Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 206530
Jones, P.J.
Fredrick D. Kilmer appeals from a judgment entered after a jury convicted him of annoying or molesting a child. (Pen. Code, § 647.6, subd. (c)(2).) He contends his conviction must be reversed because (1) the trial court erred when it denied his motion under section 995 to set aside the information, (2) his conviction is not supported by substantial evidence, (3) the court erred when it admitted certain evidence at his trial, (4) the court erred when it denied his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike one or more of his prior convictions, and (5) the sentence he received was cruel and unusual punishment. We reject these arguments and affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of annoying or molesting 13-year-old Thomas C.
In July 2008, Thomas was living in the Bernal Heights neighborhood of San Francisco with his father and stepmother. Thomas recently had moved to San Francisco from the smaller community of Hanford, California.
On July 11, 2008, Thomas was in his neighborhood when he encountered appellant who was walking his dog. Appellant chatted with Thomas for about 20 minutes asking where he lived and whether he liked hip hop music. At that point, appellant asked Thomas his nationality. When Thomas replied that he was Irish, appellant said he was “sorry” because the Irish have “the smallest dongs.” The comment made Thomas uncomfortable but he continued to talk with appellant because he did not want to be rude. Later appellant told Thomas he was “AC/DC, ” and Thomas did not know what that meant. Appellant said it meant he was bisexual.
The next day, Thomas saw appellant and a teenage boy working on appellant’s van. Appellant called Thomas over and introduced him to the teenager, Craig, who appeared to Thomas to be 15. Thomas and Craig talked about their common interest in skateboarding. A few minutes later, appellant, Craig, and Thomas all went into appellant’s house. Appellant commented that Thomas looked like a “dickhead” because the hat he was wearing had balls on it. Again, the comment made Thomas uncomfortable.
Appellant asked the boys to get some food at a nearby Jack-in-the-Box. On the way there, Thomas asked Craig if appellant would try to touch or molest him. Craig said no.
Thomas and Craig returned to appellant’s house with the food. When they entered, Craig told Thomas to stop. A movie depicting two men engaging in sexual acts was playing on the television, and Craig did not want Thomas to see it. Craig obtained the remote and turned the movie off. Thomas saw Vaseline on the table and he guessed appellant had been masturbating. He felt disgusted.
Appellant came into the room wearing only a bathrobe. After they ate, appellant and Thomas went to appellant’s office. Appellant removed his robe to change and provided Thomas a full frontal view of his body. Thomas felt disturbed and uncomfortable. He went to the kitchen and told Craig that appellant had just changed in front of him.
Thomas stayed at appellant’s house for another hour. Appellant asked Thomas if he wanted to do some work for him the following day for $10 per hour. Thomas needed the money and he agreed readily.
Thomas and Craig left appellant’s house and went to a skate park. While there, Thomas’s skateboard broke.
The next day, Sunday, July 13, 2008, Thomas went to appellant’s house excited to make some money. Appellant asked Thomas personal questions such as whether he ever had sex, whether he masturbated, and if so, whether he used Vaseline. Appellant told Thomas he used speed because it made him feel “horny.” He told Thomas that one time when he was younger, he woke up to find a friend sucking his penis and that he liked that. Appellant asked Thomas how big his penis was. Thomas made up a number.
Appellant and Thomas worked for a couple of hours hanging dry wall. At one point, appellant asked Thomas to measure his penis in the bathroom. Thomas went into the bathroom and pretended to measure his penis. He came out and gave appellant a number. Appellant replied, “do you want to prove that?” Thomas laughed like it was a joke. He was uncomfortable and he did not know what to do.
Thomas worked until noon. Appellant gave him $30 and told him he would give him $80 more as an advance on next week’s work so Thomas could buy a new skateboard. Appellant told Thomas that the next time he came, he would have to lift up his shirt to see whether the police had wired him. Thomas thought it was just a excuse for appellant to touch him.
Thomas spoke to his father John C. about appellant, although Thomas did not mention the sexually explicit talk. John told Thomas to stay away from appellant. He accompanied Thomas to appellant’s house so Thomas could collect the rest of the money he was promised.
That evening, Thomas’s stepmother learned about the sexually explicit talk and that appellant had asked Thomas to measure his penis. She wanted to call the police. John, who had a serious drinking problem, did not make the call.
The next day, appellant spoke with Thomas and offered his father a job. Thomas did not think that was a good idea, but his father was unemployed at the time. Thomas took appellant to his house. Appellant spoke with John and offered him a plumbing job. John, who needed the work, accepted.
John worked for appellant for three days. While on the job, John met Robert Ponce who also was working for appellant. At one point, John asked Ponce for appellant’s last name. He wanted to check Megan’s list.
That evening, John’s wife checked Megan’s list and found that appellant had a prior conviction for committing lewd or lascivious acts on a minor. John went to Ponce’s home and told him what he had learned. John and Ponce both decided to quit. However, Ponce asked John not to call the police until they had been paid. John agreed.
On Friday, July 18, 2008, after he was paid, John confronted appellant with a printout from Megan’s list. He tossed the printout at appellant and told him “I hope you burn in hell for this.”
The following Monday, John called the police.
Based on these facts, an amended information was filed charging appellant with the offense we have set forth above. The amended information also alleged appellant had two prior strikes within the meaning of the three strikes law. (§ 667, subd. (e), 1170.12, subd. (c).)
The case proceeded to trial where the prosecution presented the evidence we have set forth above. Appellant declined to testify and his counsel defended the charges by telling the jurors there was nothing sinister about one man changing in front of another or making off-color jokes about penis size. Counsel suggested the incident had been blown out of proportion because appellant had fired John and Thomas was following his father’s lead.
The jurors considering this evidence convicted appellant as charged and found the prior conviction allegations to be true. Subsequently, the court sentenced appellant to a three-strikes term of 25 years to life in prison.
II. DISCUSSION
A. Section 995 Motion
Appellant was convicted of violating section 647.6. Subdivision (a)(1) of that section makes it a misdemeanor to annoy or molest a child under the age of 18. Subdivision (b) makes it a felony or misdemeanor for any person to annoy or molest a child after having entered a dwelling house without consent. Subdivision (c)(2) makes it a felony for any person to annoy or molest a child if that person has a prior felony conviction for violating certain statutes including committing a lewd act on a child under section 288.
On July 24, 2008, a complaint was filed charging appellant with three felony counts including a felony violation of section 647.6, subdivision (b). As is relevant here, the complaint alleged appellant had prior convictions in 1985 and 1991 for committing a lewd act on a child under section 288.
A preliminary hearing was held on September 11, 2008. At the conclusion of the hearing, the prosecutor moved to amend the complaint to allege a violation of section 647.6, subdivision (a). The magistrate granted the motion and held appellant to answer for a “felony” violation of section 647.6, subdivision (a)(1). This clearly was a mistake because a violation of section 647.6, subdivision (a)(1) is a misdemeanor.
The mistake was repeated in the information filed September 23, 2008. It charged appellant with a “felony” violation of section 647.6, subdivision (a)(1). The count went on to allege that appellant “did willfully and unlawfully annoy and molest a child, THOMAS C., under the age of eighteen years, said defendant having been previously convicted of... Section 288.” The count also alleged the two prior convictions: a December 1985 conviction for committing a lewd act on a child, and an December 1991 conviction for committing a lewd act on a child. The wording of the count and the prior conviction allegations make it clear that the prosecutor meant to allege a violation of section 647.6, subdivision (c)(2).
No one noticed the mistake initially. Jury selection began on December 1, 2008, and the jury was sworn on December 4, 2008. The following day, defense counsel filed a “motion to strike surplusage and to clarify the information.” Counsel moved to strike the word “felony” from the information and to strike the prior convictions arguing they were “irrelevant” to the misdemeanor violation of section 647.6, subdivision (a) that had been alleged. The prosecutor opposed the motion arguing appellant had waived the defects by not making a timely section 995 motion prior to the commencement of trial.
The trial court conducted a hearing on appellant’s motion and denied it ruling appellant had waived the right to object by failing to file a timely section 995 motion. The court also allowed the prosecutor to amend the information to charge the correct section 647.6, subdivision (c)(2) offense stating as follows: “I would just note on the face of the Information filed September 23rd, which I do think erroneously charges a 647.6(a)(1) as a felony. That same paragraph does include language that says, quote, ‘Said defendant having been previously convicted of Penal Code Section 288, ’ unquote. [¶] And to the Court, the purpose of alleging those priors is in support of a... (c)(2) felony. So, in other words, they got the subsections wrong without doubt. I mean, this is not the district attorney’s finest charging moment, let me tell you. But that’s what happened here, clearly.”
Defense counsel made an oral section 995 motion arguing the prosecutor had not presented any evidence about the prior convictions at the preliminary hearing. The trial court denied the motion.
Appellant now contends the trial court erred when it denied his section 995 motion because the prosecutor did not present any evidence concerning the prior convictions at the preliminary hearing. The People concede that evidence concerning the prior convictions was not presented at the preliminary hearing. However, the People argue that omission is irrelevant because prior convictions are not an element of the charged offense. We need not wade into this debate because any possible error the court may have committed when it denied the section 995 motion was harmless. In People v. Pompa-Ortiz (1980) 27 Cal.3d 519, our Supreme Court ruled that irregularities at the preliminary hearing are not jurisdictional and that they require reversal “only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (Id. at p. 529.) In People v. Crittenden (1994) 9 Cal.4th 83, our Supreme Court stated that when “the evidence produced at trial amply supports the jury’s finding, any question whether the evidence produced at the preliminary hearing supported the finding of probable cause is rendered moot.” (Id. at p. 137.)
Here, even if we were to assume, arguendo, that the trial court erred when it denied the section 995 motions because the prosecutor failed to present evidence concerning appellant’s prior convictions at the preliminary hearing, that is not grounds for reversal. The prosecutor presented evidence to support those priors at trial thus rendering any possible prior deficiency in the evidence moot. Appellant’s conviction need not be reversed on this ground.
In his reply brief, appellant contends that when the trial court allowed the prosecutor to amend the information, it violated section 1009 that states, in part: “An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination.” Appellant did not raise this argument in the trial court. He has forfeited the right to raise it on appeal. (People v. Tafoya (2007) 42 Cal.4th 147, 166.) Indeed, because appellant first raised this issue in his reply brief, it is doubly forfeited. (People v. Newton (2007) 155 Cal.App.4th 1000, 1005.)
B. Sufficiency of the Evidence
Appellant contends his conviction is not supported by substantial evidence.
Our role when evaluating this type of argument is “a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.’ [Citations.]” (Ibid., quoting People v. Jones (1990) 51 Cal.3d 294, 314.)
Here, appellant was convicted of annoying or molesting a child as set forth in section 647.6. The parties agree that the elements of that offense are set forth in People v. Lopez (1998) 19 Cal.4th 282. A violation of section 647.6 does not require a touching, but it does require conduct that (1) a normal person would unhesitatingly be irritated by, and (2) is motivated by an unnatural or abnormal sexual interest in the victim. (Id. at p. 289.) The words, “annoy” and “molest” are synonymous and generally refer to conduct that is designed to disturb, irritate, offend, injure, or at least tend to injure another person. (Ibid.) An objective test is used to determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person. (Id. at p. 290.)
The evidence presented here was more than sufficient to satisfy this standard. The record shows appellant acted in a highly inappropriate way with a 13-year-old boy whom he had just met. Among other things, appellant: accused the boy of having a “small dong, ” called him a “dickhead, ” played a pornographic movie in such a way that the boy was likely to see it, changed in front of the boy thereby giving him a full view of his naked body, spoke to the boy about sex, whether he masturbated, and whether he used Vaseline while doing so, told the boy a story about waking up and finding someone sucking on his penis, asking the boy how big his penis was, and telling the boy to measure his penis. Jurors considering this evidence reasonably could conclude that a normal person would unhesitatingly be irritated by appellant’s conduct and that appellant’s actions were motivated by an unnatural or abnormal interest in Thomas. The evidence here was more than sufficient.
Appellant argues that “[a]lthough Thomas saw [him] naked for a second while [he] was dressing, this was not done in a sexual or exhibitionist manner.” Whether appellant’s actions were sexual in nature or done in an exhibitionist manner were questions for the jurors to decide. Given the other sexually themed conduct that we have mentioned, the jurors reasonably could conclude appellant was acting in a sexual and exhibitionist manner while changing.
Appellant also notes that “Thomas admitted during his trial testimony that several times appellant told [him] to tell him if anything he said offended him. Thomas, however, never told appellant anything bothered him and, in fact, eagerly returned to appellant’s house the day after he had briefly seen appellant naked and had briefly seen people nude on the television.” However, as we have stated, an objective test is used to determine whether the defendant’s conduct would unhesitatingly irritate or disturb a normal person. (People v. Lopez, supra, 19 Cal.4th at p. 290.) The fact that Thomas may have been reticent to complain, or acquiesced or used poor judgment by continuing to interact with appellant does not undermine the fact that appellant’s acts, viewed objectively, were wrongful.
Appellant also seems to argue that only the acts that took place on Sunday, July 13, 2008 were relevant when evaluating the sufficiency of the evidence. Appellant first raised this argument in his reply brief. He has forfeited the right to raise it on appeal. (People v. Newton, supra, 155 Cal.App.4th at p. 1005.) It is also unpersuasive. Appellant’s acts on that date alone were sufficient to support the conviction.
Appellant’s acts on Sunday July 13, 2008, included: speaking to Thomas about sex, whether he masturbated, and whether he used Vaseline while doing so, telling Thomas a story about waking up and finding someone sucking on his penis, asking Thomas how big his penis was, and telling Thomas to measure his penis.
We conclude the appellant’s conviction is supported by substantial evidence.
C. Admission of Evidence
Prior to trial, the prosecutor said she intended to present expert testimony about the behavior patterns of those who abuse children sexually. Among other things, the prosecutor said the expert would state that such offenders do not try to overpower their victims physically. Rather, they target their victims and try to develop a trusting relationship with them. Defense counsel objected to the proposed testimony, and the court conducted an Evidence Code section 402 hearing. After hearing the evidence presented, the court ruled the evidence was admissible.
The prosecutor then presented testimony from Laurie Kellum, a criminal profiler from the California Department of Justice. Kellum said she had never met any of the parties involved in this case and that she knew nothing about the charges that had been made against appellant. However, she did describe how child molester’s generally operate. As is relevant here, Kellum said that sexual offenders commonly do not rely on force or violence when committing their crimes. Rather, they engage in what is described as “grooming” behavior. According to Kellum, “all that means is getting to know that child, befriending that child, providing that child with things that might be missing in their life, emotionally seducing the child, if you will, and making that child happy to be around the offender so that the offender can evaluate the possibility – is this a child that I can molest? Is this a child who is not going to tell, who I can control? He evaluates that. [¶] He evaluates – as he gets to know the child, what kind of adults are involved in this child? How much privacy can I have with this child? He’ll bring the child in closer with, I will buy you candy, I will buy you things, let’s not tell anyone, he’ll bond with that child. He’ll do that by learning about the child.”
Appellant now contends the court should not have admitted Kellum’s testimony because it was improper “profile evidence.”
“Profile evidence” has been described as “a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) Some courts have ruled that profile evidence is inherently prejudicial and must be excluded. (Ibid.; see also People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072.) However, subsequently, our Supreme Court clarified that describing evidence as “profile evidence” is not a separate ground for exclusion. (People v. Smith (2005) 35 Cal.4th 334, 357.) Rather, such evidence may be excluded only if it is irrelevant, lacks a foundation, or is more prejudicial than probative. (Ibid.) Even more recently, our Supreme Court defined “profile evidence” very narrowly ruling that evidence fits that description only when “the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile.” (People v. Prince (2007) 40 Cal.4th 1179, 1226, italics added.)
Here, Kellum did not compare appellant’s behavior to some profile and then opine that appellant’s behavior fit the profile. Rather, Kellum testified clearly and specifically that she had never met appellant and that she knew nothing about the case against him. The court did not err when it admitted the evidence in question.
D. Motion to Strike
Prior to sentencing, appellant filed a motion that asked the court to strike the prior conviction findings. Among other things, the appellant noted his age, (54 years old) and the fact that his prior convictions were 24 and 18 years old respectively. Appellant also noted that he had served in the military, and that he had operated a plumbing business for the past 16 years. Finally, appellant presented letters from his parents and from the Archdiocese of San Francisco urging leniency.
The trial court addressed appellant’s motion at a sentencing hearing. It stated it had tentatively decided to deny appellant’s motion:
“I recognize my power to strike one or both of the defendant’s prior strike offenses under Penal Code Section 1385(a) and the Romero and Williams line of cases. The Defendant has asked me to exercise my discretion to do so.
“In deciding whether to do so, I have considered the nature and circumstances of the current offense, the prior criminal conduct of the Defendant, the positive attributes of the Defendant, the information provided about his background and character; and considered whether under the particular circumstances of this case, the Defendant should properly be considered as falling outside of the Three Strikes Sentencing law.
“Specifically, I have considered that the Defendant has two prior serious felony convictions as defined by Penal Code Section 1192.7(c)(6). Each of those prior convictions is for a violation of Penal Code Section 288(a), lewd and lascivious conduct with a child under the age of 14.
“Although the charge for which Defendant was convicted in this case was not a serious or violent felony, as defined by Penal Code Sections 1192.7 or 667.5(c), it was clearly a crime of the same class of conduct as defendant’s prior convictions. Defendant was again targeting a young post-pubescent boy, and the jury found that the defendant engaged in conduct motivated by an unnatural or abnormal sexual interest in the victim in this matter.
“The court also considered that the Defendant has done some good things in life. He served in the army from 1974 to 1979. He served as a police officer for two years in the mid 1980s. He started and maintained a successful plumbing business.
“Unfortunately, for much of the [defendant’s] adult life, he has also been a substance abuser. According to the presentence report, the Defendant has used methamphetamine at least intermittently for the past 32 years.
“In addition to his two 288 priors, he has a prior felony conviction for a violation of Health and Safety Code Section 11377, for possession of methamphetamine. He has also successfully completed [a] subsequent diversion program for another 11377 violation.
“Considering the particulars of defendant’s background and character, it appears evident that he has victimized other teens. The court does not know if the Defendant was himself a victim of sexual abuse in the army as he now asserts. Even if this were true, Defendant has had ample time and resources to seek therapeutic treatment for the effects of this experience. There’s no evidence that he’s ever done so in any meaningful way.
“Defendant’s first arrest for conduct related to the nature of this case occurred in 1984 when Defendant was only 29 years old. Given that the Defendant is 54 years old today, this demonstrates a long-standing pattern of deviant sexual behavior. Despite a series of incarcerations between 1984 and 1996, I recognize that the Defendant was arrest free until 2005 when he was arrested for a misdemeanor violation of Health and Safety Code Section 11377. Pursuant to Penal Code Section 667(c)(3), the court is not compelled to consider this fact but I did take it into account.
“The Defendant completely denies this offense. He does not believe he did anything wrong. Without repeating the contents of the presentence report, the Defendant’s proffered explanation as to how this offense happened is not credible. The [D]efendant has shown no remorse. Despite passage of time between this offense and the defendant’s last know offense of this nature, the court believes that the Defendant poses a significant threat to adolescent boys.”
After hearing further argument from counsel on the issue, the court adopted its tentative conclusion and declined to strike either of appellant’s prior convictions.
Appellant now contends the trial court erred when it denied his motion to strike one or more of the prior strike findings.
In Romero, our Supreme Court ruled that trial courts have the discretion under section 1385 to strike a prior conviction in furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 531.) In People v. Williams (1998) 17 Cal.4th 148, the court articulated the factors trial courts should evaluate when exercising discretion under section 1385: “[T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.) The trial court is granted the discretion to decide whether to strike a prior conviction and its ruling may be reversed on appeal only where the court abused its discretion. (People v. Garcia (1999) 20 Cal.4th 490, 503.)
We find no abuse here. The trial court identified and weighed the relevant factors in an almost textbook fashion. The court’s ultimate decision to deny appellant’s request is amply supported. The record indicates appellant is a drug abuser who has a more-than-20-year history of sexually abusing post-pubescent boys. The facts of some of appellant’s prior offenses are truly shocking. The fact that appellant committed yet another sexually themed offense against yet another post-pubescent boy demonstrated that appellant is and remains a serious threat to society. On these facts, we do not hesitate to conclude that the trial court did not abuse its discretion when it declined to strike either of appellant’s prior convictions.
According to the probation report, in one instance, appellant spent “three days with the 14 year old victim for the purposes of getting to know him in an effort to adopt him. The foster mother gave her consent for the defendant to stay in her home. According to the victim... the defendant allegedly gave him a massage then he took the victim’s hand and placed it on [the defendant’s] penis and masturbated using the victim’s hand.”
Appellant argues the court erred. Focusing on the court’s comment that the present offense “was of the same class of conduct as defendant’s prior convictions” appellant argues the court “impermissibly treated [his current conviction] as an attempted child molestation conviction which it was not.” While the court did characterize appellant’s current offense as being in the “same class of conduct” it is clear the court was referring to the fact that appellant was continuing to commit sex related offenses against post-pubescent boys. The comment was entirely appropriate and certainly does not demonstrate the court abused its discretion.
Appellant also argues his position is supported by People v. Bishop (1997) 56 Cal.App.4th 1245. However, the court in that case simply ruled the trial court did not abuse its discretion when it struck two prior strikes for a defendant who had been convicted of petty theft. The fact that the Bishop court affirmed the trial court’s discretionary decision to strike two strikes does not mean the trial court here abused its discretion when it declined to exercise its discretion to strike appellant’s strikes.
E. Cruel and Unusual Punishment
The trial court sentenced appellant to 25 years to life in prison. Appellant now contends his sentence must be reversed because it constituted cruel and unusual punishment.
Appellant never raised this issue in the court below. He has forfeited the right to raise it on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) We also reject the argument on its merits.
A sentence violates the Eighth Amendment of the United States Constitution if it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) However, the protection afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’” and “‘extreme’” case. (Ewing v. California (2003) 538 U.S. 11, 21 (plur. opn. of O’Connor, J.); quoting Rummel v. Estelle (1980) 445 U.S. 263, 272, 274, fn. 11.) We are not convinced this is such a case.
The United States Supreme Court has held that lengthy and even life sentences for nonviolent crimes do not constitute cruel and unusual punishment. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 966-994, [life without parole found not to be disproportionate for possession of a large quantity of drugs]; Rummel v. Estelle, supra, 445 U.S. at p. 285 [life sentence upheld for a nonviolent recidivist].) California courts have reached the same conclusion. (See, e.g., People v. Diaz (1996) 41 Cal.App.4th 1424, 1431 [sentence of 30 years to life for a child molester with a history of prior molestations is not cruel or unusual].) We are not inclined to find the sentence imposed here to be unconstitutional given that appellant is a long-term drug addict and child abuser who has committed yet another sexually-related offense against a young boy.
Turning to California law, a sentence violates 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.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) “The main technique of analysis under California law is to consider the nature both of the offense and of the offender.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Here, as the trial court noted, the offense appellant committed is not as serious as some. Although appellant engaged in conduct that was grossly inappropriate and that plainly violated the statute at issue, he did not touch Thomas or harm him physically. However, appellant’s actions, viewed in context, were much more serious. Appellant, a twice-convicted child abuser who has committed prior offenses against post-pubescent boys, has committed yet another sexually themed offense against a post-pubescent boy. Appellant’s dismal criminal history and his repeated misdeeds demonstrate that he is a serious danger to society. The admittedly lengthy sentence imposed was not so disproportionate that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch, supra, 8 Cal.3d at p. 410.)
Having rejected appellant’s argument on the merits, we need not decide whether trial counsel provided ineffective assistance when he failed to object on this ground in the trial court.
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J. Needham, J.