Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. No. FSB703911. Cara D. Hutson, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
RICHLI J.
A jury found defendant and appellant Larry Donell James guilty of sex with a child 10 years or younger in violation of Penal Code section 288.7, subdivision (a)., Defendant was subsequently sentenced to 25 years to life in state prison with credit for time served. On appeal, defendant contends (1) the trial court misunderstood its discretionary power to grant probation and, therefore, the matter must be remanded for a new sentencing hearing; and (2) his sentence constitutes cruel and unusual punishment under the state and federal Constitutions. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
The jury deadlocked on whether defendant committed an aggravated assault of a child (§ 261, subd. (a)(2)) as alleged in count 1, and the trial court declared a mistrial as to that count. The People’s motion to dismiss count 1 in the interest of justice (§ 1385) was later granted.
I
FACTUAL BACKGROUND
In October 2007, 10-year-old Jane Doe and 18-year-old defendant lived in the same apartment complex. Jane had known defendant, whom she called “May-May,” for three years. Jane was close to defendant’s two sisters and played with them often. She thought of defendant as a brother and trusted him.
On October 17, 2007, about 7:00 p.m., Jane was playing outside with some friends when she saw defendant. Defendant called Jane over and asked her to walk with him. Jane willingly went with defendant because she trusted him. As they walked around the apartment complex, defendant talked about his girlfriend. It was cold and windy outside, so when they walked by a laundry room, they went inside.
Once they went inside the laundry room, defendant closed and locked the front door. He also locked the windows to the laundry room. As Jane played with a dryer’s buttons, defendant came up from behind and grabbed her. He threw Jane to the floor, pulled down her pants, and proceeded to rape her. Jane tried to push defendant off of her, but he held her down. Jane repeatedly pleaded with defendant to get off of her. Defendant kept saying, “no.” After the fifth time she asked, defendant got off Jane, walked out of the laundry room, and told Jane to walk in the opposite direction from him. Jane felt “wetness” after defendant got off of her.
As Jane walked away, she was crying. Her stomach hurt, so she sat down by her neighbor Pauline’s apartment. Pauline heard Jane crying and went outside. Pauline asked Jane several times what was wrong. Jane eventually told Pauline that defendant had raped her in the laundry room. After Pauline helped Jane home, Jane told her mother that she had been raped by defendant.
Jane’s mother went to defendant’s apartment, walked into the residence, and asked why defendant had raped Jane. Defendant denied that he had raped Jane. He said that Jane was confusing him with someone else and that she was lying. Jane’s mother called the police.
When police officers arrived, they contacted Jane and took a statement from her describing the rape incident. The officers then went to defendant’s apartment and knocked on the door numerous times. No one answered, but the officers saw someone look out a side window. Defendant eventually opened the door, but he kept the metal security screen shut. Defendant identified himself as “Aaron” and said he was 18 years old. The officers asked defendant several times to open the security door. He refused and disappeared. As the officers were prying off the security door, defendant ran back to the door and shut and locked the interior wood door. The officers’ eventually pried open the security door, kicked in the interior door, and arrested defendant.
A sexual assault suspect examination was conducted on defendant at the police department. DNA samples, hair follicles, and defendant’s underwear were collected. Swabs were also taken from defendant’s cheek and penis.
A sexual assault examination of Jane was conducted at the hospital. The examining nurse found abrasions, bruising, swelling, and redness on Jane’s hymen consistent with a penis entering Jane’s vagina. Swab samples were collected from the outside and inside of Jane’s vaginal area. DNA analysis was conducted on those samples and on the swab samples taken from defendant. The vaginal swab taken from Jane’s vaginal area contained sperm cells. The sperm cells matched the DNA extracted from the swabs obtained from defendant.
Defendant testified on his own behalf. His testimony concerning the incident on October 17, 2007, for the most part, corroborated that of Jane’s testimony. However, he claimed that he and Jane had had consensual sexual intercourse after Jane rubbed up against his crotch.
II
DISCUSSION
A. Sentencing Discretion
Following a jury trial, defendant was convicted of sex with a child 10 years or younger in violation of section 288.7, subdivision (a). At sentencing, the trial court indicated that it had read the probation officer’s report and a letter submitted by defendant. Defendant’s letter asked the court to consider probation. Neither side presented argument, and prior to imposing a sentence of 25 years to life, the trial court stated: “[T]he Court has read your letter and I understand your position. However, this crime for which you were convicted by the jury has a sentence by which I cannot deviate. So probation is not in the ballpark by any means.”
In the probation report, the probation officer noted, “As there were no probation limitations or prohibitions in this matter, the defendant is probation eligible [as defendant’s offense occurred in 2007]. It is obvious, as indicated by the offense added to [Penal Code] Section 1203.065 in 2008, that this offense was not to be probation eligible. However, pursuant to Section 288.1 of the Penal Code, ‘Any person convicted of committing any lewd or lascivious act including any of the acts constituting other crimes... shall not have his or her sentence suspended until the court obtains a report from a reputable psychologist... as to the mental condition of that person.’”
The probation officer further stated, “Court records do not indicate that such a report was ordered. Therefore, this report will reflect the opinion that the Court is not considering probation in this matter.” The probation officer also indicated that even if defendant were deemed probation eligible, he was not suitable for a grant of probation. The probation officer recommended a sentence of 25 years to life, based on the circumstances of the offense, defendant’s “repugnant” conduct, defendant’s predatory nature, and defendant breaking the trust of the 10-year-old victim.
The probation officer cited the following factors affecting probation: (1) the nature and circumstances of the crime are serious as compared with other instances of the same crime (Cal. Rules. of Court, rule 4.414(a)(1)); (2) defendant had inflicted physical or emotional injury (rule 4.414(a)(4)); (3) the manner in which the crime was carried out demonstrated planning, criminal sophistication, and professionalism on the part of defendant (rule 4.414(a)(8)); (4) defendant took advantage of a position of trust and confidence to commit the crime (rule 4.414(a)(9)); (5) defendant has a history of juvenile arrests and a prior arrest as an adult (rule 4.414(b)(1)); (6) imprisonment will seriously affect defendant (rule 4.414(b)(5)); (7) a felony conviction will adversely affect defendant’s life (rule 4.414(b)(6)); (8) defendant has not shown remorse (rule 4.414(b)(7)); and (9) there is a likelihood that if not imprisoned, defendant will be a danger to others (rule 4.414(b)(8)).
All further references to rules are to the California Rules of Court.
Defendant contends the trial court misunderstood its sentencing discretion when it sentenced him to 25 years to life in state prison rather than considering a grant of probation. He requests a remand for resentencing.
Because we address defendant’s claim on the merits, we need not determine defendant’s alternative claim of whether counsel was ineffective for failing to raise the issue below.
The People respond that the trial court understood its discretionary power and properly exercised that discretion in sentencing defendant to state prison.
“‘[A]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion.’ [Citation.]” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “Defendants are entitled to sentencing decisions made in the exercise of the ‘informed discretion’ of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record. [Citation.]” (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) Thus, where a trial court denies probation without an accurate understanding of its discretion to grant probation, remand for resentencing is appropriate. (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247-1248.)
An “‘order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
“The general rule is that a trial court is presumed to have been aware of and followed the applicable law. [Citations.] These general rules concerning the presumption of regularity of judicial exercises of discretion apply to sentencing issues. [Citations.]” (People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.)
Under these principles, a defendant has the burden of showing that the sentencing court abused its discretion by demonstrating it misunderstood the scope of its discretion. Defendant argues that the record shows the court misunderstood the scope of its discretion because it believed that it did not have discretion to grant probation.
Section 288.7, subdivision (a), provides, “Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.”
Section 1203.065 provides that persons convicted of certain sex offenses are ineligible for probation. At the time defendant committed his offense in 2007, section 288.7 was not included in the list of offenses in section 1203.065. However, in 2008, section 288.7 was added to the list of offenses in section 1203.065 that are probation ineligible.
Hence, as defendant points out, at the time defendant committed his offense in 2007, section 1203.065 was inapplicable to him. In 2007, the applicable statutory restriction to a grant of probation for a person convicted of violating section 288.7 was section 288.1. Section 288.1 states, “Any person convicted of committing 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 shall not have his or her sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, as to the mental condition of that person.”
“It is clear from the language of section 288.1 that a report is not mandated in every lewd or lascivious act case. Only if the trial court is inclined to grant probation must a report be ordered.... [¶] The obvious intent of the Legislature in enacting this statute was to protect society by requiring a psychiatric or psychological report insuring that defendant is a suitable candidate for probation. Where the court... has no intention of granting probation, and the record supports such a denial of probation, a section 288.1 report is not mandated.” (People v. Thompson (1989) 214 Cal.App.3d 1547, 1549.)
In the present matter, the court had the option of granting probation to defendant or imposing the mandatory sentence of 25 years to life under section 288.7. The court was aware of this discretion. This discretion was pointed out in the probation officer’s report. The court indicated that it had read the probation report. The court’s statement that it could not deviate from the sentence set forth in section 288.7 was correct. We reject defendant’s contention that the court’s statements at the sentencing hearing indicated its only option was to sentence defendant to 25 years to life. The court’s statements as a whole demonstrate that the court was aware of its discretion to either grant defendant probation or sentence him to 25 years to life. Within the factual context of this case, the fact that the judge said, “I cannot deviate” when asked to consider probation does not indicate lack of awareness of authority to do so. To the contrary, that statement may readily be taken as an indication that the court simply could not see its way to granting defendant probation under the circumstances of this case. In fact, it is clear that the court had no intention of granting defendant probation. “In criminal cases an appellate court may take into consideration the ‘“judge’s statements as a whole” [when they] disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in “secondary remarks” but in his basic ruling....’ [Citation.]” (People v. Butcher (1986) 185 Cal.App.3d 929, 936.)
Moreover, the record supports a denial of probation. The probation report identified seven factors in aggravation supporting a denial of probation and found two factors in mitigation, namely that a felony conviction and imprisonment would adversely affect defendant. The probation report also indicated that defendant, though eligible for probation, was unsuitable. The court considered the factors noted in the probation report in denying probation. The record simply does not reflect that, in denying probation, the court acted arbitrarily, capriciously, or whimsically. No abuse of discretion occurred.
In sum, contrary to defendant’s arguments, the appellate record in this case does not affirmatively reflect that the sentencing court misunderstood the scope of its discretion. (People v. Fuhrman (1997) 16 Cal.4th 930, 943 [appellate court found “nothing in the record to suggest that the trial court misunderstood the scope of its discretion” and high court was “unable to discern from the record whether the trial court believed that it retained discretion”].) For that reason, remand for resentencing is not appropriate. (Id. at p. 945.)
B. Cruel and/or Unusual Punishment
Defendant contends that his mandatory sentence of 25 years to life under the facts of this case constitutes cruel and/or unusual punishment under both the federal and state Constitutions. We disagree.
Initially, we note that defendant’s failure to raise this issue in the trial court waived or forfeited this claim. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.) But even if defendant had not waived this issue, the result would not change.
The Eighth Amendment “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” (Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d 382] (Rummel).) But “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” (Id. at p. 272.)
“A punishment may violate 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. Cartwright (1995) 39 Cal.App.4th 1123, 1136, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) The court, in applying this standard, examines the offense and the offender, and it compares the punishment with the penalties for other California offenses and crimes in other jurisdictions. (Cartwright, at p. 1136; Lynch, at pp. 425-427.)
1. California Constitution
Defendant contends that the mandatory imposition of a 25-year-to-life sentence is “constitutionally infirm from the outset.” But California sentencing statutes “have long withstood constitutional challenge.” (People v. Cartwright, supra, 39 Cal.App.4th at p. 1137.) “Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Moreover, defendant’s sentence is not disproportionate when compared to other crimes that do not result in death but have sentences that are substantial or even greater than his. (See People v. Crooks (1997) 55 Cal.App.4th 797, 808 [comparing penalty for burglary with intent to commit rape to penalties for kidnapping for ransom (§ 209, subd. (a)) and train wrecking, which provide for life without the possibility of parole (§ 218)].) Appellate courts have upheld the constitutionality of mandatory sentences ranging from 25 years to life to life without the possibility of parole for offenses that do not result in death. (In re Maston (1973) 33 Cal.App.3d 559, 565 [life without the possibility of parole for aggravated kidnapping where the victim was injured but not killed is not cruel and unusual punishment]; Crooks, at p. 808 [25-year-to-life sentence for aggravated rape, with no prior felonies and no great bodily injury, was not disproportionate to other serious crimes]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [25-year-to-life sentence under § 667.61 for one forcible rape during a burglary, without use of a weapon and with no prior felonies, was not cruel and unusual punishment].)
Additionally, other jurisdictions have upheld sentences equal to or greater than defendant’s term for crimes less serious than sex with a child 10 years or younger. (People v. Cisneros (Colo. 1993) 855 P.2d 822, 830 [life without the possibility of parole for 40 years not cruel and unusual punishment for possession and sale of drugs with priors of sales of narcotics, menacing with a knife, and violation of bail conditions]; Edwards v. Butler (5th Cir. 1989) 882 F.2d 160, 167 [sentence of life without the possibility of parole for one aggravated rape does not violate Eighth Amendment]; Land v. Commonwealth (Ky. 1999) 986 S.W.2d 440, 441 [life sentence without possibility of parole for rape not cruel and unusual]; Gibson v. State (Fla. 1998) 721 So.2d 363, 369-370 [mandatory life sentence without possibility of parole for sexual battery of minor where defendant had no prior record was not cruel or unusual]; State v. Foley (La. 1984) 456 So.2d 979, 984 [life sentence without possibility of parole for juvenile defendant convicted of aggravated rape is constitutional]; State v. Green ( N.C. 1998) 502 S.E.2d 819 834 [mandatory life sentence for 13 year old defendant for sex offense not cruel and unusual punishment].)
Even if California statutes impose the longest sentence in the nation for the offense of sex with a child under 10 years or younger, that does not mean that defendant’s punishment is cruel and unusual. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required to conform its Penal Code to either the majority rule or “‘the least common denominator of penalties nationwide.’” (Ibid.)
Based on the totality of circumstances here, we are persuaded that the extreme seriousness associated with the offense negates defendant’s claim of cruel and unusual punishment. Defendant sexually attacked a vulnerable 10-year-old girl who trusted him like a brother. The Legislature implemented these types of statues to protect young children from people who engage in sexual acts with such young victims.
We conclude defendant’s sentence is not so disproportionate “‘as to shock the conscience and offend fundamental notions of human dignity.’ [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
2. Federal Standard
Defendant fares no better under the federal standard. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases cited.) Strict proportionality between crime and punishment is not required. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (People v. Cartwright, supra, 39 Cal.App.4th at p. 1135; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [111 S.Ct. 2680, 115 L.Ed.2d 836] (Harmelin).)
In Rummel, supra, 445 U.S. 263, the United State Supreme Court rejected an Eighth Amendment challenge to a life sentence based on Rummel’s conviction of credit card fraud of $80, passing a $28.36 forged check, and obtaining $120.75 by false pretenses. (Rummel, at pp. 268-286.) Additionally, in Harmelin, supra, 501 U.S. 957, the high court ruled that a mandatory sentence of life without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. (Harmelin, at pp. 951, 995.) By contrast, what defendant did was far worse than all the crimes committed by Rummel and Harmelin combined.
In addition, the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [123 S.Ct. 1179, 155 L.Ed.2d 108] [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63 [123 S.Ct. 1166, 155 L.Ed.2d 144] [two consecutive 25-year-to-life terms for two separate thefts of less than $100 worth of videotapes].)
The protection afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’” and “‘extreme’” case. (Ewing v. California, supra, 538 U.S. at p. 21.) We are not convinced this is such a case. The mandatory 25-year-to-life sentence imposed is noteworthy. However, defendant’s crime is also noteworthy. He took advantage of a position of trust to sexually assault a 10-year-old girl who considered him to be a brother. He had sexual intercourse with the victim on the floor of an apartment complex laundry room despite her repeatedly pleas for him to stop. He later denied the offense, called the victim a liar, and tried to evade the police when they came to his home. Defendant’s sexual conduct against one of the most vulnerable members of our society fully supports the lengthy sentence that was imposed. Defendant cites no persuasive authority to support his claim that this is one of those rare cases in which a sentence is so grossly disproportionate to the gravity of the offense that it violates the Eighth Amendment’s proscription against cruel and unusual punishment.
Accordingly, we conclude this is not the exceedingly rare and extreme case that violates the federal Constitution.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J.MILLER J.