instant matter. Therefore, defendant suffered no denial of due process.id: 9915
Any touching of a minor with the requisite sexual intent will sustain a conviction under section 288.Penal Code section 288 imposes criminal liability on anyone who willfully and lewdly commits any lewd or lascivious act upon the body of a child under the age of 14 with the intent of arousing the lust, passions or sexual desires of either party. The section is violated by any touching of an underage child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child.id: 9917
Appellant was not denied notice of the child molest charges where the victim's testimony concerning certain dates and incidents was inconsistent with her preliminary hearing testimony.Appellant who was convicted of five counts of child molest argued that he was denied notice of the charges because the evidence adduced at trial involved offenses not shown by the preliminary hearing. There was testimony at the preliminary hearing that the first offense occurred in May 1987 and the second in August 1988. The amendments permitted by the trial court only slightly extended the time ranges alleged in the information and were not improper. Moreover, inconsistencies regarding the specific acts during the victim's trial testimony suggest that she may have confused certain details from one incident to another. These inconsistencies go to the weight and credibility of the testimony rather than to notice. Finally it is unlikely that appellant's ability to defend was prejudicial where his defense was not a specific alibi, but a denial that the molestations occurred at all.id: 9918
Appellant's failure to object at trial based on lack of notice of the sodomy charges precluded review of the issue.Appellant was accused of fifteen counts of child molestation. He argued a due process violation where no evidence of acts of sodomy was adduced at the preliminary hearing, yet such evidence was presented at trial. However, appellant's failure to object at trial based on a lack of notice of the charges precluded review of the issue. There was no finding of ineffective assistance of counsel where the record did not show that a due process objection would have been meritorious.id: 9919
Assault with intent to commit rape includes spousal rape.Appellant argued that assault with intent to commit rape as defined in Penal Code section 220 did not include within its enumerated offenses that the rape of a spouse as defined in section 262. However, the rape referred to in Penal Code section 220 refers to rape as defined in section 262 as well as the rape defined in section 261.id: 9921
Charging multiple counts of section 288 was not improper and the prosecution was not required, instead, to charge a single count of the resident child molester statute.Defendant was charged with one count of violating Penal Code section 288, subdivision (b) and ten counts of violating section 288, subdivision (a). He argued the prosecution abused its discretion in charging multiple counts and was required, instead, to charge him with a single count of violating section 288.5, the resident child molester statute. However, the People were not required to prosecute under section 288.5, and there was no abuse of discretion in charging multiple counts.id: 9923
Child molest prosecution was not precluded by the special statute regarding use of a 16 year old model in sexual conduct film.Appellant was convicted of multiple counts of child molestation under Penal Code section 288, subd. (a). The record established that he videotaped several incidents with young boys. He argued that a special statute (section 311.4, subd. (c)) precluded conviction under the general statute (section 288, subd. (a)). However, the argument failed because one can readily use a 16 year old model in a sexual conduct film without lewdly touching a child, 13 years old or younger for the purpose of sexual arousal.id: 9924
Child molestation under section 288 is not a lesser included offense of the "resident child molester" statute.Defendant was convicted of one count of continuous sexual abuse of a child under Penal Code section 288.5 - the "resident child molester" statute. He argued the court erred in failing to instruct sua sponte on section 288 as a lesser included offense. However, because section 288.5, could be violated without necessarily also violating section 288, the latter is not necessarily included within the former and no sua sponte instruction was required.id: 9925
Continuous child sex abuse statute is not unconstitutional for failing to require unanimity instruction on the specific acts underlying the charged crime.Defendant was convicted of continuous sexual abuse of a child under Penal Code section 288.5. The absence of a requirement that the jury unanimously agree on the particular incidents underlying a violation of section 288.5 does not violate the federal constitution, specifically, the Sixth Amendment guarantee of the right to a jury trial or the Fourteenth Amendment guarantee of due process.id: 9927
Continuous sexual abuse of a child provision requires jury unanimity with respect to the course of conduct - i.e., the actus reus - and thereby satisfies the constitutional requirements.Defendant was convicted of one count of Penal Code section 288.5 - continuous sexual abuse of a child. He argued the statute and concomitant jury instruction (CALJIC 10.42.6) deprived him of his right to a unanimous jury verdict by allowing a conviction without requiring jury unanimity as to which three underlying acts occurred. However, section 288.5 criminalizes a continuous course of conduct; the <U>actus reus</U> of the crime is the course of conduct encompassing the individual acts of sexual conduct. The statute requires jury unanimity with respect to the course of conduct - i.e., the actus reus - and thereby satisfies the constitutional requirement. Moreover, that the factual basis for the charges was provided by a police officer at the preliminary hearing rather than the victim did not prevent defendant from receiving the information needed to satisfy due process.id: 9928
Continuous sexual abuse of a child statute does not require that defendant reside with or have access to the minor continuously for three consecutive months.Defendant was convicted of continuous sexual abuse of a child under Penal Code section 288.5. He argued the conviction was not supported by the evidence because he did not reside with, or have recurring access to the victim for a continuous period of three months or more. However, section 288.5 does not require that the defendant reside with or have access to the minor continuously for three consecutive months. It was sufficient that defendant continuously molested the victim each time she resided with him, and the molestations occurred over a period longer than three months.id: 9929
Contributing to the delinquency of a minor is not a lesser included defense of lewd and lascivious conduct.Defendant was charged with multiple counts of lewd and lascivious conduct under Penal Code section 288, subd. (a). He argued the trial court erred by not instructing the jury sua sponte on contributing to the delinquency of a minor. However, lewd and lascivious conduct does not necessarily contribute to the delinquency of a minor to the extent of imposing an instructional duty on the trial court.id: 9930
Correctional officer's fondling of restrained female inmates constituted sexual battery.Defendant correctional officer employed restraints on the female inmates not for the sole purpose of transporting them from one correctional facility to another, but to enable him to commit sexual batteries against them. The evidence supported the conviction of sexual battery under Penal Code section 243.4, subdivision (a), which prohibits the touching of an intimate part of another person while that person is unlawfully restrained.id: 9931
Court did not err in admitting sexually explicit sketches in the child molest prosecution where the sketches corroborated the victims' testimony that appellant had them play Indians.Appellant was convicted of multiple counts of child molest. He argued the court erred in admitting into evidence 23 sketches found in his apartment as they were admitted to show he had a predisposition for sex with young boys, which is impermissible character evidence. However, the victims all described a peculiar embellishment of the molestations - appellant had them play Indians. To the extent the sketches showed young boys dressed like Indians, they corroborated the boys' testimony and were probative of victim credibility.id: 9932
Court did not err in allowing expert testimony concerning behavior common to sexual abuse victims.Defendant argued the court erred in permitting the psychologist to testify over objection concerning behavior common to sexual abuse victims. However, the testimony made clear that the doctor was not offering an opinion on the victim's credibility. The testimony was clearly intended to help explain the victim's delay in reporting the abuse and her last-minute recantation of the charges. The doctor did not suggest the victim's claims were credible simply because she exhibited some behaviors common to abuse victims.id: 9933
Court did not err in citing position of trust as an aggravating factor regarding a conviction of continuous sexual abuse of a child.Appellant was convicted of continuous sexual abuse of a child under the age of 14 years (Penal Code section 288.5). He argued the court erred in citing position of trust as an aggravating factor in support of the upper term because position of trust was an element of the crime. Appellant was the victim's stepfather and was entrusted with her care. However, since continuous sexual abuse can be committed by anyone residing in the same home with the children, whether or not they have special status with the victim, such factor is not an element of the crime.id: 9934
Court did not err in denying probation for defendant who committed kidnapping as well as assault with intent to commit rape.Defendant argued that the sentences for his convictions of assault with intent to commit rape (Penal Code section 220) and sexual battery (section 234.4, subd. (a)) should have been stayed under section 654, and that the remaining sentence on count one, his conviction for kidnapping with intent to commit rape (sections 207, 208 subd. (d)) would not have, by itself, triggered the statutory probation limitation under section 1203.065, subd. (b). However, regardless of whether the concurrent sentences for the former offenses are stayed under section 654, the convictions are still relevant in triggering any statutory probation limitations. The contention that one who is convicted of assault with intent to commit rape should not be subject to the probation limitation because he also committed kidnapping, is meritless. Moreover, the court is not required to state its reasons for not finding unusual cases to rebut the presumption against probation in section 1203.065, subd. (b).id: 9935
Court did not err in excluding penalty phase testimony regarding past consensual gay sex of defendant's jailhouse sodomy victim.The People alleged in aggravation that defendant committed the unadjudicated offense of sodomy on a county jail inmate while he was awaiting trial. Defendant, on cross-examination, asked the witness whether he had ever engaged in consensual sexual activity at the jail. The witness objected and the court found the evidence to be irrelevant. The court's ruling was correct because knowledge of past consensual gay sex alone is not sufficient to establish a reasonable belief in consent. There was no evidence during the encounter in question which reasonably led to a belief in consent.id: 9936
Court did not err in finding defendant guilty of assault with intent to rape where the offense charged was rape in concert.Defendant argued the court lacked jurisdiction to find that he committed assault with intent to commit rape, the offense not being necessarily included within the charge of rape in concert. He claimed that because rape in concert can be committed by aiding and abetting rather than personally committing the rape, one can commit rape in concert without necessarily having the specific intent to rape required by assault with intent to commit rape. However, defendant was on notice that he was being charged only as the direct perpetrator.id: 9937
There is no requirement that the victim be alive for purposes of an attempted rape.Defendant argued the trial court erred in refusing his requested instruction that the victim must have been alive at the time the attempted rape commenced in order for defendant to have been convicted of attempted rape. He claimed the doctrine of legal impossibility precluded a conviction of attempted rape where the victim is not alive at the time of the attempt. However, a defendant may be guilty of attempted rape when the defendant intends to have non-consensual intercourse with a live victim, but unbeknownst to the defendant the victim is dead.id: 9671
A defendant need not physically touch a victim to commit attempted rape.Defendant argued the evidence was insufficient to support the attempted rape conviction because attempted rape requires some physical conduct of a distinctly and unambiguously sexual nature. However, a defendant need not physically touch the victim. His statement, I want to rape you established his intent, and his subsequent pointing of the gun and ordering the victim what to do supported the attempted rape conviction.id: 9658
Deputy sheriff was properly convicted as an aider and abettor of oral copulation by a jail inmate.Defendant was convicted of two counts of violating Penal Code section 288a, subdivision (e) which prohibits a jail inmate from engaging in oral copulation, even if consensual. Defendant was a deputy sheriff who had ordered two women in a lockup facility to perform acts of oral copulation (including one act on him). He claimed the statute did not apply to him because the statute only criminalizes oral copulation by a jail inmate. However, defendant was properly convicted as an aider and abettor even though by statutory definition he was incapable of committing the substantive crime by himself.id: 9623
Application of statute imposing a continued duty on registered sex offenders to provide address changes did not constitute increased punishment and did not violate ex post facto principles even though it was enacted after the original offense.Defendant was convicted of violating Penal code section 290, subdivision (f), which requires that sex offenders subject to the registration requirements of section 190 inform authorities of any change of residence. Defendant argued he was not required to register under section 190, subdivision (f) because he had been relieved of all registration requirements in 1983, when his probation was discharged and his record was cleared under section 1203.4. At that time, section 2901, effective in January of 1992, was the law and that section provided registration requirements continued notwithstanding a section 1203.4 record clearance. Application of section 290.1 did not violate ex post facto principles even though it was enacted after defendant committed the original offense in 1980. The registration requirement did not constitute increased punishment.id: 9542
Failure to comply with interim sex offender registration requirements is a continuing offense and therefore felony prosecution is not ex post facto.When a registered sex offender changes his or her residence address, the offender must notify the law enforcement agency of the last registration within a specified period. (Penal Code section 290, subdivision (f).) Prior to January 1, 1995, failure to provide such notification was a misdemeanor; thereafter, the Legislature declared it a felony. Felony prosecution is not prohibited as ex post facto if the defendant's address change and failure to notify occurred when the violation was classified as a misdemeanor because the Legislature intended section 290, subdivision (f), to describe a continuing affirmative duty.id: 9548
Sexually Violent Predator law is not a penal statute and therefore does not violate ex post facto or double jeopardy provisions.Defendant argued the Sexually Violent Predators Law (Welfare and Institutions Code section 6600, et seq.) which provides for an extended commitment for certain sex offenders whose mental disorder persists, violates constitutional prohibitions against ex post facto and double jeopardy because it is penal in purpose and effect and constitutes increased punishment for a crime committed before its enactment. However, the Sexually Violent Predator law does not violate ex post facto principles because it is not a penal statute. Its goals are incapacitation and treatment rather than retribution and deterrence. Moreover, the law does not punish the defendant twice for the same crime and consequently does not violate double jeopardy provisions.id: 9557
Sexually Violent Predator law requires a finding of mental illness and present danger, and therefore does not violate equal protection or due process.Defendant argued that the Sexually Violent Predator Law (Welfare and Institutions Code section 6600, et seq.) which continues the commitment for certain sex offenders whose diagnosed mental disordered has not abated, violates equal protection and due process principles in that it subjects him to long-term confinement in the absence of the requisite proof that he is mentally ill and currently dangerous and without providing him effective treatment. Contrary to defendant's claim the law requires a finding of a present mental disorder making the person presently dangerous to others, and there is therefore no equal protection violation. Moreover, the law does not violate due process for allowing an indefinite restraint on liberty without providing adequate and effective treatment since the treatment provided is current with modern medical practice and provides a realistic opportunity for improvement. Due process requires no more.id: 9519
Defendant's right of confrontation was not violated where the child molest victim testified with his mother seated next to him.The prosecutor requested that the child molest victim be permitted to testify with his mother seated next to him pursuant to Penal Code section 868.5. The trial court did not violate defendant's right of confrontation in granting the request. The victim testified he wanted his mother beside him because he liked her, thus dispelling any suggestion that he was too traumatized by the sexual assault to testify without her. Moreover, there was a decreased risk of vouching when the support person is the parent of a younger child.id: 9479
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Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245