Filed: 1/22/01

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Clifton L. Allen, Judge. (Retired judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Affirmed in part and reversed and remanded in part.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Supervising Deputy Attorney General, Elizabeth A. Hartwig, Deputy Attorney General, for Plaintiff and Respondent.

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* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts 1 & 3 of the Discussion.

Appellant Harry R. Palmer appeals the judgment following his conviction for continuous sexual abuse and misdemeanor molestation of his grandsons. After review, we reverse and remand for resentencing and affirm in all other respects.

In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Over several years, appellant Harry R. Palmer sexually molested his preadolescent and adolescent grandsons, whom we identify by the initials "A," "B," and "C" in order to protect their identities. When A was 17 years old, appellant orally copulated him at least twice. When B was younger than 14 years old, appellant orally copulated him at least once and they repeatedly engaged in mutual masturbation. When C was younger than 14, appellant fondled and repeatedly orally copulated him. In addition, appellant encouraged B and C to engage in mutual sexual conduct with each other in his presence.

In December 1999, an information was filed against appellant. It alleged appellant had committed misdemeanor child molestation of A between October 1, 1996, and November 30, 1997 (count 2) and between October 1, 1996, and September 30, 1997 (count 3) (Pen. Code, § 647.6, subd. (a)). The information also alleged appellant had continuously sexually abused B and C between January 1, 1994, and December 31, 1997, while the boys were younger than 14 years old and during a time when appellant either lived with, or had recurring access to, them (§ 288.5, subd. (a)) (counts 4 and 5). Finally, the information specially alleged as to both B and C that appellant had "substantial sexual conduct" with them while they were younger than 14 years old (§ 1203.066, subd. (a)(8)), his offenses against them involved multiple victims (§ 667.1, subds. (b)(7), (e)(5)), and the crimes involved more than one victim at the same time (§ 1203.066, subd. (a)(7)).

Appellant pleaded not guilty and denied the allegations. He was tried by a jury, which convicted him on all counts and found true the special allegations. The court sentenced appellant to state prison for 17 years to life, consisting of a base term of 15 years to life for continuous sexual abuse of B (count 4) and a concurrent 15-year-to-life term for continuous sexual abuse of C (count 5). In addition, the court imposed two one-year consecutive terms for appellant’s misdemeanor molestation of A (counts 2 and 3). This appeal followed.

1. No Prosecutorial Misconduct

A was born on October 1, 1979. When he was 18 years old in August 1998, he told his therapist about appellant having molested him when he was younger. The therapist immediately reported the molestation to Child Protective Services ("CPS"). An investigator from CPS visited A, but after talking to him closed the case without taking any further action. In July 1999, A’s family contacted the police to report the molestation, which resulted in appellant’s arrest.

Appellant was initially charged with continuous sexual abuse of A when he was younger than 14 years old (§ 288.5, subd. (a)). Appellant moved for dismissal of the charge as time-barred because more than one year had passed from the time the molestation had been reported to CPS to the filing of the criminal complaint. (See § 803, subd. (g)(1).) The trial court agreed and dismissed the charge.

During closing argument, appellant argued CPS’s decision to close A’s case without taking any action suggested CPS disbelieved A’s accusations against appellant, thus casting doubt on A’s credibility. In response, the prosecutor told the jury CPS did not pursue A’s accusations because CPS was only interested in the welfare of children but A was an adult when he revealed the molestation. Furthermore, the prosecutor added, even if CPS had pursued the accusations, the statute of limitations would have barred any criminal proceedings against appellant for his continuous sexual abuse of A.

Section 803, subdivision (g)(1) contradicts part of the prosecutor’s closing argument. That statute provides that a criminal complaint for continuous sexual abuse of a minor may be filed up to one year after the abuse is first reported to law enforcement, regardless of the victim’s current age. Hence, it did not matter that A was 18 when his counselor reported his molestation to CPS because section 803 allowed at least until August 1999 for the filing of a criminal complaint. Thus, CPS’s inaction had nothing to do with the statute of limitations, and the prosecutor was mistaken in arguing otherwise.

Although the prosecutor erred, her mistake was not misconduct. The prosecutor misspoke almost in passing, and did not give much emphasis to her point. To be misconduct, her argument had to have been sufficiently egregious or deceptive so as to make the trial unfair and undermine confidence in the jury’s verdict. (People v. Smithey (1999) 20 Cal.4th 936, 960; People v. Hill (1998) 17 Cal.4th 800, 819.) Her misstatement had no such effect. The jury’s verdict turned largely on whom the jury believed—appellant or his accusers. The jury knew little about the CPS investigation other than CPS’s failure to pursue A’s accusations after talking to him. The jury thus had little with which to judge the quality of CPS’s investigation, forcing the jury to speculate whether CPS closed the case because A’s accusations were untrue or simply because CPS’s investigation was cursory and failed to discover the truth. Moreover, during CPS’s investigation, B and C had not yet revealed appellant’s having also molested them, and it was their coming forward which made the boys’ families go to the police. The jury therefore knew that A’s family delayed reporting his accusations to the police, leaving the jury free to discount, if it chose, A’s testimony in light of how little credence his family seemingly gave his initial claims. Hence, there is little likelihood the jury would have judged the credibility of appellant or his accusers differently had the jury known the statute of limitations did not bar CPS from acting on A’s accusations. Thus, there was no prosecutorial misconduct in the prosecutor erroneously arguing otherwise.

2. Remand for Resentencing

California’s "One Strike" law requires a sentence of 15 years to life for a person convicted of certain enumerated sexual offenses under particular aggravating circumstances. (§ 667.61, subd. (b).) The prosecutor urged the One Strike law applied to appellant. The court agreed and sentenced appellant to 15 years to life for his continuous sexual abuse (§ 288.5) of B and imposed a concurrent term of 15 years to life for his continuous sexual abuse of C. Appellant contends the court erred because he was not convicted of an enumerated offense. We agree.

The One Strike law does not include continuous sexual abuse (§ 288.5) among its enumerated offenses. (§ 667.61, subd. (c).) Respondent contends the One Strike law nevertheless applies because it includes among its enumerated offenses violation of section 288 for lewd and lascivious acts against a child under 14. Respondent notes that one way (although we note it is not the only way) of violating section 288.5 is by engaging in three or more "acts of lewd or lascivious conduct under section 288." (See § 288.5.) Respondent thus argues the jury "implicitly . . . found appellant guilty of a violation of section 288" when it convicted him of violating section 288.5. (Italics added.)

Respondent’s effort to refashion appellant’s conviction fails because it ignores that three or more acts of lewd or lascivious conduct is not the only way of engaging in continuous sexual abuse. Continuous sexual abuse also occurs from three or more acts of "substantial sexual conduct." (§ 288.5, subd. (a).) Substantial sexual conduct is not the same as lewd or lascivious conduct. For example, one can engage in substantial sexual conduct by masturbating in a child’s presence. (§ 1203.066, subd. (b).) To be lewd and lascivious conduct, however, the masturbator must touch the child’s clothing or skin (§ 288). Thus, it does not necessarily follow that a conviction for continuous sexual abuse means the jury found appellant engaged in lewd or lascivious conduct. Indeed, the verdict forms contained special findings of "substantial sexual conduct" as to both B and C, but no special finding as to "lewd or lascivious conduct." The jury’s verdict thus compels a conclusion exactly opposite of that urged by respondent—in convicting appellant of continuous sexual abuse, the jury convicted him under the "substantial sexual conduct" prong, instead of the "lewd or lascivious" prong.

Changing tack somewhat (following our request for supplemental briefing on the issue), respondent alternatively argues the jury was instructed it must specially find whether appellant "committed in violation of Penal Code section 288, subdivision (a), lewd acts upon a child under the age of 14 against more than one victim . . . ." The jury thereafter found appellant had abused multiple victims, although it made no finding of violating section 288 or of lewd and lascivious conduct—and, indeed, was never instructed on the elements of section 288. Based on the multiple victims finding, respondent renews its argument that the jury implicitly convicted appellant of violating section 288, thus triggering the One Strike law.

Second, respondent ignores that the jury was never instructed on the elements of section 288. It violates fundamental notions of due process to deem a defendant convicted of an offense on which the jury was never instructed. (United States v. Gaudin (1995) 515 U.S. 506, 509-511.) Moreover, section 288 is not, as respondent’s suggestion of an "implied conviction" hints, a lesser included offense of section 288.5 because the offenses involve different elements. Accordingly, the standard jury instructions for the two offenses differ, with lewd or lascivious conduct always requiring specific intent, but continuous sexual abuse not necessarily requiring specific intent. (Compare CALJIC Nos. 10.41 (§ 288) with 10.42.6 (§ 288.5).) Thus, as one court explained, "Section 288 requires the specific intent of ‘arousing, appealing to, or gratifying the lust or passions or sexual desires of [the defendant] or of the child . . . .’ A conviction for section 288.5, in contrast, . . . requires no specific intent. . . . Because section 288.5 could be violated without necessarily also violating section 288, the latter is not necessarily included within the former . . . ." (People v. Avina (1993) 14 Cal.App.4th 1303, 1313-1314; see also People v. Valdez (1994) 23 Cal.App.4th 46, 48-49 ["crimes proscribed by section 288, having different elements than does section 288.5, are not lesser offenses necessarily included therein"]; but see People v. Adames (1997) 54 Cal.App.4th 198, 213 [statute requiring testing for HIV antibodies for violation of section 288 covers violation of section 288.5 in those particular circumstances where violation of section 288.5 involved violation of section 288].)

But in the end—and this applies to both theories urged by respondent—respondent’s efforts to turn a conviction of continuous sexual abuse (§ 288.5) into a conviction for lewd and lascivious conduct (§ 288) must ultimately fail because respondent ignores the One Strike law’s plain language. The One Strike law includes lewd and lascivious conduct among its enumerated offenses; it does not include continuous sexual abuse in that category. (See § 667.61, subd. (c).) Appellant was charged and convicted of violating section 288.5; he was not charged or convicted with violating section 288. Sections 288 and 288.5 are not, as respondent urges, interchangeable statutes. The Legislature enacted section 288.5 to deal with the particular evidentiary problems associated with child molesters who live with or have easy access to their victims. Under such living arrangements, the victim often cannot recall the number and dates of specific instances of molestation. The victim’s hazy memory may create problems for the prosecution. (See, e.g., People v. Johnson (1995) 40 Cal.App.4th 24, 26.) Accordingly, the Legislature lowered the prosecution’s evidentiary hurdle by allowing the prosecutor to prove merely a continuous course of abuse, leaving unclear many of the details surrounding specific instances of molestation which would be required to prove a violation of section 288. (People v. Cortes (1999) 71 Cal.App.4th 62, 74-75; People v. Johnson, supra, 40 Cal.App.4th at p. 26.) Having enjoyed, however, the lighter evidentiary burden of section 288.5, the People cannot now attempt to avoid the consequence of having prosecuted under section 288.5 by claiming no difference exists between the two statutes. It is not our job to insert language in a statute which is not there. Had the Legislature wanted to include section 288.5 in the One Strike law, it was capable of doing so. It did not. The People’s remedy lies with the Legislature and that body’s power to amend the law, not with us, because we are charged with enforcing statutes as they are written, not as one of the parties wishes they were written.

3. Evidence of Uncharged Sexual Misconduct

The trial court admitted evidence of appellant’s uncharged sexual conduct with A and another of his grandsons, D, to prove appellant’s behavior toward his grandsons followed a pattern. Evidence Code section 1108, subdivision (a) provides, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." Appellant contends Evidence Code section 1108 violates his right to due process and trial by jury. He concedes, however, that our Supreme Court rejected similar contentions in People v. Falsetta (1999) 21 Cal.4th 903. He therefore raises the issue solely to preserve it for possible future federal review and we note his doing so, and based on Falsetta, we pass on any further consideration of appellant’s constitutional challenge to section 1108.

Appellant also contends the court erred in admitting evidence of uncharged molestation of A and D because the court did not truly balance the probative value of the evidence against its prejudicial impact as required by Evidence Code section 352. (People v. Mickey (1991) 54 Cal.3d 612, 656.) In urging admission of the evidence, the prosecutor argued appellant’s past sexual misconduct was relevant because it showed appellant’s modus operandi in molesting his grandsons. Appellant disagreed, arguing the uncharged events were remote in time and unduly prejudicial. The prosecutor’s and appellant’s arguments thus framed the issues in terms of section 352—probative value versus prejudice. We assume the court listened to each counsel’s arguments. Following such arguments, for the court not to have then weighed the probative value of the evidence against its prejudicial impact requires us to assume the court turned a deaf ear to both attorneys. We decline to make such an assumption. On the contrary, we assume, absent evidence showing otherwise, that the court admitted the evidence based on counsels’ arguments, the facts, and the law. (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1 [trial court’s weighing probative value against prejudice can be inferred from the record].) We thus see no error.

The matter is reversed and remanded for resentencing without application of the One Strike law. (§ 667.61.) After resentencing, the clerk of the superior court shall prepare and send to the Department of Corrections a corrected abstract of judgment. In all other respects, the judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

We concur:

GRIGNON, J.