Opinion
G052005
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. GERARDO GONZALEZ, Defendant and Appellant.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13HF0066) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Judgment of conviction affirmed; reversed and remanded for resentencing. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury found defendant, Gerardo Gonzalez guilty of three counts of oral copulation or sexual penetration with a child 10 or under (Pen. Code, § 288.7, subd. (b); counts 1, 3, and 5), two counts of lewd act upon a child under 14 (§ 288, subd. (a); counts 4 and 6), and one count of simple battery, a lesser included offense of oral copulation or sexual penetration with a child 10 or under (§ 242; count 2). As to counts 4 and 6, the jury also found true the enhancement Gonzalez had substantial sexual conduct (masturbation) during the commission of the crimes (§ 1203.066, subd. (a)(8)).
All further statutory references are to the Penal Code.
The court sentenced Gonzalez to 57 years to life in state prison, consisting of consecutive terms of 15 years to life on counts 1, 3, and 5, and 6 years each on counts 4 and 6. As to the lesser included offense in count 2, the court sentenced Gonzalez to 6 months in custody concurrent to his other sentences. Finally, the court ordered Gonzalez to register as a sex offender upon his release from prison. (§ 290.)
Gonzalez challenges his sentence on two grounds. First, he contends the trial court erred in sentencing him to a full midterm of imprisonment for counts 4 and 6. Second, he contends his sentence violates federal and state constitutional prohibitions on cruel and/or unusual punishment. We disagree the sentence constitutes cruel and/or unusual punishment. The Attorney General concedes error as to the first contention, so we reverse and remand for the trial court to exercise its discretion in resentencing on counts 4 and 6.
FACTS
Jury Trial
In 2009, Gonzalez began dating M.L. In September 2010, Gonzalez and M.L. began living together along with M.L.'s five-year-old daughter, V.L., and M.L.'s two sons, L.L. and B.L. The children eventually referred to Gonzalez as "dad."
One afternoon in January 2013, M.L. was watching television in the living room while V.L. and B.L. watched television upstairs. Gonzalez came in from the garage and said he was going upstairs to take a shower so he could go see his son who was in town. After a while, M.L. went upstairs. She opened the bedroom door and found Gonzalez, V.L., and B.L. lying on the bed covered by a blanket. M.L. pulled the blanket off of them and saw Gonzalez was naked with his penis aroused. V.L. was lying on her side in front of appellant, with her panties pulled down to her knees. B.L. was lying behind Gonzalez, hugging his back. M.L. pulled V.L. off the bed and began screaming at Gonzalez. M.L.'s friend's daughter called the police.
The following day, M.L. took V.L. and B.L. for an interview by child abuse specialists. During V.L.'s interview, she described what happened the previous day. The jury listened to a recording of the interview. V.L. said Gonzalez pulled her pants and underwear halfway down, then grabbed her hand, placed it on his penis, and told her to wiggle it, and she complied. Gonzalez also asked her to touch his "butt" and to bite and lick his penis, and she complied. All this occurred while B.L. was giving Gonzalez a back massage. Gonzalez then touched V.L.'s vagina with his hand and touched her "butt" with his fingers.
V.L. also said a similar incident had occurred when they lived in a prior apartment. On the previous occasion, Gonzalez also had V.L. touch his penis and he touched her vagina and bottom.
After the interview, V.L. was subjected to a genital exam, which was normal. Sexual assault kits were obtained from Gonzalez and V.L. and submitted to a crime laboratory for DNA testing. V.L. was a major contributor of DNA to a penile swab taken from Gonzalez. She was also a major contributor of DNA to fingernail scrapings taken from Gonzalez.
V.L. testified at trial. She explained Gonzalez wanted her to touch his front and back private parts and for him to touch hers.
Gonzalez called his sister as a defense witness. She testified she had seen Gonzalez around his own children and around her children, and she had never seen him do anything inappropriate, sexually. She never suspected he had done anything sexually inappropriate to her children. In his sister's opinion, Gonzalez is not someone who would take advantage of a young child or sexually molest a child.
At the conclusion of the evidence, the People requested an amendment to count 4 to change the count from forcible lewd act on a child under 14 pursuant to section 288, subdivision (b)(1), to lewd act on a child under 14 pursuant to section 288, subdivision (a). The court granted the motion and stated it would delete "forcible" from the description of the offense.
Sentencing Hearing
The People filed a sentencing brief seeking imposition of a term of 61 years to life consisting of three 15 years to life terms on counts 1, 3, and 5 and a determinate term of 8 years each on counts 4 and 6. Gonzalez filed a sentencing brief contending the life sentence mandated by section 288.7 constitutes cruel and unusual punishment as applied to him.
Pursuant to section 1203, subdivision (c), the probation and sentencing report included results of the State-Authorized Risk Assessment Tool for Sex Offenders. Rodriguez was scored on the Static-99R. He received a total score of 1, which places him in the low risk category for being convicted of another sexual offense if he is released on probation. The probation and sentencing report also attached letters from one of Gonzalez's friends, his brother, and the godfather of his child. The friend described Gonzalez as calm and very hard working. His brother stated he was a good, honest, responsible person who liked to work too much. The godfather of his child described him as a very cautious, respectful, and good person who worked hard.
The Static-99R is a tool for actuarial risk assessment of sex offenders. It sorts sex offenders into four risk categories: Low, Low-Moderate, Moderate-High, and High. (See Static-99R Coding Form, <http://www.static99.org/pdfdocs/static-99rcodingform.pdf>, as of Feb. 27, 2017.)
Prior to the imposition of sentence, the trial court allowed M.L. to read a victim impact letter. M.L. stated it had been hard for V.L., who had nightmares for "so long," and when she had to remember everything for the trial, all those nightmares returned. She still hears V.L. screaming, "Mommy, Mommy, make him go away." She said she cannot begin to describe the feeling of terror and anger when she found Gonzalez naked on her bed with her children. Her whole life fell apart, because she felt she had failed as their mother. She said they were supposed to be safe at home, but "how could they be safe when I had the wolf living under my roof." She said Gonzalez promised to take care of her and them, and that he would be the father they wanted. They trusted him as such, but now she realizes he never loved them and he is a monster who stole her children's innocence and her peace.
The court rejected Gonzalez's assertion the life sentence is cruel and unusual punishment as applied to him. The court stated it has long been recognized and established that the psychological and emotional injuries caused by child molestation are in most cases worse than the physical injuries and will remain long after any physical injuries have healed. According to the court, that is why the Legislature enacted the mandatory life sentence for violation of section 288.7. The court explained trial courts should exercise discretion to set aside mandatory sentences under the Eighth Amendment only in extremely unusual cases in which to impose the mandatory sentence would offend the conscience, and this was far from one of those extremely unusual cases.
In imposing sentence, the court found Gonzalez statutorily ineligible for probation, because the jury found it true that Gonzalez engaged in substantial sexual conduct with a child under 14 in counts 4 and 6 within the meaning of section 1203.066, subdivision (a)(8). The court sentenced Gonzalez to three consecutive 15 years to life terms on counts 1, 3, and 5. Erroneously believing Gonzalez had been convicted of forcible lewd conduct in violation of section 288.7, subdivision (b)(1) in count 4, the court sentenced Gonzalez on counts 4 and 6 to the full term discretionary consecutive sentencing pursuant to section 667.6, subdivision (c) in lieu of a consecutive sentence under section 1170.1, subdivision (a). The court selected the midterm of 6 years on count 4 and the midterm of 6 years on count 6. The court sentenced Gonzalez to 6 months on count 2, concurrent to the other sentence. The total sentence imposed was 57 years to life.
The prosecutor and probation offer made the same mistake.
DISCUSSION
The Trial Court Erroneously Sentenced Gonzalez On Counts 4 and 6
Gonzalez was convicted of two counts of violating section 288, subdivision (a), which provides any person who willfully and lewdly commits any lewd or lascivious act upon a child under the age of 14 years shall be punished by imprisonment for 3, 6, or 8 years. (§ 288, subd. (a).) The court sentenced Gonzalez to the midterm of 6 years on counts 4 and 6 under section 667.6, which allows imposition of a full, separate, and consecutive term for each violation. (§ 667.6, subd. (c).) However, the sentencing provisions of section 667.6 apply only to offenses listed in subdivision (e). (§ 667.6, subd. (e).) Included within subdivision (e) is lewd or lascivious acts in violation of section 288, subdivision (b); a violation of subdivision (a) is not included. (§ 667.6, subd. (e)(5).) While Gonzalez was originally charged with violation of section 288, subdivision (b)(1), at the conclusion of the evidence the court granted the People's request to amend count 4 from section 288, subdivision (b)(1) to section 288, subdivision (a). Violations of section 288, subdivision (a) fall outside the sentencing scheme provided in section 667.6. Because Gonzalez was not convicted of any act allowing imposition of a full, separate, and consecutive term, he should have been sentenced under section 1170.1, subdivision (a) on counts 4 and 6.
We agree with the Attorney General's recommendation to remand this case for resentencing. "It is perfectly proper for this court to remand for a complete resentencing after finding an error with respect to part of a sentence . . . ." (People v. Calderon (1993) 20 Cal.App.4th 82, 88.) "On remand, the trial court is entitled to reconsider its entire sentencing scheme." (People v. Burns (1984) 158 Cal.App.3d 1178, 1184.) On remand, as to counts 4 and 6, the court must first choose a lower, middle, or upper term and then impose one-third the midterm, or 2 years, on the other count. (See People v. Neely (2009) 176 Cal.App.4th 787, 797-798 [in selecting determinate term, court selects base term for each crime, sets crime with greatest base term as principal term, imposes full base term as to sentence for principal term crime, and then imposes one-third the midterm as a consecutive sentence for subordinate term crimes; once court determines what sentence is to be imposed for indeterminate term offenses and determinate term offenses, it combines two to reach aggregate total sentence].)
Gonzalez's Sentence Does Not Constitute Cruel and/or Unusual Punishment
Gonzalez argues his sentence is disproportionate to his criminal culpability and criminal history, and thus violates the prohibition against cruel and/or unusual punishment contained in the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. We disagree.
The federal Constitution prohibits imposition of punishment that is "cruel and unusual." (U.S. Const., 8th Amend.; see Robinson v. State of California (1962) 370 U.S. 660, 666-667.) Similarly, the state Constitution provides: "Cruel or unusual punishment may not be inflicted or excessive fines imposed." (Cal. Const., art. I, § 17.) "Whereas the federal Constitution prohibits cruel 'and' unusual punishment, California affords greater protection to criminal defendants by prohibiting cruel 'or' unusual punishment." (People v. Haller (2009) 174 Cal.App.4th 1080, 1092.) "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.)
Special laws on the subject of sex with children have been enacted, and they expand the kinds of acts which may be deemed criminal sexual misconduct. They "generally operate without regard to force, fear, or consent." (People v. Reyes (2016) 246 Cal.App.4th 62, 85 (Reyes).) Gonzalez was convicted and sentenced under one of these laws. Section 288.7, subdivision (b) provides, "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." Gonzalez's conviction on three counts in violation of section 288.7, subdivision (b) led to three consecutive 15 years to life terms. Added to his 12-year sentence for violating section 288, subdivision (a), the total sentence was 57 years to life.
The court sentenced Gonzalez to consecutive terms under the criteria listed in California Rules of Court, rule 4.425(a)(1). Gonzalez does not argue the terms should have been concurrent. --------
Fixing of prison terms for specific crimes involves a substantive penological judgment that is properly within the province of legislatures, not courts. (Harmelin v. Michigan (1991) 501 U.S. 957, 998.) Thus, when faced with an allegation that a particular sentence amounts to cruel and unusual punishment, reviewing courts should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion trial courts possess in sentencing convicted criminals. (Solem v. Helm (1983) 463 U.S. 277, 290; see also People v. Sullivan (2007) 151 Cal.App.4th 524, 569 ["'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'"].) Successful challenges based on the gross disproportionality principle are exceedingly rare and only appear in an extreme case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73 (Lockyer).) This is not that case.
In Ewing v. California (2003) 538 U.S. 11 (Ewing), the United States Supreme Court concluded a 25 years to life sentence for stealing three golf clubs worth $399 apiece survived a proportionality review under the Eighth Amendment. In Lockyer, 50 years to life for stealing $153 worth of videotapes was not cruel and unusual punishment. (Lockyer, supra, 583 U.S. 63.) In comparison, Gonzalez committed multiple offenses involving substantial sexual conduct, including masturbation, with a prepubescent girl while acting as her father figure. In light of Lockyer and Ewing, and given the serious nature of this case, we need not further discuss defendant's challenge under the Eighth Amendment.
Gonzalez's state constitutional challenge likewise fails. Under article I, section 17 of the California Constitution, "[t]he main technique of analysis . . . is to consider the nature both of the offense and of the offender." (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) The reviewing court also considers how the punishment compares with punishments for more serious crimes in the same jurisdiction and how the punishment compares with punishments for the same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427.) In Reyes, supra, 246 Cal.App.4th 62, a sentence of life without the possibility of parole for two sexual offenses involving a single victim in a single incident was not cruel and unusual punishment under the federal or state constitution. (Id. pp. 82-90.) With this backdrop we consider Gonzalez's cruel and unusual punishment challenge.
We first examine the nature of the offense. "'A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts.'" (Reyes, supra, 246 Cal.App.4th at p. 87.) Gonzalez capitalized on his relationship with M.L. to gain access to V.L. during her tender childhood years. He developed a de facto paternal relationship with V.L. to such an extent she called him "dad." Then on two occasions he violated her by having her touch his aroused penis as he touched her vagina and "butt." On at least one occasion, he asked her to bite and lick his aroused penis and she complied. She was approximately 5 and 7 years old when these events occurred. While Gonzalez complains his sentence amounts to a life sentence, he fails to consider his victim effectively received an emotional life sentence, because V.L. was a vulnerable child, defenseless against an assault by one of her caretakers. We agree with the lower court's observation the psychological and emotional injuries caused by child molestation are in many cases worse than physical injuries and that they remain long after physical injuries have healed. The emotional trauma has already surfaced. M.L. explained V.L. had nightmares "for so long" and when she had to remember everything for trial, the nightmares returned. Not surprisingly, Gonzalez's crimes also caused M.L. emotional pain. She explained as V.L.'s mother, she felt she failed her children. She felt terror and anger and described Gonzalez as a monster and a wolf living under her roof. Gonzalez stole V.L.'s innocence and M.L.'s peace. Nothing about the nature of his offenses persuades us his sentence is unconstitutionally cruel or unusual.
Next we examine the nature of the offender. "'A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind."'" (Reyes, supra, 246 Cal.App.4th at p. 87.) Gonzalez's lack of criminal history is admirable, and friends and family describe him as a cautious, respectful, honest, responsible, and good person. Nonetheless, his convictions involved gaining the trust of a young girl and her mother, and then abusing that trust by sexually violating his girlfriend's daughter. Gonzalez was a grown man with adult children of his own and was old enough to understand the consequences his actions would have on V.L. Clearly his selfish desire for sexual gratification outweighed any desire he may have harbored to be a positive role model and father figure. True, the probation and sentencing report assessed him as low risk for recidivism, but low risk does not equate to no risk. We recognize Gonzalez's sister had never seen him do anything sexually inappropriate, but his opportunistic breach of trust has caused life-long ramifications for V.L. despite his sister's ignorance of his propensities. Under the circumstances, nothing about the nature of the offender leads us to conclude his sentence is unconstitutionally cruel or unusual.
A review of the final two factors bolsters our conclusion. Gonzalez does not present a compelling intrajurisdictional comparison. He argues only that his punishment was tantamount to a term of life imprisonment without the possibility of parole, the same punishment imposed for first degree murder with special circumstances. We observe Gonzalez was convicted of six different sex acts, not one act of murder. A "single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies." (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Finally, Gonzalez offers no argument regarding an interjurisdictional comparison. We deem any such argument waived. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Gonzales has not demonstrated his sentence is unconstitutionally cruel and/or unusual. The fact Gonzalez finds himself faced with many, many years of incarceration before he is given the opportunity for parole is lamentable, but it does not present the "'exquisite rarity'" of a sentence so harsh as to offend fundamental notions of human dignity or shock the conscience. (See People v. Kinsey (1995) 40 Cal.App.4th 1621, 1631.)
DISPOSITION
Defendant's judgment of conviction is affirmed. We reverse and remand for resentencing in accordance with the views we have expressed. After resentencing, the trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.