The opinion
MORENO, J., Concurring and Dissenting.
I concur in the majority opinion’s result. I disagree, however, with its reasoning. As elaborated below, if the term “recurring access” in Penal Code section 288.5 (all statutory references are to this code) is not given a special meaning, it will be rendered surplusage. I therefore conclude that “recurring access” has a particular meaning in the context of the statute that differs significantly from the commonly understood meaning, requiring the trial court to instruct the jury sua sponte as to that meaning. Because I also conclude the lack of such instruction was harmless beyond a reasonable doubt in the present case, I would affirm the Court of Appeal judgment upholding defendant’s conviction.
The rule for determining when a statute requires a supplementary sua sponte instruction by the trial court is settled: “ Tf the jury would have no difficulty in understanding the statute without guidance, the court need do no more than instruct in statutory language.’ [Citations.] [f] . . . A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.] Thus, . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (People v. Estrada (1995) 11 Cal.4th 568, 574-575 [ 46 Cal.Rptr.2d 586 , 904 P.2d 1197 ], italics added.)
In the present case, we are asked to interpret the meaning of “recurring access” in section 288.5, which provides in pertinent part: “Any person who *552 either resides in the same home 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 sexual conduct with a child under the age of 14 years at the time of the commission of the offense ... is guilty of the offense of continuous sexual abuse of a child . . . .” The critical interpretive problem of this case is posed by the apparent truism that anybody who has engaged in an act of “substantial sexual conduct” with a child necessarily has had access to the child, and anyone who has engaged in the three or more such acts over three or more months needed to qualify as continuous sexual abuse of a child has had recurring access. If that is the case, then not only the phrase “recurring access” but the entire clause “[a]ny person who either resides in the same home with the minor child or has recurring access to the child” would be surplusage and the statute could have and should have simply read: “Any person . . . who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense ... is guilty of the offense of continuous sexual abuse of a child.” But such a construction would be a flagrant violation of the rule that “whenever possible, significance must be given to every word in pursuing the legislative purpose, and the court should avoid a construction that makes some words surplusage.” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 330 [ 87 Cal.Rptr.2d 423 , 981 P.2d 52 ].)
The evident solution to the surplusage problem was proposed by People v. Gohdes (1997) 58 Cal.App.4th 1520 [ 68 Cal.Rptr.2d 719 ]. The Gohdes court first reasoned that “[a] construction that proof of three acts over three months is sufficient to show ‘recurring access’ would render the recurring-access element redundant.” (Id. at p. 1529.) It deduced from this that recurring access must be a distinct element of the crime of continuous sexual abuse, requiring a showing that “there was an ongoing relationship between the person with recurring access and the child separate and apart from the relationship formed and characterized by the forbidden sexual activity.'’'’ (Ibid., italics added.)
Although the court observed that this relationship is often characterized by the adult’s being “in a position to command respect or obedience from the child” (People v. Gohdes, supra, 58 Cal.App.4th at p. 1529 ), I do not read the opinion as requiring this type of relationship. In order to avoid redundancy in the statute, all that is required is that the relationship be “separate and apart from the relationship formed and characterized by the forbidden sexual activity.” (Ibid.) I understand the term “ongoing relationship” to mean simply a legitimate relationship of some kind with a child that provides an *553 adult with opportunities to engage in an illegitimate sexual one. Strictly speaking, it is more correct to say that the perpetrator must have some legitimate “means of access to” rather than an “ongoing relationship with” the child. Although the means of access will often be in the form of an ongoing relationship with a child, it can also sometimes assume the form of a relationship with a child’s parent. But with this caveat in mind, I believe the Gohdes position is essentially correct.
This interpretation of the phrase “recurring access” is consistent with the declared legislative intent of section 288.5. The Legislature stated in the uncodified portion of the statute enacting section 288.5 that it was its intent “to provide additional protection for children subjected to continuing sexual abuse and certain punishment for persons referred to as ‘resident child molesters.’” (Stats. 1989, ch. 1402, § 1, p. 6138, italics added.) This statement of legislative intent also makes clear that the statute was enacted in reaction to People v. Van Hoek (1988) 200 Cal.App.3d 811 [ 246 Cal.Rptr. 352 ]. (Stats. 1989, ch. 1402, § 1, p. 6138.) Van Hoek held that it was a violation of a defendant’s due process rights to convict him based on generic testimony of a course of sexual abuse that did not identify a specific offense, because such testimony impaired the defendant’s ability to mount a defense, e.g. to put on an alibi defense or cross-examine the child victim. (Van Hoek, supra, 200 Cal.App.3d at pp. 816-817.) Section 288.5 attempted to address these due process concerns by criminalizing a course of conduct, while at the same time, as the statement of legislative intent makes clear, restricting this type of criminal culpability to “resident child molesters”—the group most likely to engage in repeated sexual abuse. (See People v. Avina (1993) 14 Cal.App.4th 1303, 1311 [ 18 Cal.Rptr.2d 511 ].)
The Legislature in its statement of intent declared that “ ‘resident child molesters’ . . . reside with, or have recurring access to, a child and repeatedly molest the child over a prolonged period of time . . . .” (Stats. 1989, ch. 1402, § 1, p. 6138.) In other words, the term “recurring access” was part of the legislative definition of “resident child molester.” This context strongly indicates that “recurring access” signifies legitimate access that is the functional equivalent to that established by residing with the victim.
The above conclusion is also in accord with our pronouncement in People v. Grant (1999) 20 Cal.4th 150, 155 [ 83 Cal.Rptr.2d 295 , 973 P.2d 72 ] that “[t]he Legislature enacted section 288.5 to remedy certain problems of pleading and proof that had arisen in cases involving child molesters who *554 engaged in repeated lewd and lascivious acts with their victims while living with or having close and continuing contact with them.” 1
Contrary to the majority’s implication, the Attorney General does not take issue with Gohdes , as interpreted narrowly. As the Attorney General states: “Insofar as Gohdes concluded the Legislature contemplated ‘recurring access’ required something more than access to commit the forbidden acts, it is consistent both with the Court of Appeal opinion and respondent’s position.” The Attorney General argues, and the Court of Appeal held, however, that the above is not a technical meaning, and therefore requires no sua sponte instruction. In order to assess the validity of this argument, we must examine more closely the commonly understood meaning of “recurring access.”
The definition of “access” quoted by both the Attorney General and majority is “permission, liberty, or ability to enter, approach, communicate with, or pass to and from,” or “freedom or ability to obtain or make use of.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 6.) The term “recur” means “to occur again after an interval: occur time after time.” (Id. at p. 978.) The majority apparently accepts the Attorney General’s argument that the term means no more or less than the dictionary definition, and would be understood as such by the jury. But according to that definition, anyone who has committed three or more acts of substantial sexual conduct with a child under the age of 14 has had recurring access to that child, i.e., has had the “ability to . . . approach” a child “time after time.” (Id. at pp. 6, 978.) A reasonable juror could therefore conclude that such a person has had “recurring access” to the child within the meaning of section 288.5. But as the Attorney General concedes, that conclusion would be erroneous. In other words, nothing in the commonly understood meaning of the term “recurring access” would prevent a reasonable juror from subsuming that term entirely within the “three acts” requirement, thereby abolishing “recurring access” as an independent element of the crime. In order to bridge the gap between the legal meaning of “recurring access” within the context of section 288.5 and the commonly understood meaning, a jury instruction is required. (People v. Estrada, supra, 11 Cal.4th at p. 574 .)
The majority’s response to this position is the cryptic assertion that “not every person who manages to molest a child three times during the requisite period necessarily would have an ongoing ability to approach and contact the *555 child time after time.” (Maj. opn., ante, at p. 550.) Without more, it is impossible to know what the majority has in mind. If someone is able to molest a child three times, then he has had recurring access, i.e., a repeated ability to approach the child—unless perhaps if the encounters occurred wholly by chance. This exception is evidently not what the majority is contemplating, because it explicitly reserves the “‘chance contact with strangers’ ” issue for another case. (Ibid.) As such, the majority’s formulation has no evident meaning. Because the majority fails to define “recurring access” so as to avoid redundancy, it also fails to address the central question of whether that term has a technical or commonly understood meaning.
I therefore conclude that the phrase “recurring access” means some kind of repeated legitimate means of access used to perform the sexual misconduct. I further conclude that this understanding of the term gives it a special meaning requiring a sua sponte jury instruction by the trial court, so that the jury is not misled to believe that the commission of three acts alone is sufficient to find “recurring access.” I now turn to the question whether the failure to so instruct in this case is prejudicial.
Instructional error that omits an element of a crime is harmless if it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict. (People v. Flood (1998) 18 Cal.4th 470, 504 [ 76 Cal.Rptr.2d 180 , 957 P.2d 869 ].) Instructional error will be found harmless when the evidence before the jury was so overwhelming “as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been instructed” on the missing element. (People v. Johnson (1993) 6 Cal.4th 1, 46 [ 23 Cal.Rptr.2d 593 , 859 P.2d 673 ].) In this case, the evidence is overwhelming, and, indeed, undisputed, that defendant had a legitimate means of access to his two child victims. Defendant lived in a trailer on the same property as Ernesto R. He was allowed to regularly use the bathroom at Ernesto’s house. By virtue of his proximity and his standing as a neighborhood soccer coach, he was viewed by Ernesto’s mother as an uncle to Ernesto, and was allowed to take Ernesto and his siblings on outings. Defendant lived four houses away from Femando. He was a soccer coach of Femando’s older brother. Femando ran errands for defendant and Femando’s mother entrusted defendant to take Femando and other children to soccer practice and other outings. Thus, the evidence is incontrovertible that defendant had recurring legitimate access to both victims, and the trial court’s failure to properly define the term “recurring access” was harmless beyond a reasonable doubt.
I would therefore require courts to issue a sua sponte instruction that “recurring access” for purposes of section 288.5 means that the defendant *556 had repeated legitimate access to the victim. I would also affirm the judgment of the Court of Appeal because the instructional error in this case was harmless.
The majority refers to various internal memoranda from the Attorney General’s Office to demonstrate how broadly the Attorney General conceived the term “recurring access.” But there is no indication that these memoranda were presented to the Legislature, and therefore they are not indicative of legislative intent. Moreover, nothing in these memoranda suggests that the term “recurring access” was intended to be redundant.