Opinion
2d Crim. No. B291246
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. CESAR ESTUARDO CHAVEZ, Defendant and Appellant.
Robert F. Landheer for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1334409)
(Santa Barbara County)
Cesar Estuardo Chavez appeals the judgment entered after a jury convicted him on two counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a); counts 1 and 2), one count of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1); count 3), and one count of lewd acts upon a child under the age of 14 (§ 288, subd. (b)(1); count 4). The trial court sentenced him to a total term of 62 years to life in state prison. Appellant contends the court abused its discretion in admitting expert testimony regarding Child Sexual Abuse Accommodation Syndrome (CSAAS), and in admitting as impeachment evidence his prior conviction for soliciting prostitution (§ 647, subd. (b)). He also contends that his sentence amounts to cruel and unusual punishment and that the court improperly relied on the same facts to impose both the upper and consecutive terms on counts 1 and 2. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF FACTS
Prosecution
Appellant's wife A.L. is the maternal grandmother of victims A.R., born in 1999, and J.B., born in 1993. A.L.'s daughter M.S. is A.R. and J.B.'s mother. A.R., who was 18 years old at the time of trial, testified that appellant sexually molested her multiple times between 2004 and July 2010. One morning in the summer of 2007, while A.R. and J.B. were staying with appellant and A.L. in Santa Barbara, A.R. awoke to find appellant rubbing her vagina with his fingers under her clothing. A.R. did not tell anyone because she was afraid of appellant and thought no one would believe her. During another visit in the summer of 2009, A.R. woke up to find appellant putting her hand on his penis over his clothing. When A.R. moved her hand away, appellant forced her hand back on his penis and made her grab it with her fingers.
On more than six occasions between 2004 and 2010, M.S. brought A.R. and J.B. from their home in Los Angeles to stay with appellant and A.L. overnight in Santa Barbara on holidays such as Christmas and Memorial Day. Each time A.R. stayed the night, appellant touched her vagina or grabbed her hand and forced her to touch his penis. All of the molestations occurred in appellant and A.L.'s bedroom.
The last molestation A.R. recalled took place on or about July 4, 2010. A.R. and J.B. were sleeping on a sofa bed in appellant and A.L.'s bedroom when A.R. awoke to find appellant trying to put his hand on her vagina. A.R. closed her legs but appellant forced them open and put his fingers halfway into her vagina. A.R. did not tell anyone because she did not know if anyone would believe her. A week later A.R. reported the abuse to her aunt Imelda, with whom she was then living. Imelda had asked A.R. if anyone had inappropriately touched her and A.R. decided to tell her because she trusted her and thought she would believe her.
Alejandra testified that she was taken away from M.S. in October 2009 because M.S. was physically abusing her.
A.R. first spoke to the authorities about appellant's abuse on July 16, 2010, when she was interviewed by child forensic interviewer Cecelia Rodriguez. At trial, A.R. did not recall telling Rodriguez that she had answered "no" when a doctor asked her if she was being touched inappropriately. A.R. explained that she had lied to the doctor because she was "nervous and scared."
J.B., who was 24 years old at the time of trial, testified that appellant began molesting her when she was 10 or 11 years old and that the last incident took place around July 4, 2010. J.B. kept the abuse a secret because appellant told her it was "normal" and she feared that M.S. and the rest of her family would not believe her. J.B. first reported the abuse to her aunt Imelda during a phone call on July 13, 2010. J.B. decided to tell Imelda because M.S. wanted J.B. to go on vacation to Mexico with appellant and A.L. and she knew appellant would molest her while they were there. J.B. told Imelda not to tell M.S. because she thought M.S. would not believe her and everyone in the family thought appellant was "perfect."
An hour after J.B. reported the abuse to Imelda her aunt Elsie, who lived next door, came over. When M.S. arrived home a short time later, she asked what had happened and J.B. told her that appellant had been inappropriately touching her. After disclosing this information, J.B. began throwing up and bleeding from her nose and was taken by ambulance to the hospital. While she was at the hospital, she spoke to a police officer who told her to give a statement to the police in Santa Barbara.
A day or two later, J.B. went to the Santa Barbara Police Department and was interviewed by Rodriguez. J.B. told Rodriguez that appellant first began molesting her when she was in kindergarten and appellant and A.L. were still living in Los Angeles. After appellant and A.L. moved to Santa Barbara, appellant molested J.B. when she visited them on vacations. When J.B. was staying with appellant and A.L. for a few weeks in the summer of 2005, appellant put his fingers in her vagina at least two or three times each week. During the summer of 2007, J.B. was sleeping on the sofa bed in the bedroom shared by her uncles Cesar Jr. and Steven when she was awakened by appellant touching her legs. As appellant spoke to Cesar Jr., he rubbed J.B.'s vagina on the outside of her clothing in a circular motion.
During the summer before J.B. began high school, when she stayed with appellant and A.L. for a few weeks and took swimming lessons, appellant licked her vagina on two separate occasions. On the July 4th weekend of 2010, J.B. fell asleep in her uncles' bedroom. A.L. woke her up in the middle of the night and told her to come sleep with her and appellant in their bed. J.B. slept on one side of the bed and A.L. slept between her and appellant. While appellant hugged A.L., he touched J.B.'s vagina under her clothing. Other times during that same visit, appellant touched her vagina under her clothing and attempted to sodomize her. Once when appellant was alone with J.B. he touched her leg and asked, "So you play with other people how I play with you?"
The last incident of abuse occurred while J.B. was on the sofa bed in appellant and A.L.'s bedroom and A.L. was not present. Appellant forced J.B.'s legs open, put his fingers in her vagina, and pulled the blanket off J.B. as she tried to wrap her legs around it. Appellant told her to open her legs and she said "no" and told him to stop. Appellant removed her pants, pulled her to the edge of sofa bed, and forcibly opened her legs. He inserted his fingers into her vagina and moved them in and out. He also put his hand on J.B.'s breast under her clothing and took her hand and put it on his penis. When J.B. pulled her hand away he returned it to his penis, which was "wet . . . [a]nd hard," and began moving it up and down. He then turned her to her side and tried to sodomize her. J.B. broke free and went to the bathroom, where she noticed that she was bleeding from her vagina.
Dr. Anthony Urquiza, a psychologist, testified as an expert on CSAAS. CSAAS involves five parts: secrecy, helplessness, entrapment, accommodation, and retraction. Most children are sexually abused by someone in a position of power, authority, or control in their lives. Victims of such abuse often keep quiet because they feel threatened, intimidated, or coerced and are ashamed and embarrassed; some children also feel there is something wrong with them or that they themselves are to blame for the abuse. Children also fear that no one will believe them if they come forward or that they were a willing participant. This fear, combined with a strong sense of shame, can keep children quiet for a very long time.
There is also a common misconception that children who are subjected to sexual abuse will fight, scream, or do something else to protect themselves. Given the power differential, children may feel helpless and believe they have no choice but to submit. Child victims are even more vulnerable in this regard when the perpetrator is someone who is supposed to keep them safe.
Entrapment and accommodation explain how child victims of sexual abuse feel trapped and emotionally cope with the experience. It is common for such children to suppress their emotions and even disassociate so they do not appear to be distressed. Such victims will eventually have to face their feelings and be distressed by them. The closer the relationship between the perpetrator and the victim, the longer it will take for the victim to disclose the abuse. When children finally disclose the abuse, they may be unclear or inarticulate because they are embarrassed and uncertain how others will respond. When there are multiple instances of sexual abuse, it may be difficult for the child to identify or differentiate between each of those instances. In about 20 to 25 percent of cases, children who disclose abuse will retract the allegation due to "some type of family pressure put on them to retract."
Defense
Appellant testified in his own defense. He denied sexually abusing or inappropriately touching A.R. or J.B. and also denied ever sleeping in the same bed with either of them. He did not remember a single instance when J.B. had spent the night with him and A.L. at their apartment in Los Angeles, and denied that J.B. and M.S. ever came to that apartment on holidays. He also denied sexually molesting J.B. while they were on vacation in Mexico. When A.R. and J.B. visited appellant and A.L. in Santa Barbara, they always slept on the sofa bed in appellant and A.L.'s bedroom. He also denied that A.R., J.B., and M.S. had ever stayed with them in Santa Barbara during Christmas.
On cross-examination, appellant acknowledged that he had recently taken the Minnesota Multipathic Personality Inventory-2 (MMPI-2) test. On Question 34, he had answered "true" in response to the statement "I have never been surrounded by problems because of my sexual conduct." Appellant also admitted that in 1996 he was convicted for solicitation of prostitution.
The MMPI-2 test administered to appellant was in Spanish. The English version of the test states "I've never been in trouble because of my sex behavior."
A.L. testified that J.B. never stayed with her and appellant when they were living in Los Angeles. Between 2004 and 2010, A.R., J.B., M.S., and M.S.'s husband Alex visited A.L. and appellant in Santa Barbara about eight to ten times but usually did not stay the night. Between 2008 and 2010, A.R., J.B., and M.S. stayed with them overnight two or three times. When the girls came for swimming lessons, they slept in a bed in Cesar Jr. and Steven's bedroom. On the 2010 Fourth of July weekend, appellant and A.L. slept on an inflatable bed in the living room. A.L. denied leaving appellant alone with J.B. on the morning of July 4, and also disputed J.B.'s claim that A.L. had asked her to accompany appellant to pick up groceries from the restaurant where he worked. The next day, M.S. became upset with A.L. after she bought about 12 pairs of shoes and expected A.L. to pay for them.
A.L. also testified that A.R. had called her on more than one occasion to ask if she could move in with A.L. and appellant because she wanted to live in a stable home. A.L. subsequently told M.S. that she was going to seek custody of A.R. and spoke with a social worker about doing so. On the 2010 Fourth of July weekend, A.L. told A.R. that she and appellant were in the process of trying to obtain custody of her.
A.L.'s son Juan Romero testified that he was also living with A.L. and appellant during the 2010 Fourth of July weekend. According to Romero, A.R. and J.B. stayed overnight about six times and they both acted normal when they celebrated his birthday just before the Fourth of July weekend.
Socorro Guerrero met appellant and A.L. while she was the manager of their apartment building in Los Angeles. Guerrero and her son Enrique also stayed at appellant and A.L.'s house in Santa Barbara on the 2010 Fourth of July weekend. Guerrero and Enrique slept in appellant and A.L.'s bed in the master bedroom, and A.R., J.B., and M.S. slept on a sofa bed in the same room. Appellant and A.L. slept in the living room with Romero, and Cesar Jr. and Steven slept in their own bedroom. Guerrero did not recall A.L. asking J.B. to accompany appellant to the store on the morning of July 4, nor did she recall J.B. going anywhere that morning with appellant. When Guerrero, A.L., A.R., J.B., and M.S. went shopping at Macy's the next day, the girls were happy. In Guerrero's experience, appellant was "honest."
Dr. Juan Gutierrez, a neuropsychologist, testified that CSAAS is not a syndrome or diagnosis. Dr. Gutierrez opined that concepts described by CSAAS are "unbelievable" and "certainly not scientific." According to the doctor, CSAAS is "junk science" and "quackery."
After administering the MMPI-2 test to appellant, Dr. Gutierrez concluded that appellant had a mild level of anxiety but "no other characteristics consistent with any type of paraphilia, any type of pedophilia, or other aberrant behavior." The doctor acknowledged that on Question 34 appellant had answered "true" to the statement "I have never found myself wrapped in problems due to my sexual conduct." The doctor had concerns, however, that the Spanish version of the statement was not a "proper, clear interpretation of the English concept." Dr. Gutierrez, who also speaks Spanish, was aware of appellant's prior conviction for soliciting prostitution but did not believe this rendered his answer to Question 34 untruthful "[g]iven the translation and the way the wording is, how he may have emphasized the word, his education level, [and] his Spanish ability." The doctor noted that on Question 266, appellant admitted he had "been in trouble with the law."
Appellant also called several witnesses who testified to his good character, his reputation for truthfulness, and his appropriate behavior with children. One of these witnesses also testified that a week before the allegations were made against appellant, she saw A.R. sit on appellant's lap and ask him for money. Cesar Jr. testified that A.R. and J.B. slept in his and Steven's room when they came to Santa Barbara for swimming lessons. Steven testified that appellant, his father, had never touched him inappropriately.
Appellant's character witnesses were also told about appellant's prior conviction for soliciting prostitution and were asked whether that conviction changed their opinions regarding his good character and reputation for honesty. Each witness testified that their opinions were not altered by this information.
DISCUSSION
CSAAS Testimony
Appellant contends the trial court erred in admitting Dr. Urquiza's testimony on CSAAS. We are not persuaded.
"[I]t has long been held that in a judicial proceeding presenting the question whether a child has been sexually molested, CSAAS is admissible evidence for the limited purpose of disabusing the fact finder of common misconceptions it might have about how child victims react to sexual abuse. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 418.) "Expert testimony on the common reactions of a child molestation victim is not admissible to prove the sex crime charged actually occurred. However, CSAAS testimony 'is admissible to rehabilitate [the molestation victim's] credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]' [Citation.] '"Such expert testimony is needed to disabuse jurors of commonly held misconceptions about child sexual abuse, and to explain the emotional antecedents of abused children's seemingly self-impeaching behavior . . . ." [Citation.]' [Citation.]" (People v. Sandoval (2008) 164 Cal.App.4th 994, 1001-1002.)
The California Supreme Court has recognized that CSAAS evidence is admissible. In People v. McAlpin (1991) 53 Cal.3d 1289, the court addressed whether an expert could testify that it is not unusual for a parent to fail to report a known molestation of his or her child. (See id. at pp. 1298-1299.) In doing so, the court drew a "direct analogy" to expert testimony regarding CSAAS. (Id. at p. 1300.) It noted that the courts of appeal had held that "expert testimony on [CSAAS] is not admissible to prove that the complaining witness has in fact been sexually abused; it is admissible to rehabilitate such witness's credibility when the defendant suggests that the child's conduct after the incident—e.g., a delay in reporting—is inconsistent with his or her testimony claiming molestation. [Citations.]" (Id. at pp. 1300-1301.) The court concluded: "In the case at bar the challenged expert testimony dealt with the failure not of the child victim, but of the child's parent, to report the molestation. Yet the foregoing rules appear equally applicable in this context." (Id. at p. 1301.)
Although McAlpin did not deal directly with the admissibility of evidence regarding CSAAS, the Supreme Court clearly endorsed the lower appellate court holdings regarding CSAAS as correct. Moreover, federal as well as state courts have held that CSAAS evidence does not violate due process. (See, e.g., Brodit v. Cambra (9th Cir. 2003) 350 F.3d 985, 991 [maj. opn.], 994 [conc. & dis. opn. of Berzon, J.]; People v. Patino (1994) 26 Cal.App.4th 1737, 1747.)
For the first time in his reply brief, appellant addresses several cases from other state courts addressing the admissibility of CSAAS. (See, e.g., Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690, 695 [CSAAS evidence "lacked relevancy and invaded the province of the jury by expressing an opinion on the ultimate issue of guilt or innocence"] State v. Ballard (Tenn. 1993) 855 S.W.2d 557, 562 [expert testimony on CSAAS is more prejudicial that probative]; Commonwealth v. Dunkle (1992) 529 Pa. 168, 173-185 [602 A.2d 830, 832-838] [CSAAS evidence is not generally accepted in the relevant field and infringes jury's right to determine credibility], abrogated by statute, 42 Pa.C.S. § 5920, subd. (b)(2).) We are bound, however, by stare decisis to follow McAlpin and the numerous other California cases holding that CSAAS evidence is admissible. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant also asserts that "the jury responses during voir dire dispelled the prosecution's argument that any member of the jury panel was laboring under myths or misconceptions that CSAAS is alleged to rectify." As the trial court correctly found in rejecting this assertion, "[b]ut that's in voir dire, that's to determine whether someone would automatically not believe an alleged victim who didn't report immediately. I mean, and that's a fair inquiry during voir dire, but it doesn't mean that there's going to be a stipulation . . . , by both sides, that a late reporting . . . doesn't negate the voracity of the allegation made at a later time." The prosecutor also pointed out that the relevant questions on voir dire merely asked the jurors if they had any preconceived "myths" about child victims of sexual abuse "keeping secrets" or delaying their reports of the abuse.
Appellant also argues that because A.R. and J.B. testified as adults, "they were more than able to explain their reasons for late reporting, why they kept the secret so long from their parents/guardians, why they behaved the way they did and how any inconsistencies in their testimony or prior statements were the product of the passage of time and their age at the time of the alleged abuse." Even if this is so, it does not render the expert CSAAS testimony inadmissible. To the extent appellant claims the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352, that claim is based on his erroneous assertion that "[t]he expert opinion testimony of Dr. Urquiza was not relevant to any material issue in dispute, [so] the slightest prejudicial impact of the testimony justified its exclusion under [Evidence Code section] 352."
Moreover, the jury was instructed pursuant to CALCRIM No. 1193 that Dr. Urquiza's testimony was not evidence that appellant had committed any of the charged offenses and that the testimony was only relevant (1) to the determination whether A.R. and J.B.'s conduct was not inconsistent with someone who had been sexually molested; and (2) to evaluate A.R. and J.B.'s credibility. The jury was also instructed that "[y]ou alone[] must judge the credibility or believability of the witnesses" and that it "may disregard any [expert] opinion that you find unbelievable, unreasonable, or unsupported by the evidence." We presume the jury understood and followed these instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 73, 107.) Appellant's claim that the jury may have considered the CSAAS evidence as proof of appellant's guilt thus fails.
Impeachment Evidence
Appellant asserts that the trial court erred in admitting his 1996 misdemeanor conviction for solicitation of prostitution (§ 674, subd. (b)) as impeachment evidence. He claims the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. We conclude the court erred in allowing evidence of appellant's conviction, as distinguished from evidence of the conduct underlying that conviction, but deem the error harmless.
Misdemeanor convictions are not admissible for impeachment. (People v. Chatman (2006) 38 Cal.4th 344, 373.) Evidence of the conduct underlying such a conviction, however, may be admissible subject to the trial court's exercise of discretion under Evidence Code, section 352. Pursuant to section 352, a trial court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In deciding whether to admit evidence of conduct underlying a prior misdemeanor conviction to impeach a witness, courts are to assess (1) "whether [the conduct] reflects on the witness's honesty or veracity," (2) "whether [the conduct] is near or remote in time," (3) "whether [the conduct] is for the same or similar conduct as the charged offense" and (4) that "a misdemeanor offense or other misconduct not amounting to a felony is less probative of moral turpitude or dishonesty than is a felony." (People v. Clark (2011) 52 Cal.4th 856, 931-932; People v. Wheeler (1992) 4 Cal.4th 284, 296.) These factors are not to be construed as rigid limitations, but "legitimate considerations in the exercise of the trial court's discretion under Evidence Code section 352." (People v. Williams (1985) 169 Cal.App.3d 951, 956.)
"Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion. [Citations.]" (People v. Clark, supra, 52 Cal.4th at p. 932.)
Prior to trial, the prosecutor moved to introduce evidence of appellant's prior misdemeanor conviction for solicitation of prostitution as impeachment evidence if he chose to testify. The prosecutor later argued that appellant's prior conviction was relevant to impeach him given his answer to Question 34 on the MMPI-2. (See ante, pp. 7-8.) The prosecutor asserted that "if one is lying on [his] answers to the MMPI[-2] and the doctor is going to say, oh, I have every indication that he answered these truthfully that's why I believe in the results, . . . that is a fair question and that is a critical question."
The court ruled that the evidence was "clearly admissible" as relevant to both appellant's credibility and Dr. Gutierrez's opinions based upon appellant's answers to the MMPI-2 test. The court reasoned: "It goes to weight not admissibility. . . . [T]here's no doubt that I was going to exclude it, it's not sufficiently relevant to credibility, technically it involve moral turpitude, and in part at least because it would be more prejudicial than probative. But it's a question that becomes part of the questions and answers that form the basis of an expert's opinion." The court later added: "[T]he fact that he's convicted for solicitation to commit prostitution is coming in. It's part of the question and answer that was relied on by the expert in forming his opinion that [appellant] doesn't have a character trait for pedophilia. And it's a ripe area for cross-examination . . . . So, I just don't think that this particular initial question and answer are so tremendously important because at a later point in time with the questions and answers he reveals that he was convicted of the offense."
The court erred in admitting the evidence of appellant's misdemeanor conviction for soliciting prostitution. As we have noted, the fact of the conviction is not admissible for purposes of impeachment. (People v. Chatman, supra, 38 Cal.4th at p. 373; People v. Wheeler, supra, 4 Cal.4th at p. 296.) Moreover, appellant never admitted in his answers to the MMPI-2 test that he had been convicted of the crime; rather, he merely admitted he had "been in trouble with the law." Accordingly, even if evidence of the conduct underlying the conviction was admissible to impeach both appellant and Dr. Gutierrez's opinions based on the result of appellant's MMPI-2 test, the fact of the conviction itself should have been excluded.
We conclude, however, that the error in admitting the evidence was harmless. Appellant contends the court abused its discretion by admitting the evidence under Evidence Code section 352 and that the error "was prejudicial to [his] constitutional right to a fair trial" under the state and federal constitutions. The error, however, is not one of constitutional magnitude. "The erroneous admission of evidence to impeach a witness' credibility is harmless if a review of the entire record demonstrates 'it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of the error.' [Citation.]" (People v. Bedolla (2018) 28 Cal.App.5th 535, 555.)
The evidence of appellant's guilt of the charged crimes was strong. A.R. and J.B. both testified in detail to highly similar acts of sexual molestation that appellant inflicted upon each of them from 2004 until 2010. As the People aptly put it, "[i]n light of this highly damaging testimony, the fact that appellant had previously been convicted of soliciting a prostitute in 1996 was not particularly helpful to the prosecution's case or prejudicial to appellant." When each of appellant's character witnesses were asked about the conviction, they unequivocally stated that it had no effect whatsoever on their opinions that he was a person of good character and honesty. Moreover, the remoteness of the conviction and the nature of the conduct underlying that conviction rendered it of little if any probative value. In closing argument, defense counsel noted "[i]t would be difficult to imagine something more irrelevant" than a 22-year old misdemeanor conviction for soliciting prostitution that has "[n]othing" to do with the instant matter. Because it is not reasonably probable that appellant would have achieved a more favorable result had the challenged evidence been excluded, the error in admitting that evidence was harmless. (People v. Valdez (2012) 55 Cal.4th 82, 145.)
Cruel and Unusual Punishment
Appellant also contends that his sentence of 32 years plus 30 years to life in state prison amounts to cruel and unusual punishment under the state and federal constitutions. We disagree.
While the Eighth Amendment to the federal Constitution "'prohibits the infliction of "cruel and unusual" punishment,'" article I, section 17 of the state Constitution "'prohibits infliction of "[c]ruel or unusual" punishment. . . . The distinction in wording is "purposeful and substantive rather than merely semantic[,]" . . . [so] we construe the state constitutional provision "separately from its counterpart in the federal Constitution."'" (People v. Baker (2018) 20 Cal.App.5th 711, 723 (Baker).) In analyzing both provisions, however, our basic task is to determine "whether a particular penalty given '"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. Cole (2004) 33 Cal.4th 1158, 1235; Baker, at p. 733.) Where, as here, there are no "'underlying disputed facts,'" whether a sentence constitutes cruel or unusual punishment is a question of law reviewed de novo. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.)
"We . . . use a three-pronged approach to determine whether a particular sentence is grossly disproportionate." (People v. Johnson (2010) 183 Cal.App.4th 253, 296.) "First, we review 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.'" (Ibid.) This analysis requires consideration of "'the circumstances of the offense, including the defendant's motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts,'" as well as "'the defendant's age, prior criminality[,] and mental capabilities.'" (People v. Cole, supra, 33 Cal.4th at p. 1235.) "Second, we compare the challenged punishment with punishments prescribed for more serious crimes in our jurisdiction. [Citation.] Third, and finally, we compare the challenged punishment to the punishments for the same offense in other jurisdictions. [Citation.] The importance of each of these prongs depends upon the facts of each specific case[, and] . . . we may base our decision on the first prong alone." (Johnson, at p. 297.)
A defendant seeking to overturn a sentence as cruel and/or unusual faces a considerable burden. "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." (People v. Wingo (1975) 14 Cal.3d 169, 174.) Thus, "'[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.'" (Baker, supra, 20 Cal.App.5th at p. 724.)
Appellant was sentenced on counts 3 and 4 under section 667.61, the one strike law, which requires a 15-years-to-life sentence for certain crimes that warrant more severe punishment when committed under one of a set of specified circumstances. (§ 667.61, subds. (b), (c), (e); see People v. Murphy (1998) 65 Cal.App.4th 35, 41.) Appellant's convictions on counts 3 and 4 qualified him for sentencing under the one strike law because the jury found he had "been convicted in the present case . . . of committing the offenses against more than one victim." (§ 667.61, subds. (c)(8), (e)(4).)
Aside from noting that he was 53 years old at the time of sentencing, appellant offers that "[t]here was no physical evidence or eyewitness testimony presented by the prosecution during [his] jury trial" and that "[his] only prior conviction was in 1996 for a misdemeanor violation of [section 647, subdivision (b)] when he was 30 years old." He also asserts that "the court could have considered the 'hardship' to [his] family if he served a 62-year sentence before being eligible for parole."
Aside from his age, appellant does not identify any aspects of his crimes or his personal characteristics that demonstrate gross disproportionality. His attempt to undermine the proof of his crimes is wholly unavailing. Contrary to his assertion, both victims presented eyewitness testimony regarding the crimes appellant committed against them. As the People note, "[appellant's] convictions, especially on counts 3 and 4, were for serious offenses, and he callously took advantage of a position of trust to repeatedly molest his vulnerable grandchildren for five to six years." Although he had only one prior misdemeanor conviction, "[t]he one strike law was enacted to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction." (People v. Palmore (2000) 79 Cal.App.4th 1290, 1296; see also People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201 [recognizing that mandatory sentencing under the one strike law "merely reflects the Legislature's zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendant's sentence excessive as a matter of law in every case"].) To the extent he claims the court could have considered the hardship his family would suffer as a result of his sentence, he also acknowledges that such a consideration is "not part of the sentencing calculus for a non-probationary sentence."
Appellant does not cite any published cases in support of his claim that his sentence is disproportionate to the punishment imposed for more serious crimes under California law. Although he cited one case in his opening brief, that opinion has since been ordered depublished by the California Supreme Court. (People v. Cadena (Dec. 11, 2019, B281175) opn. ordered nonpub. Dec. 11, 2019, S258791.) Moreover, numerous other cases have rejected such challenges to sentences for crimes involving the sexual abuse of child victims. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1231; People v. Reyes (2016) 246 Cal.App.4th 62, 68-69, 82; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278, 1282.) Appellant fails to demonstrate that this is one of the rare cases in which the sentence mandated by the Legislature is unconstitutional.
Dual Use of Facts
For the first time on appeal, appellant also contends "the [c]ourt abused its discretion when it used the same reason (dual use of facts) to impose a consecutive sentence as to counts 1 and 2 and to impose the upper term of 16 years as to counts 1 and 2." Appellant forfeited the issue by failing to object at trial. Complaints about the manner in which the trial court exercises its sentencing discretion cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356.) Since the selection of consecutive and upper terms are within the discretion of the trial court (People v. Jenkins (1995) 10 Cal.4th 234, 254-255; § 1170, subd. (a)), appellant's claim that the court improperly used the same facts in making these discretionary sentencing choices cannot be raised for the first time on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 755.)
In any event, appellant effectively concedes that the record does not establish the error of which he complains. He merely offers that "[i]f the [c]ourt relied on a fact used to impose the upper term on counts 1 and 2, namely, the three circumstances in aggravation under Rule 4.423(a) [of the California Rules of Court] cited by the Probation Department, then under Rule 4.425(b)(1) this was an improper dual use of facts." Any one of the three circumstances in aggravation—i.e., that the crimes involved acts disclosing a high degree of callousness (rule 4.421(a)(1)), the victims were particularly vulnerable (rule 4.421(a)(3)), and appellant took advantage of a position of trust and confidence to commit the offenses (rule 4.421(a)(11)—was sufficient by itself to support the imposition of a consecutive sentence or an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729 [consecutive sentences]; People v. Black (2007) 41 Cal.4th 799, 813 [upper term].) Appellant's contention that the prosecutor had a duty "to correct the court's dual use of facts at sentencing" is both factually and legally without merit.
Moreover, "[i]mproper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if '[it] is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.'" (People v. Coleman (1989) 48 Cal.3d 112, 166.) It is apparent from the record that the trial court intended to impose the maximum sentence, and the three separate circumstances in aggravation permitted it to do so without running afoul of the dual use prohibition. (See People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Flores (1981) 115 Cal.App.3d 67, 79-80.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
Brian E. Hill, Judge
Superior Court County of Santa Barbara
Robert F. Landheer for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.