Opinion
E068534
10-02-2018
THE PEOPLE, Plaintiff and Respondent, v. PEDRO ALVARADO, Defendant and Appellant.
Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1506012) OPINION APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified. Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Pedro Alvarado guilty of three counts of engaging in sexual intercourse or sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a), counts 1-3) and six counts of engaging in oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b), counts 4-9). All counts were alleged to have occurred on or about October 13, 2014 through and including September 6, 2015. A trial court sentenced him to a total prison term of 165 years to life, comprised of consecutive terms of 25 years to life on counts 1 through 3 and consecutive terms of 15 years to life on counts 4 through 9. The court imposed various fees and fines, including a $4,300 sex offender fine. (§ 290.3.)
All further statutory references will be to the Penal Code, unless otherwise noted. --------
On appeal, defendant contends: (1) the trial court ran his sentences consecutive based on its mistaken belief that consecutive sentences were mandatory; (2) in the alternative, the court abused its discretion in imposing consecutive sentences; (3) the court erred in concluding the section 290.3 fine was mandatory; and (4) defense counsel rendered ineffective assistance in failing to object to all of these claims. We agree that the court erred in imposing the section 290.3 fine and, thus, will strike the fine. In all other respects, we affirm.
FACTUAL BACKGROUND
L.V. met defendant and started dating him in 2010. They moved in together when L.V.'s daughter (the victim) was two years old. In 2012, L.V. and defendant had a son together. On September 6, 2015, L.V. left the house for about 15 minutes. When she came home, she saw the victim lying on her stomach on the bed. Her pants were down, and defendant was standing behind her. When L.V. asked defendant what was going on, he said, "Nothing." She saw the victim pull her pants up and L.V. asked her what was going on. The victim said, "He always does this to me when you leave." When L.V. asked her what he did, the victim said, "He puts his peanut in here." L.V. had previously told the victim that her vagina was called a donut, and a penis was called a peanut. L.V. immediately called the police and told them her boyfriend was molesting her daughter. The police came and arrested defendant.
At trial, L.V. testified that she would occasionally leave defendant home alone with the children when she would go to the store. Also, when her family would go to a party or something, defendant never wanted to go, and he would tell her to go and leave the kids with him. L.V. testified that, over the five years she and defendant were together, she left him alone with the children on many occasions.
The victim was eight years old at the time of trial. She testified that one day, when they were living at her aunt's house, she was lying on her stomach on defendant's bed. Defendant pulled down her pants and underwear, touched her butt, and put his "thing" inside her butt. This incident occurred when her mother went to the store. The victim told defendant to leave her alone, and he said no. She said it happened more than five times at her aunt's house. The victim testified that defendant also put a pencil inside her donut, and it hurt. He would put the pointed side of the pencil inside her and move it. She said he would put spit on her donut, then insert the pencil and his "thing." The victim said it hurt when he put the pencil inside her, and then after he took it out, it would hurt when she went to the bathroom.
The victim testified that, when they moved to another house, defendant put his "thing" in her butt every week when her mother would leave. She said he also tried to put scissors inside her donut. She said defendant told her not to tell her mother, and she complied because she was afraid. The victim further testified that defendant would pull his pants down and try to put his "thing" inside her donut. He also put his fingers inside her donut. He further put his mouth on her donut and licked it, and she said it hurt when he did that. The victim testified that he would do these things every time her mother left. She said defendant would chase her, catch her, and carry her to his bed. She would cry because "he would put it in really hard," and when she cried, he would "tell [her] if [she] didn't shut up he would do it harder."
After defendant was arrested, he was interviewed by the police. He admitted that he touched the victim's vagina and put his fingers inside. When asked, he initially said the first time he did it was three months prior. When asked how many times he touched her, he said four times. As the interview continued, he changed his answers and said that the first time was approximately two years prior, and that he had touched her six times.
ANALYSIS
I. The Court Understood and Properly Exercised its Discretion in Sentencing Defendant
to Consecutive Terms
Defendant contends that the court improperly sentenced him to consecutive terms on each of his convictions because it mistakenly believed consecutive sentences were mandatory under section 667.6, subdivisions (c) and (d). He argues that section 667.6 does not apply to section 288.7 convictions and that the court did not understand its discretion. Defendant further contends that if the court did understand its discretion, then it abused such discretion by imposing consecutive life sentences. He asserts there was no evidence that each offense was a separate and distinct act, and there were no aggravating factors to support consecutive sentences. He also claims that a sentence that exceeds one's life expectance is cruel and unusual punishment. Defendant additionally contends that his counsel was ineffective for failing to object to the imposition of consecutive terms totaling 165 years to life. We conclude the court properly exercised its discretion in sentencing defendant, his sentence was not cruel and unusual punishment, and he suffered no prejudice by his attorney's failure to object.
A. Background
At the sentencing hearing, the court noted that it read and considered the probation officer's report and that neither party submitted anything else for it to consider. Defense counsel submitted on the probation report, and the prosecutor read statements from L.V. and the victim. The court then explained its sentencing decision as follows: "As to the counts, Counts 1 through 9, the probation officer addresses on page 17 Penal Code section 654, which I believe the P.O. accurately does point out that none of these counts are subject to concurrent or even staying the punishment under 654 for the reasons being that although it was the one victim, they were all committed as separate offenses, separate times. Assuming it was even on the same day, there were breaks in the times wherein the defendant had a reasonable opportunity to reflect on his conduct and behavior and yet continued to violate this young girl in horrific ways. And so I don't think that concurrent sentences are appropriate nor the midterm is appropriate. It's all, I believe, because of the facts—of the convictions, mandatory full consec [sic] as to all counts, and the Court is going to sentence accordingly." The court went on to sentence defendant to 25 years to life on counts 1 through 3, and 15 years to life on counts 4 through 9, consecutive, for a total indeterminate term of 165 years to life in state prison.
B. Relevant Law
"Section 669 grants the trial court broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. [Citations.]" (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) Pertinent to this case are the facts that the "crimes involved separate acts of violence . . ." and the "crimes were committed at different times or separate places . . ." (Cal. Rules of Court, rule 4.425(a)(2), (3) (hereafter rule 4.425).)
"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
C. The Court Understood It Had Discretion to Impose Consecutive or Concurrent Sentences
Defendant contends the court did not understand it had discretion in deciding whether or not to impose consecutive sentences. Rather, he claims that the court applied section 667.6, which mandates consecutive sentences for certain sex offenses committed against a single victim on separate occasions. However, he points out that section 667.6 does not apply to convictions under section 288.7. Defendant also claims that he was not convicted of any of the offenses specified in section 269, which also mandates consecutive sentences for certain aggravated sexual assault convictions.
There is no mention of section 667.6 or section 269 in the record, and there is nothing to indicate that the court relied on either statute in imposing consecutive sentences. Defendant points to the court's statements that "although it was the one victim, they were all committed as separate offenses, separate times," and that "there were breaks in the times wherein the defendant had a reasonable opportunity to reflect on his conduct and behavior." He also points to the court's statement that it believed "because of the facts—of the convictions, mandatory full consec [sic] as to all counts" applied. He concludes that the court mistakenly believed sentencing under section 667.6, subdivision (d), was mandatory. However, section 667.6, subdivision (d), states that consecutive terms shall be imposed if the crimes involve "separate victims or involve the same victim on separate occasions." Although the language used by the court is somewhat similar to the language in section 667.6, the court was specifically referring to the probation officer's conclusion that section 654 did not apply to stay the punishment. Moreover, the language used is also similar to the language in rule 4.425, which lists the factors affecting the decision to impose consecutive sentences. (Rule 4.425, subd. (a).)
Furthermore, the record reflects that the court was aware of its discretion to impose either concurrent or consecutive sentences. The court specifically stated: "[D]efendant had a reasonable opportunity to reflect on his conduct and behavior and yet continued to violate this young girl in horrific ways. And so I don't think that concurrent sentences are appropriate nor the midterm is appropriate." (Italics added.) This statement indicates that the court was aware of its discretion to impose either concurrent or consecutive sentences, and it found that concurrent sentences were not appropriate.
D. The Court Did Not Abuse its Discretion
Defendant next argues that, assuming the court understood its discretion to impose either concurrent or consecutive sentences under section 669, it abused its discretion in imposing the sentences consecutively. We see no abuse of discretion.
Rule 4.425 provides criteria for sentencing courts to consider when deciding whether to impose concurrent or consecutive sentences. The factors include whether the crimes and their objectives "were predominantly independent of each other," whether the crimes "involved separate acts of violence or threats of violence," or whether the crimes were "committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." (Rule 4.425, subd. (a).) Also, courts may consider aggravating or mitigating circumstances, with some specified exceptions. (Rule 4.425, subd. (b).) "[A] trial court is not required to state its reasons for ordering one indeterminate term to run consecutively to another indeterminate term." (People v. Arviso (1988) 201 Cal.App.3d 1055, 1058.)
Defendant specifically argues that consecutive sentences were unwarranted because there was no evidence that the molestation "did not occur at the same time," or that the crimes involved separate acts of violence, or that they were committed at different times or separate places. The record belies these claims. The evidence showed that defendant's sexual acts with the victim occurred over a period of two years. The victim testified that defendant put his "thing" in her butt when she lived in her aunt's house more than five times. He also put a pencil in her vagina there. The victim said defendant did the same thing at the next house they lived in, and he did it every week when her mother would leave. She said he also put his "thing" in her vagina, as well as a pencil, at that house. She testified that he also tried to put scissors in her vagina at that house. The victim further testified that defendant put his fingers inside her vagina.
We additionally note the aggravating factors listed in the probation officer's report that the court considered. The factors included that the crime involved acts disclosing a high degree of cruelty, viciousness, or callousness; the victim was particularly vulnerable; the crime was carried out in a manner that indicated planning; and defendant took advantage of a position of trust. The evidence clearly supported these factors. Defendant molested his girlfriend's daughter, when she trusted him to watch her. The victim was particularly vulnerable since she was only six to seven years old. Defendant would wait until L.V. left the house to molest the victim. His acts showed cruelty, as he had sex with the victim, digitally penetrated her, and stuck pencils and scissors in her vagina. Defendant was callous, in that when the victim would cry during sex, he would threaten to "do it harder" if she did not shut up.
In view of the record, we agree with the court that defendant violated the victim in horrific ways. We conclude that the court did not abuse its discretion in imposing consecutive sentences.
E. Defendant's Sentence Was Not Cruel and Unusual Punishment
Defendant argues that his sentence of 165 years to life is cruel and unusual punishment under the federal and state constitutions because it exceeds his lifespan and thus serves no legitimate penal purpose. We recognize that the sentence imposed is longer than his possible lifespan. However, it is not cruel and unusual punishment.
"A punishment violates the Eighth Amendment if it involves the 'unnecessary and wanton infliction of pain' or if it is 'grossly out of proportion to the severity of the crime.' [Citation.] A punishment may violate article I, section 17 of the California Constitution if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 (Retanan).)
Defendant relies upon the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600-601, in stating that any sentence longer than the human lifespan is inherently cruel and unusual. However, as the court in People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 stated, "'no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]' [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk's concurring opinion [in Deloza], it has no precedential value." Therefore, there is no authority for defendant's argument. (Retanan, supra, 154 Cal.App.4th at p. 1231.)
Moreover, California courts have repeatedly upheld such lengthy prison sentences. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years eight months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [upholding sentence of 129 years].) We further note that defendant was convicted of multiple sex crimes against a very young girl. He exploited the trust of the victim's mother, his girlfriend, in committing these offenses. We cannot say his sentence was grossly disproportionate to the severity of the crimes. (Retanan, supra, 154 Cal.App.4th at pp. 1230-1231.)
We conclude that defendant's sentence does not constitute cruel and unusual punishment.
F. Defendant Was Not Prejudiced By His Attorney's Lack of Objections to His Sentence
Defendant acknowledges that he did not raise any of his claims at trial and argues that his trial counsel's failure to object deprived him of effective assistance of counsel. However, because defendant cannot demonstrate that he suffered prejudice from his counsel's failure to object, his argument fails.
To demonstrate ineffective assistance of counsel, a defendant must establish that his counsel's performance was deficient under an objective standard of professional competency, and that there is a reasonable probability that but for counsel's errors, a more favorable determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703 (Holt).) If the defendant makes an insufficient showing on either one of these components, the claim fails. (Ibid.) "Moreover, ' "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." [Citation.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.)
Defendant merely contends that his counsel had no tactical reason for failing to object to the imposition of consecutive sentences or for failing to object on federal constitutional grounds, and that, had counsel objected, "a sentence more favorable to [him] would have been imposed." However, as explained ante, the court properly exercised its discretion in imposing consecutive sentences, and the total term did not constitute cruel and unusual punishment. (See § I.C.-E.) Thus, defendant has not and cannot establish that the court would have imposed a more favorable sentence (i.e., concurrent sentences) had counsel objected.
II. The Court Erroneously Believed the Section 290.3 Fine Was Mandatory
Defendant argues that the court erred when it concluded the sex offender fine under section 290.3 was mandatory. He also points out the court found that he did not have the ability to pay lesser fines; therefore, had it known the section 290.3 fine was subject to his ability to pay, it would have concluded that he did not have the ability to pay that fine. Defendant further argues that his counsel was ineffective for failing to object to the imposition of the section 290.3 fine. Thus, he asserts that the fine must be stricken. We agree.
A. Relevant Background
The probation officer recommended that the court order defendant to pay the costs of a presentence probation report, not to exceed $1,095 (§Pen. Code, § 1203.1b), booking fees of $514.38 (Govt. Code, § 29550), and $1,500 for 635 days of presentence incarceration costs (Pen. Code, § 1203.1c). The probation officer also recommended that the court order defendant to pay a fine of $4,300 pursuant to Penal Code section 290.3, but noted that the court had the discretion to waive this fine, based on ability to pay.
At the time of sentencing, defense counsel requested the court to make a finding of no ability to pay. Thus, the court "[found] no ability to pay," and struck the presentence probation report cost, the booking fee, and the presentence incarceration costs. However, the court stated, "I think the 290.3 fine is mandatory." It then ordered defendant to pay a fine of $4,300, pursuant to section 290.3.
B. The Sex Offender Fine in Section 290 .3 is Subject to a Defendant's Ability to Pay
Defendant argues, and the People concede, that the sex offender fine is not mandatory. Section 290.3, subdivision (a), provides: "Every person who is convicted of any offense specified in subdivision (c) of Section 290 shall, in addition to any imprisonment or fine, or both, imposed for commission of the underlying offense, be punished by a fine of three hundred dollars ($300) upon the first conviction or a fine of five hundred dollars ($500) upon the second and each subsequent conviction, unless the court determines that the defendant does not have the ability to pay the fine." (Italics added.) The fine is subject to a defendant's ability to pay. Thus, it is not mandatory.
Defendant further argues that, since the court found he did not have the ability to pay lesser fines (e.g., the presentence probation report, the booking fee, and the presentence incarceration costs), it would have concluded that he did not have the ability to pay the $4,300 sex offender fine under section 290.3. Defendant also contends that because his counsel failed to object to the imposition of the fine when the court found that he had no ability to pay the other fees, his counsel rendered ineffective assistance. The People concede, and we agree, that but for the court mistakenly believing that the section 290.3 was mandatory and not contingent on defendant's ability to pay, it is probable the court would not have imposed the $4,300 fine.
Curiously, the People also assert that we should remand the matter because "it is probable that the court would have imposed a lesser or no section 290.3 fine." We disagree. Section 290.3, subdivision (a), "requires the trial court to impose a fine of the prescribed amount, or to impose no fine at all if it determines that the defendant does not have the ability to pay the fine. The trial court thus must impose fines in the amount of $300 for the first qualifying conviction and $500 for additional qualifying convictions, or no fine if the trial court determines that the defendant does not have the ability to pay the fine." (People v. Walz (2008) 160 Cal.App.4th 1364, 1370 (Walz).)
Defendant had nine qualifying convictions; thus, the court imposed a total fine of $4,300, which presumably consisted of $300 for the first conviction and $500 for the additional convictions. (§ 290.3.) However, it is reasonably probable that had defense counsel objected to the fine, the court would have immediately stricken it, since the court had just found that defendant had no ability to pay even lesser amounts. (See Holt, supra, 15 Cal.4th at p. 703.) The People's claim that it is probable the court would have imposed a lesser fine is meritless. (Walz, supra, 160 Cal.App.4th at p. 1369 ["[T]he language of section 290.3, subdivision (a) is not amenable to an interpretation granting a trial court discretion to impose a fine of less than the prescribed amount if it determines that the defendant does not have the ability to pay the full amount of the fine."].) Therefore, we decline to remand the matter. Rather, we will strike the section 290.3 fine.
DISPOSITION
The $4,300 sex offender fine imposed pursuant to section 290.3 is stricken. The clerk of the superior court is directed to prepare an amended sentencing minute order and an amended abstract of judgment accordingly and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.