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Name: People v. Shaw
Case #: F054698
Opinion Date: 08/28/2009
Court: CA Court of Appeal
District 5 DCA
Citation: 177 Cal.App.4th 92

The one-year statute of limitations for a misdemeanor did not apply to child molest with a prior conviction. In his appeal from multiple convictions for child molestation, Shaw contended that count one, a felony violation of section 647.6, subdivision (c)(2), was barred by the one-year statute of limitations generally applicable to misdemeanor offenses. He contended that because section 647.6, subdivision (c)(2), makes the offense a felony because of a prior violation, it does not change the underlying misdemeanor offense, but only enhances the sentence for recidivists. The appellate court rejected the argument, finding that the sentence-enhancing factor of subdivision (c)(2) is neither an enhancement nor an element of the offense, and may be considered for purposes of calculating the statute of limitations period under section 805. The court also rejected Shaw’s equal protection argument, finding that a person who molests a child who has done so in the past is not similarly situated to one who has committed the same offense but who has never before done so. The trial court did not err when it instructed the jury pursuant to CALCRIM No. 1122. Shaw also argued that the trial court erred when it instructed the jury pursuant to CALCRIM No. 1122 that it must find that his conduct was motivated by an unnatural or abnormal sexual interest in the child, instead of referencing children as a group. He contended that because section 647.6 protects children as a class, an unnatural interest in any one particular child is not encompassed by the statute’s prohibition. He argued that his offense against this particular 16-year-old minor was not motivated by a sexual interest in children. The appellate court rejected the argument, finding that the statute does not merely protect children as a class, but protects any child from being annoyed or molested by an adult with an abnormal sexual interest in the child. Further, even if the mens rea requirement for a conviction required the jury to find that Shaw’s acts were motivated by interest in children generally, any error was harmless. The evidence established that Shaw had molested at least six children of various ages. The distinction between “child” and “children” in this case was a distinction without a difference.