THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS RODRIGUEZ, Defendant and Appellant, 28 Cal. 4th 543

Opinion CHIN, J. Penal Code

section 288.5 punishes the continuous sexual abuse of a child under 14 by any person residing with, or having “recurring access” to, the child. In this case, we must decide whether the quoted phrase has a technical meaning requiring sua sponte jury instructions, or whether the term is so commonly understood that no special instructions are required. We conclude that the trial court in the present case did not err in failing to give clarifying instructions on its own motion.

Facts Jose Luis Rodriguez appeals from the judgment entered following his conviction by jury of two counts of continuous sexual abuse of a child. (§ 288.5, subd. (a).) He was sentenced to prison for 28 years. The following facts are largely taken from the Court of Appeal’s opinion in this case. Fernando V. was bom in May 1983 and lived in Los Angeles County. Defendant lived four houses from Femando, in a trailer on the back of a lot. Everyone who lived on the block knew defendant as a soccer coach who participated in soccer activities with neighborhood children.

Although his mother believed otherwise, Femando testified he was not on defendant’s soccer team, but his older brother was, and Fernando would watch his brother play. Fernando would also “do whatever [defendant] would tell him to do” and often ran errands for defendant. Defendant first molested Femando in 1990 when Fernando was seven years old, and continued to molest him until he was about nine years old. These acts occurred on school days and weekends in the trailer and involved fondling, masturbation, oral copulation and sodomy. At one point, the molestations occurred almost every day.

Defendant threatened to shoot Fernando or his mother if he told anyone regarding the acts. Defendant does not presently contest the sufficiency of the evidence establishing these molestations and, accordingly, further details are unnecessary. Ernesto R. was bom in August 1987. From 1990 to 1998, Ernesto lived in his grandparents’ house on the same lot where defendant’s trailer was located. Defendant regularly used a bathroom inside this house. Ernesto knew defendant was a soccer coach and Ernesto’s mother viewed defendant as if he were an uncle to Ernesto and her other children.

About 1994 or 1995, when Ernesto was about seven or eight years old, defendant began molesting him two to three times a week, every week, for about two or three years. The acts involved fondling, oral copulation and sodomy. Defendant threatened to hit Ernesto if he told anyone about these acts. Discussion

Section 288.5 was adopted in 1989 (Stats. 1989, ch. 1402, § 4, p. 6140) to criminalize “continuous sexual abuse of a child.” Subdivision (

a) of this

section provides in pertinent part that “[a]ny person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (

b) of

Section 1203.066, or three or more acts of lewd or lascivious conduct under

Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years.” (Italics added.) The Legislature’s accompanying statement of purpose declared that “there is an immediate need for additional statutory protection for the most vulnerable among our children, those of tender years, some of whom are being subjected to continuing sexual abuse by those commonly referred to as ‘resident child molesters.’ These molesters reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time but the child, because of age or the frequency of the molestations, or both, often is unable to distinguish one incident from another . . . , and as a consequence prosecutors are unable to . . . overcome . . . constitutional due process problems . . . .” (Stats. 1989, ch. 1402, § 1, subd. (a), p. 6138, italics added, reprinted at Historical and Statutory Notes, 29B pt. 2 West’s Ann.

Evid. Code (1995 ed.) foll. §782, p. 631.) The Legislature also declared that it intended the penalty for continuous sexual child abuse “shall be greater than the maximum penalty under existing law for any single felony sex offense.” (Stats. 1989, ch. 1402, § 1, subd, (b), p. 6138, reprinted at Historical and Statutory Notes, 29B pt. 2 West’s Ann. Evid.

Code, supra, foll. § 782, at p. 631.) Guided by the foregoing express legislative declarations of intent, we turn to the question before us, namely, the sufficiency of instructions that simply use the statutory term “recurring access,” without further definition or elaboration. As a general rule, in the absence of a request for amplification, the language of a statute defining a crime or defense usually is an appropriate basis for an instruction. If a statutory word or phrase is commonly understood and is not used in a technical sense, the court need not give any sua sponte instruction as to its meaning.

If, however, a word or phrase is used in a technical sense differing from its commonly understood meaning, clarifying instructions are appropriate and should be given on the court’s own motion. (People v. Bland (2002) 28 Cal.4th 313, 334 [121 Cal.Rptr.2d 546, 48 P.3d 1107]; People v. Smithey (1999) 20 Cal.4th 936, 981 [86 Cal.Rptr.2d 243, 978 P.2d 1171]; People v.

Estrada (1995) 11 Cal.4th 568, 574-575 [46 Cal.Rptr.2d 586, 904 P.2d 1197].) We must decide here whether the Legislature used the phrase “recurring access” in some technical sense that would require sua sponte instructions, i.e., whether the jury would have difficulty in understanding the statute without guidance. We conclude otherwise. In the present case, the court instructed the jury based on CALJIC No. 10.42.6, using the statutory language of

section 288.5, subdivision (a), and explaining that one element of the offense of continuous sexual abuse was defendant’s recurring access to the minor. Defendant failed to request amplification of that term, and accordingly the trial court was not obligated, sua sponte, to define the phrase unless it had a “technical sense peculiar to the law,” that is, a “statutory definition differing] from the meaning that might be ascribed to the same terms in common parlance.” (People v.

Estrada, supra, 11 Cal.4th at pp. 574-575.) We discern no meaning, technical or otherwise, of the term “recurring access” other than its commonly understood meaning as an ongoing ability to approach and contact someone time after time. (See Merriam-Webster’s Collegiate Diet. (10th ed. 1993) p. 6 [the term “access” means “permission, liberty, or ability to enter, approach, communicate with, or pass to and from,” or “freedom or ability to obtain or make use of’]; id. at p. 978 [the term “recur” means “to occur again after an interval: occur time after time”]; cf. People v.

Grant (1999) 20 Cal.4th 150,155 [83 Cal.Rptr.2d 295, 973 P.2d 72].) As noted, the evidence here indicated defendant, a soccer coach well known in the neighborhood, molested his two victims several times each week for several years. We think the jury, armed with no more than the statutory language and the jury’s own common understanding of its meaning, would have had no difficulty whatever in determining whether or not defendant had recurring access to his child victims. Defendant relies on People v.

Gohdes (1997) 58 Cal.App.4th 1520 [68 Cal.Rptr.2d 719] (Gohdes), to support his position that the court should have given additional instructions. There, the Court of Appeal read into

section 288.5’s requirement of recurring access a “qualitative” element focusing on the relationship between the defendant and his victim. (Gohdes, at p. 1529.) In Gohdes’s view, based on its

interpretation of the legislative history of

section 288.5, a mere acquaintance of the victim such as defendant, lacking either (1) a position of authority or respect as to his child victim, or (2) some recurring relationship with him apart from the ongoing sexual contacts, could not be found guilty of violating the section. To the contrary, we believe the Court of Appeal read too much into the statute and reached a conclusion at odds with the clear legislative intent to provide additional protection for victims of child molestation.

In Gohdes, the defendant had dated the victim’s sister for several years and, on her departure from home, turned his attention on Corrine, the underage victim. Over a period of several years, defendant secretly visited Corrine, climbing in her window and engaging in nonforcible sexual activity with her, culminating in intercourse when she was 14.

The Court of Appeal upheld a trial court ruling that, despite his frequent visits, defendant had no recurring access to Corrine because he was neither “ ‘an invited guest’ ” nor held any “ ‘position of trust’ ” with Corrine’s family, and in fact had no “ ‘legitimate purpose’ ” in visiting her. (Gohdes, supra, 58 Cal.App.4th at p. 1524.) .

The Gohdes court agreed with the trial court, finding that defendant failed to match any of the “obvious situations” involving true recurring access, such as those involving babysitters or “regularly visiting relatives or friends, etc.” (Gohdes, supra, 58 Cal.App.4th at p. 1528.) The court failed to explain why defendant did not qualify as a “regularly visiting . . . friend[].” The court reasoned, “the Legislature must have intended a qualitative rather than a quantitative construction of the ‘recurring access’ element.

This is the only type of construction suggested in the legislative history: uncles, babysitters, ex-spouses, non-live-in lovers, etc. There are two common characteristics of these categories. One is that in most categories suggested, the person with recurring access to the child also is in a position of authority over the child, or is in a position to command respect or obedience from the child.

A second is that in each of these categories, there was an ongoing relationship between the person with recurring access and the child separate and apart from the relationship formed and characterized by the forbidden sexual activity. Even apart from the sexual activity, the uncle was still the uncle; the father, the father; the babysitter, the babysitter; the mother’s boyfriend, the mother’s boyfriend; and so forth. There is no analogous independent relationship in the instant case.

Like the magistrate and the superior court, we conclude that the surreptitious assignations involved in this case do not meet the statutory requirement of ‘recurring access.’ This is simply not the type of relationship to which the statute as written is meant to apply.” (Id. at p. 1529, italics added.) Our review of the legislative history fails to support Gohdes’s “qualitative” element

interpretation. The express legislative purpose in enacting

section 288.5 was to provide “additional protection” for victims of child molestation by assuring that “resident” child molesters and others who repeatedly abuse a child over a prolonged period of time would not escape prosecution because of difficulties in pleading and proving with sufficient precision the dates, times, and particular nature of each molestation. (Stats. 1989, ch. 1402, § 1, subds. (a), (b), p. 6138, reprinted at Historical and Statutory Notes, 29B pt. 2 West’s Ann. Evid. Code, supra, foll. § 782, at p. 631; People v.

Grant, supra, 20 Cal.4th at pp. 155-156.) It is true that, in describing the need to enact a statute criminalizing continuous sexual abuse, some of the legislative history materials named parents and stepparents as examples of persons with recurring access to children. But we find nothing in those materials to support Gohdes’s view that the statute was not intended to apply to persons such as defendant who, despite lack of a familial or similar relationship, nonetheless manage to maintain repeated contact with their victims.

The Court of Appeal in the present case outlined the various letters and memoranda from the Office of the Attorney General, which sponsored the legislation enacted as

section 288.5, material that supposedly reflects that office’s “gradual development of a broad view, articulated in common parlance, concerning the scope of persons governed by that section.” Assuming, as both parties seem willing to do, that we properly may rely on these materials (but see People v. Johnson (2002) 28 Cal.4th 240, 247 [121 Cal.Rptr.2d 197, 47 P.3d 1064]; Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 726-727 [80 Cal.Rptr.2d 506, 968 P.2d 65]), we find nothing in those materials supporting Gohdes’s

interpretation of the statute. Indeed, although initial drafts of the proposed legislation applied to persons “who occupy positions of trust and confidence,” (Deputy Atty. Gen. Edgar Kerry, mem. to Asst. Atty. Gen. Arnold Overoye, Aug. 25, 1988, p. 1) and persons “in a position of special trust with continuing access” (Cal. Dept. Justice, Legis. Proposal, Sept. 23, 1988) to the child victim, ultimately the phrase “recurring access” was chosen by the drafters, it being deemed “broader in its scope” than the earlier proposals. (Deputy Atty. Gen. Edgar Kerry, mem.

Nov. 14, 1988, p. 3.) As the present Court of Appeal opinion observed, Gohdes “resurrects ‘position of trust’ and relationship considerations which the Attorney General rejected in his final draft of the proposed legislation” submitted to the Legislature. In short, as made clear by the legislative declarations accompanying it,

section 288.5 was enacted to broaden, not narrow, the reach of this state’s child molestation laws. To the extent it is inconsistent with our opinion, we disapprove People v. Gohdes, supra, 58 Cal.App.4th 1520. Defendant observes that

section 288.5, subdivision (a), in addition to requiring residence with or “recurring access” to the victim, also requires the defendant to have committed, over a defined period of time, “three or more acts of substantial sexual conduct” or “three or more acts of lewd or lascivious conduct” with the child victim. Defendant echoes the observation of an appellate case that, accordingly,

section 288.5 “is [not] aimed ... at the stranger who happens to encounter the same victim three times.” (People v. Avina (1993) 14 Cal.App.4th 1303, 1311 [18 Cal.Rptr.2d 511].) In defendant’s view, to avoid rendering the term surplusage, “recurring access” must mean more than mere repeated contact wholly by chance. The Attorney General, on the other hand, argues that the Legislature merely intended the requirement of three acts of sexual misconduct to constitute the “minimum number of acts within the requisite time period” to qualify as continuous sex abuse under the section.

As Avina states, “The three-act requirement merely sets a ‘baseline’ for measuring the course of conduct,” although Avina doubted that mere repeated “ ‘transient’ ” contact with the child would suffice to establish “recurring access.” (Id. at p. 1311.) We will reserve the “wholly by chance contact with strangers” issue for another case. Defendant, as a soccer coach for neighborhood children, was a well-known and respected figure. He was no stranger who simply happened to encounter and sexually abuse his victims repeatedly for several years.

Despite the concerns raised by the concurring and dissenting opinion, we see no “surplusage” problem requiring some special definition of “recurring access” that would require sua sponte instructions.

Section 288.5 relates to “continuous sexual abuse” and accordingly requires at least three acts of sexual misconduct with the child victim over at least three months to qualify for prosecution of persons who are either residing with, or have “recurring access” to, the child.

Contrary to the concurring and dissenting opinion, not every person who manages to molest a child three times during the requisite period necessarily would have an ongoing ability to approach and contact the child time after time. (See, ante, at p. 547.) We conclude that “recurring access” is a commonly understood term requiring no sua sponte definitional instructions. The judgment of the Court of Appeal so holding is affirmed. George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred. Unless otherwise indicated, all statutory references are to the Penal Code.