Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC061308
Rivera, J.
Defendant Thomas Lee Frazier appeals a judgment entered upon a jury verdict finding him guilty of numerous counts of lewd acts with a child under the age of 14, including oral copulation, sodomy, and digital penetration (Pen. Code, § 288, subd. (a)); sodomy of a child under the age of 14 by force, duress, menace, or fear (§ 269, subd. (a)); and attempted lewd act with a child under the age of 14 (§§ 664, 288, subd. (a)). He was sentenced to serve a total of 225 years to life in prison for the violations of section 269, subdivision (a), and his sentences on the other counts were ordered to run concurrently to the 225 years. He contends his confession was obtained in violation of his rights under the Fifth Amendment, that he received ineffective assistance of counsel, and that the trial court committed sentencing error. We order the sentences on counts 18 through 32 stayed pursuant to section 654, direct the trial court to amend the abstracts of judgment, and affirm in all other respects.
All further statutory references are to the Penal Code.
I. BACKGROUND
Defendant lived with the victim, J.D., and her mother. J.D. had known defendant since she was a year old, considered him her “dad,” and had a close relationship with him. When J.D. was nine years old, defendant began to show her pornographic magazines. He would show her the magazines when she came home from school, before allowing her to go outside to play or see her friends. After two or three months, when J.D. was still nine years old, defendant removed his clothing and told J.D. to put his penis in her mouth. She told him she did not want to do so, and he told her she could go outside if she “did oral” on him. J.D. orally copulated him for five or ten minutes, and he then allowed her to go outside. Defendant repeated this behavior on about 25 occasions when J.D. was nine years old.
On cross-examination, J.D. stated she orally copulated defendant about 10 times during this period.
When J.D. was 10 years old, defendant’s behavior changed. In addition to having J.D. orally copulate him, he began to “put his penis in [her] butt,” inserting it into her anus. This would occur after J.D. returned home from school, while her mother was at work. J.D. did not think she could resist, and feared he would become angry and “mean” to her, her mother, and her animals. When she protested and tried to move away, he would block her movement. The second time defendant sodomized J.D. was about four days after the first. He began to do so more frequently, until he was sodomizing her every day. She did not tell her mother about defendant’s actions because defendant had told her that her mother would not believe her and that telling her would “mess [J.D.’s mother] up.” Defendant continued sodomizing J.D. most weekdays until she was 12 years old. He occasionally had her orally copulate him instead, and on a few occasions, he put his fingers in her “butt” as well as sodomizing her.
J.D. and her mother moved out of the home they shared with defendant when J.D. was 12. However, on one occasion after that, he tried to sodomize her.
When J.D. was 12 years old, she told a friend what defendant had been doing to her. They called Child Protective Services (CPS) and J.D. reported the abuse. At the request of a police officer, Christine Wesselius, J.D. made three recorded calls to defendant.
In the first call, J.D. told defendant that a doctor was going to examine her. The following exchange occurred: “[Defendant]: Yeah, they- they- they can’t—there’s nothin’ there. They’ll check- they’ll check you but, uh, I haven’t touched you. You haven’t been touched there, have you? [¶] [J.D.]: Huh? [¶] [Defendant]: You ain’t never been touched there right? [¶] [J.D.]: Well, in real life I have, but I’m telling them I haven’t. [¶] [Defendant]: Yeah. You say nothin’—you don’t kn- you don’t know nothin’. [¶] [J.D.]: I know but, I mean, if- if I lie and if they found out that- that. . . [¶] [Defendant]: They can’t- they can’t find out. [¶] [J.D.]: But if they do, I mean—you have though. [¶] [Defendant]: Yeah, but it’s not gonna—think how long ago that was. [¶] [J.D.]: Yeah, but you tried to do it to me again on Monday. [¶] [Defendant]: Yeah, (unintelligible). No, there’s nothin’ there.” They discussed the interviews J.D. had had about the matter, and defendant expressed his concern that he would go to jail. J.D. asked him, “[W]hy did you do it?” Defendant replied, “Man. [J.D.,] that was not even a concern, I just had to have it. I don’t even know what to say—I mean, I love you. I’m [your] daddy. I did not mean to do it. I mean, it was fucked up. And then, I did it, you know. I don’t know, this shit is all fucked up. Maybe I’ll go to jail.” He urged her to say that nothing had happened.
A second conversation included the following exchange: “[J.D.]: But I mean you knew I didn’t like it, but you still put your private in my mouth. [¶] [Defendant]: I didn’t know. [¶] [J.D.]: What? [¶] [Defendant]: That you—you hated it—I didn’t know that.”
In a third conversation, J.D. asked defendant whether he had been attracted to any of her other friends when he “did that to [her].” Defendant told her she was a beautiful girl and that it was “hard to resist.” He told her that he had been faithful to her mother, and suggested that he might have thought subconsciously that “doing that right there” was not really cheating, and that he wanted to prepare J.D. for sex. J.D. asked defendant what would happen if his DNA were found on her during a medical exam, and he said, “It’s been—it’s been too long. It’s been too long.” When J.D. suggested that his DNA might be inside her, he replied, “No, ‘cause I never came. ‘Cause I didn’t do nothin’. I didn’t come. There nothin’ in you.” He asked her whether she had taken a shower, and when she said she had, he told her that there “ain’t nothin’ left on you.” He told her to “stick to the script.” J.D. asked if he felt bad for “making me go down on you” and “doing me from the- like, from the back,” and defendant replied, “Yes. I mean- I- f- I feel bad—yeah I do, I feel bad that I, ah—I didn’t even know it hurt you. You didn’t really say nothin’.” He went on to say, “[J.D.,] I’m sorry for ever touching you—put my hands on you—for ever trying to get you to do anything sexual.” J.D. told him she felt that it was her fault “for going down on [defendant],” and he replied, “No. It ain’t your fault. You was just- you was just- you was just trusting me and, you know, I just took advantage of your trust and- and I fucked up.” He promised he would never “do that again” if the family could reunite, and when J.D. asked for a promise that he would never “do me from behind and make me go down on you again,” he said he would not do that again.
In an interview with police officers, defendant initially denied any inappropriate conduct with J.D., but eventually confessed that he had “messed up.” He said he had touched her with his hands. When asked if he had had anal sex with her, he replied, “Yeah, I barely” followed by unintelligible language. He admitted that J.D. had performed oral sex on him on 10 or 12 occasions. He was then arrested.
II. DISCUSSION
A. Admission of Defendant’s Confession
Defendant contends the trial court violated his rights under the Fifth Amendment to the United States Constitution by admitting the confession he made to police officers. (See Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
1. Facts
Three officers went to defendant’s workplace at about 11:30 in the morning. They were all wearing plain clothes, and drove together in an unmarked car that had no shield between the front and back seats. Detective Tom Neary introduced himself to defendant, and apparently told him the others were also police officers. Neary’s gun was concealed, and he did not show defendant the handcuffs he carried. Neary told defendant the officers were investigating a CPS case regarding J.D., and that he wanted to give defendant the opportunity to provide a statement. Defendant said he would do so, and appeared eager to cooperate. Neary told defendant he would like to interview him at the police department, and said he could either drive himself there or get a ride from the officers. Defendant said he would go with the officers. Defendant opened the front door of the police car and got into it without assistance. He was patsearched before he got into the car. It was the police department’s custom to patsearch anyone who rides with a police officer in a vehicle, and defendant did not object or appear uncomfortable. Neary got into the driver’s seat, and the other two officers rode in the back seat. They engaged in small talk during the ride, but did not discuss the investigation.
This portion of the recitation is drawn from the testimony of two of the officers, Tom Neary and Christine Wesselius.
At the police station, defendant got out of the car on his own, and they went into the station through a side door. From the inside, the door was not locked and was marked as an exit. They went into an interview room, which was near the door they had entered. The room was approximately six by eight feet, with a table in the middle. The door locked from the outside, but not from the inside, and it had a small window. The officers left defendant alone in the room for four or five minutes. Neary then came in and sat on the opposite side of the table from defendant. According to Neary, no officers were between defendant and the door, which was next to defendant.
Although Neary did not recall specifically telling defendant he was free to go, he told defendant he was not under arrest, and defendant appeared to understand. Defendant agreed that he had come voluntarily from his work. In order to get defendant to confess, Neary implied, untruthfully, that he had DNA evidence and other evidence based on a physical examination of J.D. that indicated she had been molested.
Defendant testified at the hearing on the admissibility of his statements. According to defendant, when he accepted the officers’ ride to the station, he expected them to bring him back to work after the interview. He knew he was going to the station voluntarily and that he was not under arrest. One of the officers opened the front passenger door for him. No one patsearched him or told him he was under arrest before he got into the car. When they got to the station, the officers pointed out the door they would use, but did not touch him. The door to the station was a big steel door, and needed a key to open it. He was taken into a small room, with a table and chairs. He was left alone in the room for five or ten minutes, with the door closed. Once he was inside the room, he became concerned that he was being locked in and would not be let out, but he never got up to try to open the door. He saw that the officers did not use a key to get out of the room. Two officers returned to the room; defendant testified that he would have had to pass one of the officers to leave the room, but the officer was not blocking his way. He acknowledged that he could have walked out, but he did not do so because he wanted to tell his side of the story. The door to the room was closed during the entire interview. At the beginning of the interview, Neary told him he was not under arrest, and he acknowledged that statement and agreed that he had come to the station voluntarily.
The trial court ruled defendant’s statement was admissible. In doing so, it found that Neary did not tell defendant he was free to leave, but that he made clear to defendant that his statement was voluntary. The court noted that defendant had testified he was not searched before getting into the police car, that he knew he was not under arrest, that the officers told him he could drive his own car to the station, and that he was never told he could not leave. Neary’s demeanor was “bland to say the least,” and the interview lasted approximately 30 minutes or less, which the court concluded was not “oppressive.”
2. The Confession Was Admissible
Defendant contends he was in custody at the time he made his statements to the police, and that the officers were, therefore, required to advise him of his Miranda rights before questioning him. “ ‘In applying Miranda . . . one normally begins by asking whether custodial interrogation has taken place. “The phrase ‘custodial interrogation’ is crucial. The adjective [custodial] encompasses any situation in which ‘a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” ’ [Citation.] ‘Absent “custodial interrogation,” Miranda simply does not come into play.’ [Citation.] The test for whether an individual is in custody is ‘objective . . .: “[was] there a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” ’ [Citations.]” (People v. Ochoa (1998) 19 Cal.4th 353, 401 (Ochoa).) This is a mixed question of fact and law. We ask first, what were the circumstances surrounding the interrogation. This inquiry is strictly factual, and we apply to it the deferential substantial evidence standard. We ask second whether, given the circumstances, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave; this is a determination we make independently. (Id. at pp. 401-402.) Among the objective indicia of custody are: “(1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning.” (People v. Boyer (1989) 48 Cal.3d 247, 272 (Boyer).)
Our Supreme Court clarified in People v. Stansbury (1995) 9 Cal.4th 824, 830 (Stansbury), that evidence of an officer’s subjective suspicions is relevant only if those views were manifested to the suspect and would have affected the suspect’s perception of his or her freedom to leave.
In our view, a reasonable person in defendant’s situation would have realized he was free to end the questioning and leave the police station. Defendant had not been arrested, and appeared eager to talk with the officers. He was told he could drive himself to the station, and chose to drive with the officers. He rode in the front seat of the police car, with no barrier between him and the officers. He was never subjected to a show of force, such as a demonstration of handcuffs or a gun. The door of the interview room was not locked from the inside, and defendant saw officers leave the room without a key. The officers began the interview by telling him he was not under arrest and that he came voluntarily from his work; defendant said he understood that and volunteered that the interview was his chance to tell his side of the story. Neary made no threats or promises, the trial court found that Neary’s demeanor was “bland,” and the interview was not extended in length.
The colloquy was as follows: “[Neary]: Well, first off, though, um you’re not under arrest. You know that, right? [¶] [Defendant]: Mm hmm. [¶] [Neary]: You came over with us voluntarily from your work. . . [¶] [Defendant]: Right. [¶] [Neary]: So this is your opportunity to. . . [¶] [Defendant]: Say my side of this.”
We recognize that suspicion had focused on defendant and that the interview took place in a police station. These factors are not determinative, however. Indeed, the United States Supreme Court has recognized that “Miranda warnings are not required ‘simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.’ ” (California v. Beheler (1983) 463 U.S. 1121, 1125.) In Ochoa, for instance, the defendant was taken to a police station for a polygraph test. He waited in a waiting room with an open door for an hour and a half, and a woman wearing “ ‘rookie’ ” clothing told him not to leave, and told him to “ ‘ “stay put.” ’ ” No one told the defendant he could leave the station. (Ochoa, supra, 19 Cal.4th at p. 396.) Before taking the test, he was told he did not need to do so, and he signed a consent form stating that he was taking the test freely and voluntarily and that he need not make any statements about the case. (Id. at pp. 396-397, 402.) Our Supreme Court relied heavily on the fact that the defendant had signed the form, stating, “Most important, defendant signed a statement that told him the interview was voluntary. . . . A reasonable person in defendant’s position, knowing that he or she need say nothing at all, would understand that he or she would do the examiner a favor by offering to leave rather than wasting the examiner’s time by sitting mute. [¶] . . . A reasonable individual knows that he or she can end a voluntary association with other individuals at will. This is so despite the location of defendant’s questioning: the fact that he was questioned in the police station’s polygraph examination room does not necessarily require a finding of custody, even if the room was in a secure area.” (Id. at pp. 402-403.)
Similarly, in Stansbury, supra, 9 Cal.4th at pages 833-834, our Supreme Court concluded that an interview that took place in the jail area of a police station was not custodial. Although the defendant had to pass through a locked parking structure and a locked entrance to the jail to get to the interview room, there was no evidence that a reasonable person in the defendant’s position would think that he or she would be unable to leave. Moreover, the defendant was under no restraint in the interview room and the questioning was not accusatory. (Id. at p. 834.)
Defendant contends the facts here are “remarkably similar” to those in Boyer, in which our Supreme Court found a custodial interrogation. (Boyer, supra, 48 Cal.3d at p. 272.) Not so. The defendant there was brought to an interrogation room, where officers read him his Miranda rights and began questioning him. An officer told him the police could prove he had committed the crimes in question, and that he was “ ‘gonna fall on this one.’ ” (Id. at pp. 264-265.) When the defendant asked several times if he was under arrest, the officer evaded the questions and continued the interrogation. The officer also ignored several statements by the defendant that he wanted a lawyer and did not want to say anything more. (Id. at p. 265.) The officer obtained the defendant’s consent to search his house and to have his fingerprints taken “for elimination purposes.” (Id. at p. 266.) There was conflicting evidence as to whether the defendant was handcuffed on his trip to the jail facility to have his fingerprints taken. (Ibid.) The defendant was returned to the interrogation room, where he gave an incriminating statement. (Id. at pp. 266-267, 258.) The indicia of arrest present there—including the facts that the defendant was advised of his Miranda rights and that the officer did not respond when the defendant asked repeatedly if he was under arrest—do not exist here. It is true that Neary implied falsely that DNA evidence had been recovered from J.D., and told defendant he believed J.D.’s accusations, but his questioning did not rise to the level of that in Boyer.
United States v. Lee (9th Cir. 1982) 699 F.2d 466, 467-468 cited by defendant, does not persuade us otherwise. The defendant there was questioned in an FBI car parked in front of his house for at least an hour, while police investigators were in and around his house; for 15 minutes the investigator confronted the defendant with evidence of his guilt and told him it was time to tell the truth. The district court suppressed the confession, and the Ninth Circuit affirmed, concluding that a reasonable person might feel that he was not free to decline the request to be interviewed. Here, on the other hand, the circumstances show that defendant agreed voluntarily to the request for an interview in order to tell his version of events.
In the totality of the circumstances, we agree with the trial court that defendant’s confession was admissible.
B. Ineffective Assistance of Counsel
Defendant contends his trial counsel was ineffective for failing to object to the admission of certain evidence. First, in one of the telephone calls between defendant and J.D., defendant said that he faced about 10 years in prison based on J.D.’s allegations “’cuz I already got that record already from—from sellin’ drugs and that. That was back in ’98.” Defendant contends his prior conviction was irrelevant and was highly prejudicial because of the seriousness of drug-related crimes. (See People v. Cardenas (1982) 31 Cal.3d 897, 907 [evidence of addiction to narcotics to establish financial motive for attempted robbery was inflammatory].)
Second, in another of the telephone calls, J.D. talked with appellant about some notes her mother had found. J.D. said her mother had given the notes to CPS, and defendant said the notes had been thrown away or torn up. Although the trial court had excluded testimony about the content of the notes, defendant contends that the references to the notes in the telephone calls were prejudicial because they allowed the jury to “speculate the worst about their contents.”
In defendant’s statement to the police, which defendant does not challenge on this ground, defendant said that J.D.’s mother had found a note he had written based on words he had heard someone saying outside the window. The notes were about “[J.D.] and uh sexual things,” and he had written, “I’m gonna get gonna get [J.D.]- I’m gonna get [J.D.] She’s gotta nice butt, man. I’m gonna be the first one to get that,” and “I’m a get her to suck my dick.”
Third, in their interview, Neary asked defendant if he would be willing to take a polygraph test. Defendant said he would be willing to do so if he had to. Neary told him a test would be voluntary, and asked him what he thought the results of the test would be, and defendant said that sometimes the results might be wrong and that people could learn how to beat the tests. Defendant characterizes the second part of this exchange as “retreat[ing]” from his original willingness to take a test. Noting that the results of polygraph tests are inadmissible because they are unreliable and because jurors might attach undue significance to the fact or the outcome of the examination (People v. Basuta (2001) 94 Cal.App.4th 370, 390), defendant contends admission of this reference to a possible polygraph test was improper.
Fourth, Wesselius testified at trial about statements J.D. had made to her after she was brought to the police department by a CPS worker. The version of events J.D. had told Wesselius was consistent with J.D.’s testimony at trial. Defendant contends this testimony was inadmissible hearsay.
“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541. “A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.]” (Id. at p. 541.) “Reviewing courts reverse convictions on direct appeal on the ground of incompetence of counsel only if the record on appeal demonstrates there could be no rational tactical purpose for counsel’s omissions. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 442.) “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient. [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 784.) Prejudice is established when counsel’s performance “ ‘so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ ” (Ibid.) Prejudice must be proved to a demonstrable reality, not simply through speculation. (People v. Williams (1988) 44 Cal.3d 883, 937.)
We need not decide whether trial counsel acted deficiently in failing to object to the challenged evidence because defendant has not shown he was prejudiced by its admission. The fleeting reference to a conviction of a drug-related offense that occurred eight or nine years before the trial in this case pales in comparison to the crimes with which defendant was charged here, and we see no likelihood that the jury was influenced by hearing it. The reference to the possibility that defendant might take a polygraph test likewise was fleeting and there is no reason to believe it influenced the jury. We similarly reject defendant’s contention that the jury was left to “speculate the worst” about the contents of the notes. As we have indicated, defendant himself told officers that he had written—purportedly based on something he had heard someone saying outside a window—of someone wanting to “get” J.D.’s “butt” and to have her “suck [his] dick.” There is no reason to think the jury imagined the contents of the notes were worse than these admissions indicate. Finally, we see no reason to believe the admission of Wesselius’s testimony affected the result, as the jury had the opportunity to hear J.D. speak and to assess her credibility.
Most importantly, defendant confessed to police officers that he had performed various sexual acts with J.D., and he made incriminating admissions in his telephone calls with her. In light of these statements, which are discussed in detail above, we see no reasonable probability that the jury would have come to a different result if any—or all—of the challenged evidence had been excluded.
Defendant also contends his trial counsel was ineffective in failing to object to his sentence on constitutional grounds, and asks us to consider this contention if we choose not to consider the constitutional issue on the merits. Because we address the issue on the merits below, we need not decide whether counsel was deficient in not making this objection.
C. Concurrent Sentences for Sodomy and Lewd Acts
Defendant was convicted in counts 3 through 17 of 15 violations of section 269, subdivision (a), aggravated sexual assault of a child under the age of 14, based on sodomy by force (§ 286). He was convicted in counts 18 through 32 of 15 violations of section 288, subdivision (a), lewd acts, namely sodomy, on a child under the age of 14. The crimes were alleged to take place during the same time period, and the prosecutor acknowledged they were based on the same acts.
In closing argument, the prosecutor stated: “[I]f you find [defendant] guilty on 3 through 17 [§ 269, subd. (a), sodomy by force upon a child under age 14], by definition, you will find him guilty on 18 through 33 [§ 288, subd. (a), lewd acts (sodomy) on a child under age 14].”
Defendant contends the violations of section 288 are lesser-included offenses to the violations of section 269, and that he, therefore, cannot be convicted of both offenses in connection with the same acts. (See People v. Reed (2006) 38 Cal.4th 1224, 1227 [exception to general rule permitting multiple convictions prohibits multiple convictions based on necessarily included offenses].) Our Supreme Court, however, has ruled that the offense of lewd conduct is not necessarily included in the crime of sodomy, and that a defendant can properly be convicted of both based on the same act. (People v. Pearson (1986) 42 Cal.3d 351, 355, 358 (Pearson).)
Defendant’s contention that one of the sentences imposed in connection with each act should have been stayed pursuant to section 654 fares better. “Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct. [Citations.] If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed. [Citation.] Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences. [Citation.]” (People v. Deloza (1998) 18 Cal.4th 585, 591-592 (Deloza).) The court in Pearson recognized that this rule prohibits multiple punishment for sodomy and lewd conduct based on the same act. (Pearson, supra, 42 Cal.3d at pp. 358-361.)
Defendant was sentenced to serve consecutive terms of 15 years to life on counts 3 through 17. The court imposed six-year terms on counts 18 through 32, to be served consecutive to one another but concurrent with the sentences on counts 3 through 17. The Attorney General concedes that the sentences on counts 18 through 32 must be stayed pursuant to section 654. We agree, and will so order.
Although the parties have not raised this issue, our review of the record reveals a clerical error in the abstracts of judgment. The trial court ordered the sentences on counts 1, 2, and 19 through 32 to run “consecutive to one another but concurrent with the sentences rendered under Counts 3 through 17,” and the sentences on counts 33, 34, 36, and 37 likewise to run “consecutive to one another but concurrent with the sentences in Counts 3 through 17.” The abstracts of judgment indicate incorrectly that the sentences on counts 1, 2, 18 through 34, 36, and 37 are to be served concurrent with each other and consecutive with the sentences in counts 3 through 17—the opposite of what the trial court ordered. As we have discussed, we are ordering the sentences in counts 18 through 32 stayed. As to counts 1, 2, 33, 34, 36, and 37, we shall direct the trial court to amend the abstracts of judgment to conform to the trial court’s order.
D. Cunningham Error
Defendant contends the trial court violated the rule of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856; 127 S.Ct. 856] by imposing consecutive sentences without a jury finding that his crimes occurred on separate occasions. He acknowledges that the California Supreme Court has ruled that Cunningham does not apply to the imposition of consecutive sentences (People v. Black (2007) 41 Cal.4th 799, 806, 820-823), but raises this issue to preserve it for further review. As defendant recognizes, we are bound by our Supreme Court’s decision (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and accordingly we reject his contention.
E. Cruel and Unusual Punishment
The trial court sentenced defendant to 15 consecutive terms of 15 years to life for the violations of section 269, for a total sentence of 225 years to life for these offenses. Subdivision (b) of section 269 establishes a sentence of 15 years to life for a violation of that section, and subdivision (c), provides: “The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” Noting that he will not be eligible for parole during his lifetime, defendant contends this sentence is disproportionate to his crimes and violates the federal and state constitutional prohibitions of cruel and unusual punishment.
Although defendant did not raise this claim below and so waived it, we will exercise our discretion to consider it on appeal. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)
“ ‘Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] ‘ “A tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, ‘with particular regard to the degree of danger both present to society.’ Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the ‘totality of the circumstances’ surrounding the commission of the offense. [Citations.]” [Citation.]’ [Citations.]” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389.) A determination of whether punishment is cruel and unusual may be made based on the first prong alone, and the defendant has the burden of showing that his punishment is greater than that imposed for more serious offenses in this state and that similar offenses in other states carry less severe punishments. (People v. Ayon (1996) 46 Cal.App.4th 385, 399, disapproved on another ground in Deloza, supra, 18 Cal.4th at p. 600, fn. 10 (Ayon).) The United States Supreme Court has ruled that “[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.” (Harmelin v. Michigan (1991) 501 U.S. 957, 1001.)
With these standards in mind, we conclude the sentence of 225 years to life does not constitute cruel or unusual punishment. Defendant has made no showing that his punishment is greater than those imposed either in California for more serious offenses or in other states for the same offenses. The crimes defendant committed were unspeakable. He had lived with J.D. since she was a baby, and she considered him her father. Nevertheless, after forcing her to orally copulate him from the time she was nine years old, he progressed to forcing her to submit to sodomy when she was 10 years old, and continued this behavior on an almost daily basis until she was 12 years old. A person capable of committing such crimes manifestly poses a grave danger to society. There is no disproportionality between defendant’s sentence and his repeated sexual violations of a child in his care.
We are not persuaded otherwise by the fact that defendant’s sentence is the functional equivalent of life imprisonment without the possibility of parole. Defendant has drawn our attention to no cases holding that such a sentence was unconstitutional where it was based on multiple serious crimes against a child, taking place over a period of years. Indeed, the court in Ayon considered the constitutionality of a sentence of 240 years to life for a defendant who had been convicted of multiple counts of robbery, attempted robbery, and possession of a firearm by a felon, and sentenced under the three strikes law. (Ayon, supra, 46 Cal.App.4th at pp. 389, 396-401.) It concluded the sentence was not cruel or unusual punishment, noting “the need to deter offenders, like him, who repeatedly commit such crimes and to segregate them from the rest of society.” (Id. at p. 401; see also People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [rejecting challenge to sentence of 115 years plus 444 years to life].) We reach the same conclusion here.
III. DISPOSITION
The sentences on counts 18 through 32 are ordered stayed pursuant to section 654. The trial court is directed to prepare amended abstracts of judgment reflecting the modified sentence. The amended abstracts of judgment shall also indicate that the sentences on counts 1, 2, 33, 34, 36, and 37 are to run consecutively with each other and concurrently with the sentences on counts 3 through 17. The trial court is directed to
forward the modified abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: Reardon, Acting P.J. Sepulveda, J.