Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC501183
Premo, J.
Defendant Arron Matthew Hernandez was convicted by a jury of two counts of lewd and lascivious acts against a nine-year-old girl (Pen. Code, § 288, subd. (a)) and one count of annoying or molesting her 10-year-old sister when convicted of a prior specified felony. (Id., § 647.6, subd. (c)(2).) The jury also heard evidence of uncharged lewd conduct against five girls who were four, six or seven, seven, and seven or eight years old when the acts happened between 13 and 20 years earlier. Defendant admitted five prior strike convictions and a prior “one strike” conviction. He received a total sentence of 175 years to life. On appeal, defendant challenges a jury instruction on the use to which the evidence of uncharged acts could be put, the sentence imposed, and trial counsel’s competence.
FACTS
Defendant, a prior sex offender, married N.C., the mother of the two complaining witnesses in this case, E.C. and M.C., and their sister, B.C., and lived with them and N.C.’s mother, L.G., in two locations in San Jose. At the first location, M. Court, defendant touched nine-year-old E.C. on her chest and on her vaginal area under her underpants. The touching of the chest was under her clothes and the first time occurred at night in her bedroom in the M. Court house while her sister M.C. was asleep and her mother was in her bedroom. E.C. was surprised and it made her “feel scared. . . . ’Cause I was just a little girl.” Defendant also touched her vaginal area under her underpants in that house at different times from when he touched her chest.
At the second location, R. Avenue, defendant again touched E.C.’s vaginal area and chest. After these occurrences, defendant told her not to tell anyone and she complied because she was scared her mother would be mad at her for not disclosing it earlier. The first person E.C. told about this was her adult sister L.M.
In the winter of 2003 or spring of 2004, defendant and 10-year-old M.C. were sitting next to each other on the couch watching a movie. Defendant asked her to sit on his lap and she did. She had sat on his lap before, “when I was, like, younger.” He tried to pull down the top M.C. was wearing to look down her shirt. He said, “[l]et me see.” She said “[n]o . . . ’Cause I wouldn’t let someone look down my shirt.” He responded, “[y]ou’re a very beautiful young lady.” This exchange made her feel “[w]eird” and she pulled away. She was wearing a bra at the time. Defendant did not ask her not to tell anybody.
E.C. and M.C. spent from mid-June to mid-August 2004 with their oldest sister L.M. and her family in Elk Grove. E.C. told L.M. and her husband B.L. that defendant had molested her, and M.C. said defendant had tried to look down her shirt. L.M. told her mother, N.C., to remove defendant from the house, which N.C. did. The marriage had lasted two to three years.
About eight months later, B.C. told L.M. that N.C. had taken the girls to defendant’s sister’s house to go swimming and defendant was there. L.M. called the police in April 2005. When the operator asked if E.C. was telling the truth, L.M. said she knew about defendant’s past, so she talked to E.C. to make sure. She occasionally asked all three girls if defendant touched them to make sure they were safe. They all said “no,” so she eventually stopped asking them. She found out about M.C. the same day she found out about E.C. M.C. told her that defendant asked to look inside her shirt and she just said “no” and got up and walked away.
San Jose Police Officers Bryan Jett and William Hoyt spoke to E.C. on several occasions. E.C. told Hoyt defendant touched her chest and then her vaginal area and “butt” over her clothes, but that “[a]fter he grabbed the butt, he began to rub her vagina area” also outside her clothes. E.C. told Jett it occurred around June 2004, a month before traveling to Sacramento for the summer.
Hoyt’s taped interviews with E.C. and M.C. were played to the jury and admitted into evidence. M.C.’s statements to the police remained consistent and she admitted she knew defendant had been in jail for similar conduct.
E.C. later told her mother that she had not told the truth and that nothing happened. She told the police defendant did not touch her. At trial, she testified the truth was that defendant had touched her, but she retracted the allegation because she was tired of missing school and talking about it.
There was also testimony about prior incidents. Three sisters, M.L., 25, J.T., 28, and J.D., 29, testified about prior incidents with defendant which occurred about 20 years earlier when he was their mother’s step-sister’s boyfriend. Defendant lived with them and sometimes babysat them. When M.L. was four years old and sitting on defendant’s lap at a drive-in movie, he touched her under her shirt and underwear and penetrated her vagina.
J.T.’s breasts were fondled and defendant’s finger entered her vagina when she was seven or eight years old and she and defendant were at a drive-in movie. J.D. was about six or seven years old when defendant touched her about 10 times, fondling her breasts and vagina and penetrating her vagina under and over her clothes. He told her it would hurt her parents if she said anything, and, “I know I’m your favorite uncle. Do you want me to be your uncle?” After about two years, J.D. told her aunt who told their mother. Then J.T. told their mother. Defendant pled no contest to lewd touching. (Pen. Code, § 288, subd. (a).)
Two more sisters, L.D., 21, and L.Y., 23, testified to lewd actions by defendant, their mother’s cousin’s husband, whom they called their uncle. When L.D. was seven years old, defendant put his hand down her pants and touched her vagina under her underwear while she pretended to sleep on her bed. Another time, while swimming at his house, he put his hand on her vagina under her swimsuit.
Sometime around 1991, when L.Y. was seven or eight years old, defendant touched her vaginal area under her clothes at a drive-in movie. That woke her up, but she pretended to be sleeping. Then she pretended to wake up and defendant pulled away. L.D. and L.Y. made their allegations when they learned defendant was in trouble in the case concerning J.T., J.D., and M.L.
In the instant case, defendant was charged with the three sexual offenses stated ante. In addition, the information alleged five strike-prior convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and a one-strike prior conviction. (Id., § 667.61, subds. (a), (d).) After defendant was convicted and sentenced as stated above, this appeal ensued.
ISSUES ON APPEAL
Defendant contends CALCRIM No. 1191 (authorizing the jury to conclude, if it found that uncharged offenses were proved by a preponderance of the evidence that defendant had a disposition or inclination to commit sexual offenses which made him likely to have committed the charged offenses) allowed the jury to convict him without proof beyond a reasonable doubt of every fact necessary to constitute the charged crime.
Defendant also claims that the sentence of 175 years to life violates the ban on cruel and unusual punishment and that if trial counsel’s failure to object to the sentence on those grounds waived the claim, counsel rendered ineffective assistance.
CALCRIM NO. 1191
Defendant asserts that the trial court erred in instructing with CALCRIM No. 1191 because the instruction did not explain to the jury the burden of proof for determining whether the defendant had a disposition to commit the offenses. The instruction allows the jury to consider evidence that defendant committed the crimes of lewd or lascivious acts on a child under 14 that were not charged in this case “only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offenses. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] If the People have not met this burden of proof, you must disregard this evidence entirely. [¶] If you decide that the defendant committed the uncharged offenses, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and that based on that decision, also conclude that the defendant was likely to commit and did commit the offenses charged here. If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of any or all of the offenses charged here. The People must still prove each element of every charge beyond a reasonable doubt.” (CALCRIM No. 1191.)
Defendant finds fault with CALCRIM No. 1191 for its failure to state the burden of proof the jury should use to determine whether a defendant had a disposition to commit the offenses. He posits a three step process “to conclude that [defendant] was guilty of the charged offenses based on evidence from the uncharged offenses. First, [the jury] must find by a preponderance of the evidence that [defendant] committed the uncharged offenses. Second, it must infer [defendant] had a disposition to commit sex crimes. Third, it must conclude beyond a reasonable doubt from the inference of disposition and from other evidence in the case that he was guilty of the charged offenses.”
Defendant states, “[t]he most reasonable interpretation of the instruction . . . was that . . . disposition needed to be proven merely by a preponderance of the evidence, since only ‘each element of every charge’ must be proven ‘beyond a reasonable doubt.’ . . . Since disposition was not an element, a rational juror would most likely conclude that step two (disposition) need be proven only by a preponderance of the evidence.” The instruction is wrong, according to defendant, “because evidence of uncharged sexual conduct is circumstantial evidence” from which the jury may infer guilt of the charged crimes. “While a preliminary fact may be proven by only a preponderance of evidence, each inference leading to a verdict of guilty must be proven beyond a reasonable doubt.” (Italics defendant’s.) Therefore, defendant concludes, the jury should have been instructed that evidence of uncharged sexual conduct had to be proven beyond a reasonable doubt.
“Inference” and “fact” need clarification here. “An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) An inference is the “act of passing from one judgment to another, or from a belief or cognition to a judgment.” (Webster’s New Internat. Dict. (2d ed. unabridged 1957) p. 1273 “inference.”) A “fact” is “[t]hat which has actual existence, whether subjectively or objectively considered; any event, mental or physical; an occurrence, quality, or relation, the reality of which is manifest in experience or may be inferred with certainty; more narrowly, an actual happening in time or space. . . . [¶] . . . [¶] . . . the actual occurrence or existence of which is to be determined by evidence.” (Id., p. 908, “fact.”) In California courts, the existence or nonexistence of facts is proved by “ ‘[e]vidence’ [which] means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140.)
The deduction of fact that CALCRIM No. 1191 allows to be logically and reasonably drawn from the proven fact of other similar acts is that defendant had a character trait that predisposed him to commit crimes involving sexual conduct with young girls. “[C]ase law clearly shows that evidence that [a defendant] committed other sex offenses is at least circumstantially relevant to the issue of his disposition or propensity to commit these offenses.” (People v. Falsetta (1999) 21 Cal.4th 903, 915.) It has also been stated that “propensity evidence is ‘circumstantial evidence’ the defendant committed the charged offense” (ibid., citing People v. Karis (1988) 46 Cal.3d 612, 636). As defendant recognizes, propensity or disposition to commit a crime is not an element of the offense. (People v. James (2000) 81 Cal.App.4th 1343, 1354.)
Defendant cites People v. Gould (1960) 54 Cal.2d 621, 629, for the statement, “ ‘each fact which is essential to complete a chain of circumstances that will establish the defendant’s guilt’ must be proved beyond a reasonable doubt.” Nevertheless, “[i]t is not the law . . . that each fact in a chain of circumstances that will establish a defendant’s guilt must be proved beyond a reasonable doubt. [Citations.] The doctrine of reasonable doubt applies to proof of guilt and not to the establishment of each incident or event inculpating the defendant. [Citation.] A reasonable doubt that would warrant acquittal is one that results or arises from a ‘consideration of all the evidence’ in the case.” (People v. Klinkenberg (1949) 90 Cal.App.2d 608, 632.)
Overruled on other grounds in People v. Cuevas (1995) 12 Cal.4th 252.
Klinkenberg is consistent with Evidence Code section 115 which states that “[t]he burden of proof may require a party to raise a reasonable doubt concerning the existence or nonexistence of a fact or that he establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt.” In Evidence Code section 1108, the Legislature provided that other crimes be proved by a preponderance of the evidence. Therefore, although in a criminal case, the state has the burden of proving the defendant guilty beyond a reasonable doubt (Pen. Code, § 1096; Evid. Code, § 501), that burden of proof was not assigned by Evidence Code sections 1108 and 1109 (involving domestic violence) to a fact establishing a propensity, which is not an element of the crimes. The Legislature allowed those facts to be proven by a preponderance of the evidence. Juries hearing propensity evidence are still required to find that each element of each crime is proven beyond a reasonable doubt.
Consequently, defendant’s jury did not err if, pursuant to CALCRIM No. 1191, in the course of deciding whether defendant was guilty beyond a reasonable doubt, it decided it was “likely” defendant committed the instant offenses based in part on the propensity shown by past offenses proven by a preponderance of the evidence.
Defendant also challenges the court’s refusal to substitute CALJIC No. 2.50.01, CALCRIM No. 1191’s predecessor, for CALCRIM No. 1191. The court stated the gravamen of CALJIC No. 2.50.01, “was covered by . . . 1191.” Defendant preferred the language of CALJIC No. 2.50.01 because CALCRIM No. 1191 “left the jury with the erroneous direction that it could convict [defendant] if it inferred he had an [sic] disposition to commit the crimes by a preponderance of the evidence instead of beyond a reasonable doubt.” In light of our discussion ante, this contention needs no further discussion.
We also reject defendant’s final objection to CALCRIM No. 1191. He states that the trial court additionally erred in refusing his request to instruct the jury on circumstantial evidence generally because, the court stated, “all the facts relating to the conduct with the exception of intent were being proved by direct evidence.” Defendant dismisses the adequacy of CALCRIM No. 225, circumstantial evidence of mental state, in this case because the instruction applied only to deciding mens rea. Defendant states, “[b]y its own terms, CALCRIM No. 225 did not apply to the evidence discussed in CALCRIM No. 1191. Propensity evidence was also used for inferences other than mental state, such as the complaining witnesses’ credibility and the likelihood he committed the alleged acts.
At trial, the court defined direct and circumstantial evidence (CALCRIM No. 223) and instructed on circumstantial evidence as proof of mental state (CALCRIM No. 225). The latter instruction contains the caveat that “[b]efore you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] . . . [and] that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state.” (CALCRIM No. 225.) The instruction defendant requested, CALCRIM No. 224, which speaks of the sufficiency of circumstantial element to prove a fact necessary for a finding of guilt, was rejected by the court because the only element in the case that was proved by circumstantial evidence was intent.
CALCRIM No. 224 states, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The trial court was correct. To convict defendant of violating Penal Code section 288, subdivision (a), the jury needed to find beyond a reasonable doubt that defendant “1. . . . willfully touched any part of a child’s body either on the bare skin or through the clothing; [¶] 2. . . . committed the act with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶] AND [sic] [¶] 3. The child was under the age of 14 years at the time of the act.” The instruction also stated that the touching need not be done in a lewd or sexual manner and that the person acts willfully when he or she does it willingly or on purpose. Actual arousal, etc., of the perpetrator or the child is not required. Finally, the child’s consent is not a defense. (CALCRIM No. 1110.)
To convict defendant of annoying or molesting a child, the prosecution must prove beyond a reasonable doubt “1. The defendant engaged in conduct directed at a child; [¶] 2. A normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant’s conduct; [¶] 3. The defendant’s conduct was motivated by an unnatural or abnormal sexual interest in the child; [¶] AND [sic] [¶] 4. The child was under the age of 18 years at the time of the conduct.” The instruction also stated that it was not necessary for the child to be actually irritated or disturbed or for the child actually to be touched. Finally, the child’s consent is not a defense. (CALCRIM No. 1122.)
The evidence supporting the elements of the crimes except intent was direct evidence. The children testified to the touching or attempted touching by defendant, when and where it happened, and other facts describing the events (for example, that it was nighttime, M.C. was in the bedroom asleep, etc.). They also testified to their ages. L.M., her husband B.L., and Officers Jett and Hoyt also testified to E.C.’s and M.C.’s prior statements.
“Criminal intent,” however, “will rarely be shown by direct evidence and must frequently be inferred from a defendant’s conduct. ‘The criminal intent required to prove a violation of [Penal Code] section 288 is “the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires” of perpetrator or victim. The intent with which the act is done is manifested by the circumstances under which the act is committed. [Citation.] Each case involving a lewd act must be decided on its own facts.’ [Citations.] Intent may properly be inferred from evidence of other specific acts of a similar nature.” (People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380.) “Other relevant factors include the defendant’s extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim’s cooperation or to avoid detection.” (People v. Martinez (1995) 11 Cal.4th 434, 445.)
In addition to the propensity evidence, defendant’s intent towards E.C. was shown by inferences drawn from his telling her not to tell anyone, by the parts of her body that he chose to touch, the fact that he touched her underneath her underwear, and by the fact that he touched her multiple times and in a secretive manner. The effect of these acts on E.C. (she was “surprised” and “scared”) is not evidence of defendant’s purpose (which was not to surprise and scare her), but it is evidence of the out-of-the-ordinary nature of the acts from which defendant’s lustful intent may be inferred. We may reasonably infer from nine-year-old E.C.’s age, demeanor, sense of self, poise, recollection of the incidents, etc., that her development included stages of growing up where she was taught how to clean herself when she relieved herself or how to wash and dry herself when she learned how to take a bath or shower by herself. Defendant’s acts were clearly outside the time, place, or context of bodily care or assistance. E.C.’s surprise and fright was an appropriate response to the unexpected invasion of her dignity and body.
Furthermore, evidence that defendant was motivated by an unnatural or abnormal sexual interest in 10-year-old M.C. was shown by the propensity evidence, plus by his inviting her onto his lap when he had not done it for a long time, pulling out her shirt and asking to look down it, and telling her (a 10-year-old) that she was “a very beautiful young lady.” The whole incident understandably made M.C. feel “weird” which, following the reasoning stated in relation to E.C.’s reactions, supported an inference of defendant’s criminal motivation. For both crimes, the trial court’s reading of CALCRIM No. 225 in addition to the general instruction CALCRIM No. 223 covered the necessary concepts in regard to the use of circumstantial evidence in an appropriate and not misleading manner.
CRUEL AND UNUSUAL PUNISHMENT
Next, defendant questions society’s purpose for his 175-year-to-life sentence. “Does society believe a sentence of 175 years to life means something? If so, the sentence is excessive because it cannot accomplish what it is meant to achieve. Or does society think it is a meaningless number? If this is so, then [defendant] is entitled to receive a meaningful sentence. Either way [defendant] is entitled to a new sentencing hearing where a rational sentence, proportionate to his actions, can be imposed.”
Insofar as “society” ponders such questions, society, through its duly elected or appointed judicial officers, has upheld two 25-year-to-life sentences for stealing $150 worth of videotapes (Lockyer v. Andrade (2003) 538 U.S. 63, 78), a 175-year sentence for child molesting (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383-1384 (Byrd) [175-year sentence expresses society’s collective disgust by punishing recidivist child molesters harshly, acts as a strong psychological deterrent to future offenders, and does not violate the Eighth Amendment of the state Constitution]), and 25-years-to-life for $1200 worth of golf clubs (Ewing v. California (2003) 538 U.S. 11).
The People state that defendant waived the cruel and unusual punishment issue by failing to raise it in the sentencing court. (People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.) However, this rule is relaxed where only a question of law is presented. (Cf. People v. Mills (1978) 81 Cal.App.3d 171, 175-176.)
The question of incompetence of counsel does not, therefore, arise.
The Eighth Amendment of the United States Constitution prohibits cruel and unusual punishments described as “unnecessary and wanton infliction of pain” or punishment “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) Our state Constitution similarly provides that neither cruel or unusual punishment should be inflicted. (Cal. Const. art. I, § 17.) However, “[i]f increased penalties do not deter the repeat offender, then society is warranted in segregating that person for an extended period of time.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1512 (Martinez).)
In California, “courts should (1) consider ‘the nature of the offense and/or the offender’ [citation], (2) compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses [citation] and (3) compare the punishment to other punishments imposed by other jurisdictions for the same offense.” (Martinez, supra, 71 Cal.App.4th at p. 1510.)
Here, the nature of the offense was sexual molestation of two children for whom defendant stood in the position of a stepfather. Defendant points out that these molestations were not violent attacks and he has inflicted no physical harm. Defendant does not hazard a guess that he inflicted no psychological and mental harm.
Next, defendant stresses the fact that this sentence cannot be served within his lifetime. Defendant states that “if he had violently raped someone, his sentence would have been the same. If he were guilty instead of two counts of second degree murder, his sentence would have been shorter.” Defendant goes back to 1975 to find excessive sentences. In In re Wells (1975) 46 Cal.App.3d 592, the defendant offered a ride to two girls under the age of 10 who were trick-or-treating on Halloween in 1960. The defendant drove them to a dark street and asked to see their panties. They ran from the car crying. (Id. at p. 595.) Defendant, who had a prior conviction for lewd conduct with a child (Pen. Code, § 288, subd. (a)), pled guilty to annoying a child (former Penal Code section 647a, now section 647.6). The Adult Authority fixed his sentence at 20 years and paroled him after 14 years. The court of appeal recognized the potential harm child molesters could inflict on children (In re Wells, supra, 46 Cal.App.3d at pp. 598-599), but found the penalty excessive because the defendant inflicted no physical harm and was punished more harshly that those who did. (Id. at pp. 600-601.)
(Fn. in original.) “15 year[s] to life (Pen. Code, § 190, subd. (a)) tripled under the Three Strikes law would be ‘only’ 45 years to life for each count.”
The fact that defendant may be correct that he will die in prison before being eligible for parole does not alter the fact that society may decide to express its collective disgust by punishing recidivist child molesters harshly without violating the Eighth Amendment or the state Constitution. (See Byrd, supra, 89 Cal.App.4th at pp. 1383-1384.)
Defendant cites the late Justice Stanley Mosk’s statement in People v. Deloza (1998) 18 Cal.4th 585, 601 (Deloza), his concurring opinion that “[r]egrettably, multicentury sentences are becoming commonplace and generally remain unchallenged. Certainly there is understandable revulsion directed toward a defendant who has committed numerous counts of illegal conduct. Not infrequently the charges are sexual in nature; that conduct appears to draw the monstrous sentences.” Nevertheless, as the appellate court noted in Byrd, supra, 89 Cal.App.4th at p. 1383, “ ‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]’ (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see People v. Ceballos (1974) 12 Cal.3d 470, 483.) Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion, it has no precedential value.” Individual justices on other courts and ordinary human beings may agree with Justice Mosk’s concurring opinion in Deloza, supra, 18 Cal.4th at pages 600 through 601, where he explained that “ ‘[a] sentence of 111 years in prison is impossible for a human being to serve,” ’ is “ ‘gratuitously extreme and demeans the government inflicting it as well as the individual on whom it is inflicted . . .; makes no measurable contribution to acceptable goals of punishment’ ” and therefore violates both the federal and state Constitutions. Nevertheless, these “monstrous sentences” have been upheld by courts superior to us and we may not hold otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Under Byrd and the state and federal Constitutions, defendant’s punishment is not cruel or unusual. Defendant was 44 years old at trial. He has been sentenced to prison previously, and has not been amenable to rehabilitation. Defendant has sexually abused at least eight children, five of them between the ages of 13 and 20 years old before his trial. Defendant’s longterm predatoriness establishes that even with increasing age and supposed wisdom, he is unable to conform his conduct to the requirements of the law. He is a danger to society and not only deserves imprisonment but is appropriately removed from access to other vulnerable victims. Defendant properly deserves harsher punishment than a first-time offender. Although the touching defendant visited on the two victims in this case was not the most egregious case of child abuse seen in the courts, lewd and lascivious conduct is a serious or violent felony and repeated offenders are properly punished more than first-time offenders. Defendant has five strike-prior convictions which require increased punishment. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 667.61.) The sentence was proper. Defense counsel was not ineffective for failing to interpose an objection to defendant’s sentence as cruel and unusual.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.