Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. PA058189, Cynthia L. Ulfig, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Jose Guajardo appeals the judgment entered following his conviction by jury of continuous sexual abuse of a child and six counts of lewd act upon a child. (Pen. Code, § 288.5, subd. (a), 288, subd. (a).) As to each count, the jury found Guajardo committed an offense specified in section 667.61, subdivision (c) against more than one victim within the meaning of section 667.61, subdivision (e)(5), thereby triggering the sentencing provisions of section 667.61, subdivision (b) (the One Strike law). The trial court sentenced Guajardo to a term of 45 years to life in state prison and ordered him to pay, inter alia, $9,619 in attorney fees.
Subsequent unspecified statutory references are to the Penal Code.
We reject Guajardo’s claim the prosecutor committed misconduct and his assertion the trial court erroneously imposed consecutive terms but reverse the order directing Guajardo to pay $9,619 in attorney fees, vacate the sentence imposed and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
1. The conduct underlying the convictions.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that Guajardo and his wife, M., have four children, the youngest of whom was O. Guajardo and M. lived together but were estranged because M. believed Guajardo was having an affair with her sister. As a result, O. and her mother slept in one room, Guajardo and one of O.’s brothers slept in the living room, another brother had his own room and the oldest sibling lived elsewhere. Guajardo worked days and M. worked evenings.
O. testified that, between the ages of eight and ten years, Guajardo touched her inappropriately “about four times.” One evening when she was approximately eight years old, Guajardo entered her bedroom, closed the door, pulled her pants to her knees and got on top of her. O. felt something going in and out of her private part for about 10 seconds. Guajardo then left the room without saying anything. O. told no one what happened because she did not know exactly what Guajardo had done to her.
On another occasion, less than a year later, a similar incident occurred. Guajardo entered her bedroom, pulled down her pants, sat on her bed and put her on his lap facing him with her legs around him. O. felt something in her private area similar to the first incident. When Guajardo lifted her off him and placed her on the bed, he told her not to tell her mother.
Another incident occurred in the summer of 2004. Guajardo called her to the living room and told her to remove her pants. Guajardo then removed his pants and got on top of her. She felt something in her private part similar to the other occasions. On this occasion, Guajardo also pulled up her shirt and touched her breasts.
On October 19, 2006, when she was 10 years old, her mother caught Guajardo touching her while she slept. They moved out that morning. O. believes there were other times when her father touched her private parts.
M., O.’s mother, testified she once saw Guajardo naked in the tub with their oldest daughter. M. told Guajardo not to bathe with the child again. In October of 2006, O. told M. her father was “ ‘ doing things to [her].’ ” M. inquired but O. did not provide any details. M. thereafter kept O. with her at all times. On the morning of October 19, 2006, M. and O. were sleeping together on a sofa. M. felt O.’s feet moving, opened her eyes and saw Guajardo touching O.’s upper part and her private area and moving her underwear. M. followed Guajardo to the living room and asked what he was doing. Guajardo said to forgive him.
Brenda, O.’s cousin, testified her family used to visit O.’s family “almost every weekend.” Guajardo touched Brenda inappropriately on several occasions. The first incident occurred in February of 1998 at a birthday party at O.’s house when Brenda was about seven years old. Guajardo said hello to Brenda in a hallway, hugged her and started “grabbing” and “squeezing” her butt. The second incident occurred at a baby shower approximately one year later. Brenda was standing on a bridge over a pond in the back yard of a family friend when Guajardo approached her from behind, asked for a hug and grabbed her butt and thighs. Guajardo again touched Brenda at a birthday party at O.’s house about 18 months after the baby shower. As Brenda walked out of the bathroom, Guajardo hugged her and grabbed her butt and thighs.
Vanessa, another cousin of O.’s, testified Guajardo molested her on three occasions. When Vanessa was 11 or 12 years of age, she was in O.’s room playing. When O. went to the kitchen, Guajardo entered the room and put his hand inside her pants. Guajardo’s hand was on top of her underwear by her hip and he tried to reach to the front. When Vanessa removed his hand, Guajardo tried to stick it back in her pants but O. returned to the room.
Approximately two weeks later, Vanessa was in the living room playing a board game on the floor with O. Guajardo sat on the couch behind Vanessa. When O. went to the kitchen, Guajardo stuck his hand inside Vanessa’s pants under her underwear. She took his hand out and moved to the other side of the couch. Guajardo again sat behind her and stuck his hands in her pants under her underwear.
Guajardo touched Vanessa inappropriately a third time during a family gathering. Vanessa and O. were playing cards in the bed of Guajardo’s truck. Guajardo was standing outside the truck speaking to Vanessa’s mother. Guajardo reached inside the truck and stuck his hand into Vanessa’s pants under her underwear. Vanessa removed his hand but he put it back in her pants about two minutes later. Vanessa changed positions in the truck but Guajardo moved so he could reach her and again put his hand in her pants and tried to reach to the front. Vanessa’s mother saw what Guajardo was doing and told Vanessa and O. to get out of the truck. When they arrived home, Vanessa told her mother about the earlier incidents.
Teresa testified Brenda and Vanessa are her children. Teresa witnessed Guajardo molesting Vanessa in June or July of 2006. Teresa, her husband and Guajardo were talking near Guajardo’s truck. Teresa saw Guajardo lean into the truck three times and knew Vanessa and O. were in the truck. The third time this happened, Teresa told Vanessa to get out of the truck and they left. Vanessa later told her what happened while she was in the truck and on other occasions. When Brenda learned what had happened to Vanessa, she reported what Guajardo had done to her.
2. Guajardo’s statement to Detective Perez.
Los Angeles Police Detective Juan Perez, a certified Spanish speaker whose first language is Spanish, interviewed Guajardo in Spanish regarding the allegations against him. Perez recorded the interview and thereafter reviewed a transcription of the recording while listening to the audiotape and found the transcript was accurate with a few minor exceptions. After Guajardo waived his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694], Guajardo explained to Perez that, when O. was eight or nine years old, she would sometimes get a rash in her vaginal area. Because her mother was not around, O. would ask Guajardo to put Vaseline on it. Guajardo said he put Vaseline on the outer part of her vagina on two occasions, “never touching the inside.” Guajardo also stated O. complained of breast pain when she was seven or eight years old and asked him to see what was wrong. He put one hand on her breast and explained her breasts were growing and “[t]here’s nothing you can do about it.”
Guajardo initially denied his penis had ever touched O.’s vagina. Perez then told Guajardo, falsely, his DNA had been found on the child’s vagina and asked if he had an explanation for how it got there. Guajardo stated this might have happened when O. was 10 years old when he was sleeping, as it was his habit to sleep with his children on top of him. Guajardo was wearing short underwear and O. was sleeping on top of him wearing a skirt. Guajardo stated “he possibly had an erection when O. woke up, sat up, and since she was wearing a skirt... his penis must have come in contact with her vagina....”
The second possible incident occurred when Guajardo was taking a shower with O. When he picked her up face to face to get out of the shower, she wrapped her feet around his waist and, as he attempted to lift her, there was a possibility “his penis might have come in contact with her vagina.” Perez asked how that would have happened if Guajardo did not have an erection and Guajardo clarified he did have an erection.
When Perez asked if anything criminal might have happened between Guajardo and his oldest daughter, Guajardo stated that when she was approximately six years old, they were both in the bathtub taking a bath when his wife walked in, became upset and told him never to do it again.
During the interview, Perez did not use any tactics that were coercive, Guajardo did not ask for a break and he seemed alert and cooperative.
3. Verdicts and sentencing.
The jury convicted Guajardo of continuous sexual abuse of O. in violation of section 288.5, subdivision (a), three counts of lewd and lascivious conduct with respect to Vanessa and three counts of lewd and lascivious conduct with respect to Brenda. The trial court sentenced Guajardo to a One Strike term of 15 years to life in state prison on count 1 and imposed a similar consecutive term on counts 2 and 6. The trial court imposed and stayed the same term on each of the remaining counts.
The trial also ordered Guajardo to pay, inter alia, $9,619 in attorney fees.
CONTENTIONS
Guajardo contends the prosecutor committed misconduct, the trial court erred in sentencing Guajardo to consecutive terms on counts 2 and 6, the term imposed constitutes cruel and unusual punishment, and the trial court erred in directing Guajardo to pay $9,619 in attorney fees.
In response to this court’s request for supplemental briefing, Guajardo also contends he cannot be sentenced under the One Strike law as to count 1 because the conduct alleged in support of that count occurred before the date on which continuous sexual abuse of a child was added to the offenses enumerated in the One Strike law.
DISCUSSION
1. The prosecutor did not commit misconduct.
a. Background.
During the trial, the prosecutor indicated the jury might wish to hear the tape recording of Detective Perez’s interview of Guajardo, which was entirely in Spanish. The trial court indicated it ordinarily allowed testimony regarding interviews in Spanish and marked the transcript and the tape as exhibits. Defense counsel objected the recording had not been transcribed by a certified transcriber.
Later that day, the trial court indicated that, pursuant to the Superior Court Rules, the tape could be admitted into evidence and played for the jury. Because the interview was in Spanish, the court interpreter would translate the recording as it was played so the jurors could understand it and the court reporter would transcribe the interpreter’s statements. The prosecutor responded he intended only to question Detective Perez about the interview and the previous inquiry concerned whether the jury would be able to listen to the tape to hear the demeanor of the participants if the jury had a question as to coercion. The trial court indicated the tape meant nothing to the jury without a translation and “you can’t put something [into evidence] that they don’t understand.” One of the interpreters in the courtroom indicated it would be “really difficult” to translate a recorded interview as it was played. The prosecutor then proposed to have the interpreter determine whether the previously prepared transcription was accurate “since [defense counsel] is not willing to accept the [existing] transcript....” Another interpreter stated she could not certify a transcript she did not personally prepare.
The trial court again addressed the recording during the testimony of Detective Perez. The prosecutor represented Perez had listened to the recording numerous times while reading the existing transcript and would testify the transcript was accurate with some minor corrections. The prosecutor stated he would either advise the jury the interview was recorded and it is in Spanish, or he might ask to play the tape recording. The trial court ruled the prosecutor would be permitted to introduce the transcript of the tape recording and the detective could verify that the transcript set forth the contents of the interview.
At the close of the evidence, the prosecutor did not move either the tape recording or the transcript into evidence but indicated they would be available for use by defense counsel.
In argument to the jury, the prosecutor asserted an innocent father confronted with scientific evidence that allegedly showed he had engaged in sex with his daughter would have said, “There’s no way.” Thus, any doubts the jury had about O.’s credibility should be dispelled by Guajardo’s admissions in the interview. The prosecutor suggested defense counsel might argue Guajardo’s statements “somehow should just be brushed aside by you, you shouldn’t believe it. Was it coercive? Was [Detective Perez] yelling at the defendant? There’s the audiotape. If it showed any of that, don’t you think [defense counsel] would have cross-examined on that? Don’t you think he would have introduced the audiotape?”
After the trial court overruled defense counsel’s objection, the prosecutor continued: “It’s in Spanish. There’s no point in getting it. And I know some of you may speak Spanish. I don’t want to confuse you because you’re not supposed to actually use your Spanish abilities. And I know that’s impossible for you to do if you are a Spanish speaker. But here’s the point. [¶] If you disbelieve that that interview has the value that I’m telling you it has, ... here is the alternative. You have to believe that [M.] Guajardo... manipulated or told her ten-year-old daughter, ... ‘Tell the police that daddy put his penis inside of you. Tell the police that he grabbed your breast or touched your vagina.’ ”
At the start of the defense argument, defense counsel reminded the jury Guajardo had no obligation to present evidence. Thus, the jury was not permitted to “question or wonder why we did not put on any evidence. You heard there was an audiotape. It was not played. There was an... inference that the [in]flection or the intonation in [Guajardo’s] voice could have pointed to his innocence. But that’s a two-way street. Because intonation points to innocence or it could point to guilt. It goes both ways. So please don’t infer one over the other.”
In closing argument, the prosecutor conceded the defense had no obligation to present evidence. However, “[i]f the detective was lying about something he said that the defense has a transcript of, do you think [defense counsel] would not bring that up? If there was on that tape yelling and the sound of someone beating somebody up and defendant crying, do you really think, even though it’s my burden, that he would not put that on to exonerate his client... ? [¶] Ladies and gentlemen, that tape was not offered because it in Spanish. If [defense counsel] really believed there were some things to exonerate, you would have heard it. But don’t mistake a matter of convenience and not wanting to make you listen to 45 minutes of Spanish -- don’t confuse that with my being afraid of the tape because clearly again [defense counsel] would have presented that.”
b. Guajardo’s contention.
Guajardo contends the prosecutor’s argument regarding defense counsel’s failure to introduce the tape-recorded interview improperly shifted the burden of proof to Guajardo to show his innocence, thereby violating his right to due process. (Sandstrom v. Montana (1979) 442 U.S. 510, 520-524 [61 L.Ed.2d 39].) Guajardo claims this was not fair comment on the evidence because the trial court excluded the transcript of the audiotape from evidence and did not allow the audiotape to be played for the jury because it was in Spanish. Thus, defense counsel could not introduce the Spanish audiotape into evidence. Further, because Guajardo did not testify, his case rested completely on the jury’s determination of the credibility of the victims. Guajardo asserts the prosecutor’s misconduct undercut the defense theory of the case. Guajardo concludes it is reasonably probable a different result would have obtained had the prosecutor not engaged in these improper comments. (People v. Hill (1998) 17 Cal.4th 800, 819.)
c. Resolution.
We do not find Guajardo’s argument persuasive.
A prosecutor’s misconduct violates due process if it infects a trial with unfairness. (People v. Harrison (2005) 35 Cal.4th 208, 242.) Less egregious conduct by a prosecutor may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.) “A prosecutor is given wide latitude to vigorously argue his or her case and to make fair comment upon the evidence, including reasonable inferences or deductions that may be drawn from the evidence. [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 726.) “When a claim of misconduct is based on the prosecutor’s comments before the jury, ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29; People v. Benson (1990) 52 Cal.3d 754, 793.)
Guajardo’s assertion the prosecutor’s comments were unfair is grounded in his claim the trial court ruled the tape recording inadmissible. Thus, defense counsel could not have introduced the tape recording even if counsel had wished to do so. Although it is true the trial court ruled it would not permit the prosecutor to play the tape recording as part of the People’s case in chief because it was in Spanish, the prosecutor made clear that he did not wish to introduce the tape. Rather, the prosecutor only wanted to ensure the tape recording would be available to the jury if it had any concerns that Guajardo might have been coerced during the interview. At the close of the evidence, the prosecutor did not offer the tape recording or the transcript into evidence but noted it was available if defense counsel wished to make use of it. Defense counsel thereafter did not ask the trial court to permit the defense to play the audio tape. Thus, it is disingenuous for Guajardo to argue he could not have introduced the tape recording to show coercion.
In any event, the prosecutor’s remark did not suggest the jury should infer guilt from defense counsel’s failure to play the tape, only that it should infer the absence of coercion from defense counsel’s failure to play the tape. The prosecutor’s assertion defense counsel had failed to present available evidence constituted fair comment. Moreover, given the context in which the prosecutor’s comments occurred, it is not reasonably likely the jury construed this comment to shift the burden of proof.
In sum, Guajardo’s claim of prosecutorial misconduct fails.
2. Imposition of consecutive terms of 15 years to life on counts 2 and 6.
Guajardo contends the trial court erred in sentencing him to consecutive terms of 15 years to life on counts 2 and 6. He relies on the language of former section 667.61, subdivision (g) in effect at the time he committed his crimes which provided that a life term “shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.” (Former § 667.61, subd. (g), italics added, Stats. 1998, ch. 936, § 9.)
Guajardo asserts former section 667.61, subdivision (g) did not define “single occasion.” He claims the trial court erred in finding the offenses at issue here did not occur during a “single occasion.” Although People v. Jones (2001) 25 Cal.4th 98, addressed the meaning of this term, it announced no bright line test and held only that offenses occur on a single occasion when they occur in close temporal and spatial proximity. (Id. at p. 107.) Guajardo argues the trial court did not address the fact that neither the pleadings nor the verdicts in this case precluded the jury from finding the charged offenses occurred in close temporal and spatial proximity. Thus, the trial court failed to make a necessary sentencing decision before deciding to impose consecutive terms on counts 2 and 6. Further, the trial court erroneously assumed the decision to impose consecutive sentences was governed by former section 667.61, subdivision (g) which required a finding the crimes did not occur on a single occasion. Guajardo concludes the consecutive terms on counts 2 and 6 must be vacated.
This claim is meritless.
Former section 667.61 provided at subdivision (g): “The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion.... Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable.” (Stats. 1998, ch. 936, § 9.)
In People v.Jones, supra, 25 Cal.4th 98, the defendant committed five sex crimes in the backseat of an automobile over an estimated hour and a half time period. (Id. at p. 101.) In addressing whether a One Strike term could be imposed on more than one count, Jones contrasted the phrase “single occasion” in former section 667.61, subdivision (g) with the phrase “separate occasion” in section 667.6, subdivision (d). (People v. Jones, supra, at p. 105.) Jones noted former section 667.61, subdivision (g), unlike section 667.6, subdivision (d), provided no guidance in determining whether the offenses were committed on a “single occasion.”
At all relevant times, section 667.6, subdivision (d), which addresses whether full, separate and consecutive terms are mandatory for enumerated sex offenses, has provided in pertinent part: “In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant has a reasonable opportunity to reflect upon his or her actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.” (Stats. 2002, ch. 787, § 16; Stats. 2006, ch. 337, § 32.) Lewd act in violation of section 288, subdivision (a) is not one of the enumerated offenses that triggers application of section 667.6, subdivision (d).
According to Jones, the harshness of the punishment permitted under the One Strike law and the lack of definitive legislative direction “points to the conclusion that the Legislature intended to impose no more than one such sentence per victim per episode of sexually assaultive behavior.” (People v. Jones, supra, 25 Cal.4th at p. 107.) Jones concluded sex offenses occurred on a “single occasion” within the meaning of former section 667.61, subdivision (g), “if they were committed in close temporal and spatial proximity.” (People v. Jones, supra, at p. 107.) Jones stated, “the rule we adopt should result in a single life sentence, rather than three consecutive life sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location.” (Ibid., italics omitted.) Thus, the standard announced in Jones requires a break in time or a substantial change in location for the defendant to receive multiple One Strike sentences.
However, nothing in this construction of former section 667.61, subdivision (g) inures to Guajardo’s benefit. The offenses in counts 2 and 6 were not alleged or shown to have been committed on a single occasion. Count 2 was alleged to have been committed on July 1, 2005; count 6 was alleged to have been committed on January 15, 1999. Counts 3, 4, 5 and 7 were alleged to have been committed on January 15, 1998, July 15, 2005, August 1, 2005, and May 1, 2000, respectively. The testimony of the victims indicated the offenses occurred on or about these dates. Thus, each count grew out of a distinct incident committed a minimum of two weeks apart and therefore on different occasions. None of these offenses can be said to have been committed in close temporal proximity to another. Therefore, the trial court was required to impose an indeterminate sentence of 15 years to life on each of the counts of lewd and lascivious conduct with a child under the age of 14 years. (§667.61, subd. (b); People v. Murphy (1998) 65 Cal.App.4th 35, 40-41.)
Thereafter, the trial court had to determine whether to impose the terms concurrently or consecutively. (People v. Murphy, supra, 65 Cal.App.4th at p. 42; § 669.) Here, the trial court selected the count involving O. as the principal term and imposed a consecutive term on one count involving Brenda and another count involving Vanessa. Nothing in this circumstance indicates the trial court committed sentencing error or misunderstood the applicable statutes.
3. The term imposed does not constitute cruel and unusual punishment.
For reasons stated post, the matter must be remanded for resentencing on count 1. On remand, the trial court will be required to impose a determinate term on count 1, rather than an indeterminate term under the One Strike law, thereby resulting in a less onerous sentence than the one Guajardo currently faces. Nonetheless, in the interest of judicial economy, we address Guajardo’s claim of cruel and unusual punishment at this juncture.
Guajardo contends the indeterminate term of 45 years to life imposed by the trial court is grossly disproportionate and excessive for the convictions he suffered and contravenes his right to be free from cruel and unusual punishment as guaranteed by the Eight Amendment to the United States Constitution and by Article I, section 17 of the California Constitution.
Guajardo concedes One Strike terms were upheld in People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201, People v. Estrada (1997) 57 Cal.App.4th 1270, 1278-1280, and People v. Crooks (1997) 55 Cal.App.4th 797, 807, against a claim of cruel and unusual punishment. He claims these cases are distinguishable because they involved forcible rape during the commission of burglary against complete strangers whereas Guajardo was a resident child molester. Guajardo, who presently is 51 years of age, notes he has no prior criminal record and the Static 99 assessment prepared for sentencing indicated he was in the “low range” for reoffending. Guajardo claims he effectively has been given a sentence of life without the possibility of parole for his noncapital crimes. He concludes the term imposed amounts to cruel and unusual punishment. (Ewing v. California (2003) 538 U.S. 11, 25, 29-30 [155 L.Ed.2d 108]; Lockyer v. Andrade (2003) 538 U.S. 63, 73-76 [155 L.Ed.2d 144]; People v. Dillon (1983) 34 Cal.3d 441, 479; People v. Lynch (1972) 8 Cal.3d 410, 424.)
Initially, we note a challenge to a sentence on cruel and unusual grounds is fact-specific and must be raised in the trial court if it is to be considered on appeal. (People v. Collins (2004) 115 Cal.App.4th 137, 156; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Guajardo did not do so. Thus, his claim of cruel or unusual punishment is not cognizable on appeal. However, we reach the merits of the issue to forestall a claim of ineffective assistance of counsel. (People v. Norman, supra, at p. 230.)
Under the California Constitution, punishment is cruel or unusual 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.” (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.) The cruel-and-unusual-punishment clause of the Eight Amendment of the federal Constitution also includes a “ ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ ” (Ewing v. California, supra, 538 U.S. at p. 20.) A determination of whether a punishment is cruel or unusual because of disproportionality may be made based on an examination of the nature of the offense and the offender, “with particular regard to the degree of danger both present to society.” (In re Lynch, supra, at p. 425.) With respect to the offense, we consider “the totality of the circumstances... in the case at bar....” (People v. Dillon, supra, 34 Cal.3d at p. 479.) With respect to the offender, we consider his “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661.)
Guajardo has not shown his sentence constitutes cruel or unusual punishment according to these criteria. Guajardo committed callous, despicable and depraved acts against young children, including his own daughter, over an extended period of time. Although Guajardo had no prior criminal record and he did not employ force or violence, he caused severe emotional harm to particularly vulnerable victims and took advantage of a position of trust. He showed no remorse for the emotional scars and trauma he caused his daughter and two nieces. Guajardo’s sentence is unusually lengthy because of the serial nature of his conduct as well as the vulnerability of his victims.
The selection of an appropriate penalty for a criminal offense is a “legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will....” (In re Lynch, supra, 8 Cal.3d at p. 423.) The One Strike law reflects California’s heightened concern about the sexual abuse of children. (See People v. Wutzke (2002) 28 Cal.4th 923, 930-931.) “The callous and opportunistic nature of his sexual [offenses] against [victims] he knew to be particularly vulnerable [is] precisely the sort of sexual offense that warrants harsh punishment.” (People v. Alvarado, supra, 87 Cal.App.4th at p. 200.)
The fact Guajardo may not live long enough to become eligible for parole does not necessarily render the sentence cruel or unusual. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [length of total sentence inconsequential to analysis of punishment as cruel and unusual].) Finally, Guajardo has made no attempt to show that his punishment is disproportionate in comparison with punishments for similar or greater crimes in this or other jurisdictions.
In sum, Guajardo has failed to carry his burden to demonstrate the term imposed for sexually abusing his nieces and his daughter amounts to cruel and unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. at pp. 66, 77 [sentence of 50-years-to-life imposed under the Three Strikes law for two counts of petty theft with prior not cruel and unusual punishment]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [129 years for sexual abuse of stepdaughter constitutionally permissible for nonrecidivist].) Application of the One Strike law did not result in that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
4. The order directing Guajardo to pay attorney fees must be reversed.
Guajardo contends the trial court erred in directing him to pay $9,619 in attorney fees without making a finding he had the ability to pay as required by section 987.8. He notes that, absent unusual circumstances, a defendant sentenced to state prison is presumed to lack the present ability to contribute to the cost of appointed counsel. (§ 987.8, subd. (g)(2)(B).) Guajardo asserts there was insufficient evidence to support a finding of unusual circumstances or ability to pay. Thus, the trial court erred in directing him to pay $9,619 to defray the cost of appointed counsel.
It appears this point is well taken.
Section 987.8 authorizes a trial court to order a defendant to contribute to the cost of counsel appointed to represent the defendant. Section 987.8, subdivision (b) provides in part: “In any case in which a defendant is provided legal assistance, ... upon conclusion of the criminal proceedings in the trial court... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” Section 987.8, subdivision (e) states: “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county....” (§ 987.8, subd. (e).)
Section 987.8, subdivision (g)(2) indicates the factors to be considered in determining a defendant’s ability include: “(A) The defendant’s present financial position. [¶] (B) The defendant’s reasonably discernable future financial position. In no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernable future financial position. Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense. [¶] (C) The likelihood that the defendant shall be able to obtain employment within a six-month period from the date of the hearing. [¶] (D) Any other factor or factors which may bear upon the defendant’s financial capability to reimburse the county for the costs of the legal assistance provided to the defendant.”
A determination that a defendant has the ability to pay may be implied. (See People v. Phillips (1994) 25 Cal.App.4th 62, 70-71.) However, an order to pay attorney fees cannot be upheld unless it is supported by substantial evidence. (People v. Nilsen (1988) 199 Cal.App.3d 344, 347.)
Here, the trial court did not directly determine Guajardo had the ability to pay attorney fees and the record does not permit an implied finding.
The report of the probation officer prepared for sentencing reflects no information regarding Guajardo’s ability to pay. However, attached to the report is a Community and Family Ties investigation report prepared by the Pretrial Services Division. It indicates that, prior to his arrest in this case, Guajardo lived in the back house of a residence in Pacoima with three children, ages 20, 13 and 10 years, and he paid monthly rent of $750. Guajardo told the probation officer he had been employed as a machine operator for 2 ½ years and he earned $13.32 per hour. This information suggests Guajardo’s wages would have been consumed in the support of his family. Thus, there is insufficient evidence in the record to support an implied finding Guajardo had the ability to pay the attorney fees ordered by the trial court.
The People contend Guajardo forfeited this contention by failing to object in the trial court to the order directing him to pay attorney fees. In support of this assertion, the People cite People v. Klockman (1997) 59 Cal.App.4th 621, 628, People v. Whisenand (1995) 37 Cal.App.4th 1383, 1394-1396, and People v. Phillips, supra, 25 Cal.App.4th at pp. 67, 73-75.
However, these cases are distinguishable. In People v.Klockman, supra, 59 Cal.App.4th 621, 628, the defendant objected to lack of notice and claimed he had not been afforded a hearing on the issue. Klockman found the notice claim barred by failure to object below and the defendant waived a hearing when the trial court offered to reduce the fee assessment. (Ibid.) People v. Whisenand, supra, 37 Cal.App.4th 1383, rejected a claim asserting lack of notice for failure to object and found the trial court properly could find the defendant had the ability to reimburse attorney fees based on the evidence adduced at a restitution hearing. (Id. at pp. 1395-1396.) People v. Phillips, supra, 25 Cal.App.4th 62, rejected a claim of lack of notice, finding the request in the probation report for an order requiring the defendant to reimburse the county for attorney fees provided sufficient notice the issue would be addressed at sentencing. (Id. at pp. 74-75.) Phillips also found the record contained sufficient evidence of the defendant’s financial status to support an implied finding with respect to the defendant’s ability to pay.
Here, Guajardo is not claiming lack of notice and, as previously noted, there is no evidence in the record that would support an implied finding Guajardo had the ability to pay $9,619 in attorney fees. An objection in the trial court is not required to preserve a challenge to the sufficiency of the evidence regarding the defendant’s ability to pay attorney fees. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217; see also People v. Butler (2003) 31 Cal.4th 1119, 1126 [no objection needed to preserve claim of insufficient evidence to support finding or probable cause for HIV testing]; People v. Rodriguez (1998) 17 Cal.4th 253, 262 [challenge to sufficiency of evidence cannot be waived]; People v. Lopez (2005) 129 Cal.App.4th 1508, 1537 [“In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal”].)
Thus, Guajardo’s failure to object in the trial court did not forfeit the right to raise on appeal the sufficiency of the evidence to support the finding he had the ability to pay attorney fees. Absent evidence of Guajardo’s assets or earnings from which the trial court could have made a finding he had the ability to pay attorney fees as provided by section 987.8, the order cannot stand. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399.)
Because the matter must be remanded for resentencing, we shall reverse the order under section 987.8, thereby permitting the trial court, if it chooses, to conduct a noticed hearing to determine whether unusual circumstances are present in this case that would warrant a finding Guajardo has ability to pay within the meaning of section 987.8, subdivision (g)(2)(B), notwithstanding his lengthy prison term. (People v. Flores (2003) 30 Cal.4th 1059, 1068-1069.)
5. The matter must be remanded for resentencing.
After reviewing the record, we questioned whether Guajardo could be subjected to One Strike sentencing on count 1, continuous sexual abuse of a child in violation of section 288.5. The information charged Guajardo in count 1 with continuous sexual abuse of a child based on acts of substantial sexual conduct and/or lewd and lascivious conduct with a child under the age of 14 years “[o]n or between May 1, 2004 and January 31, 2006.” However, prior to September 20, 2006, the enumerated offenses that triggered application of the One Strike law did not include continuous sexual abuse of a child in violation of section 288.5, subdivision (a). (See former § 667.61, subd. (c); Stats. 2006, ch. 337 (S.B.1128), § 33, eff. Sept. 20, 2006; Stats. 1998, ch. 936 (A.B. 105), § 9, eff. Sept. 28, 1998.)
We therefore asked the parties to submit supplemental letter briefs addressing whether punishing Guajardo under the One Strike law on count 1 violated the constitutional prohibition against ex post facto laws. (See People v. Palmer (2001) 86 Cal.App.4th 440, 445-446.)
“[A]n ex post facto violation resulting in an unauthorized sentence may be raised on appeal even if the defendant failed to object below.” (People v. Hiscox (2006) 136 Cal.App.4th 253, 258.)
At oral argument, the People conceded a One Strike term could not be imposed on count 1. We therefore shall order the sentence vacated and remand the matter to the trial court for resentencing.
DISPOSITION
Guajardo’s convictions are affirmed. The judgment is reversed insofar as it requires Guajardo to pay $9,619 in attorney fees under Penal Code section 987.8, and the sentence imposed is vacated. The matter is remanded for resentencing in accordance with the views expressed herein and whatever further proceedings the trial court wishes to undertake with respect to the order for payment of attorney fees pursuant to section 987.8.
We concur: CROSKEY, J., ALDRICH, J.