Martinez

I dissent.

The court here confronts a case in which the molestation has been so consistent that the minor victim cannot recall distinct and identifiable acts within this course of conduct. Unfortunately, this is not unusual in the prosecution of a “resident child molester,” that is, a person who either resides in the same home with the minor or otherwise has virtually unchecked access to the minor and who sexually abuses the minor on repeated occasions over a prolonged period of time.

If a child has been molested on a regular basis and in a consistent manner, e.g., “every day when my mommy went to work,” “every weekend when I would stay with my dad,” or “two or three times a week when Johnny would come to visit,” the child may have no meaningful reference point of time or detail by which to distinguish one specific act from another. Obviously, the more frequent and repetitive the molestation and the younger the victim, the less likely it becomes that the prosecution can establish one or more specific acts via the testimony of the minor victim. Since many aberrant practices leave no permanent physical evidence and since children are usually molested outside the presence of…

Defendant was convicted by jury of 20 counts of lewd and lascivious acts with a child under 14 years of age (Pen. Code, § 288, subd. (a)). 1 The jury found true the special allegations as to each count that defendant had occupied a position of special trust with respect to the victim and committed acts of substantial sexual conduct. (§ 1203.066, subd. (a)(9).) After the trial court appointed three psychiatrists to examine defendant and conducted a hearing on their reports, the court denied defendant’s application for probation and sentenced him to prison for 34 years.

Defendant filed a timely notice of appeal.

The Facts

At the time of trial the victim, Linda C., was 18 years old. While growing up, Linda had lived in Sonora with her mother, defendant (whom she *770 referred to as “Dad”), and her older brother after he came to live with the family when he was in sixth or seventh grade. During the summer months of 1978, Linda lived with her mother and defendant in defendant’s house. She found out defendant was not her real father when she was 10 or 11 years old but continued to relate to him as if he were, i.e., she related to defendant as she always had. Linda and her…

Defendant was convicted by jury of 20 counts of lewd and lascivious acts with a child under 14 years of age (Pen. Code, § 288, subd. (a)). [1] The jury found true the special allegations as to each count that defendant had occupied a position of special trust with respect to the victim and committed acts of substantial sexual conduct. (§ 1203.066, subd. (a)(9).) After the trial court appointed three psychiatrists to examine defendant and conducted a hearing on their reports, the court denied defendant's application for probation and sentenced him to prison for 34 years.

Defendant filed a timely notice of appeal.

At the time of trial the victim, Linda C., was 18 years old. While growing up, Linda had lived in Sonora with her mother, defendant (whom she referred to as "Dad"), and her older brother after he came to live with the family when he was in sixth or seventh grade. During the summer months of 1978, Linda lived with her mother and defendant in defendant's house. She found out defendant was not her real father when she was 10 or 11 years old but continued to relate to him as if he were, i.e., she related to defendant as she always had. Linda and her…