People v. Jones

MOSK, J.

I dissent. The majority advocate unqualified acceptance of “generic testimony”—unspecific as to time, place or circumstance—as sufficient to convict a defendant of committing particular criminal acts. But sole reliance on such testimony raises a number of grave due process concerns that the majority do not adequately address. Neither the majority opinion nor the line of recent Court of Appeal opinions it embraces—opinions that mostly reiterate each other’s conclusions—succeeds in adequately safeguarding two of the most important rights constitutionally guaranteed to all persons charged with crime: the right to be free of conviction except upon the verdict of a unanimous jury and the right to present a defense. The majority opinion would also permit the prosecutor to charge and convict a defendant on numerous counts for unspecified criminal acts, with the number of counts left to the prosecutor’s discretion.

In lieu of the majority’s approach, I propose that to support each charge under Penal Code section 288 (hereafter section 288), the prosecution be required to prove the commission of a specific criminal act. The evidence would have to describe the act with sufficient particularity to allow reasonable jurors to distinguish the act from other acts and to agree unanimously that the defendant committed it. I would not require that the act be necessarily pinpointed in time, but I would require some particularity with regard to time, place or distinguishable circumstances before the jury would be allowed to pass on the defendant’s guilt.

If, on the other hand, the evidence does not point to any distinguishing acts, the accused child molester would not be beyond prosecution. Instead, he could be prosecuted under recently enacted Penal Code section 288.5 (hereafter section 288.5), which makes criminal a specific course of conduct identified as “continuous sexual abuse of a child” As discussed below, *324 section 288.5 has built in it certain safeguards, not present in section 288, that balance the state’s interest in prosecuting resident child molesters with the defendant’s due process rights.

The majority’s acceptance of generic testimony arises from its understandable concern with the unique evidentiary problems that arise in prosecutions of alleged resident child molesters, particularly when the complaining witnesses are young children who have difficulty recalling or articulating specifics. Nonetheless, it is hyperbole to suggest, as the majority opinion does {ante, p. 305), that refusal to accept generic testimony as sufficient to convict would result in the “immunization” of resident child molesters, even with regard to cases brought prior to section 288.5’s enactment; the typical resident child molester case is premised on a mixture of both generic and nongeneric testimony, describing both specific, distinguishable acts and generalized accounts of molestation. 1 The standard I propose would merely circumscribe the prosecution’s case against an accused resident child molester brought under section 288, so that prosecutors are compelled to plead and prove, and jurors are compelled to agree upon, the specific criminal acts of which the presumptively innocent defendant is guilty.

I. The Unanimous Verdict Requirement

The California Constitution (art. I, § 16) requires unanimous verdicts in criminal cases. When a conviction is based entirely on generic testimony, however, unanimity becomes impossible: because no evidence of specific *325 criminal acts has been presented, the jurors are by definition precluded from agreeing unanimously on which criminal acts the defendant committed. As stated in People v. Van Hoek, supra, 200 Cal.App.3d at page 817: “Implicit in the cases requiring specificity of charges and the charges being supported by specific testimony given at trial is the fundamental due process rule, steeped in antiquity, that the prosecution must prove a specific act and the twelve jurors must agree on one specific act.” (Accord, People v. Creighton (1976) 57 Cal.App.3d 314, 320 [ 129 Cal.Rptr. 249 ], disapproved on other grounds in People v. Thomas (1978) 20 Cal.3d 457, 468 [ 143 Cal.Rptr. 215 , 573 P.2d 433 ]).)

The majority purport to address this concern with their “modified unanimity instruction,” which, “in addition to allowing a conviction if jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Maj. opn., ante, p. 322.) To understand the complete inadequacy of this answer, some background discussion of the jury unanimity problem is in order.

A. The Either/Or Rule and the Continuous-course-of-conduct Crime Exception

Courts have long recognized that the achievement of true jury unanimity requires more than the mere agreement of 12 jurors to a common verdict. (See, e.g., People v. Williams (1901) 133 Cal. 165 [ 65 P. 323 ].) The concern that a seemingly unanimous jury verdict may mask substantial disagreements among the jurors was first raised in cases in which evidence of more than one criminal act was presented in support of a single criminal charge. For such situations the courts developed the “either/or” rule, which states that “when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied on to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Gordon (1985) 165 Cal.App.3d 839, 853 , and cases cited [ 212 Cal.Rptr. 174 ].)

When a case relies on truly generic testimony, however, the either/or rule cannot apply, because such testimony does not present a set of distinguishable acts from which the prosecutor can elect or about which the jurors can agree. Recent Court of Appeal decisions differ as to the consequence of the inapplicability of the either/or rule to generic testimony cases. (Compare People v. Van Hoek, supra, 200 Cal.App.3d 811, 816 [unanimity instruction not an adequate remedy when acts are indistinguishable], with People v. Winkle, supra, 206 Cal.App.3d 822, 830 [jurors need not agree on specific *326 act, and unanimity instruction would only “confuse the jury”].) As will appear, I agree with Van Hoek that the failure of the either/or rule to remedy generic testimony is a reflection more of the inadequacy of that testimony than of the limitations of the either/or rule.

Nor does the “continuous crime” exception to the either/or rule apply here. Under that exception, jurors do not have to agree on specific acts in order to convict in the following two situations: (1) when the criminal acts are so closely connected in time as to be part of the same criminal transaction—e.g., repeated acts of rape in the same hour, or (2) when the criminal activity constitutes a “continuous course of conduct.” (People v. Diedrich (1982) 31 Cal.3d 263, 282 [ 182 Cal.Rptr. 354 , 643 P.2d 971 ].) A continuous-course-of-conduct crime is generally one committed on the same victim and described in terms of cumulative injury to that victim. 2 Examples of a continuous course of criminal conduct include child abuse (People v. Ewing (1977) 72 Cal.App.3d 714, 717 [ 140 Cal.Rptr. 299 ]) and contributing to the delinquency of a minor (People v. Lowell (1946) 77 Cal.App.2d 341, 346-348 [ 175 P.2d 846 ]).

By contrast, lewd or lascivious conduct, as defined in Penal Code section 288, subdivision (a), criminalizes at present only specific acts. The statute is quite clear about this, making punishable “Any person who shall willfully and lewdly commit any lewd or lascivious act . . . .” (Italics added.) 3 The problem that the present case poses is not whether generic testimony is acceptable in some abstract sense, but whether such testimony can form the basis of a conviction under a statute that requires proof of particular criminal acts.

B. Generic Testimony and the Jury Unanimity Problem

The majority opinion nonetheless maintains that such use of generic testimony is constitutionally permissible. The majority claim that because “credibility is usually the ‘true issue’ in these cases, ‘the jury either will *327 believe the child’s testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations].’ ” (Maj. opn., ante, p. 322), quoting from People v. Moore (1989) 211 Cal.App.3d 1400, 1414 [ 260 Cal.Rptr. 134 ].)

This argument ignores, however, a primary reason for requiring a high level of agreement among jurors. The rule that jurors must agree on specific criminal acts in order to convict has been established not simply to preclude the possibility that jurors presented with multiple acts in support of a single criminal charge might actually disagree. The unanimity requirement serves an additional purpose: as Judge Wisdom wrote in United States v. Gipson (5th Cir. 1977) 553 F.2d 453 , like the reasonable doubt standard it is needed to impress “ ‘on the trier of fact the necessity of reaching a subjective state of certitude on the facts at issue.’ ” (Id. at p. 457.) To make the unanimity rule an effective means of securing such certitude, the rule “requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged.” (Id. at pp. 457-458, italics added.)

The danger, therefore, of relying on wholly generic testimony to convict a defendant of specific criminal acts is that jurors would no longer need to achieve the state of subjective certitude they reach when they are compelled to agree on the specific criminal acts committed by the defendant; instead, they would need only to agree that the defendant committed some lewd or lascivious act, somewhere, at some time. Testimony pitched at such a low level of specificity may be sufficient to convict of a crime defined by a continuous course of conduct, e.g., section 288.5, it does not suffice when the crime consists, as here, solely of the commission of specific criminal acts.

Thus, the difficulty with the majority’s approach is its implied suggestion that acts can be specific, for purposes of conviction under section 288, without being distinguishable. This approach allows jurors to convict the defendant of “phantom” acts which lie below the threshold of particularity that is the precondition of jury unanimity in any meaningful sense. But indistinguishable acts cannot serve as the tangible core around which 12 minds dedicated to finding specific-act guilt beyond a reasonable doubt can form agreement.

For this reason, the majority’s solution to the generic testimony problem—the modified unanimity instruction—is untenable. If jurors are unable *328 to agree that the defendant committed any single act, they cannot be expected to agree that the defendant committed “all” the acts. If jurors are presented with generic acts A, B, C, and D, and cannot agree unanimously that the defendant committed act A, or act D, how can they agree that he committed all four acts? The subjective certitude that jurors lack in deciding whether defendant committed a single act does not magically appear when jurors are considering the totality of his acts. In other words, the modified unanimity instruction does not address the fundamental requirement that juror agreement on a specific act stand behind every count charged under section 288.

Moreover, assuming arguendo that a modified unanimity instruction is accepted as a valid means of curing the defects in generic testimony, it was not given in this case, and therefore defendant’s convictions based on generic testimony cannot be upheld. Nor can his omission be judged to be harmless. It is evident that the jury did not believe that defendant committed all the acts with which he was charged, since they acquitted him on five counts. It is impossible to predict how the jury would have reacted had they been given the majority’s modified unanimity instruction. Therefore, failure to administer the modified unanimity instruction, by the majority’s own logic, must lead to reversal of the generic-testimony-based convictions.

The majority’s view also ignores the problem of all-or-nothing convictions. When a defendant is charged with a number of similar crimes against the same victim, jurors are likely to believe he is either largely guilty or else innocent. This unstated presumption, however, runs counter to one of our most fundamental notions of due process: a defendant must be convicted independently and beyond a reasonable doubt of each charge. Thus, the prosecutor may attempt to “piggyback” the charges based purely on generic testimony, about which the jury has been given little information, on those charges supported by more specific testimony, about which the jury has been told a good deal more. The result will be a further compromising of the reasonable doubt standard.

C. Section 288 in Relation to Section 288.5

What is perhaps most perplexing about the majority’s effort to lower due process standards under section 288 is that it ignores the Legislature’s own solution to the problem of prosecuting resident child molestation. Section 288.5, enacted in 1989, punishes “any person who either resides in the same house with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial conduct with a child under the age of 14 . . . .” (§ 288.5, subd. (a).) Jurors “need unanimously agree only that the requisite *329 number of acts occurred[,] not on which acts constitute the requisite number.” (Id., subd. (b).)

As the bill that introduced section 288.5 makes clear, the new statute was intended “to overcome the due process problems raised in the Van Hoek case within the framework of existing statutory law.” (Assem. Bill No. 2212 (1989-1990 Reg. Sess.) § 1.) The Legislature has chosen to address the substantial constitutional problems raised by Van Hoek and its progeny by creating a continuous-course-of-conduct crime—the crime of resident child molestation. As discussed above, a continuous-course-of-conduct crime is a well recognized exception to the rule that the jurors must agree on the particular criminal acts committed by the defendant before convicting him. The continuous-course-of-conduct crime does not require jury unanimity on a specific act, because it is not the specific act that is criminalized. The actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury. The agreement required for conviction is directed at the appropriate actus reus: unanimous assent that the defendant engaged in the criminal course of conduct.

The difference between the majority’s solution to the resident child molester problem and that of the Legislature is far more than semantic. The Legislature, in enacting section 288.5, created several safeguards designed to balance the state’s compelling interest in prosecuting the resident child molester with the protection of a criminal defendant’s rights. Primary among these safeguards is the limitation that the defendant be charged with only one count per victim. Although penalties for violation of section 288.5 are severe—with possible 6, 12, or 16 year sentences—the one-count-per-victim provision is a significant restriction on overzealous prosecutors, who may be tempted to compile a multitude of convictions based on potentially exaggerated estimates of the frequency of the criminal conduct by victims concededly unable to recall specifics.

Section 288.5 would also require that jurors agree the defendant committed at least three acts of sexual abuse before convicting him on a given count. The three-act requirement thus sets a baseline for the crime of continuing sexual abuse, making clear that a defendant may not be convicted of that crime without substantial evidence that he engaged in a repetitive pattern of abusive acts.

Finally, section 288.5 requires that the defendant have had three months’ continuous access to the victim. The continuous-access requirement makes clear that the statute was targeted at the resident child abuse situation, where problems with generic testimony are most likely to arise, and was not *330 to be used against individuals who have only transient contact with the alleged victim.

Section 288 and 288.5, read in conjunction, are thus two aspects of a single legislative scheme. When a prosecutor has strong evidence of specific acts of child molestation, he may bring his case under section 288, with its more demanding proof requirements. When the prosecutor has strong evidence that the defendant committed some type of lewd and lascivious acts on a child, but has only the child’s generic testimony, he may bring the case under section 288.5 as a course-of-conduct crime, with relaxed proof requirements but with the built-in safeguards discussed above.

The majority would play havoc with this legislative scheme. Under their construction of section 288, the prosecutor has all of the incentives and none of the disincentives to bring a resident child molestation case under this section rather than section 288.5. He may prove his case against the defendant with generic testimony, and his discretion is virtually unfettered as to how many counts he can charge. He may use generic testimony under section 288 even when the contact between the defendant and the alleged victim has been brief, and the potential for pinpointing the time and place of the acts presumably greater. The majority’s holding today therefore severely undermines the thoughtful balancing and limitations incorporated in section 288.5, and deviates from our usual policy of deference to the Legislature in matters relating to the creation and definition of crimes.

II. Right to Present a Defense

The majority also belittle the grave difficulties of defending against generic testimony. First, they dismiss the accused’s inability to establish an alibi: “only infrequently can an alibi or identity defense be raised in the resident child molester cases. Usually, the trial centers on a basic credibility issue— the victim testifies to a long series of molestations and the defendant denies that any wrongful touchings occurred.” (Maj. opn., ante, at p. 319.) The majority stress the competence and credibility of child witnesses in general. Finally, the majority contend the defendant does have an opportunity to present a defense—chiefly, it appears, by calling attention to the “nonspecificity” of the child’s testimony by presenting expert character evidence on his own behalf, and by impeachment of the child witness via revelation of past fabrications.

But the problems of defending against purely generic testimony are far more serious than the majority would have us believe. The defendant faces *331 great obstacles in presenting not only an alibi defense, but a credibility defense as well. As the Van Hoek court explains, “The defendant is unable to attack specifics of the act to undermine the victim’s credibility as to certain details which might convince the jury that the particular act did not occur. . . .” (People v. Van Hoek, supra, 200 Cal.App.3d at p. 817 .)

It is true there is no right to an alibi defense per se: a burglary can be prosecuted although the precise date of its commission is unknown. (See, e.g., People v. Avina (1989) 211 Cal.App.3d 48, 56 [ 259 Cal.Rptr. 178 ].) But in the case of a burglary there is likely to be tangible physical evidence— e.g., the stolen goods—that gives a defendant the opportunity to mount a viable defense. He may present, for example, an alternative explanation for his possession of the stolen goods.

The person faced with generic testimony, however, can make only the most generalized attack on his accuser’s credibility. Unable to cross-examine the child as to the details of the molestation, he can never show, for example, that these details render the child’s story physically impossible, or highly unlikely, or contradictory. The trial stratagems recommended by the majority are of dubious value: whereas a lack of specificity in an adult witness would likely raise questions about his credibility, a child witness’s vagueness may well be seen by the jury as reflecting simply a lack of cognitive or expressive development. And generalized character testimony may be given little weight by a jury impressed by an earnest child victim/witness. 4

Contrary to the majority’s assertions, moreover, the general credibility or competency of children as witnesses is not the issue: the point is not that children lie, or lie frequently, but that they may lie, and should therefore be held to approximately the same standards as adults. (See Meyers, The Child Witness: Techniques for Direct Examination, Cross-Examination, and Impeachment (1986) 18 Pacific L.J. 801, 872, 873 [children over eight are cognitively capable of “bending the truth,” and younger children, although not likely to consciously lie in court, may be prone to suggestion].) In short, the presumptively innocent defendant faced with purely generic testimony confronts problems of such magnitude as to impair his Sixth Amendment right to present a defense. The standard I propose—that the defendant can *332 be convicted under section 288 only of particular acts supported by testimony that describes those acts in sufficient detail to make them distinguishable—will provide him with a somewhat better opportunity to challenge the child victim/witness’s credibility. 5

III. Sufficiency of the Evidence

“The proper test to determine a claim of insufficient evidence in a criminal case is whether, on the entire record, a rational trier of fact could find appellant guilty beyond a reasonable doubt.” (People v. Barnes (1986) 42 Cal.3d 284, 303 [ 228 Cal.Rptr. 228 , 721 P.2d 110 ]; People v. Johnson (1980) 26 Cal.3d 557, 576-578 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ].) As explained above, true jury unanimity is impossible when generic evidence is the sole basis of a conviction for committing specific criminal acts. But to say as a matter of law that 12 jurors could not achieve agreement beyond a reasonable doubt on the evidence presented is tantamount to declaring the evidence insufficient. Lack of jury unanimity plainly violates due process; likewise evidence that does not allow jury unanimity is insufficient.

The majority opinion, in addition to its lengthy though largely irrelevant discussion of the child/witness’s credibility, argues that generic testimony is not insufficient because “[a]s many of the cases make clear, the particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction.” (Maj. opn., ante, at p. 315.) But this formulation misconstrues the dilemma of generic testimony. The need to prove that specific acts of lewd or lascivious conduct were committed is axiomatic, arising from the statute itself; the only question is whether the courts should accept nonspecific testimony to prove these acts. As explained above, such proof is insufficient as a matter of law because jurors are unable to achieve true unanimity to convict a defendant of specific criminal acts.

IV. Arbitrariness in Charging and Sentencing

Finally, the majority scarcely mention the significant problems of charging and sentencing that will inevitably arise if its standard is adopted. In the *333 present case counts 19 to 23 alleged acts committed between November 1, 1983, and August 30, 1984, with March and April of 1984 omitted. But the division of the charged offenses into two-month periods so as to amount to five counts against defendant was purely arbitrary; the prosecutor could have divided the period into ten counts, or two, according to his whim. Because the number of charges on which a defendant is convicted will strongly influence the length of his sentence, the majority’s approach creates a serious risk of arbitrary and disproportionate sentencing. Anchoring each criminal count in a specific, distinguishable criminal act, as I propose, would avoid such abuses of unfettered prosecutorial discretion.

The majority’s only response to this dilemma is to admonish prosecutors, parenthetically, to “exercise discretion in limiting the number of separate counts charged.” (Maj. opn., ante, at p. 314.) The exhortation neither provides prosecutors with any guidelines as to what a reasonable exercise of discretion would be, nor establishes any standard for abuse of discretion that would be reviewable by an appellate court. While most prosecutors will doubtless exercise restraint, the few who do not, for whatever mixture of self-seeking and misguidedly altruistic motives, will be undeterred by the majority’s admonition.

V. Application to the Present Case

Here the prosecution’s evidence on counts 19 to 23 consisted almost exclusively of generic testimony of several acts of oral copulation, undifferentiated as to time, place or circumstance. There is, in fact, no indication in the record that Sammy, who was between the ages of 10 and 12 when the molestations occurred, was incapable of remembering specific incidents. Rather, the prosecutor seems to have abandoned any inquiry about specifics in favor of questions designed to elicit broad, general responses, thereby maximizing the number of convictions against defendant with the least prosecutorial effort. On such testimony, it is difficult to say to what exactly the jury thought it was agreeing.

For the reasons given, the prosecution seeking a conviction under section 288 should be required to present evidence of specific criminal acts, particular as to distinguishing time, place or circumstances. Applying this standard, I would conclude that convictions on counts 19 to 23 relied exclusively on generic testimony, and lacked evidence of specific, distinguishable *334 acts. I would therefore affirm the Court of Appeal’s judgment reversing the conviction on those counts.

Broussard, J., concurred.

A review of recent decisions involving resident child molesters shows that in most there was specific testimony which identified the act according to time, place or various distinguishing circumstances. (See People v. Van Hoek (1988) 200 Cal.App.3d 811, 813 [ 246 Cal.Rptr. 352 ] [victim recalled three specific acts of molestation]; People v. Vargas (1988) 206 Cal.App.3d 831, 847 [ 253 Cal.Rptr. 894 ] [evidence of incidents with distinguishing characteristics presented on four of ten counts]; People v. Atkins (1988) 203 Cal.App.3d 15, 19 [ 249 Cal.Rptr. 863 ] [specific testimony on three of five counts]; People v. Luna (1988) 204 Cal.App.3d 726, 730-731 [ 250 Cal.Rptr. 878 ] [specific testimony at least three counts]; People v. Sanchez (1989) 208 Cal.App.3d 721, 746 [ 256 Cal.Rptr. 446 ] [specific testimony as to location and nature of acts]; People v. Jeff (1988) 204 Cal.App.3d 309, 342 [ 251 Cal.Rptr. 135 ] [specific testimony on at least two of nine counts]; People v. Coulter (1989) 209 Cal.App.3d 506, 509, 511 [ 257 Cal.Rptr. 391 ] [specific testimony as to time, place and circumstance]; People v. Moore (1989) 211 Cal.App.3d 1400, 1404-1405 [ 260 Cal.Rptr. 134 ] [specific testimony on place and circumstance as well as to some specific times]; People v. Avina (1989) 211 Cal.App.3d 48, 52 [ 259 Cal.Rptr. 178 ] [four events testified to in detail]; People v. Moreno (1989) 211 Cal.App.3d 776, 781 [ 259 Cal.Rptr. 800 ] [at least three incidents described specifically as to time, place and circumstance]; People v. Obremski (1989) 207 Cal.App.3d 1346, 1349 [ 255 Cal.Rptr. 715 ] [adult eyewitness to one act of molestation].) Of these cases only People v. Winkle (1988) 206 Cal.App.3d 822, 824-825 [ 253 Cal.Rptr. 726 ] seems to be without specific testimony of any kind, and this may be more an artifact of the appellate court’s description than a true reflection of the state of the evidence. Moreover, Winkle contained extensive physical evidence as well as a confession by the defendant.

For example, Penal Code section 273a, subdivision (1), which defines the crime of child abuse, makes punishable: “Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care and custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, . . .”

Penal Code section 288, subdivision (a), reads in full: “Any person who shall willfully and lewdly commit any lewd or lascivious act including any of the acts constituting other crimes provided for in Part 1 of this code upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years.”

It is true that some of the same problems are present when defendant is tried under a continuous-course-of-conduct charge. But in such situations the defendant is not asked to defend against charges of tens or hundreds of indistinguishable criminal acts, but against a single charge that he engaged in a particular course of criminal conduct. Thus, he does not find himself in the Kafkaesque predicament of having to answer to numerous charges of unspecified criminal misdeeds.

The majority opinion also discusses the problem of insufficient notice, addressing it in terms of the availability or lack of adequate pretrial procedures—e.g., the preliminary hearing—that can inform the defendant of the nature of the charges brought against him. I view the problem of notice as indistinguishable from the general problem of presenting a defense. Pretrial proceedings, through whatever means, must provide notice of the particular criminal acts with which the defendant is charged, so as to enable him to prepare a defense. (See In re Hess (1955) 45 Cal.2d 171, 175 [ 288 P.2d 5 ] [notice must be sufficient to allow accused to prepare a defense].) The availability of additional pretrial procedures cannot cure the problem of notice if the end product of those procedures is the victim’s insufficiently specific allegations.