Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050605881
Siggins, J.
Rex Lee Bell was convicted by a jury of committing lewd and lascivious acts against two 13-year-old girls and sentenced to five concurrent terms of 15 years to life in prison. He asserts that (1) the court abused its discretion when it admitted photographs of Bell vacationing with various unidentified young women; (2) the prosecutor committed prejudicial misconduct; and (3) Bell’s sentence violates the state and federal constitutional prohibitions against cruel and unusual punishment. For the following reasons, we affirm.
Defendant also filed a petition for writ of habeas corpus raising issues of allegedly ineffective assistance of trial counsel. In a separate order filed today, we issued an order to show cause returnable in the trial court in order to determine whether Bell’s attorneys were ineffective by their failure to inform him during plea negotiations that if convicted at trial, he faced a potential 15 years-to-life sentence. In all other respects we denied the petition.
BACKGROUND
The Prosecution’s Case
For simplicity, we will refer to the girls as Jane I and Jane II.
Jane I began taking private guitar lessons from defendant at his studio in a Concord music store in 2004, when she was 12 years old. Jane I’s friend, Jane II, also studied guitar with defendant.
Jane I described defendant as a good teacher. She felt safe with him at first. Defendant would sometimes touch her knee, but Jane I did not think anything of it and nothing inappropriate happened.
Then, in the fall of 2005, defendant started to ask Jane I for hugs and began to talk with her about sexual topics. He would hug her and put his hand on her back, underneath her clothing. Jane I felt uncomfortable and awkward the first time defendant did this, but she did not know what to say and remained quiet. Sometimes defendant would say, “Hey, you haven’t given me a hug this lesson,” and Jane I would put her guitar down and give him a hug. Defendant also talked to Jane I about her looks. At first he would tell her she was pretty; later he started commenting that she was “hot,” and told her “I would like to get you alone.”
Once in September 2005, defendant put his hand up the back of Jane I’s shirt, then lifted the front of her shirt and kissed her stomach. She was scared and said “no.” He made Jane I feel awkward and uncomfortable on another occasion when he put his hand down the back of her pants and touched her buttocks.
Defendant offered to take Jane I and Christopher Hansen, another of his students and a substitute teacher for his classes, to his mansion in Bakersfield, along with Jane II and Todd, another student who also taught for defendant. Defendant said Jane I and Christopher could have sex and then defendant would have sex with Jane I because he was he was “the king.” Defendant also said he would coach Jane I and Christopher how to have sex. Jane I told defendant that her mother would never let her go to Bakersfield.
Defendant never explicitly asked Jane I to have sex with him, but he often said things to her like “I’d like to get you in a room alone,” or “I would like to fuck you.” He offered many times to teach her how to orally copulate a man, and once told her that during cunnilingus “she had to make sure she was like shaven and clean.” Jane I felt uncomfortable when defendant made such comments to her and would say “whatever,” not respond, or pretend to laugh.
Defendant talked to Jane I about watching pornography and once showed her pictures printed from his computer of a girl who had a “boob job.”
Jane I said that at the time defendant was being so familiar and suggestive, she was not herself. She became quieter and her grades slipped. She decided to stop taking lessons from defendant after Jane II told her that defendant was doing the same things to her.
In late September or October 2005, Jane I told her teacher, Amelia Davis, about defendant’s sexual comments and touching. Davis made a report to children’s protective services and encouraged Jane I to talk to her parents. Jane I did so, and her parents notified the police.
Detective Christine Magley spoke with Jane I and suggested that she make a “pretext” telephone call to “try to get Mr. Bell to say things.” Two such calls were made, on October 6 and October 12, 2005.
In the October 6 phone call, Jane I told defendant that she and her sister Sarah were in trouble because they met some boys at the movies. Defendant urged Jane I to be respectful to her mother. When Jane I complained that her parents did not let her go out with boys, defendant pointed out that at least she had not been “caught” French kissing a boyfriend, as had his daughter the previous year. Jane I told defendant that the way her boyfriend acted reminded her of when defendant hugged her and kissed her stomach. Defendant responded “Uh-huh.” He said that Jane I’s mother would not like a boyfriend doing that, and warned Jane I not to share her “personal stuff” with anyone but her sister and her best friend. Defendant told Jane I not to fight with her mother, and to be careful.
In the second phone call, Jane I told defendant she had missed her last guitar lesson because her mother was “like really mad again.” Defendant advised her to be nice to her mother so she could return to her lessons, because she would be ready to work as a musician in another couple of years. He said he understood what Jane I was going through, that mothers and daughters often “butt heads,” and that her mother was doing what she did because she cared for her daughter, unlike other mothers who let their kids “party at the house” and “smoke marijuana.” He also said Jane I was too young to have a boyfriend, and that it would “piss [her mother] off.”
Jane I told defendant that her boyfriend had asked for a blow job, and asked defendant to tell her how to give one. After cautioning Jane I to make sure she could not be overheard, defendant proceeded to give her a long and detailed exposition on how to perform fellatio. He opined that this knowledge should be taught in school, and said that it actually was taught in a class at a local junior college. Defendant cautioned that Jane I should not be having sex yet, that this was a way for her to satisfy her boyfriend without penetration, and that it “would make it really [feel] nice for him.” Defendant also said that Jane I should not have oral sex if she did not want to.
Jane I mentioned to defendant the time he suggested taking her and another girl to Bakersfield. Defendant replied “Right, but you couldn’t do that.” He asked if Jane I wanted him to “teach” her. Jane I said that she did, because her boyfriend was “like really desperate.” Defendant responded “Okay. Well don’t do it, sweetie don’t do it if you don’t want to. But you know what, it will be fun. I just told you, but if you’re not sure, you want to practice I’ll—I’ll teach you.”
Defendant reminded Jane I that she was only 14 and could become a guitar teacher herself. He said boys might ask her for a blowjob, and she should respond “kiss my ass,” or demand they pay her $100, or tell them “I’ll do it when I want to do it.” He told Jane I to ask her mother to let her start taking lessons again, and said he hoped he had helped her with her questions. He laughed and said “I’ll be glad to teach you,” but that Jane I would have to “keep that really quiet.” Jane I suggested it could be done in his office. Defendant said, “Yeah, maybe, . . . [but] you have to be real quiet,” otherwise “you’ll be taking lessons with me through prison bars, I think.” He warned Jane I not to tell anyone, even her sister.
Jane II
Jane II started taking guitar lessons from defendant in April 2004, when she was 13. In August 2005, defendant started to make a lot of sexual comments to Jane II about her body. He told Jane II that she had a “nice ass” and “nice boobs,” and that “he wanted to get me alone.” He also told Jane II he could teach her “how to give a really good blowjob.” Defendant would ask her for hugs, which Jane II thought was fine, but once when she hugged him at the end of her lesson he put his hand under the back of her shirt and tried to put it under her bra. He rubbed her back and asked if she liked it. Jane II was scared and did not know what to do. Sometimes when defendant hugged her at the end of her lesson he would “grab [her] ass” and say she had a “nice ass.” Jane II did not tell her parents because she was really nervous, she did not want to get defendant in trouble, and did not know what to do.
Defendant told Jane II “man, you would give a really good blowjob,” that he “wanted to eat [her] out,” and “I’m hard right now.” He said he wanted to get her alone and that he would invite her, Jane I, Christopher and Todd to his mansion “and he would coach us about sex and we could watch pornographic videos at his mansion.”
Defendant showed Jane II pictures of his girlfriend on his computer. Among these were eight to 10 pictures of a nude woman on a bed with her legs open. Bell told Jane II that he had seen the woman the previous weekend, and that he “came in her eight times in three days.” Jane II was shocked and did not know what to think. She did not reply when defendant asked her what she thought about his girlfriend’s looks.
After defendant told Jane II that “he wanted to fuck Jane I,” Jane II told Jane I about her experiences with defendant. When Jane I disclosed that defendant had been doing the same things to her, Jane II was “a little in shock that it was happening to her, too.” Jane II reported defendant to a teacher, and then to her aunt and her parents.
Jane II’s mother testified about a change in her daughter’s behavior in August or September of 2005. Jane II became unusually moody. She was agitated by her younger siblings, complained about her chores, her grades fluctuated and she started making excuses for skipping her guitar lessons.
Concord Police Officer Ronald Turner took statements from Jane II and her parents. Jane II told Officer Turner defendant hugged and kissed her and at one point touched her; suggested to her that she and Todd “party” at his house; said he “wanted to get her alone”; showed her pictures of naked women, one of whom he said was his girlfriend; made comments about her breasts and “ass”; said he would teach her to give a “blowjob”; said he wanted to “eat her out”; and that, in September 2005, ran his hand underneath her shirt, tried to undo her bra and grabbed both of her breasts.
The Brazil Photographs
Seven packets of snapshots found in defendant’s office were introduced into evidence. A number of the photographs were of young women in bathing suits and summer outfits. Defendant was in some of the pictures, as were an unidentified older man and woman. Most of the women appeared to be in their mid-to-late teens or early 20’s. There were also some photos of defendant alone. Some photographs appear to have been taken at a swimming pool at a residence; others depicted defendant and various people, including the young women and the older couple, at a restaurant, dining and shopping. There were also pictures of defendant playing music, of a concert, and beach scenes. Defendant’s daughter testified that her father took the pictures while visiting friends in Brazil.
Other Prosecution Witnesses
Four of defendant’s former guitar students testified for the prosecution. Eric Christensen studied guitar with defendant for four or five years starting when he was in eighth or ninth grade. Defendant was a talkative person and talked about “a lot of things,” including his Hummer and his house in Bakersfield. Defendant once showed Christensen a modeling picture of a clothed woman who was probably in her 30’s. Christensen got a “weird vibe” from defendant. Defendant did not “act[] right” for his age and talked “in a way that was trying to be like cool with the kids type thing.” Defendant talked about sex once in a while, but never graphically or in detail. He never acted inappropriately with Christensen.
Joel H. was 16 years old at trial. He studied bass with defendant during his eighth grade year. After his first few lessons defendant started calling him “stupid” or “retard” when he made mistakes, and would talk a lot about sex and pornography. Defendant would talk about “his girlfriends, stuff like that” and frequently talked about masturbation. Joel was not shocked by defendant’s conversation because some of his friends’ fathers were musicians and talked the same way.
Kristen Schuck, who was 22 years old when she testified, took lessons with defendant for about six months when she was 17. Defendant often spoke about women, girlfriends and his sexual experiences. He showed her pictures on his computer of partially clothed girls, sometimes in bikinis, who appeared to be in their late teens and early 20’s. He would comment on women’s “big breasts or racks, tits” and “asses.” Defendant would comment on Schuck’s hip-length hair and “butt.” Once he said that her pants “looked really nice, you know, how they were tight and that they accentuated my butt. And that was hot. Boys would like that.” Several times he stroked Schuck’s hair and ran his hand down her back, which made her uncomfortable. Defendant once told Schuck “that he would be interested in me as a man to a woman because I had a nice butt and I had nice hair.
Phillip Archibald studied guitar with defendant for about a year, ending about six months before defendant’s trial. Defendant talked about his vacation in Brazil, where he was a guest of a good friend who was also a guitar player, and he showed Archibald pictures of two young women in bikini tops who appeared to be 16 or 17 years old. When Archibald commented that the women looked young, defendant said one of them was 17 years old. There was also an older man in one of the photos who was apparently defendant’s friend. Archibald could not remember whether the girls were the man’s daughters or relatives, but it appeared they were all part of the same household.
Defense Case
The defense case principally consisted of testimony about defendant’s good character.
Defendant’s 17-year-old daughter, Angelica, testified that she had been visiting her father’s guitar studio since she was seven. She always felt free to walk in unannounced. She described her father as “incredibly friendly” and very talkative. Angelica had not seen him engage in inappropriate behavior or comments, but sometimes she was offended by things he said about people. She said her father is more talkative and louder than most people, but he is a very good listener and tells the truth.
Angelica’s mother, Joan Cifarelli, was married to defendant for six years until they divorced 15 years ago. Cifarelli described defendant as “tremendously” talkative, a “chatterbox” and a “motormouth.” He is very opinionated, “has tons of advice, and he will just keep on going until you interrupt.” In 20 years she had never seen defendant behave inappropriately with young people. Cifarelli identified the Brazil photographs. They depicted defendant’s friend Cecil and his relatives.
On cross-examination, Cifarelli said she knew about Jane I’s “pretext” call to defendant, but not “any of the details or how graphic it was.” When the prosecutor gave Cifarelli some of the details, she said it was “shocking.” When told that the conversation occurred while defendant was giving a lesson to a 51-year-old man, Cifarelli said it seemed strange but that defendant was “really into giving advice to people and all of that.”
Other Students
Timothy Bennett was having his guitar lesson when Jane I made the second pretext call. Bennett heard only defendant’s side of the conversation. Afterward he told defendant that he was “crazy” to have said those things over the phone. Bennett was appalled when he learned the caller was a teenage girl. He believed defendant had committed a “lapse of judgment due to his personality,” but it did not change Bennett’s opinion that defendant is a “good guy, a nice guy” and “very honest, very straightforward.”
Patrick Bradley is a musician who was 26 years old at trial. He studied with defendant when he was 17 or 18, the summer before he started at the Berklee College of Music, and taught defendant’s students after defendant was arrested.
Bradley explained that guitar students would come to the studio one right after the other. The studio space is not at all private. On arriving, a student would knock on the door, open it, and alert the teacher to his or her presence. Defendant usually left the door open during lessons, and it was never locked. Employees of the music store frequently drop in during lessons. Passersby on the sidewalk can easily see in the window to the studio, especially at night when the light is on.
Bradley explained it is routine to touch students during their lessons to encourage proper posture and correct their hand placement.
When he was cross-examined, Bradley said he knew the case against defendant was about lewd and “vicious conduct” with a minor and involved touching a minor and a phone call, but he did not know the specific facts. Defendant had told him the charges were false. Bradley had read the transcript of the pretext call and parts of it made him laugh because defendant said fellatio should be taught in college. Bradley did not believe defendant was trying to become aroused by the phone conversation. He thought that defendant “was being who he is” because defendant always had an answer to a question, although Bradley would not personally tell a 13-year-old girl how to perform oral sex.
Jessica Hare, who was 20 years old at trial, took guitar lessons from defendant for two months when she was 18. Defendant was friendly and very talkative. He generally gave her one-armed hugs as she came or left the studio, but he did not touch her a lot and never made her feel uncomfortable or offended. Defendant once broached the subject of sex, but she brushed it aside. He once showed her a picture of an ex-girlfriend, who he said was around Hare’s age or in her 20’s. The woman in the picture was fully clothed.
Clark Walker had been a friend of defendant’s for 12 years and played flute in his band. Over the years he had seen defendant interact with young people and had never seen him act inappropriately. He felt defendant was highly respected in the community for his relationship with young people. He testified that his good opinion of defendant would not change if he learned that two 13-year-old girls had accused him of touching them inappropriately. Asked if it would matter if he learned defendant had given a 13 year old a detailed description of how to perform fellatio, Walker said: “that’s an incredibly stupid thing to do, but I think sometime[s] Rex’s mouth engages before his brain does. And—and I am saying that because I’ve witnessed that, but my opinion wouldn’t change. [¶] I don’t know the circumstances of that conversation or anything like that, but, uhmm, I could see Rex doing that trying to relate to younger people.” His opinion of defendant remained the same after the prosecutor provided more details about the allegations.
Danniell Tameris’s son was one of defendant’s students. Tameris described defendant as a very respectable man, very down to earth, very talkative and easy to talk to. On cross-examination, Tameris said her opinion of defendant would change if he told her son how to perform fellatio. Shown a transcript of the pretext call, she found it shocking that defendant would say such things to a 13-year-old girl. However, it did not change her high opinion of defendant. She had not heard the allegations that defendant touched and put his hand down the back of a girl’s pants, grabbed a student’s breast or told students he would like to fuck them, and she did not believe it had happened.
Amy Heckendorn, who was 26 years old at trial, had studied with defendant since 2005. Defendant never touched her inappropriately. He would touch her arm or knee while he was teaching her and give her hugs, but she did not feel it was inappropriate or “weird.” Defendant was full of advice about her personal life and she felt fine talking to defendant about it; it was always Heckendorn, not defendant, who would bring up the subject. Defendant is a good listener and she considered him a friend. He is honest and extremely talkative. His reputation in the community is that of a good man who cares about people.
Her opinion about defendant would not change because of accusations that he touched two 13-year-old girls inappropriately. His giving one of them instructions about oral copulation did not seem strange or shocking if the girl had asked him. Heckendorn explained that “[a]ll children have mentors and I think if they don’t feel comfortable going to their parents for that sort of thing that they would probably go to the person that they look up to or consider a mentor.” Told that defendant said they should teach oral sex technique in school and that they teach it at a local junior college, Heckendorn said she herself had taken the class. She could see defendant answering honestly if a 13 year old asked him about oral sex. She was not aware of the allegation that defendant put his hands down the back of a girl’s pants and under her bra; it did not seem like something defendant would do. She and defendant had previously joked about oral sex.
Todd Schwartz took guitar lessons from defendant since just before his freshman year in high school. He sometimes substitute taught for defendant and once gave Jane II a lesson. Jane II called him two or three times and said she wanted to be friends and “hang out” with him, but he never dated her. Defendant told Schwartz that Jane II was interested in him, but he did not encourage the two to date.
Schwartz thought defendant is a good guy and “kind of a loud-mouth.” Defendant never said anything improper, never discussed sex, and never invited Todd to his house in Bakersfield. He once showed Todd a picture of his girlfriend wearing a swimsuit; the girlfriend appeared to be in her 20’s.
Christopher Hansen, 18 years old at trial, took guitar lessons from defendant since he was 12. Defendant once showed him a picture of a nude or partially nude photograph of a former girlfriend, who he described as a Playboy model, after first asking whether Hansen would be offended.
Hansen taught Jane I twice when defendant was away. Jane I told Hansen she wanted to contact him outside of lessons. Defendant gave her Hansen’s phone number. He warned Hansen that Jane I was too young for a dating relationship, but said it was fine if they wanted to play guitar together.
After defendant was arrested, Jane I told Hansen defendant had touched her inappropriately and that the police had her make the pretext call. Hansen continued to believe defendant is a “great person” despite the allegations and the pretext call.
Verdict and Sentence
The jury found defendant guilty of five counts of committing a lewd and lascivious act upon a child under the age of 14 (Pen. Code, § 288) and acquitted him of exhibiting lewd matter to a minor (§ 288.2, subd. (a).) The jury found true an allegation that defendant committed the offenses against more than one victim within the meaning of section 667.61. Defendant was sentenced to five concurrent terms of 15 years to life pursuant to section 667.61. This appeal timely followed.
All further statutory references are to the Penal Code unless otherwise noted.
DISCUSSION
I. The Photographs
Defendant argues the trial court erred when it admitted the Brazil photographs because they were irrelevant and/or unduly prejudicial under Evidence Code section 352. Neither argument is persuasive.
Trial Court Proceedings
Defendant objected to introduction of all the photographs before trial pursuant to Evidence Code section 352. The prosecutor explained: “The relevancy is that I don’t know the age of a lot of those people in there, but they do show young girls that could be below age. [¶] And you will see through a lot of those photos the defendant has surrounded himself with—I don’t know who they are—they could be friends, family members, friends of the daughter, who else, but he surrounds himself with women or young ladies that are much younger than himself. In fact, some of them you can probably tell are below 18. [¶] It goes to the habit and custom, intent, predilection as to young ladies of a certain age range that he seems to have a fondness for.” She elaborated that one of the photos depicted young women posing with defendant at a pool, another showed a girl posing in a bikini, another one “laying down on the ground posing in a bikini and revealing a lot of her bust area. And she is busty.” She argued “One of the comments that the victim will say is that he, you know, he likes her boobs and he has touched her boobs underneath her shirt. [¶] As you will see in some of the other evidence Mr. Bell has a flavor of big breasted women and oral sex. That is his flavor of the month, so to speak. And there we—and young girls. And so here we have pictures of young girls who are very busty.”
Defense counsel observed that a number of the photos depicted neutral situations, such as defendant in front of a Christmas tree, with a young woman in a music store, and with various family members, including the young women, sitting down to eat dinner.
The trial court deferred ruling on the objection, and later during trial ruled the pictures were relevant. “I believe that the photographs do show—support an inference that [defendant] has a tendency to hang around, associate with young women. . . . [¶] . . . [¶] The argument as to whether they are over or under 18, the relevance of that, the weight to be given to that is to be argued to the jury.”
Defense counsel then argued that even if the court considered the pictures relevant, they were unduly prejudicial under Evidence Code section 352 “for the reason that counsel wants to let them in. They are [defendant] with young women, we don’t know what age they are, but it’s not showing him in any sexual display with them at all . . . he is with a family and the family happens to have young women that are not 13 years old as in this case, and he’s hanging out with them.” The court replied that defense counsel was confusing the concepts of prejudice with undue prejudice. It explained: “[s]omething that proves or supports an argument that a person is guilty is prejudicial, but that is not unfair prejudice within the meaning of [Evidence Code section] 352.”
The prosecutor had offered only some of many Brazil photographs into evidence. Defense counsel suggested that if the court admitted some, it should admit the whole series of some 60 photos to provide context. Both parties subsequently stipulated to admit all of the pictures.
After the verdict defendant moved unsuccessfully for a new trial on the ground the photographs were unduly prejudicial and should have been excluded. The court reaffirmed its original ruling and noted that, in the context of the evidence as a whole, the photos “were a very small and not terribly significant part of the case.”
Analysis
We agree the photographs were relevant. Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Here, the prosecution was required to prove that defendant touched Jane I and Jane II “with the intent of arousing the sexual desires of either the perpetrator or the child.” (People v. Martinez (1995) 11 Cal.4th 434, 452; § 288, subd. (a).) The photographs depicting attractive young women who appear young enough to be in their teens or early 20’s, clad in minimal bikinis and other revealing garments, support the prosecutor’s theory that defendant has a sexual interest in women much younger than himself. That defendant might have taken these pictures with a completely innocent motive does not change the fact that they also have some tendency to prove the requisite intent.
The pictures of well-endowed young women clad in scanty bikini tops also corroborated other evidence that defendant was improperly focused on his young students’ sexual attributes. Jane II testified that defendant commented on her “nice boobs.” Jane I said that defendant showed her a picture of a nude woman who had gotten a “boob job.” Defendant showed Kristen Schuck pictures of partially clothed women, some wearing bikinis, and commented on their large breasts or “tits, racks.” Defendant’s collection of photographs of buxom young women in vestigial swimwear could logically and permissibly corroborate his alleged interest in young women’s breasts.
To this, defendant responds that the photographs had no corroborative value because “[a] liking for large breasts is so common in our culture that for a man to say so is wholly unremarkable.” Whatever the commonality of such a perceived cultural phenomenon, in this specific case the fact that defendant kept and may have taken pictures of voluptuous, bikini clad women much younger than himself tended to corroborate testimony by his former students that he had an inappropriate interest in their breasts. That was enough.
Nor are these photographs unduly prejudicial. “The prejudice that [Evidence Code] section 352 ‘ “is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.”. . . . “Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. . . .” ’ [Citation.] In other words, evidence should be excluded as unduly prejudicial when it is of such nature as to enflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1009.) Standing alone, the photographs are neither graphic nor offensive. The pictures are not sexually explicit and, as defendant himself argued, they do not show him in any sexual display or interaction with the young women. Indeed, compared to the tape of the pretext call and the testimony of defendant’s victims, it is inconceivable that these relatively benign pictures could have “uniquely tend[ed] to evoke an emotional bias” against defendant. The court did not abuse its discretion when it allowed the Brazil pictures into evidence.
Defendant accuses the prosecution of introducing the Brazil photographs to incite racial animus because the Brazilian women appear to be of mixed race: “Though there was, obviously, no evidence of any sexual relationship at all, appellant’s Brazilian holiday and his possible admiration for the ‘big busted’ girls of that country amounted to miscegenation.” This offensive accusation—which, in effect, alleges bigotry on the part of the prosecutor and that such bigotry would appeal to the jurors—has no basis in the record.
II. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during closing argument by commenting on his failure to testify (Griffin v. California (1965) 380 U.S. 609 (Griffin)) and by mischaracterizing the reasonable doubt standard. Defendant waived these claims because counsel did not object to the prosecutor’s argument and seek a timely admonition in the trial court.
Griffin Error
“Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant’s failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendant’s silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses.” (People v. Medina (1995) 11 Cal.4th 694, 755.)
Defendant alleges two instances where the prosecutor committed Griffin error. In closing argument, the prosecutor asked the jury to compare the quality of the witnesses for the defense with the demeanor and testimony of the alleged victims. Then she said: “When you are judging the credibility of the defense witnesses how reasonable is their testimony in light of the tape, in light of the photographs, in light of what Jane I said, and in light of what Jane II said? [¶] Again, it is—it is not the defense he didn’t do it. It’s the defense I can’t believe he did it. And there—that is a difference. There has been no evidence brought in here saying he didn’t do it. You know why? Because like I asked, there [are] only three people on the face of this earth who are involved in this case.” (Italics added.)
Then, in her rebuttal argument, the prosecutor said: “My job, regardless of what people take the stand, is to prove to you beyond a reasonable doubt. I have the burden no matter who takes the stand, or who doesn’t take the stand. It doesn’t get any bigger or better or worse or more of a burden if some people don’t take the stand. [¶] Uhmm, I’m going to sit down now. I submit to you that the People have proved the charges; that he had a touching of these girls, kissing of these girls that are lewd and lascivious with the intent to arouse; that this man is a molester, and I’ll say it, and because the evidence warrants that. . . . [¶] I submit to you that the evidence proves all of the charges. It is time for the defendant to be responsible for his actions. It is time for him to come up to the plate and not have his daughter or these kids come up and save his butt, and I would ask that you find this man guilty as charged.” (Italics added.)
Defendant maintains the italicized statements improperly called attention to his failure to testify. Although the prosecutor’s statements seem questionable, we will not reach the merits of this claim because defendant’s failure to object to them and seek a curative admonition waives this claim of alleged Griffin error in this appeal. (People v. Lancaster (2007) 41 Cal.4th 50, 84; People v. Medina, supra, 11 Cal.4th at p. 756.) Defendant concedes his counsel’s failure to object, but asserts that no objection could possibly “ ‘unring the bell’ ” because an objection, even were it sustained and an admonition given, “would simply call the jury’s attention to the very thing defense counsel must hope the jury did not understand.” But our Supreme Court has rejected the same argument defendant makes in circumstances indistinguishable from those presented here. (People v. Lancaster, supra, at p. 84, fn. 14; see also People v. Cornwell (2005) 37 Cal.4th 50, 91 [failure to object ordinarily bars consideration of Griffin error on appeal, and the defendant failed to offer any persuasive explanation in support of his theory that the jury would have disregarded any such admonition from the court]; People v. Mesa (2006) 144 Cal.App.4th 1000, 1006-1007.) As in Lancaster, nothing in this record suggests a timely objection and admonition would not have cured the alleged error.
Reasonable Doubt
Defendant further asserts the prosecutor misstated the reasonable doubt standard when she argued in closing that “[r]easonable doubt is do you believe the truth of the charges. If you don’t believe the truth of the charges to an abiding conviction and you have a doubt based on reason, then that’s reasonable doubt.” (Italics added.) Here, too, defendant failed to preserve the issue for appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1156 ; People v. Nguyen (1995) 40 Cal.App.4th 28, 35-37.) And, again, there is no indication an objection would have been futile. Even if we assume this comment distorted the reasonable doubt standard, defendant could and should have objected and requested that the court reinforce the jury’s understanding of the reasonable doubt standard and the prosecutor’s burden of proof, but he did not. He thereby forfeited the issue for appeal. (See People v. Price (1991) 1 Cal.4th 324, 447; People v. Wharton (1991) 53 Cal.3d 522, 566.)
The jurors were properly instructed under CALCRIM No. 220 on the meaning of proof beyond a reasonable doubt. They were also instructed under CALCRIM No. 200 that if anything the attorneys said about the law conflicted with the court’s instructions, the jurors were to follow the latter.
In his petition for writ of habeas corpus (see fn. 1, ante), defendant urges that his attorney’s failure to object to both instances of alleged prosecutorial misconduct constituted ineffective assistance of counsel. Except for a claim concerning circumstances surrounding petitioner’s refusal to enter a plea, we have summarily denied the petition. (See People v. Romero (1994) 8 Cal.4th 728, 737.)
III. Denial of Motion to Dismiss Count IV
Defendant was charged with one count of exhibiting lewd matter to Jane II under section 288.2, subdivision (a). At the close of trial, and before the case went to the jury, defendant moved unsuccessfully under section 1118.1 to dismiss all counts for lack of evidence. The jury’s verdict convicted defendant of the five section 288 counts, and acquitted him of the exhibiting lewd matter charge filed under section 288.2. Notwithstanding this acquittal, defendant contends the court committed prejudicial error when it denied his motion to dismiss the section 288.2 count because allowing the jury to consider it “tainted” the verdict on the other counts. He argues the verdict is tainted because (1) Jane II’s testimony about the computer pictures of his partially nude girlfriend, which were not introduced, and two photographs that were introduced, “prejudiced the jury” against him; and (2) the “long and complex” instructions regarding the section 288.2 charge were “likely to distract the jury from the basic task of determining guilt on the molestation charges.” Defendant’s argument lacks citation to either legal authority or the record to support his premise that the jury was prejudiced or “distract[ed].” Moreover, the same testimony that defendant says prejudiced the jury would undoubtedly have been admitted to show the intent required for defendant’s section 288 violations whether or not the court had granted defendant’s motion to dismiss. Neither error nor prejudice is apparent.
Section 288.2, subdivision (a) provides: “Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means . . . any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.”
IV. Cruel and Unusual Punishment
Section 667.61Section 667.61, or “Jessica’s Law,” mandates a sentence of 15 years to life in state prison for persons who commit specified sex offenses, including violations of section 288, under enumerated circumstances. (§ 667.61, subds. (b), (c)(8).) The sentencing court has no discretion to grant probation, suspend any portion of the sentence or strike any circumstance to impose a less severe sentence. (§ 667.61, subds. (g), (h).)
The Sentencing Proceedings
The triggering circumstance charged and proven here was defendant’s commission of at least a single section 288 offense against more than one victim. (§ 667.61, subd. (e)(5).) At sentencing, defendant asked the court to strike the life-term enhancement under the constitutional ban against cruel and unusual punishment. He also called a number of witnesses who asked the court for leniency, several of whom commented that they had never known defendant to speak or act inappropriately with or around young girls. Defendant’s civil attorney commented that the charged offenses took place over just two months and that he had seen worse cases in which the defendants did not receive 15 year sentences. Defendant told the court he was “sorry for anyone I have hurt. I didn’t mean to hurt the two victims. I am just really sorry.”
Jane II’s mother and Jane I, her parents and her sister spoke about the harm that defendant inflicted on the girls and their families.
The trial court rejected defendant’s contention that the mandatory life term prescribed by section 667.61 violated constitutional proscriptions against cruel and unusual punishment and imposed five concurrent terms of 15 years to life.
Analysis
Defendant contends his sentence constitutes cruel and unusual punishment in violation of the state and federal Constitutions (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) Under the Eighth Amendment of the United States Constitution, a sentence is cruel and unusual if it is “grossly disproportionate to the offense.” (Harmelin v. Michigan (1991) 501 U.S. 957, 1010; accord, Ewing v. California (2003) 538 U.S. 11, 23-24.) Under the state Constitution, a sentence may constitute cruel and unusual punishment 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.) “Findings of disproportionality have occurred with exquisite rarity in the case law. Because it is the Legislature which determines the appropriate penalty for criminal offenses defendant must overcome a ‘considerable burden’ in convincing us his sentence was disproportionate to his level of culpability.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)
“California cases, relying on federal cases interpreting the Eighth Amendment, have declined to find that comparative, intercase proportionality review is required under the state Constitution.” (People v. Weddle, supra, 1 Cal.App.4that p. 1196, 1198, fn. 8; see also People v. Ayon (1996) 46 Cal.App.4th 385, 399 [constitutionality determination may be based on nature of the offense and/or offender alone], disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) As for intracase proportionality review, in People v. Dillon (1983) 34 Cal.3d 441 our Supreme Court established a two-prong analysis. We first review the crime itself, “both in the abstract and in view of the totality of the circumstances surrounding its commission, ‘including such factors as its motive, the way it was committed, the extent of defendant’s involvement, and the consequences of his acts . . . .’ ” (Id. at pp. 478-479.) Secondly, we must consider the nature of the defendant and inquire whether the sentence is grossly disproportionate to his individual culpability as shown by such factors as his “ ‘age, prior criminality, personal characteristics, and state of mind.’ ” (People v. Weddle, supra, at pp. 1197-1198, quoting People v. Dillon, supra, at p. 479.)
Defendant challenges section 667.61 on its face and as applied. He contends the provision is facially unconstitutional because it mandates a sentence of 15 years to life for nonforcible molestation of more than one child without (1) recognizing “significant gradations of culpability depending on the severity of the current offense,” or (2) taking mitigating factors into consideration. We disagree. The explicit intent of the voters in enacting Jessica’s Law through initiative, including the increased penalties provided by section 667.61, was to “strengthen and improve” the punishment and control of sex offenders. (People v. Boyle (2008) 164 Cal.App.4th 1266, 1281-1282; Historical and Statutory Notes, 47C West’s Ann. Pen. Code (2008 ed.) foll. § 209, pp. 52-53, Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006, eff. Nov. 8, 2006), and foll. 49 West’s Ann. Pen. Code (2008 Supp.) foll. § 667.61, pp. 225-227.) Section 667.61, subdivision (e)(5) codifies the voters’ intent that sex offenders with multiple child victims serve lengthy prison sentences. That the statute imposes this penalty whether or not an act of molestation is accomplished by force and without regard for potentially mitigating factors reflects the voters’ determination to strengthen the means by which children can be protected from serial molesters. Although severe, when viewed in light of its stated purpose, we cannot conclude that this provision either shocks the conscience or offends fundamental notions of human dignity.
Proposition 83, “The Sexual Predator Punishment and Control Act: Jessica’s Law” addressed a number of civil and criminal statutes, all related to the punishment and control of sex offenders. It (1) expanded the definition of specified sex offenses; (2) increased the penalties for certain sex offenses; (3) prohibited probation for listed sex offenses; (4) eliminated custody credits for some sex offenses; (5) extended the parole period for particular sex offenses; (6) required monitoring by global positioning satellites for registered sex offenders; (7) barred registered offenders from living within 2,000 feet of a school or park; and (8) made the changes to the Sexually Violent Predator’s Act. (Ballot Pamp., Gen. Elec. (Nov. 7, 2006), Analysis of Prop. 83 by the Legislative Analyst, pp. 43-44.)
Secondly, defendant contends section 667.61 is unconstitutional as applied to him because he has no prior convictions, his victims “were at the top end of the age range” covered by section 288, and his “actual touching of the girls was at the bottom end of the sorts of contact with children that are ordinarily the subject of charges under section 288.” But section 288 reflects the Legislature’s determination to protect all children under 14 from all lewd and lascivious conduct. Here, the court noted at sentencing that it did “not find the fact that the victims were 13 [years old] rather than five, for example, to be a mitigating factor. It would be certainly worse if they were younger, but the fact that they were under 14 the law imposes more severe punishments precisely because a child of 14 is in this position of vulnerability and helplessness, and that’s why the enhancement in the sentences are appropriate for this conduct.” We agree.
We may not second-guess the legislative determination to impose more severe punishments on offenders whose victims are under 14. “The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment. [Citations.] While these intrinsically legislative functions are circumscribed by the constitutional limits of article I, section 17, the validity of enactments will not be questioned ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ ” (People v. Wingo (1975) 14 Cal.3d 169, 174; accord, People v. Ayon, supra, 46 Cal.App.4th at p. 398.)
Nor are we persuaded that imposition of a 15 years-to-life term is constitutionally infirm because defendant did not subject the girls to genital contact, intercourse or oral copulation, which, he says, “in almost all cases [supports] charges under section 288.” The Legislature did not see fit to restrict the scope of section 288 to the kind of conduct defendant considers more egregious than his own when it made it a felony for any person to “willfully and lewdly commit[] any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years. . . .” (Italics added.) These girls were indisputably within the age identified by the Legislature for heightened protection from sexual exploitation, and defendant committed proscribed lewd or lascivious touching with the intent to obtain or provide sexual gratification. That others have committed worse offenses against younger children does not change the character of defendant’s conduct.
Moreover, we cannot view defendant’s actions as benignly as he portrays them. The testimony of defendant’s two young victims and their families about the anguish he inflicted makes clear that this case involved much more than “hugs that in one or two instances transgressed the bounds of modesty.” The evidence—including defendant’s offer to teach the girls to have sex at his mansion in Bakersfield; his suggestion that he teach Jane I to orally copulate him; and his comment to Jane II that he would like to “fuck” Jane I; and the “pretext” call—plainly displays defendant’s intent to engage the girls in much more sexually explicit acts had the girls not disclosed his conduct. And although this was the first time defendant was charged with a sexual crime, it was not the first time he touched or raised blatantly sexual topics with young students. Defendant was more than 30 years older than his victims, and violated the position of trust and responsibility he held as their teacher. His sentence is severe, but it is not so severe and disproportionate to his offenses as to shock the conscience or offend fundamental notions of human dignity. We are therefore without power to alter it.
DISPOSITION
The judgment is affirmed.
I concur: McGuiness, P.J.
Pollak, J.
I concur in the conclusions and analysis in the majority opinion. I write separately to add that, although the sentence imposed in this case does not violate constitutional limitations, it comes perilously close to doing so. In light of the incredibly poor judgment reflected in defendant’s behavior and the trauma that his conduct inflicted on the two teenage victims, a life sentence may not “shock[] the conscience and offend[] fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.) Nonetheless, the sentence is highly disturbing. Its harshness undoubtedly reflects current public sentiment favoring “zero tolerance toward the commission of sexual offenses against particularly vulnerable victims.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201.) However, severe penalties imposed for the commission of far more egregious sex crimes and other offenses in response to similar public clamor have more than once been stricken as exceeding the limits tolerated by our state or federal Constitution. (See, e.g., Lynch, supra, 8 Cal.3d 410[life sentence for second-offense indecent exposure]; In re Wells (1975) 46 Cal.App.3d 592, 598 [one year to life for annoying or molesting a minor by one previously convicted of same offense or violation of Penal Code section 288; penalty “may fairly be characterized as yet another product of the intense public concern over sex offenses that arose in this state a quarter of a century ago”]; In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez) [one year to life for violation of section 288]; People v. Dillon (1983) 34 Cal.3d 441 [life sentence for felony murder].)
“[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed in his particular case by the Adult Authority [now the Board of Parole Hearings].” (In re Lynch (1972) 8 Cal.3d 410, 419 (Lynch).)
All statutory references are to the Penal Code.
I shall not belabor the principles that must guide an evaluation of whether a penalty provision on its face, or as applied in a particular case, is so disproportionate to the offense to constitute cruel and unusual punishment. The standards have been articulated many times. (See, e.g., Lynch, supra, 8 Cal.3d at pp. 423-429; People v. Dillon, supra, 34 Cal.3d at pp. 477-482; In re Rodriguez, supra, 14 Cal.3d at pp. 653-656; In re Foss, (1974) 10 Cal.3d 910, 918-920, disapproved on other grounds by People v. White (1976) 16 Cal.3d 791, 796, fn. 3; People v. Ayon (1996) 46 Cal.App.4th 385, 398-399, disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) Suffice it to say that many of the factors that have been found to render a penalty excessive are present in this case. Unlike all of the other circumstances specified in section 667.61, subdivision (e) that subject the offender to a 15-year-to-life sentence, the circumstance that invoked defendant’s augmented sentence—there being more than one victim—required neither force nor any conduct creating a risk of violence, and defendant’s offenses were in fact entirely nonviolent. (See Lynch, supra, at pp. 425-426; Rodriguez, supra, at pp. 654-655 [offense was “by no means ‘trivial,’ but the method of its commission involved no violence and caused no physical harm to the victim. The episode lasted only a few minutes. No weapon was involved and petitioner attempted none of the dangerous offenses sometimes associated with violations of section 288”].) Indeed, the most disquieting aspect of defendant’s conduct is not his touching of the two teenage girls (as inexcusable as that may have been), but the subjects that he discussed with the girls, largely over the telephone. Similarly, the fact that defendant had never before been charged with a crime, that he was engaged productively in musical education, had many devoted students as well as family members, and posed no threat of forcing himself upon others, suggests that in this case, as in Lynch, the punishment “does not fit the criminal.” (Lynch, supra, at p. 437; People v. Dillon, supra, at p. 479.)
As summarized in In re Wells, supra, 46 Cal.App.3d at page 597, the “three-prong test” articulated by our Supreme Court requires the court “(a) to consider the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society; (b) to compare the penalty at issue with the punishment this state prescribes for more serious offenses; and (c) to compare the penalty at issue with the punishment other jurisdictions prescribe for the identical offense.” (See also People v. Ayon, supra, 46 Cal.App.4th at p. 398.)
As to another relevant factor—comparison of the penalty with the punishment prescribed for other offenses—the aggravated penalty for rape is only eight years (§ 264), even if committed by the use of force or violence on a child under the age of 14 years (§ 288, subd. (b)(1)). The penalty that has been imposed on defendant for his nonviolent and mildly invasive (but totally inappropriate) touching of the two victims is the same as the penalty imposed for second degree murder. (§ 190, subd. (a).) Many of the penalties for sexual offenses have been significantly increased in recent years, particularly for multiple offenses, so that the comparison between the penalty in this case and the penalty for other sex crimes is not as stark as it may have been in the past. The implication of this fact, however, is not necessarily that the life sentence in this case is any more defensible. Rather, the punishment imposed here, in my view, emphasizes the need for a re-evaluation of the extreme penalties mandated without regard to the particulars of the offense, the personal history and characteristics of the offender, or the potential for rehabilitation. The maximum life sentence that has been imposed here may serve the public’s demand for retribution, but it hardly advances the goal of rehabilitation and it is of doubtful value in promoting deterrence.
Such “intercase” proportionality review is at least permissible, if not mandatory. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196, 1198-1199, fn. 8.)
There is no question but that defendant engaged in misconduct that merits meaningful punishment. We do not know what further misconduct defendant might have engaged in if his actions had not been disclosed. But, this being defendant’s first and only encounter with the criminal process, there is no reason to assume that his misconduct would have continued following his conviction without the necessity of anything approaching a life sentence. The record reflects that the prosecutor was prepared to accept a sentence of three years if defendant had entered a guilty plea. It may be, as the trial judge observed, that this offer was motivated in part by the desire to avoid the disadvantages of trial. Nonetheless, we must presume that the prosecutor believed such a sentence—the mitigated term for a single violation of section 288—would be in the interest of justice, and certainly it would be. The 15-year-to-life sentence that has instead been imposed pushes constitutional tolerance to its limit, with dubious benefit to the victims, society, or public respect for the fairness and humanity of our criminal justice system.
Because Proposition 83 was a voter initiative, the relevant intent is that of the voters. (See Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900-901; People v. Litmon (2008) 162 Cal.App.4th 383, 407-408.)
The same standards were articulated and applied in two more recent cases in which maximum life sentences under section 667.61 were upheld. (People v. Alvarado, supra, 87 Cal.App.4th 178; People v. Estrada (1997) 57 Cal.App.4th 1270.) In both cases, the aggravating circumstance was the commission of a forcible rape during the commission of a burglary.