People v. Johnson

Opinion

GILBERT, J.

After a jury trial defendant Ralph E. Johnson was convicted of one count of violating Penal Code section 288, subdivision (b) (lewd act

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on a child by force) and ten counts of violating Penal Code section 288, subdivision (a) (lewd act on a child).

1

[[/]]

*

[[/]]* We affirm.

[[Facts]]*

Discussion

[[I, II]]*

III

Johnson [[/]]* contends the prosecution abused its discretion in charging him with separate counts of violating section 288. Johnson believes the prosecution was required to charge him with a single court of violating section 288.5, which would result in a lesser prison sentence.

Section 288.5 provides that a person who resides in the same home or has recurring access to a child, and who engages in three or more acts of substantial sexual conduct with the child over a period of not less than three months, shall be punished by a prison term of not less than six, twelve, or sixteen years.

Section 288.5 was enacted because of problems of proof that can arise where the molester resides in the same house as the child. Under such circumstances the child may recall she was molested repeatedly over a period of time, but may not be able to recall discrete instances with sufficient precision to prove multiple counts. The People, however, are not required to prosecute under section 288.5 in order to gain a conviction against a resident child molester even when the evidence is based on “generic testimony.”

(People

v.

Hord