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Name: People v. Palmer
Case #: B140436
Court: CA Court of Appeal
District 2 DCA
Division: 5
Citation: 86 Cal.App.4th 440

The trial court erred here in sentencing appellant under the “one strike” law based on appellant’s conviction of Penal Code section 288.5, continuous sexual abuse of a child, because that offense is not one of the enumerated sexual offenses set forth in Penal Code section 667.61, subdivision (c). Penal Code section 288, lewd and lascivious acts against a child under the age of 14, is one of the enumerated offenses. Although one way of proving a violation of section 288.5 is by proving three or more violations of section 288, that does not remedy the Legislature’s failure to include section 288.5 as one of the enumerated offenses. First, a section 288.5 violation can be proved by three or more acts of substantial sexual conduct which need not violate section 288. Second, the jury did not implicitly find violations of section 288 just because the jury made a multiple victim finding on an enhancement allegation. Moreover, the jury was not instructed on the elements of section 288 and it would violate due process to deem a defendant convicted of an offense on which the jury was never instructed. Finally, section 288.5 is not one of the enumerated offenses, and “[i]t is not our job to insert language in a statute which is not there.” Sections 288 and 288.5 are not interchangeable statutes. In section 288.5, the Legislature lowered the prosecution’s evidentiary hurdle by allowing the prosecutor to prove merely a continuous course of sexual abuse, leaving unclear many details which would be required to prove a violation of section 288. The Court of Appeal would not permit the prosecution to enjoy the lighter evidentiary burden of section 2885, while claiming no difference exists between the two statutes.

Opinion Date: 01/22/2001