Opinion
E051842
10-25-2011
THE PEOPLE, Plaintiff and Respondent, v. EDMUNDO CHACON, Defendant and Appellant.
Patricia L. Brisbois, 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, William M. Wood, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INF063689)
OPINION
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge. Affirmed.
Patricia L. Brisbois, 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, William M. Wood, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
On June 15, 2009, an information charged defendant and appellant Edmundo Chacon (defendant) with orally copulating a child under the age of 10 under Penal Codesection 288.7, subdivision (b) (count 1), and committing a lewd act upon a child under the age of 14 under section 288, subdivision (a) (count 2). A jury found defendant guilty as charged.
All statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced defendant to 15 years to life on count 1, and a consecutive six-year sentence on count 2, stayed under section 654. On appeal, defendant contends that the 15-year sentence constitutes cruel and/or unusual punishment. For the reasons set forth below, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1.
PROSECUTION CASE
On October 14, 2008, defendant's wife, Sarina, was providing child care to Edith H.'s two younger children, an infant daughter and John Doe, who was six years old. John Doe went to defendant and Sarina's home after school. Sarina and Edith were best friends; Sarina had been caring for John Doe for six years.
While John Doe was in one of the bedrooms watching television, 36-year-old defendant came in. He unzipped Doe's pants and pulled down his underwear. He touched Doe's penis and testicles; he then orally copulated Doe. While this was happening, Doe heard the doorbell ring and a knock on the front door; it was his mom. Defendant told him not to tell anyone, especially his mother. Defendant offered to give Doe a dollar if he did not tell anyone. Defendant then told Doe to put his clothes on and run "fast" to answer the door.
Meanwhile, Doe's mom was at the front door after picking up her oldest child from school around 3:10 p.m. Edith had called Sarina a few times to tell her she was on her way, but Sarina did not answer. When Edith arrived at defendant and Sarina's home, she knocked on the door but no one answered. About 10 minutes later, defendant finally answered the door. As far as Edith was aware, Sarina did not usually leave defendant with the kids. Edith could only recall one other time that Sarina had done so.
When defendant opened the door, he appeared nervous. He told Edith that it took him a while to open the door because he had been preparing carne asada. She, however, did not smell anything. Edith could see John Doe on the stairs and he was touching his privates. She told him to hurry and went to get her daughter. As she was getting her daughter, she saw defendant approach Doe and heard him say something to Doe. Therefore, she asked, "What happened?" Defendant explained that he was asking Doe what grade he was in. Although Edith thought the question was unusual because of how long Sarina had been caring for Doe and because defendant had known Doe since he was one year old, Edith directed Doe to tell defendant that he was in the first grade; Doe complied. Edith told defendant that she had to work that night and would be back later.
Once Edith and Doe were in the car, he told her that defendant was going to give him money. Doe, however, could not explain why. Edith thought this was strange because no one ever offers her kids money. After directing Doe to the shower and to eat, Edith arranged to speak with Doe alone. She sat him on her lap and told him that she loved him, that nobody should hurt him or touch him, and that she believed in him. Doe responded: "Mommy, Mundo kissed my privates. He was touching them, and you were there to save me, huh? You were looking through the window when he put me in the bed, you were there to rescue me." Edith then cautioned Doe not to lie. He responded, "Mommy, I'm not lying. He was kissing me. You were in the window looking at him. That's why you knocked on the door because you wanted to rescue me from him."
Edith started to cry. At trial, she noted that Doe did not lie. Edith could not believe what she was hearing because defendant was her best friend's husband. She went to her room to collect herself but started crying again. Finally, she called Doe to her room and asked what happened.
Doe told her that defendant pulled down his pants and underwear and kissed his "huevos" and "weenie." By "huevos," Doe meant testicles. He also stated that it was not the first time; it had happened once before. That day, defendant also masturbated Doe. Doe explained, "He was making faces. He was doing this, Mommy, he was kissing me." During trial Doe did not recall another incident. He, however, stated that when he spoke to his mom, he told her the truth.
Edith took her children to the emergency room and the police were called. That evening, a sexual assault nurse examined Doe. During the exam, he repeated the fact that defendant orally copulated him, stating that defendant "chewed" on his penis. With the exception of some redness near the opening of the urethra, Doe's examination was normal. The nurse could not say whether the redness was caused by sexual assault or not. In a forensic interview the next day, Doe consistently reported that defendant "sucked" on his penis and rubbed it, and touched his testicles. Doe similarly noted that his mom then came and saved him. He thought he saw her looking in the window and heard her ring the doorbell.
The next day, the police arranged a set-up call between Edith and defendant that lasted about 30 minutes. Initially, when confronted with an accusation of molest, defendant responded by calling Doe a liar and questioned why they believed him. Defendant noted that his wife had remarked that Doe was not behaving well. Edith told defendant that her son was not lying. And, regarding whatever problems her son was having, Edith asked, "Well, what does that have to do with what I'm asking you?" At that point, defendant begged, "Please. Please don't tell Sarina anything." Edith agreed, telling defendant that she just wanted him to be honest and suggesting defendant submit to a DNA test. Defendant said no, he could not do that. He stated that he had some problems at work and did not want to be fired. Edith remarked that if defendant had not done anything, the DNA test would come back negative and he would not be fired. Defendant then admitted, "Yes, I did . . . I did what your son told you what I did to him." He again begged Edith not to tell Sarina and asked her to forgive him.
The police followed up on the telephone call with a visit to defendant's home. Defendant agreed to go to the police station for an interview after picking up his wife. During the interview, defendant admitted to orally copulating and masturbating Doe. He explained that he stopped when he heard Edith at the front door.
The next day, in a second post-Miranda interview, defendant tried to place the blame for his sexual assault on six-year-old Doe, claiming that Doe took his own pants down and was dancing in front of defendant. Defendant also stated that after he orally copulated Doe, about four or five times, he pulled up Doe's pants and said that what he had done was wrong. Doe, however, pulled his pants back down, laughed, and played around. Moreover, defendant stated that he stopped because he was thinking about his own children. Nonetheless, defendant accepted the officer's invitation to write a letter of apology in which he asked Edith for forgiveness. In one or two other interviews, defendant noted that he had consumed two beers around 3:00 to 3:30 on the date of the incident, but he was not intoxicated.
Miranda v. Arizona (1966) 384 U.S. 436.
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2.
DEFENSE CASE
Defendant's brother, who was 11 years younger than defendant, testified that he never observed defendant do anything inappropriate with children. He only saw defendant with his own two children, which the brother acknowledged, "most of the time, they lived in other place[s]." Defendant's brother admitted that his opinion of his brother might change if he learned that defendant had admitted to committing the charges.
Defendant's 16-year-old son testified that defendant had never done anything inappropriate with him and he never saw his father do anything inappropriate with his youngest brother.
A friend of defendant for eight years, Maria Fausto, also testified. She did not believe defendant could be guilty of the charges, even after the prosecutor told her he admitted touching Doe's penis and putting it in his mouth.
ANALYSIS
Defendant's sole contention on appeal is that "the imposition of the mandatory sentence of 15 years to life under Penal Code section 288.7, subdivision (b) constitutes cruel and/or unusual punishment under the Eighth Amendment of the Federal Constitution and Article I, Section 17 of the California Constitution." We disagree.
The Eighth Amendment "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271 (Rummel).)But "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Id. at p. 272.)
"A punishment may violate the California Constitution . . . if 'it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.'" (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) The court, in applying this standard, examines the offense and the offender, and it compares the punishment with the penalties for other California offenses and crimes in other jurisdictions. (Cartwright, at p. 1136; Lynch, at pp. 425-427.)
1.
CALIFORNIA CONSTITUTION
Defendant contends that the mandatory imposition of a 15-year-to-life sentence is cruel and/or unusual punishment. California sentencing statutes, however, "have long withstood constitutional challenge." (People v. Cartwright, supra, 39 Cal.App.4th at p. 1137.) "Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Moreover, defendant's sentence is not disproportionate when compared to other crimes that do not result in death but have sentences that are substantial or even greater than his. (See People v. Crooks (1997) 55 Cal.App.4th 797, 808 [comparing penalty for burglary with intent to commit rape to penalties for kidnapping for ransom (§ 209, subd. (a)) and train wrecking (§ 218), which provide for life without the possibility of parole].) Appellate courts have upheld the constitutionality of mandatory sentences ranging from 25 years to life to life without the possibility of parole for offenses that do not result in death. (In re Maston (1973) 33 Cal.App.3d 559, 565 [life without the possibility of parole for aggravated kidnapping where the victim was injured but not killed is not cruel and unusual punishment]; Crooks, at p. 808 [25-year-to-life sentence for aggravated rape, with no prior felonies and no great bodily injury, was not disproportionate to other serious crimes]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [25-year-to-life sentence under § 667.61 for one forcible rape during a burglary, without use of a weapon and with no prior felonies, was not cruel and unusual punishment].)
Additionally, other jurisdictions have upheld sentences equal to or greater than defendant's term for crimes less serious than sex with a child 10 years or younger. (People v. Cisneros (Colo. 1993) 855 P.2d 822, 830 [life without the possibility of parole for 40 years not cruel and unusual punishment for possession and sale of drugs with priors of sales of narcotics, menacing with a knife, and violation of bail conditions]; Edwards v. Butler (5th Cir. 1989) 882 F.2d 160, 167 [sentence of life without the possibility of parole for one aggravated rape does not violate Eighth Amendment]; Land v. Commonwealth (Ky. 1999) 986 S.W.2d 440, 441 [life sentence without possibility of parole for rape not cruel and unusual]; Gibson v. State (Fla. 1998) 721 So.2d 363, 369-370 [mandatory life sentence without possibility of parole for sexual battery of minor where defendant had no prior record was not cruel or unusual]; State v. Foley (La. 1984) 456 So.2d 979, 984 [life sentence without possibility of parole for juvenile defendant convicted of aggravated rape is constitutional]; State v. Green (N.C. 1998) 502 S.E.2d 819, 834 [mandatory life sentence for 13-year-old defendant for sex offense not cruel and unusual punishment].)
Even if California statutes impose the longest sentence in the nation for the offense of sex with a child under 10 years or younger, that does not mean that defendant's punishment is cruel and unusual. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required to conform its Penal Code to either the majority rule or "'the least common denominator of penalties nationwide.'" (Ibid.)
Based on the totality of circumstances here, we are persuaded that the extreme seriousness associated with the offense negates defendant's claim of cruel and unusual punishment. Defendant sexually molested a vulnerable and young six-year-old boy who trusted him. The Legislature implemented these types of statues to protect young children from people who engage in sexual acts with such young victims.
We conclude defendant's sentence is not so disproportionate "'as to shock the conscience and offend fundamental notions of human dignity.' [Citation.]" (People v. Cline (1998) 60 Cal.App.4th 1327, 1338 [Fourth Dist., Div. Two].)
2.
FEDERAL STANDARD
Defendant fares no better under the federal standard. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases cited.) Strict proportionality between crime and punishment is not required. "'Rather, [the Eighth Amendment] forbids only extreme sentences that are "grossly disproportionate" to the crime.'" (People v. Cartwright, supra, 39 Cal.App.4th at p. 1135; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin).)
In Rummel, supra, 445 U.S. 263, the United States Supreme Court rejected an Eighth Amendment challenge to a life sentence based on Rummel's conviction of credit card fraud of $80, passing a $28.36 forged check, and obtaining $120.75 by false pretenses. (Rummel, at pp. 268-286.) Additionally, in Harmelin, supra, 501 U.S. 957, the high court ruled that a mandatory sentence of life without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. (Harmelin, at pp. 961, 995.) By contrast, what defendant did was far worse than all the crimes committed by Rummel and Harmelin combined.
In addition, the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive 25-year-to-life terms for two separate thefts of less than $100 worth of videotapes].)
The protection afforded by the Eighth Amendment is narrow. It applies only in the "'exceedingly rare'" and "'extreme'" case. (Ewing v. California, supra, 538 U.S. at p. 21.) We are not convinced this is such a case. The mandatory 15-year-to-life sentence imposed is noteworthy. However, defendant's crime is also noteworthy. He took advantage of a position of trust to sexually molest a mere six-year-old boy who was entrusted to the care of defendant's wife since he was a baby, and had known defendant since he was only one year old. Defendant's sexual conduct against one of the most vulnerable members of our society fully supports the lengthy sentence that was imposed. Defendant cites no persuasive authority to support his claim that this is one of those rare cases in which a sentence is so grossly disproportionate to the gravity of the offense that it violates the Eighth Amendment's proscription against cruel and unusual punishment.
Accordingly, we conclude this is not the exceedingly rare and extreme case that violates the federal Constitution.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
Acting P.J.
We concur:
Miller
J.
Codrington
J.