Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06NF2803 Frank F. Fasel, Judge.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
A jury convicted Gerardo Garcia of six counts of a lewd act upon a child under 14 years old (Pen. Code, § 288, subd. (a)). As to each count, the jury also found true the special allegation Garcia committed the offenses against more than one victim. (§§ 667.61, subds. (b)-(e), 1203.066, subd. (a)(7).) The trial court imposed a consecutive term of 15 years to life on three counts-one for each victim. On the remaining counts, the court imposed three concurrent terms of 15 years to life. The total prison term imposed was 45 years to life.
All further statutory references are to the Penal Code.
Garcia’s sole contention on appeal is that his sentence of 45 years to life in prison constitutes cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and under Article I, section 17 of the California Constitution. We disagree and affirm the judgment.
FACTS
Garcia rented a room from Elisa and Alberto, the parents of three young daughters, K., E., and Ashley. Garcia resided with the family for approximately three years. This arrangement ended when Garcia moved out. Elisa and Alberto testified they kicked Garcia out for failure to pay rent. Garcia disputed he failed to pay his rent and claimed he moved out because of an argument he had with Elisa. There is no disagreement Garcia returned to the residence after he moved out and was accused by Elisa and Alberto of molesting their three daughters.
We use only first names to protect the privacy of the minor victims because one of the parents shares their last name.
After Garcia moved out, Elisa was sleeping with Ashley and tried to rearrange Ashley’s bunched up underwear. Ashley reacted angrily and told Elisa, “You are coming off like [Garcia], Mommy.” When Elisa asked Ashley what she meant, Ashley told her mother Garcia had touched her with his hand and demonstrated by putting her hand inside of her underwear and in the front area. After this revelation from Ashley, Elisa inquired of her other two daughters and each stated Garcia had also touched them inappropriately. E. stated Garcia had touched her while her mother was in Mexico. She did not tell her father because she was afraid. K. told her mother Garcia had put his hand inside her underwear and touched her. She did not tell anyone because she was ashamed. Elisa did not ask K. how many times Garcia had touched her. Elisa later called the police to report what her daughters had told her.
At trial, the three daughters recounted how they had been inappropriately touched by Garcia. Ashley, nine years old at trial, testified Garcia had touched her on the vagina on more than one occasion and that she did not like it, but she did not elaborate as to the details. Ashley testified she did not tell her mother what had happened before the police were called because she was scared. When asked at trial about the touching, she again indicated she was “scared to talk about it.”
E., 11 years old at trial, testified that during the time Garcia was living with her family, he touched her on more than one occasion and she did not like it. She described Garcia touching her vagina and putting his fingers inside her vagina. At least one of the times Garcia touched her occurred while her mother was away in Mexico. E. stated she did not call out for her parents when Garcia was touching her because she was scared.
K., 13 years old at trial, testified she also had been molested by Garcia. K. admitted she initially lied to her mother and told her Garcia had only touched her once. When asked why she said it was only once when it actually had been more, K. said she was afraid her mother was going to hit her because she “was doing something very bad.” She testified Garcia had touched her vagina when she was in fifth grade. She described in detail how while sitting on Garcia’s lap in the living room he put his hand inside her underwear and put his fingers inside her vagina. She told him to stop, but he persisted and she was only able to free herself by biting Garcia’s arm. K. also gave a detailed account of being touched by Garcia around Christmas. She had gone with Garcia to move a car out of the garage. After the car was parked and she attempted to exit the car, Garcia told her the passenger door did not work and she needed to get out from his door. As she was trying to slide over Garcia to get out of the car, he put his fingers inside her vagina. When asked how it felt, K. replied, “terrible.” K. also recounted an incident in Garcia’s room when he again touched her under her clothes.
At trial, Garcia described his living arrangements with the family and testified he had a good relationship with each of the girls. He denied ever touching the girls inappropriately. He maintained Elisa was manipulative and had coached the girls into making false allegations against him. Garcia also claimed Elisa owed him money and she did not want to pay him back or for her husband to find out about the loan. Additionally, Garcia presented numerous character witnesses who testified on his behalf.
DISCUSSION
Garcia implicitly concedes consecutive terms were required, but he contends his prison sentence of 45 years to life for “non-violent, non-injury offenses which were not forcible, involved no weapons, and involved no threats, constitutes cruel and unusual punishment under the Eight and Fourteenth Amendments to the United States Constitution and under Article I, [section] 17 of the California Constitution.” The Attorney General argues Garcia forfeited this claim because he failed to raise it in the trial court. Nevertheless, we will address the merits of his claim for the sake of judicial economy. (People v. Chaney (2007) 148 Cal.App.4th 772, 780.)
“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. Martinez (1999) 76 Cal.App.4th 489, 496.) In assessing a claim of cruel or unusual punishment, “we decide whether the 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, ’ thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1042.) A sentence constitutes cruel or unusual punishment in violation of the Eighth Amendment of the United States Constitution if it is “‘grossly disproportionate’ to the crime....” (Harmelin v. Michigan (1991) 501 U.S. 957, 997-998 (conc. opn. of Kennedy, J.).) Under the California Constitution, a punishment is excessive if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted (Lynch).) Since the federal Constitution provides no greater protection than the California Constitution, we focus our analysis on the test established in Lynch.
The Lynch factors include: (1) “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society” (Lynch, supra, 8 Cal.3d at p. 425); (2) “[a comparison of the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious” (id. at p. 426); and (3) “a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision” (id. at p. 427). A defendant must overcome a “considerable burden” in challenging his penalty as cruel or unusual (People v. Wingo (1975) 14 Cal.3d 169, 174), demonstrating that the punishment is so disproportionate to the crime for which it was imposed it “shocks the conscience and offends fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
As to the first Lynch factor, when evaluating the offense we look at “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).) When evaluating the particular offender, we focus on “individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Ibid.)
Garcia attempts to minimize the gravity of his offenses by asserting the crimes were non-violent, non-forcible, and non-injury offenses. Garcia notes he neither used a weapon nor made any threats. We agree these crimes did not involve the degree of violence or the degree of physical injury we often see in these types of crimes. But it cannot be said the crimes were non-violent or that no injury resulted.
A violation of section 288, subdivision (a), is clearly classified as a “violent felony, ” and each of the victims testified they did not like being touched. The two youngest victims recounted attempting to resist Garcia and being too scared to tell their parents what had happened. The oldest described one incident where she was only able to stop Garcia from assaulting her by biting his arm. When the perpetrator overcomes the resistance of the victims to commit the offenses in the manner in which Garcia did, it is difficult to describe the offenses as not forcible. We do not find particularly impressive the fact Garcia did not use weapons. Garcia was victimizing young girls and easily perpetrated his crimes without the need of a weapon. Lastly, we find Garcia’s claim his crimes were “non-injury” distressing. The injuries these three young victims suffered as a result of Garcia’s repeated molestations are obvious and undeniable.
Section 667.5, subdivision (c)(6).
Garcia also seeks to minimize his wrongdoing by arguing “a single period of aberrant behavior” is deserving of a single sentence. He initially recounts the offenses “occurred one right after the other.” Later, he describes the offense as having occurred “within a short period of time.” But the record reflects the offenses occurred over a period of roughly two years. This time period is not accurately described as a short period time, nor does the record support Garcia’s suggestion these offenses should be viewed as single episode of wrongdoing. Each offense was a separate and distinct victimization. Garcia correctly notes all the offenses took place in the same location, the family home. Garcia apparently believes this fact to be mitigating in nature. We disagree. We find no mitigation in the fact these young girls were molested within the confines of their own home or that Garcia exploited his status as a member of the victims’ household to commit his crimes.
Turning to information regarding the offender, we look at the particular defendant and determine whether the punishment is grossly disproportionate to this defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Dillon, supra, 34 Cal.3d at p. 479.) When the offenses were committed Garcia was an adult in his mid-thirties, and there was no evidence he was unusually immature emotionally or intellectually. (Dillon, supra, 34 Cal.3d at pp. 482, 483, 486, & 488.) Evaluating the danger Garcia presents to society, we note he had no prior criminal convictions, but his denial of the offenses and lack of remorse constitute substantial obstacles to meaningful rehabilitation. Responsibility for the offenses rests squarely on Garcia’s shoulders as he committed each of the offenses without any encouragement or assistance from any other person. Accordingly, we conclude he presents a significant danger to society. We find no facts relating to Garcia that support a conclusion the imposition of a sentence of 45 years to life is cruel or unusual.
Focusing on the second and third Lynch factors, a comparison of Garcia’s sentence with those in the same jurisdiction for different offenses and with sentences for the same offense in other jurisdictions, we again find Garcia’s claim without merit. Garcia argues his sentence is “vastly greater than for many California offenses that involve serious harm to persons and/or property, ranging from robbery to burglary to aggravated assaults.” Garcia also asserts his sentence “appears to be the most serious meted out anywhere in this country for such a set of offenses, ” but he fails to make an adequate showing his sentence is grossly disproportionate. Rather he invites the Attorney General “to point to such a sentencing treatment in any of the other 49 states.” Not surprisingly, the Attorney General declines the invitation.
“[T]he ‘precise contours’ of the proportionality principle ‘are unclear’ [citation][]” and the principle is “applicable only in the ‘exceedingly rare’ and ‘extreme’ case. [Citations.]” (Lockyer v. Andrade (2003) 538 U.S. 63, 72-73.) In People v. Estrada (1997) 57 Cal.App.4th 1270, 1282, a 25-year-to-life sentence under section 667.61 for one forcible rape during a burglary, without use of a weapon and with no prior felonies, was found not to be cruel or unusual punishment. A mandatory life sentence without possibility of parole for sexual battery of minor where defendant had no prior record was similarly found not to be cruel or unusual punishment. (Gibson v. State (Fla. 1998) 721 So.2d 363, 369-370.)
Garcia cites Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, to support his claim. In Ramirez, defendant was convicted of shoplifting and two strike priors for robbery were found true. (Id. at p. 756.) The court found the imposition of a sentence of 25 years to life in prison for the theft of merchandise valued under $400 to be grossly disproportionate. (Id. at pp. 767-768.) The court was not persuaded that defendant’s two prior second-degree robbery convictions constituted sufficient recidivist history to justify such a harsh sentence. (Id. at p. 769.)
Garcia argues that like Ramirez’s sentence of 25 years to life, Garcia’s sentence of 45 years to life is one of the rare cases where the sentence imposed is grossly disproportionate to the crimes committed. We fail to see the two scenarios as comparable.
“Children are a class of victims who require paramount protection....” (People v. Tate (1985) 164 Cal.App.3d 133, 139.) Here, Garcia preyed on young girls in their own home and subjected them to repeated molestations. A sentence violates the California Constitution if it shocks the conscience and offends fundamental notions of human dignity. (People v. Alvarado (2001) 87 Cal.App.4th 178, 199.) We find no unconstitutional punishment when considering the particular circumstances of Garcia’s offenses.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J.IKOLA, J.