Opinion
A149512
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. EMILIO CANO-CRUZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51519125)
Defendant and appellant Emilio Cano-Cruz was convicted by a jury of a single count of digital penetration and a single count of committing a lewd and lascivious act against his four-year old niece, under Penal Code sections 288.7, subdivision (b) and 288, subdivision (a), respectively. The court sentenced him to the statutorily-mandated sentence for a conviction under section 288.7, subdivision (b) of 15 years to life in prison. He appeals and contends his sentence violates the state and federal prohibitions against cruel and unusual punishment. We disagree and affirm.
All statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Cano-Cruz was charged with oral copulation or sexual penetration with a child 10 years old or younger (§ 288.7, subd. (b) (count 1)), and committing a lewd and lascivious act upon a child under 14 (§ 288, subd. (a) (count 2).) He was also charged with a substantial sexual conduct enhancement (§ 1203.066, subd. (a)(8)).
Around August 2015, 36-year-old Cano-Cruz was living in a three-bedroom Concord apartment with his family and several others. They included his girlfriend and their 13-year-old and 10-year old sons, his girlfriend's sister, Erica C. (Erica), her four-year old daughter, Jane Doe (Jane), and two to three other adults.
Erica explained that Jane's father was not in her life and that Jane "loved [Cano-Cruz] very much, as though he were her dad because he knew her ever since she was born." Jane even referred to Cano-Cruz as "dad." Erica said her daughter's relationship with Cano-Cruz had been "[v]ery beautiful."
Their relationship changed on August 16, 2015. At trial, Erica testified that she was home with Jane that afternoon, and Cano-Cruz was also there. She had been tidying up the bedroom she shared with her daughter. She had not seen Jane for about five minutes, so she left her bedroom to look for her. After Erica called out for Jane a couple of times, Cano-Cruz opened the door to his family's bedroom and came out. Erica asked if he had seen Jane, and he replied she was in his bedroom feeding the dog. Jane was fond of the dog and would go into Cano-Cruz's family's bedroom but usually with the door left open. Erica called for her daughter to come out. When she did, Erica observed "her pants [were] not on right." They were "rolled up" and different from the way Erica had dressed her earlier in the day. Erica asked if she had gone to the bathroom, and Jane replied "No." Erica took Jane back to their room and asked her more questions about whether someone had touched her inappropriately. Jane said no or was nonresponsive and then fell asleep. Later that evening, in response to more questions, Jane said that Cano-Cruz touched her. Erica called the police and took Jane to the doctor. The police arrested Cano-Cruz, who was cooperative during the process.
The nurse with the Contra Costa County Regional Medical Center who interviewed and examined Jane that evening was qualified as an expert in forensic examinations and testified. Jane was hesitant to respond to the nurse's questions but eventually said "that daddy had touched her with his hand, and he had pulled down her chonies, which is her underwear, and touched her with his hand." She said "it hurt but it didn't hurt now." Jane pointed between the legs on the front of a stuffed animal to indicate to the nurse where she had hurt. In response to the nurse's additional questions, Jane said that her dad's clothes were on, he did not touch her anywhere else, and that this type of contact had never happened before. Jane repeated these responses to the pediatrician who examined her, and in response to more questions said she did not touch Cano-Cruz anywhere and that there had been no oral copulation. Also, when the doctor sought to clarify how Cano-Cruz touched her, Jane pointed to the nurse's finger, although she referred to it as a hand. Jane's physical examination showed "redness on both sides of the external vaginal opening," but no rips, tears, breakage of skin, or bleeding. The nurse concluded Jane's examination was consistent with Jane's account of being touched with a finger.
Cano-Cruz did not testify.
The jury found Cano-Cruz guilty on both charged counts and found the substantial sexual conduct allegation true.
At the sentencing hearing, Cano-Cruz's counsel urged the court not to impose the sentence prescribed in section 288.7, subdivision (b), arguing that the incident was "less serious than others in similarly charged situations." Based on dozens of support letters submitted on Cano-Cruz's behalf from family and friends, counsel described Cano-Cruz as "respectful . . . very hard-working . . . a responsible and loyal father . . . a good father, humble, industrious, and caring . . . honest . . . empathetic and quite emotional." He further noted that Cano-Cruz's score on the Static-99R, an actuarial tool used to predict the risk of sexual offense recidivism, placed him in the low risk category. Counsel argued that the statutory sentence "is clearly disproportionate to this person and these facts."
The court found Cano-Cruz to be "a good family man, a hard worker, and all the other characteristics [his counsel] described" based on the support letters and someone who until now "has otherwise led a law-abiding life." It found that Cano-Cruz did not have a prior record and that he was remorseful. The court recognized that the incident was not planned or sophisticated but rather "somewhat situational, and, as far as the evidence indicates, . . . a one-time event." But it had "no doubt that [the situation] has caused immeasurable psychological harm to the child," stating the harm could not "be described as minor or moderate harm to any child." As an aggravating factor, the court also found that Cano-Cruz "took advantage of a position of trust and confidence to commit this offense." The court reasoned Cano-Cruz "would not have had access to the child but for the fact that the families were living together. Implicit in that relationship is the assumption that your own flesh and blood or in-laws are not gonna harm your children when you're not looking, and that trust was violated in this case." The court further found that Cano-Cruz "poses a danger to society" since his offense constituted "violent conduct that indicates a serious danger to society." Addressing the Static-99R indicator, the court added "that anyone who can bring himself to violate a 5-year-old child poses a danger to society because that crime cannot occur without some innate attraction to a child as a sexual object, and, unfortunately, that attraction is not something that goes away."
The court then sentenced Cano-Cruz to the statutorily prescribed 15 years to life on count 1 and to the midterm of 6 years on count 2, stayed under section 659. This appeal followed.
DISCUSSION
Cano-Cruz contends that his sentence is constitutionally excessive and constitutes cruel and unusual punishment under both the United States and California Constitutions. " 'Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.' " (People v. Sullivan (2007) 151 Cal.App.4th 524, 569 (Sullivan).)
A punishment violates the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) "[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, 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.) We use a three-pronged test to determine whether a particular sentence is disproportionate to the offense for which it is imposed. We examine (1) the nature of the offense and the offender with particular attention to the degree of danger both present to society, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty for the same offense in other jurisdictions. (Id. at pp. 425-427.) "A defendant has a 'considerable burden' to show a punishment is cruel and unusual [citation], and '[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive[] [citations]." (People v. Meneses (2011) 193 Cal.App.4th 1087, 1092-1093.) Successful challenges to proportionality occur with "exquisite rarity." (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) Based on these three factors, this is not one of those rare occasions. A. Nature of the Offense and Offender
An analysis of "the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.) The nature of the offender focuses on the particular person before the court and looks at "such factors as his age, prior criminality, personal characteristics, and state of mind." (People v. Dillon (1983) 34 Cal.3d 441, 479.)
Cano-Cruz claims this first factor tips in his favor. He acknowledges his offense was "serious and inexcusable" but points to the probation report which described the incident to be "a single period of aberrant behavior." Similarly, the trial court found the offense to be "somewhat situational . . . a one-time event." He also asserts that although the court found that Jane suffered "horrific injuries . . . likely to be lifelong and immeasurable" there was no evidence to support its assessment. In his view, "there was no lasting physical injury and the hurt Doe experienced was fleeting." Cano-Cruz defends his nature by pointing out he had no prior criminal record. His counsel presented him to the court as "respectful . . . very hard-working . . . a responsible and loyal father . . . a good father, humble, industrious, and caring . . . honest . . . empathetic and quite emotional" based on dozens of support letters submitted on his behalf from family and friends. The court agreed and found Cano-Cruz to be " a good family man, a hard worker, and all the other characteristics [his counsel] described" as well as someone who up to this point "has otherwise led a law-abiding life." The trial court also found him remorseful.
Cano-Cruz raises his most credible points for mitigation, but none ultimately tips this factor in his favor. Even though this was a one-time event, sexual penetration of a minor by an adult over 18 is a serious crime and section 288.7, subdivision (b) provides that a defendant convicted of this crime "is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." (§ 288.7, subd. (b).) Further, since we view the underlying disputed facts in the light most favorable to the judgment (Sullivan, supra, 151 Cal.App.4th at p. 569), we cannot discount the harms Jane suffered. While Cano-Cruz's absence of a prior criminal record, remorse, and positive personal qualities as attested to by numerous family and friends may underscore the low probability he will commit another sexual offense, they are not determinative. They do not override the fact that, as the court found, he violated the trust of his own family with whom he shared a home and the trust of a young girl who considered him a father and called him "dad." This prong of our analysis does not tip toward leniency. B. Comparison with Punishments for More Serious Offenses
Cano-Cruz argues his sentence is cruel and unusual when compared with punishments for "more serious crimes" in California. He points to punishments for crimes involving death. Voluntary manslaughter is punishable by 3, 6, or 11 years in prison (§ 193, subd. (a)), while second degree murder is punishable by 15 years to life (§ 190, subd. (a)). Cano-Cruz acknowledges his offense was serious but argues it is not as grave an offense as second degree murder, which also carries a 15-years-to-life sentence.
Even were we to consider crimes resulting in death "more serious" than the sexual assault against a minor for which Cano-Cruz was convicted, this does not render his sentence disproportionate. "Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 530.) "[G]reat deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." (In re Wells (1975) 46 Cal.App.3d 592, 599.) The Legislature made such a judgment when it fixed the sentence for sexual penetration of a child 10 years old or younger by an adult at 15 years to life in prison. Thus, comparison of punishments does not provide a basis for finding Cano-Cruz's sentence to be so disproportionate that it shocks the conscience. C. Comparison of the Punishment for the Same Offense in Other Jurisdictions
The third prong of our analysis "compare[s] the punishment imposed with punishments prescribed by other jurisdictions for the same offense." (People v. Reyes (2016) 246 Cal.App.4th 62, 87 (Reyes).) "[I]f the challenged penalty is found to exceed the punishments decreed for the offense in a significant number of those jurisdictions, the disparity is a further measure of its excessiveness." (Lynch, supra, 8 Cal.3d at p. 427.)
Cano-Cruz argues that the sentence for digital penetration in other jurisdictions is significantly less than 15 years to life. He cites the laws of five states which he says impose "significantly less" sentences for digitial penetration. For instance, in Oregon, the maximum sentence for second degree sexual penetration is 10 years. (State v. Grow (Ore. 2005) 201 Or.App.717, 718.) Minnesota's sentence for sexual penetration has a 30-year maximum. (M.S.A. § 609.342.) Ohio punishes digital penetration, a sexual battery, with sentences ranging from two to eight years. (Ohio Rev. Code Ann., §§ 2907.03, 2929.14, subd. (A)(2).). Connecticut's maximum sentence for digital penetration is 20 years. (Conn. Gen. Stats., §§ 53a-70(b), 53-21.)
That California's sentence for sexual penetration of a child 10 years or younger by and adult may be lengthier than the required sentences in some other states does not make it excessive as a matter of law. (See Reyes, supra, 246 Cal.App.4th at p. 88-89.) California is not required to be more lenient than all or even a significant percentage of other jurisdictions so long as the sentences imposed here are not so disproportionate that they appear suspect. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) In fact, it is unclear whether the sentences imposed by Minnesota and Connecticut for sexual penetration always result in significantly longer imprisonment than California's indeterminate 15-years-to-life sentence. Cano-Cruz will be eligible for parole consideration when he has served fifteen years of his sentence. (§ 3046.) It is thus possible he will not serve 20 or 30 years in prison.
The People point out punishments for similar crimes in eight other states that "impose lengthy prison terms for sexually abusing young children." To name a few, Florida imposes life imprisonment for lewd or lascivious molestation against children under 12. (Fla. Stat. Ann., §§ 800.04, 775.082.) The sentence in Kansas for lewd fondling or touching of a child under 14 is 25 years to life in prison. (Kan. Stat. Ann., §§ 21-5506, 21-6627.) Nevada imposes a 35-years-to-life sentence for a defendant convicted of sexual penetration with a child under 14. (Nev. Rev. Stat. Ann., § 200.366.)
The examples invoked by the People demonstrate even more severe punishments exist outside California for comparable crimes. The punishments the People cite indicate that the "significantly less[er]" sentences identified by Cano-Cruz are not the sole benchmark against which we measure California's punishment scheme, nor does Cano-Cruz ever contend these "significantly less[er]" sentences reflect the majority of jurisdictions in the United States. Even if California's punishment scheme were among the most extreme, that would not require us to conclude that the sentence is unconstitutionally cruel or unusual. California is not "concerned . . . with conforming our Penal Code to the 'majority rule' or the least common denominator of penalties nationwide . . . . [O]ur codes have served as a model for the nation rather than a mere mirror of the laws of other jurisdictions." (Reyes, supra, 246 Cal.App.4th at p. 90.) Thus, the fact California imposes a greater sentence under these circumstances compared to those jurisdictions Cano-Cruz identifies does not change our conclusion.
Under these circumstances, we conclude that Cano-Cruz's 15-years-to-life sentence is not so disproportionate to the crime he committed that it shocks the conscience and offends fundamental notions of human dignity. It does not violate the prohibitions against cruel and unusual punishment under either the United States or California Constitutions.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------