Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF065683, Richard A. Erwood, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale, and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
INTRODUCTION
Defendant Robert Coronado Calderon (defendant) appeals from judgment entered following jury convictions for sexual intercourse or sodomy with a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); counts 1-5); oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b); counts 7-9); and lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a); counts 6, 10-13). The court also found true that defendant had a prior strike conviction for robbery. The trial court sentenced defendant to 28 years plus 340 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends, as to counts 7, 8, and 9, that the trial court erred in failing to instruct sua sponte on specific intent. The trial court also erred in not considering whether to impose concurrent sentences on counts 6 through 13. In addition, defendant asserts that the trial court abused its discretion in denying defendant’s Romero motion. Defendant also argues his sentence constitutes cruel and/or unusual punishment, and the abstract of judgment should be corrected to conform to the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.
We reject defendant’s contentions and affirm the judgment, with the exception this case must be remanded to allow the trial court to exercise its discretion in imposing concurrent and consecutive sentencing as to counts 6 through 13. In addition, we agree, and the People acknowledge, that the abstract of judgment contains two errors.
II
FACTS
When Jane Doe was about eight years old, defendant began sexually molesting her. Jane Doe was living with her family in Coachella. Her family included defendant, who was Jane Doe’s stepfather, Jane Doe’s mother (mother), Jane Doe’s younger brother, and her two younger half-sisters. Defendant molested Jane Doe (born in 1998) when her mother went out with friends on Friday and Saturday evenings and left the children in defendant’s care. Mother typically was gone from 8:00 p.m. until 3:00 a.m.
Jane Doe testified at trial that defendant molested her in her bedroom when her mother was gone. Jane Doe shared her room with her brother, who was asleep during the molestation. Defendant took off Jane Doe’s clothes, spread her legs, and touched her genital area with his finger. Defendant put his finger inside her vagina. Defendant committed these acts many times. Defendant also put baby oil on himself and then put his penis inside Jane Doe’s vagina. This hurt Jane Doe and one time she bled. Jane Doe did not recall how many times defendant did these acts. Defendant also put his penis between the cheeks of her buttocks and tried to insert his penis in her anus, but it did not go inside. Defendant put his mouth on Jane Doe’s genital area and breasts. More than once, defendant kissed Jane Doe on the mouth and put his tongue inside her mouth. At least once, defendant put Jane Doe’s hand on his penis and moved her hand up and down. Jane Doe did not recall how many times this happened.
Almost always defendant molested Jane Doe in her bedroom, but on one occasion she was on the kitchen floor. He told her to put her mouth on his penis and then pushed her head down toward it and put his penis in her mouth.
Defendant told Jane Doe he had “marbles” in his penis and showed them to her. Once, defendant showed Jane Doe a pornographic movie and told her he wanted to do to her what was done in the movie. Defendant stopped molesting Jane Doe when she was about nine years old, when the family moved to Martha’s Village, a homeless shelter. Defendant told Jane Doe not to tell anyone about the molestation. Jane Doe was too scared to tell anyone. After about three years, she told her best friend, and then told her mother and the police.
Mother testified she married defendant in 2000. They lived with their children in Coachella for about three years, until they lost their home in November 2007, and moved to Martha’s Village. Defendant had two marbles pierced into his penis. Mother never told Jane Doe about the piercings.
Mother first became aware that defendant had been sexually abusing Jane Doe when the school principal contacted her in February 2009. After mother met with the principal, mother went home and Jane Doe told mother about the molestation.
On April 14, 2009, Denise Bowman, a Riverside County Child Protective Services forensic interviewer, interviewed Jane Doe at the Barbara Sinatra Children’s Center. The recorded interview was played for the jury. Jane Doe’s recorded statement was essentially consistent with her trial testimony. In addition, Jane Doe stated during her interview that defendant sexually abused her every time mother went out with her friends and left Jane Doe with defendant. Defendant molested her about 15 times. She was eight years old at the time.
On the same day as Jane Doe’s forensic interview, registered nurse Deborah McMahon (McMahon) examined Jane Doe. McMahon testified that Jane Doe had a hymen injury consistent with chronic sexual abuse. Also on April 14, 2009, Riverside County Sheriff’s Investigator Denise Porras (Porras) (also known as Denise Ward) recorded a pretext telephone call from Jane Doe to defendant. During the call, Jane Doe asked defendant if her private area was itchy because of what he had done. Defendant said he did not know and suggested she take a shower and thoroughly wash the area. Jane Doe asked defendant if she could tell mother what he had done. Defendant told her that if she did, he would go to jail. Defendant then denied he did anything to her and told Jane Doe to take a shower.
Two or three days later, Porras recorded a pretext call from mother to defendant, during which mother asked defendant if he had done anything to Jane Doe. Defendant initially denied doing anything and then admitted touching her one time. Defendant said he did not know why he had done it. When mother asked him again why he had done it, he said it was because he was losing mother. Jane Doe called defendant after Porras left. Defendant said he had touched Jane Doe one time.
Porras testified that, during the pretext call on April 16, 2009, between mother and defendant, she heard defendant say he had touched Jane Doe one time, and he said he did it because defendant and mother were having marital problems. Shortly after Porras left mother, mother called Porras and said she had talked to defendant again. Porras then arranged for a second recorded pretext call, which Porras monitored from the station. During the call, defendant said, “‘You know I’m going to jail; right?’” The phone disconnected. About a minute later Jane Doe made a recorded pretext call monitored by Porras. During the call, defendant told Jane Doe that he was sorry that he had hurt her.
Porras also interviewed defendant on May 1, 2009. Defendant initially denied he committed any misconduct with Jane Doe but later said he did not know if he touched Jane Doe. He claimed he probably was not in his right mind, if he did. Defendant was sorry for what he did to Jane Doe. He said he apologized to Jane Doe and told her it was not her fault.
The misconduct usually happened in Jane Doe’s bedroom, when mother went out dancing with her friends at night. When defendant approached Jane Doe, she was sleeping. Defendant believed his son, who was sleeping in the room when it happened, did not know about it. Defendant conceded he felt bad because he hurt Jane Doe. He was sorry he touched her. He “killed her innocence.” Defendant went in Jane Doe’s bedroom about five times. Defendant denied having sex with Jane Doe. Defendant said he did not know if Jane Doe saw his penis or touched it. But later, defendant said he remembered Jane Doe touching his penis. Defendant also said he had marbles on his penis and told Jane Doe about them.
Defendant acknowledged his penis touched Jane Doe but claimed he did not penetrate her vagina. His penis only went between the outer lips of her genitalia. She would spread her legs. He kissed her stomach but not her breasts. Defendant put lotion on Jane Doe’s stomach and the rest of her body. He denied showing Jane Doe pornography.
During the interview, defendant wrote an apology letter to Jane Doe, which was introduced into evidence. Defendant acknowledged he got himself into a “[n]ice little mess” and wanted to know “how much time” he was “looking at.”
III
INSTRUCTIONAL ERROR
Defendant contends, as to counts 7, 8, and 9, that the trial court erred in failing to instruct sua sponte on specific intent as an element of the crime of violating section 288.7, subdivision (b) (oral copulation or sexual penetration with a child). The trial court instructed the jury that the charged crimes only required a general criminal intent.
A. Standard of Review
A trial court must instruct the jury sua sponte on the general principles of law that are closely and openly connected to the evidence presented at trial. (People v. Wickersham (1982) 32 Cal.3d 307, 323, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.) “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole.” (People v. Kegler (1987) 197 Cal.App.3d 72, 80.)
B. Specific Intent
The crime of violating section 288.7, subdivision (b) is committed when any person 18 years of age or older “engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger....” (§ 288.7, subd. (b).) The information alleges in counts 7 and 8 that, in 2007 and 2008, defendant willfully and unlawfully participated in oral copulation with Jane Doe, “to wit Mouth on penis.” In count 9, the People allege that during that same time period, defendant willfully and unlawfully participated in the act of sexual penetration with Jane Doe, “to wit Finger inside vagina.”
The court instructed the jury that, in order to find defendant guilty of the crimes of oral copulation or sexual penetration, the jury must find that defendant, not only committed the prohibited act, but also did so “with wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act on purpose; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime.” (CALCRIM No. 252.)
The court did not instruct the jury that a finding of specific intent was required as to counts 7, 8, and 9. The terms “specific intent” and “general intent” differ in that, “‘“When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is [general intent]. When the definition refers to a defendant’s intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”’ (Ibid.)” (People v. Ford (1983) 145 Cal.App.3d 985, 989.)
Defendant asserts that a section 288.7, subdivision (b) crime is a specific intent crime because the crime of sexual penetration, as defined in section 289, requires that the defendant committed the act of penetration of the victim’s “genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” (§ 289, subd. (k)(1); italics added.)
Although the crime of sexual penetration is a specific intent crime, the crime of oral copulation is a general intent crime. (People v. Whitham (1995) 38 Cal.App.4th 1282, 1292.) The trial court thus erred in not sua sponte instructing the jury that a finding of specific intent was required for finding defendant guilty of count 9 (sexual penetration) but not as to counts 7 and 8 (oral copulation). (Ibid.; People v. Senior (1992) 3 Cal.App.4th 765, 776.)
C. Prejudice
Where there is instructional error, our high court has held that reversal of the jury’s guilty verdict is not required. “It is appropriate and constitutionally permissible to analyze instructional error with regard to an element of an offense by the harmless error standard of Chapman v. California (1967) 386 U.S. 18. [Citations.] This standard has been expressly applied to instructional error on the issue of whether a crime requires general or specific intent. [Citation.]” (People v. Brenner (1992) 5 Cal.App.4th 335, 339.)
“An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’ [Citation.] ‘To say that an error did not contribute to the verdict is... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 774.)
Defendant argues the trial court’s failure to instruct on specific intent as to counts 7, 8, and 9 constituted prejudicial error. We disagree. As to counts 7 and 8, there was no error, as explained above, and, as to count 9 (sexual penetration), the error in not instructing on specific intent was harmless.
The trial court read to the jury a modified version of CALJIC No. 10.59.6, instructing on the elements of the crime of violating section 288.7, subdivision (b). The instruction, as given to the jury, defined the term “sexual penetration” as “the act of causing the penetration, however slight, of the genital or anal opening of any person... for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.” This instruction required the jury to find that defendant committed the crime of sexual penetration with the specific intent or purpose of sexual arousal, gratification, or abuse.
Even though the court did not give a separate instruction informing the jury that the crime of sexual penetration required a finding of specific intent, the court in effect instructed the jury that such a finding was required by giving CALJIC No. 10.59.6. “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole.” (People v. Kegler, supra, 197 Cal.App.3d at p. 80.) Considering the instructions as a whole, we conclude that the trial court’s error in referring to count 9 as a general intent crime, rather than a specific intent crime, was harmless error. The instruction on the elements of the crime of sexual penetration (CALJIC No. 10.59.6) informed the jury that a finding of specific intent or purpose was required to convict defendant of the crime. There was also overwhelming evidence establishing that defendant penetrated Jane Doe’s vagina with the specific intent or purpose of “sexual arousal, gratification, or abuse.” (§ 288.7, subd. (b).)
The trial court’s error in instructing the jury that the crime of sexual penetration was a general intent crime, rather than a specific intent crime, was harmless error since “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” (People v. Harris (1994) 9 Cal.4th 407, 424, quoting Chapman v. California, supra, 386 U.S. at p. 24.)
IV
CONCURRENT SENTENCING
Defendant contends the trial court erred in assuming it did not have discretion to impose concurrent sentences as to counts 6 through 13, under section 667, subdivision (c)(6) of the Three Strikes law. Defendant argues that the trial court was not obligated to impose consecutive sentences on counts 6 through 13, because those offenses were committed on the same occasion as the sexual intercourse crimes charged in counts 1 through 5.
At the sentencing hearing, the trial court stated it intended to impose the sentences on counts 6 through 13 concurrently to the indeterminate terms on counts 1 through 5. The People argued, and defense counsel agreed, that under the Three Strikes law, the court was obligated to impose sentences on counts 6 through 13 consecutively under section 667, subdivision (c)(6). The trial court accordingly imposed consecutive sentences on counts 6 through 13. Defense counsel objected to the lengthy sentence based on the Eighth Amendment. The trial court responded that it believed “this is one of those cases I don’t think I have much discretion, ” and defense counsel agreed.
Once the jury has made a determination of guilt, “the trial court reviews the relevant evidence concerning the unlawful acts the defendant was convicted of and determines whether they occurred on the same or different occasions and under the same or different circumstances.” (People v. Coelho (2001) 89 Cal.App.4th 861, 884 (Coelho).) Under section 667, subdivision (c)(6), of the Three Strikes law, “the court must impose a consecutive sentence for each current offense ‘not committed on the same occasion, and not arising from the same set of operative facts....’ (Pen. Code, §§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).)” (Coelho, at p. 864, fn. omitted.) “[W]here a sentencing court determines that two or more current felony convictions were either ‘committed on the same occasion’ or ‘aris[e] from the same set of operative facts’..., consecutive sentencing is not required under the three strikes law, but is permissible in the trial court’s sound discretion.” (People v. Lawrence (2000) 24 Cal.4th 219, 233.)
“The statutory phrase ‘committed on the same occasion’ refers to ‘at least a close temporal and spatial proximity between the acts underlying the current convictions.’ [Citation.] The statutory phrase ‘arising from the same set of operative facts’ refers to ‘sharing common acts or criminal conduct that serves to establish the elements of the current felony offenses of which defendant stands convicted.’ [Citation.]” (Coelho, supra, 89 Cal.App.4th at p. 864, fn. 1.) “[I]f the jury could have based its verdicts upon a number of unlawful acts and the court cannot determine beyond a reasonable doubt the particular acts the jury selected, the court should assume that the verdicts were based on those acts that would give it the most discretion to impose concurrent terms.” (Id. at p. 865.)
The trial court correctly imposed consecutive sentences as to counts 1 through 5. Each of those counts was based on five separate acts of sexual intercourse, with each crime committed on a separate occasion and arising from a different set of operative facts. This is consistent with defendant’s statement during his recorded interview that he went into Jane Doe’s bedroom five times. Defendant does not contest consecutive sentencing as to counts 1 through 5. However, the evidence at trial suggests that the sexual abuse crimes alleged in counts 6 through 13 occurred during the course of defendant committing the acts of intercourse alleged in counts 1 through 5.
The People agree that the court incorrectly assumed it was obligated to impose consecutive sentences for counts 6 and 8 through 13. But as to count 7, the People argue there was no error in imposing a consecutive sentence because the evidence established beyond a reasonable doubt that count 7 was a separate incident that did not occur during any of the five incidents of sexual intercourse. We disagree. The evidence is not so clear.
The People argue count 7 (oral copulation) was a separate offense based on Jane Doe’s trial testimony that defendant made her orally copulate him on the kitchen floor. She further testified that this was the only time defendant did not molest her in her bedroom. Defendant stated in his recorded statement that he went in Jane Doe’s bedroom only five times. The People argue that each of the acts of intercourse occurred in Jane Doe’s bedroom. Therefore the act of oral copulation in the kitchen was a separate act.
But Jane Doe testified that multiple sexual acts occurred each time defendant came in her room. She claimed she had a good memory of what had happened but acknowledged her memory was a bit fuzzy as to some of the acts and when they occurred. Jane Doe also indicated during her recorded interview that defendant made her orally copulate him in her bedroom. Unlike her trial testimony, she made no mention of the oral copulation incident occurring in the kitchen. After stating that defendant made her orally copulate him, Jane Doe said she did not see anything come out of his penis but on another occasion she saw white stuff come out of his penis. When asked where that happened, she said that defendant’s sexual acts always occurred in her bedroom. Defendant would come in while she was sleeping and start molesting her. He would do the same things.
Based on Jane Doe’s recorded statement, the jury and trial court could have concluded defendant made Jane Doe orally copulate him in her bedroom in the course of committing intercourse with Jane Doe. “[W]hen the court knows what the unlawful acts are but cannot determine whether they occurred on different occasions and under different circumstances, consecutive sentences are not mandatory.” (Coelho, supra, 89 Cal.App.4th at p. 885.) Here, the trial court had discretion to impose concurrent sentencing on count 7 since it was uncertain from the evidence whether the oral copulation offense occurred in the course of defendant committing sexual intercourse with Jane Doe.
Because the record indicates the trial court may have assumed it did not have discretion to impose concurrent sentences on counts 6 through 13, this matter is remanded for the purpose of allowing the trial court to exercise its discretion in sentencing defendant to either concurrent or consecutive sentences as to counts 6 through 13 under section 667, subdivision (c)(6).
V
DENIAL OF ROMERO MOTION TO STRIKE
Defendant contends the trial court abused its discretion in denying his motion to strike his prior serious and violent felony conviction pursuant to People v. Superior Court (Romero), supra, 13 Cal.4th 497 (Romero). We disagree.
In Romero, the Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under Penal Code section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) When exercising its discretion, the court 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.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls..., the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Id. at p. 378.)
Defendant argues the trial court should have struck his prior felony strike because his prior strike was remote in time and, unless the court strikes it, he has no chance of getting out of prison during his lifetime. At the time of sentencing, defendant was 46 years old and was remorseful for his criminal acts. Under the Three Strikes law, his 340 year sentence is in effect a term of life without possibility of parole (LWOP). Defendant’s only strike is a 1995 robbery conviction in which he received a five-year prison sentence. By striking defendant’s only strike, the trial court would have discretion to run the prison terms for all counts concurrently.
The prosecutor noted that, after defendant was released from prison for robbery, defendant abused methamphetamine and alcohol on a consistent basis up until his arrest for the charged offenses. In addition, defendant molested Jane Doe numerous times. Jane Doe testified he molested her on as many as 15 separate occasions.
The trial court did not abuse its discretion in denying defendant’s Romero motion. There is a “‘strong presumption’ [citation] that the trial judge properly exercised his discretion in refusing to strike a prior conviction allegation.” (In re Large (2007) 41 Cal.4th 538, 551.) “On appeal the basic rule is that it will be assumed that the trial court impliedly found every fact, necessary to support its ruling, to be true. [Citations.]” (People v. Castaneda (1969) 1 Cal.App.3d 477, 484.) “Absent a showing to the contrary, we presume the trial court fulfilled its duty to make the requisite determination. [Citations.]” (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1836.)
In the present matter, the trial court denied defendant’s Romero motion. The court explained that defendant “clearly has not learned anything from his prior commitment in state prison, and he has continued to blame others for his shortcomings.” The court noted that during the pretext call between mother and defendant, defendant blamed mother for defendant’s criminal acts. Instead of accepting responsibility he told her he sexually abused Jane Doe because mother was not around and he was losing her.
Defendant manifested a persistent inability to conform his conduct to the requirements of the law. His past criminal history, while not extensive, includes a serious and violent felony for strong-arm robbery and a misdemeanor conviction for drug possession (Health & Saf. Code, § 11377, subd. (a)). Defendant admittedly abused alcohol, marijuana, and methamphetamine up until his arrest for the molestation charges. Defendant’s crimes of repeatedly sexually abusing Jane Doe were cruel and egregious, scarring his innocent victim for life. As the trial court noted, defendant initially was not remorseful and blamed mother for his criminal behavior.
Defendant’s conduct as a whole reflects his unwillingness or inability to comply with the law. He has shown a disregard for the law. Prior rehabilitative efforts were unsuccessful. Defendant’s future prospects appear no better than his past in light of the egregiousness of defendant’s offenses and his substance abuse. All of these factors were relevant to the trial court’s decision under Romero.
A trial court abuses its discretion in striking a prior conviction if it is “‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, ’ while ignoring ‘defendant's background, ’ ‘the nature of his present offenses, ’ and other ‘individualized considerations.’ [Citation.]” (Romero, supra, 13 Cal.4th at p. 531.) There is no indication from the record here that the court failed to consider and properly balance relevant factors or that it abused its discretion in determining that defendant was not outside the spirit of the Three Strikes law. (Carmony, supra, 33 Cal.4th at pp. 375, 377-378.)
Even though under the Three Strikes law defendant is subject to a lengthy sentence, which in effect will result in defendant spending the rest of his life in prison, this does not require the trial court to strike defendant’s prior strike. Based on the totality of the relevant factors, we cannot say the trial court abused its discretion in refusing to dismiss defendant’s prior strike conviction.
VI
CRUEL AND UNUSUAL PUNISHMENT
Defendant argues his sentence of 28 years plus 340 years to life in prison for 10 counts of molesting his eight-year-old stepdaughter constitutes cruel and/or unusual punishment in violation of the Eighth Amendment of the United States Constitution and article 1, section 17 of the California Constitution. The People argue this issue is moot because this case should be ordered remanded for resentencing. As discussed above, remand for resentencing is necessary to allow the trial court to exercise its discretion in determining whether to impose consecutive or concurrent sentences as to counts 6 through 13. Nevertheless we will address defendant’s cruel and unusual punishment challenge since the trial court retains discretion upon remand to reimpose the former sentence.
A. California Constitution
A sentence may violate the California Constitution as cruel and or 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.) In Lynch, the California Supreme Court described the following three “techniques” the courts have used to administer this rule: (1) an examination of the “nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (id. at p. 425), (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction (id. at p. 426), and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.” (Id. at p. 427.)
Citing People v. Dillon (1983) 34 Cal.3d 441 (Dillon), defendant argues his sentence is grossly disproportionate to his crimes. In Dillon, a 17-year-old defendant was convicted of attempted robbery and first degree murder committed during the course of the robbery attempt. The defendant, who was attempting to steal the victim’s marijuana plants, had previously overheard the victim threaten to shoot anyone who came on his property. When the victim approached the defendant from behind carrying a shotgun, the defendant fired upon the victim with a rifle. (Id. at pp. 450-452.) Based on the first Lynch technique, the California Supreme Court held that the defendant’s life sentence was unconstitutionally excessive. (Id. at p. 489.)
Dillon is factually inapposite. Dillon involved an “unusually immature youth, ” who created a situation in which he found himself squaring off with a man armed with a shotgun. Defendant fired upon the victim out of fear for his life. (Dillon, supra, 34 Cal.3d at pp. 482-483, 488.) In the instant case, defendant repeatedly sexually abused his stepdaughter, who was a young, vulnerable child entrusted to his care. Rather than fully accept responsibility for his acts, he blamed his crimes on his wife for not being home and on his deteriorating marriage.
Also, unlike Dillon, this case involves an aggregate sentence imposed to punish defendant for 10 separate incidents of sexually abusing Jane Doe over a period of at least three months. The sexual abuse included sexual intercourse, oral copulation, sexual penetration, and lewd and lascivious conduct. Jane Doe testified that defendant molested her on as many as 15 separate occasions.
Defendant argues that his sentence is disproportionately harsh because his punishment is equivalent to that imposed for premeditated, deliberate murder, whereas defendant’s crimes were not violent and did not cause serious bodily injury. Defendant also argues the sexual abuse crimes were strict liability offenses that did not require proof he knew the age of his victim when he committed the crimes. We do not find these arguments persuasive. Even though defendant’s crimes were not violent, they were heinous crimes, committed against a young, innocent, vulnerable child. The Legislature has recognized that young children are in need of special protection. (People v. Olsen (1984) 36 Cal.3d 638, 647.) The circumstances of defendant’s crimes of repeatedly sexually abusing his stepdaughter warrant imposition of a lengthy sentence.
Furthermore, the charged crimes are not “strict liability” crimes. Although the prosecution was not required to prove defendant knew the victim’s age when he committed the crimes, proof of general or specific intent was required.
Defendant’s comparison of his sentence with an indeterminate term of 25 years to life for first degree murder is unpersuasive. He did not commit one crime, but many crimes over a period of at least three months. A repeat first degree murderer would face the death penalty or LWOP. (§ 190.2, subd. (a)(3).) Defendant’s sentence consists of numerous prison terms for sexual abuse. The prison term for each of counts 1 through 5 (sexual intercourse with a child) is 50 years to life. The prison term for counts 7 through 9 (oral copulation or sexual penetration) is 30 years to life. The trial court imposed a middle term of 12 years for count 6 (lewd and lascivious conduct) and four-year terms for each of the remaining counts (10 through 13) for lewd and lascivious conduct. These terms for the individual offenses were not grossly disproportionate to the offenses committed.
Defendant’s overall sentence, although extremely lengthy, is constitutional. Defendant is being punished, not only for committing serious, egregious offenses, but also because he committed multiple offenses over several months and is a recidivist offender who targeted an extremely vulnerable child. Defendant’s punishment is not “so disproportionate to the crime[s] for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch, supra, 8 Cal.3d at p. 424.)
B. Federal Constitution
Defendant’s sentence likewise is not violative of the federal constitutional prohibition against cruel and unusual punishment. Under the Eighth Amendment to the United States Constitution, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.) “The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20.) “The appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is gross disproportionality. That is, ‘[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are “grossly disproportionate” to the crime. [Citations.]’ [Citations.] Successful grossly disproportionate challenges are ‘“exceedingly rare”’ and appear only in an ‘“extreme”’ case. [Citation.]” (People v. Em (2009) 171 Cal.App.4th 964, 977, citing Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
If terms of 25 years to life and 50 years to life are not grossly disproportionate for a petty theft offense, with prior felony convictions in Ewing v. California, supra, 538 U.S. 11and Lockyer v. Andrade, supra, 538 U.S. 63, then defendant’s sentence of 28 years plus 340 years to life in prison is not grossly disproportionate for multiple sexual abuse crimes committed against a child, over a period of at least three months.
VII
ABSTRACT OF JUDGMENT
Defendant contends, and the People agree, the abstract of judgment contains two errors. The abstract erroneously states that defendant’s count 7 conviction is a violation of section 288.7, subdivision (a), rather than subdivision (b). Also, the abstract incorrectly states that the court imposed a sentence of 50 years to life, in addition to 30 years to life, as to counts 7, 8, and 9.
Since this matter is being remanded for resentencing, the existing abstract of judgment need not be corrected. However, the trial court should ensure that the errors in the current abstract of judgment are not duplicated in the new abstract of judgment issued following resentencing on remand. The new abstract of judgment should state defendant’s count 7 conviction is for violating section 288.7, subdivision (b) and defendant’s sentence for each of counts 7, 8, and 9, is 30 years to life.
VIII
DISPOSITION
The judgment is reversed as to sentencing on counts 6 through 13. In all other regards, the judgment is affirmed. Because the record indicates the trial court was unaware it had discretion to impose concurrent sentences as to counts 6 through 13, this matter is remanded for resentencing on counts 6 through 13, to allow the trial court to exercise its discretion.
We concur: Hollenhorst Acting P.J., Richli J.