Gear

The sole issue presented in this appeal is the constitutionality of Penal Code section 288.5, which created the crime of “continuous sexual abuse of a child.”

A jury convicted Kevin Gear of one count of section 288.5. The jury also found true an allegation that Gear occupied a position of special trust to the victim within the meaning of section 1203.066, subdivision (a)(9). The trial court sentenced Gear to the middle term of 12 years in prison on the section 288.5 count. Gear appeals, contending section 288.5 is unconstitutional because it (1) violates his right to jury unanimity on the actus reus of the crime, and (2) deprives him of due process of law by not providing adequate notice of the specific acts that formed the basis of the charge.

Facts

Gear and his wife Deborah lived in a house in El Cajon with three children of the marriage and two of Deborah Gear’s children from a prior marriage, including Ameris D.

In the spring or early summer of 1990, as Ameris was completing the sixth grade, Gear began to molest her. During the first incident, Gear called Ameris into the garage, had her sit on a stool, unzipped his pants and put his penis in her mouth. Gear told…