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People v. Gomez

California Court of Appeals, Fourth District, Second Division
Jul 21, 2008
No. E043140 (Cal. Ct. App. Jul. 21, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County, No. SWF008602, Albert J. Wojcik, Judge.

Sharon M. Jones, 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, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

Gaut J.

Defendant appeals from the convictions and sentence relating to 12 counts of lewd acts committed on two different minors. (Pen. Code, § 288, subd. (a).) He contends: (1) the “generic” testimony of one of the victims violated his due process right to notice of the charges against him, and (2) the 30-year-to-life sentence constitutes cruel and unusual punishment. We affirm.

1. Background

Over a three-year period, defendant committed lewd acts on a repeated basis against his young stepdaughter, Jane Doe 1. On one occasion, when Jane Doe 1 was taking a bath, he exposed his penis to her while ejaculating. He then licked her vagina and buttocks with his tongue. On another occasion, Jane Doe 1 entered the living room to find defendant masturbating while watching a pornographic movie. Although he was aware she was in the room, he did not stop. Instead, he continued to masturbate and told her to be quiet. On several other occasions, defendant came into Jane Doe 1’s room while she was sleeping, and rubbed her vagina and buttocks on the outside of her clothes. He rubbed her bare chest with his hand, under her clothing, and pinched her bare nipples with his fingers on six or seven occasions.

There was more. When Jane Doe 1 was scared, she would sleep with her mother and defendant in their bed. On one such occasion, defendant pulled down Jane Doe 1’s underwear, then unzipped his pants, removed his penis, and rubbed it between the cheeks of Jane Doe 1’s buttocks for about five minutes. On many other occasions, defendant would pick Jane Doe 1 up, turn her around so her back and buttocks were facing him, and would slide her up and down over his body and genitals, using Jane Doe 1’s body to rub himself. Jane Doe 1 could feel that defendant had an erection when he did this.

He also molested his stepdaughter’s friend, Jane Doe 2, on two occasions when she spent the night with Jane Doe 1. On each occasion, Jane Doe 1 awoke to find defendant standing near where Jane Doe 2 was sleeping. Jane Doe 1 saw defendant open up Jane Doe 2’s pants and look at her vagina with a flashlight, while rubbing his penis with his free hand over his clothing.

As a result, he was tried and convicted of 12 counts of committing lewd acts upon a child. (Pen. Code, § 288, subd. (a).) He was thereafter sentenced, under the “one-strike” provisions of Penal Code, section 667.61, subdivision (e)(5), to a term of 30 years to life, based on one term of 15 years to life for count 1, involving Jane Doe 1, and a consecutive term of 15 years to life for count 11, involving Jane Doe 2. Additional terms of 15 years to life for counts 2 through 10, and count 12, were ordered to run concurrent with the other terms. Defendant timely appealed.

2. Discussion

A. Defendant Has Forfeited Any Claims Pertaining to Jane Doe 1’s “Generic” Testimony.

Defendant claims Jane Doe 1’s testimony amounted to vague, “generic” evidence which violated his constitutional right to due process notice of the charges against him. Respondent argues the claim was forfeited by defendant’s failure to raise the issue in the trial court. Respondent also argues, as to the merits of the contention, that there was no notice violation. We agree with respondent.

Failure to object on due process grounds to the imprecise testimony forfeits the defendant’s claim of lack of adequate notice. (People v. Gil (1992) 3 Cal.App.4th 653, 659.)

Even if we were to reach the merits of this argument, we would find no error. The type of testimony adduced at the trial in this case has been held to meet the requirements of due process where the victim specifies the type of conduct and its frequency, despite the lack of specific dates and places. (People v. Jones (1990) 51 Cal.3d 294, 317-318.)

At trial, defendant did not dispute when or where the molestations occurred, nor did he deny being present in the house when any of the acts were alleged to have occurred (alibi). To the contrary, the defendant’s taped statements corroborated Jane Doe 1’s testimony about many of the incidents. Thus, it is unlikely defendant’s ability to defend against the charges was impaired by the nature of the testimony. (People v. Jones, supra, 51 Cal.3d at pp. 317-318 .)

Defendant discusses the distinctions between the individual counts he faced compared with a defendant charged as a resident child molester (Pen. Code, § 288.5) to suggest that generic testimony is acceptable only when a defendant is charged under a “course of conduct” statute. This theory was rejected in People v. Matute (2002) 103 Cal.App.4th 1437, 1443-1447, and we agree with that court’s analysis. There was no due process violation.

B. The 30-Year-To-Life Sentence for 12 Counts of Molestation Against Two Separate Victims Is Not Cruel or Unusual.

Defendant also argues his sentence, imposed under the “one strike” provisions of Penal Code section 667.61, constitutes cruel and unusual punishment. Because defendant failed to raise the issue below, it is forfeited. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.) However, even on the merits, we disagree with the contention.

Under both the Eighth Amendment of the United States Constitution, as well as under the California Constitution (art. I, § 17), a punishment is cruel and unusual if it is disproportionate to the severity of the crime for which it is inflicted. (Rummel v. Estelle (1980) 445 U.S. 263, 271 [100 S.Ct. 1133, 63 L.Ed.2d. 382]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1278.) To determine whether a particular sentence is disproportionate, courts examine the nature of the offense and/or the offender with particular regard to the degree of danger both present to society. (In re Lynch (1972) 8 Cal.3d 410, 425.)

We observe that the United States Supreme Court upheld a sentence of 50 years to life for a petty thief with prior convictions for serious or violent felonies (Strikes) under a disproportionality analysis. (Lockyer v. Andrade (2003) 538 U.S. 63, 77 [123 S.Ct. 1166, 155 L.Ed.2d 144].) A “one-strike” sentence of 135 years to life for 16 felony counts of sexual offenses against four different child victims has been upheld as against a claim it was cruel and unusual punishment. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231.) Comparatively speaking, based on the nature of the offense, the sentence in this case is not cruel or unusual. The fact the defendant has no criminal background is a factor to be considered but does not compel a finding the sentence was unconstitutional. (See People v. Crooks (1997) 55 Cal.App.4th 797, 806-807.)

As to the other prongs of the Lynch test, defendant argues defendant’s sentence is greater than that imposed for first degree premeditated murder. While extinguishing the life of another is a most heinous offense, we cannot say that the impact of years of molestation on two young girls is less heinous.

Under the one-strike sentencing scheme (Pen. Code, § 667.61), a court is required to impose one indeterminate life term per victim per occasion. (People v. Murphy (1998) 65 Cal.App.4th 35, 42-43.) The court ordered that 10 of the terms run concurrent with the two terms that were imposed consecutive to each other, resulting in a shorter period of incarceration than might have been lawfully imposed. We are not offended by the length of the aggregate term, nor are the state and federal Constitutions.

3. Disposition

The judgment is affirmed.

We concur: Ramirez P. J., McKinster J.


Summaries of

People v. Gomez

California Court of Appeals, Fourth District, Second Division
Jul 21, 2008
No. E043140 (Cal. Ct. App. Jul. 21, 2008)
Case details for

People v. Gomez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FAUSTINO GOMEZ, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 21, 2008

Citations

No. E043140 (Cal. Ct. App. Jul. 21, 2008)