Criminal
Jul. 24, 2002
Abuser's Ongoing Access Defined
SAN FRANCISCO - The crime of continuous sexual abuse doesn't require the perpetrator to hold a position of authority over the victim, the California Supreme Court held Monday.
In a 6-1 decision, the high court upheld a 28-year prison sentence for Los Angeles soccer coach Jose Luis Rodriguez, who was convicted of molesting two young boys over several years.
The decision clarifies the Legislature's 1989 effort to give children under 14 extra protection from molesters by providing more severe penalties for continuous abuse than for any single felony sex offense. People v. Rodriguez, 2002 DJDAR 8139.
Codified as Penal Code Section 288.5, the law punishes continuous sexual abuse of children by persons residing with or having recurring access to the victim.
The case turned on the meaning of a molester's "recurring access" to his prey and on whether jurors needed special instructions to grasp the issue.
The majority held that clarifying instructions were unnecessary.
"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," wrote Justice Ming W. Chin for the majority.
"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."
The Supreme Court's decision rejects a 1997 Court of Appeal opinion that reached a contrary result.
In People v. Gohdes, 58 Cal.App.4th 1520, a 2nd District Court of Appeal panel ruled that a mere acquaintance, lacking either a position of authority regarding his victim or some recurring relationship with him apart from ongoing sexual contacts, was not guilty of continuous sexual abuse.
"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," Chin wrote.
The deputy attorney general who defended Rodriguez's conviction, Sharlene A. Honnaka of Los Angeles, said the case was not about a molester with no tie to his victims.
"This wasn't a stranger," she said, acknowledging that Rodriguez may have had a slightly more remote connection than is usual.
"Generally there's some kind of relationship - a live-in boyfriend, a teacher, a priest. Even here, the guy was a soccer coach for the neighborhood. He did occupy a position of trust."
In a concurring and dissenting opinion, Justice Carlos R. Moreno wrote that the term "recurring access" has an uncommon meaning in the law's context, so juries should get a special jury instruction from the judge.
But the lack of such an instruction was harmless in the present case, Moreno wrote in agreeing that Rodriguez's conviction should be upheld.
Appellate defense lawyer Athena Shudde of San Diego did not immediately return a call seeking comment.
John Roemer
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