Higgins

We are asked to determine the constitutionality of Penal Code section 288.5, the 1989 legislative response to the problems of prosecuting the so-called resident child molester, which defines “the continuous sexual abuse of a child” under 14 years of age as a crime.

A jury convicted 26-year-old John Joseph Higgins of one count of continuous sexual abuse of 8-year-old Russell R. (Pen. Code, § 288.5) between March 1, 1990, and August 17, 1990, and two counts of committing a lewd act upon 8-year-old Jimmy B. (Pen. Code, § 288, subd. (a)) with a special finding the oral copulation involved substantial sexual conduct (Pen. Code, § 1203.066, subd. (a)(8)). Defendant contends Penal Code section 288.5 unconstitutionally deprives an accused of due process by failing to give notice of the specific acts of molestation with which he is charged and deprives the criminal defendant of the right to a unanimous jury verdict by permitting a conviction without unanimity on which acts of molestation occurred. We disagree and, based on our analysis set forth below, conclude the statute survives constitutional scrutiny. In the unpublished portion of this opinion, we find evidence of prior…