Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, No. 2005025653, John Dobroth, 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, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M.Roadarmel, Jr., Supervising Deputy Attorney General, Deborah J.Chuang, Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
YEGAN, Acting P.J.
Phillip Ray Howell appeals from the judgment entered following his conviction by a jury on five counts (counts 2, 3, 4, 5, and 8) of continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5.) The trial court imposed five consecutive 12-year prison terms for a total sentence of 60 years.
Appellant contends that the trial court erred in (1) admitting expert testimony about Child Sexual Abuse Accommodation Syndrome, (2) admitting evidence of his uncharged sexual misconduct, (3) excluding testimony of two witnesses, and (4) refusing to instruct the jury on the applicable statute of limitations. In addition, appellant contends that his 60-year prison sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. We affirm.
Facts
T. H. (Count 2)
T.H. is appellant's daughter. She was born in 1990. Appellant started molesting her when she was six years old. He pulled down her underwear and rubbed his erect penis against her buttocks. Appellant continued to engage in this conduct about three times a week until T.H. was 15 years old. He would ejaculate on her back.
From the time that T.H. was eight years old, appellant put his fingers inside her vagina about two or three times a week. When T.H. was about eight years old, he kissed her in the vaginal area and put his penis inside her vagina. When T.H. was between the ages of 10 and 15, appellant would occasionally grab her hand and put it on his penis. When T.H. was 10 or 11 years old, appellant tried to force her to orally copulate him. T.H. turned her head sideways to prevent his penis from entering her mouth.
In 1998 and 2004, T.H. told the police that appellant had not molested her. She was too scared to tell the truth. T.H. did not report appellant's molestations to the police until after he had raped her in 2005. She subsequently told a social worker that she wanted to drop the charges.
The rape was charged in count 1 of the information. The jury was unable to reach a verdict on this charge, which was dismissed on respondent's motion after the trial court had declared a mistrial.
Samantha K. (Count 3)
Samantha K. was born in 1990. T.H. was her best friend. When Samantha K. was eight or nine years old, she spent a lot of time with T.H. at appellant's apartment. Sometimes Samantha K. would sleep over there. On approximately five occasions when appellant was tucking Samantha K. into bed, he rubbed his hand against her vaginal area. When Samantha K. was walking in the hallway by the kitchen, on more than five occasions appellant slapped her on the buttocks. In the living room appellant tickled Samantha K. about five times. During the tickling, he grabbed her breasts and vaginal area.
Brandi R. (Count 4)
Brandi R. was born in 1989. She was friendly with T.H. and often went to appellant's apartment to be with her. On more than five occasions at appellant's apartment when Brandi R. was 13 or 14 years old, appellant tickled her in "the crease of [her] thigh by [her] vaginal area."
Amanda C. (Count 5)
Amanda C. was born in 1985. Appellant is her cousin. When she was about seven years old, she was sleeping on a couch at appellant's house. Appellant awakened her by pulling her underpants down to her knees. Appellant rubbed her vagina with his fingers and then licked her vagina. Amanda C. did not tell anyone about the incident because she was scared. On another occasion when Amanda C. was no older than 11 or 12, appellant rubbed her vagina when she was in the kitchen of his house.
Appellant took Amanda C. for rides on his motorcycle. On two or three occasions when Amanda C. was seated behind him, appellant reached back and grabbed or rubbed her vaginal area. Amanda C. told no one about what he had done because she was scared. The motorcycle incidents occurred when Amanda C. was no older than 11 or 12.
Amanda C. reported the molestations to the police in November 2005.
Haley B. (Count 8)
Haley B. was born in 1992. In 1997 her mother moved into appellant's apartment. Appellant and mother at first were just good friends, but they soon became romantically involved.
When Haley B. was in second grade, she and appellant were in his apartment when he put his hands down her pants and touched her vagina. After this incident, appellant touched Haley B.'s vagina about every other day.
One day when Haley B. was taking a shower in appellant's apartment, he walked into the bathroom and told her that she was not washing herself properly. Appellant washed Haley B.'s vagina with a washcloth.
On another occasion when Haley B. was in third grade, she had just finished taking a shower and had a towel wrapped around her. Appellant picked her up, carried her into his bedroom, and put her down on the bed. He then opened the towel and licked her vagina. Haley B. tried to get up from the bed, but appellant pushed her back down.
When Haley B. was in third grade, "every other couple of days" appellant would put his hand down her pants and touch her vaginal area "skin-to-skin." The last time that appellant touched Haley B. in a sexual way was when she was in fifth grade.
Haley B. did not tell anyone about these incidents because she was scared. However, in fourth grade she complained to her father that appellant was touching her "private area."
Child Sexual Abuse Accommodation Syndrome
The first witness called by respondent was Dr. Veronica Thomas, a forensic psychologist with expertise in Child Sexual Abuse Accommodation Syndrome (CSAAS). Appellant contends that the trial court committed reversible error by allowing Dr. Thomas to testify about CSAAS.
Dr. Thomas testified as follows: CSAAS "is referred to as a common language for therapists working with children who have been molested by somebody that they know in the context of a relationship." These children respond differently from children who have been molested by a stranger. CSAAS is characterized by five elements: (1) secrecy, which permits the sexual abuse to begin and continue; (2) feelings of helplessness and sometimes depression; (3) entrapment and accommodation, where the child copes with the abuse by rationalizing it or pretending that it is not occurring; (4) eventual disclosure of the abuse; and (5) recantation of the disclosure because of feelings of guilt. These five elements, however, are not always present. "Every child who's been molested by somebody they know . . . is going to respond uniquely."
CSAAS challenges various "myths" regarding child sexual abuse, one of which is "that children always tell. [¶] . . . In fact most never tell at all" when they have been molested by someone they know and care about. If they do tell, they "frequently give discrepant reports of what . . . happened to them." Indeed, inconsistent statements about the molestation is "one of the primary elements of [CSAAS]." "[T]here may be a great deal of emotional confusion that interferes with the child's ability to articulate what may or may not be happening to him or her." Some children "may be so emotionally traumatized by their experience [that] they're unable to recall certain events at all. [¶] So [CSAAS] is important because it helps people who treat these children to understand that there are complex psychological factors involved in how a child makes sense of being sexually molested by somebody they know, and frequently have great affection for."
Appellant argues that the CSAAS evidence "did not meet 'Kelly-Frye' requirements for admissibility of scientific evidence." " '[T]he Kelly-Frye rule tests the fundamental validity of a new scientific methodology . . . .' [¶] . . . [U]nder the Kelly -Frye rule, the proponent of evidence derived from a new scientific methodology must satisfy three prongs, by showing, first, that the reliability of the new technique has gained general acceptance in the relevant scientific community, second, that the expert testifying to that effect is qualified to do so, and, third, that ' "correct scientific procedures were used in the particular case." ' " (People v. Roybal (1998) 19 Cal.4th 481, 505.)
People v. Kelly (1976) 17 Cal.3d 24; Frye v. United States (D.C.Cir.1923) 293 F. 1013.
The Kelly -Frye rule "preclude[s] the admission of CSAAS evidence to prove that a child has been abused because the syndrome was developed not to prove abuse but to assist in understanding and treating abused children. However, . . . such evidence may be admitted to dispel common misconceptions the jury may hold as to how such children react to abuse. [Citation.]" (People v. Sanchez (1989) 208 Cal.App.3d 721, 734-735; accord, People v. Bowker (1988) 203 Cal.App.3d 385, 390-392.) The Kelly-Frye rule is inapplicable here because CSAAS evidence was admitted not to prove that the children had been sexually abused, but "for the limited purpose of disabusing [the] jury of misconceptions it might hold about how a child reacts to a molestation." (People v. Wells (2004) 118 Cal.App.4th 179, 188.)
Appellant contends: "There were no 'misconceptions' of which the jury . . . needed to be 'disabused.' For this reason, the CSAAS [evidence] was entirely irrelevant and should not have been admitted." We disagree. Dr. Thomas's testimony helped explain why the children delayed reporting the sexual abuse, why in 1998 and 2004 T.H. told the police that appellant had not molested her, and why in 2005 T.H. wanted to drop the charges.
"Identifying a . . . 'misconception' has not been interpreted as requiring the prosecution to expressly state on the record the evidence which is inconsistent with the finding of molestation. It is sufficient if the victim's credibility is placed in issue due to the paradoxical behavior, including a delay in reporting a molestation. [Citations.]" (People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745.) Here the children's credibility was placed in issue as early as opening statement, when appellant's counsel referred to them as "liars."
We reject appellant's contention that the trial court abused its discretion by failing to exclude the CSAAS evidence because its prejudicial impact substantially outweighed its probative value. (Evid. Code, § 352.) The probative value of the evidence was significant, since it helped explain the children's reactions to appellant's sexual abuse. Any prejudicial impact was minimized by the giving of CALCRIM No. 1193, which instructed the jury that they "may consider [the CSAAS] evidence only in deciding whether or not [the children's] conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of [their] testimony." The jury was further instructed that "Dr. Thomas's testimony about [CSAAS] is not evidence that the defendant committed any of the crimes charged against him." "[T]he jury is presumed to follow the court's instructions [citation]." (People v. Houston (2005) 130 Cal.App.4th 279, 308.)
Evidence of Uncharged Sexual Misconduct
Appellant contends that the trial court violated his right to due process by admitting evidence of uncharged sexual misconduct committed by him against Karina A. and Venus D. Karina A. was born in 1993. She testified as follows: Appellant used to be her mother's "best friend." When Karina A. was about five years old, appellant pulled down her pants and underwear and touched her vaginal area. The incident occurred in the bedroom of appellant's apartment.
Venus D. was born in April 1976. She was 30 years old at the time of trial. She is approximately nine years younger than appellant, who is her cousin. Appellant was born in March 1967.
Venus D. testified as follows: When she was about four years old, she was taking a bath at appellant's home. The bath was enclosed by sliding glass doors. Appellant entered the bathroom and rubbed his penis against the glass. Venus D. screamed. On another occasion at appellant's home when Venus D. was about four years old, appellant wrapped her in a blanket while pretending to be a vampire and fondled her vagina "skin-to-skin." Appellant repeatedly engaged in this conduct until Venus D. was in second grade. One night when Venus D. was about six years old, she slept over at appellant's home. She was awakened when someone put the blankets over her face and pulled down her underwear. Venus D. kicked until she "finally got free." She then saw appellant "running out of the room naked."
Appellant contends that the evidence of uncharged sexual misconduct "should not have been admitted under either Evidence Code section 1101 or 1108." Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Evidence Code section 1101, subdivision (a), provides that "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
"By reason of section 1108, trial courts may no longer deem 'propensity' evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense. [Citations.]" (People v. Falsetta (1999) 21 Cal.4th 903, 916-917.)
A trial court's exercise of discretion under Evidence Code section 352 " 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) The trial court here did not abuse its discretion in admitting evidence of appellant's uncharged sexual misconduct under Evidence Code section 1108. The section 352 factors weighed in favor of admission. The prior uncharged acts committed against Karina A. and Venus D. were highly relevant in countering appellant's claim that the victims of the charged offenses had lied. The uncharged molestations were similar to the charged ones in that they were committed at appellant's residence against children with whom he had a personal relationship. There was little danger of undue prejudice because the prior uncharged acts were less inflammatory than the charged molestations. There was no undue consumption of time. The transcript of the trial comprises approximately 2,000 pages. The complete testimony of Karina A. and Venus D. comprised 37 pages and 57 pages, respectively. Furthermore, there was no substantial danger of confusing the issues or misleading the jury. Pursuant to CALCRIM No. 1191, the jury was instructed on the consideration of prior uncharged sexual offenses to show a defendant's propensity to commit sexual offenses.
We recognize that appellant committed the molestations of Venus D. when he was between the ages of approximately 13 and 16, many years before he started sexually abusing the other children. But this time differential does not render the molestations too remote. In People v. Waples (2000) 79 Cal.App.4th 1389, 1395, the court concluded that prior molestations were not too remote even though they had occurred 18 to 25 years before the charged offenses. In any event, the Waples court reasoned that "the similarities between the prior and current acts . . . balanced out the remoteness." (Ibid.) The same reasoning applies here.
We also recognize that the prior uncharged sexual molestations did not result in convictions. This factor weighed against admission. "[T]he prejudicial impact of the evidence is reduced if the uncharged offenses resulted in actual convictions and a prison term, ensuring that the jury would not be tempted to convict the defendant simply to punish him for the other offenses, and that the jury's attention would not be diverted by having to make a separate determination whether defendant committed the other offenses. [Citation.]" (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The trial court, however, did not abuse its discretion in impliedly ruling that the absence of convictions did not require exclusion of this evidence.
Appellant contends that Evidence Code section 1108 violates his federal and state constitutional rights to due process and equal protection. (AOB 50) These constitutional claims are without merit. In People v. Falsetta, supra, 21 Cal.4th 903, our Supreme Court rejected a due process challenge to Evidence Code section 1108. (See also People v. Reliford, supra, 29 Cal.4th at p. 1009.) In People v. Fitch (1997) 55 Cal.App.4th 172, 184-185, the Court of Appeal upheld section 1108 against an equal protection challenge. (See also People v. Jennings (2000) 81 Cal.App.4th 1301, 1311-1312.)
Since the trial court did not abuse its discretion in admitting evidence of the uncharged sexual misconduct under Evidence Code section 1108, we need not consider whether the evidence was also admissible under Evidence Code section 1101.
Exclusion of Testimony Eleanor Carranza
Appellant contends that the trial court erroneously excluded the proffered testimony of Eleanor Carranza that, when she was a child, she was often alone with appellant but had never seen him engage in sexually inappropriate conduct. Appellant's trial counsel maintained that Carranza's testimony was admissible "to rebut the People's theory of the [Evidence Code section] 1108 coming in, the 1108 witnesses coming in." In addition, counsel alleged that the testimony was admissible to rebut the People's argument that appellant had engaged in a common plan or scheme to molest children.
In excluding Carranza's testimony, the trial court relied on Evidence Code section 352. The court reasoned that "it would be an unreasonable burden" to conduct Evidence Code section "402 hearings for every child that [appellant] had ever contacted to see whether there was a reasonable probability the circumstances were similar, . . . and [whether] the girl was deemed by him to be vulnerable or not vulnerable."
During a conference on jury instructions after appellant had rested, counsel renewed her request to introduce Carranza's testimony based on an authority not previously cited: People v. Callahan (1999) 74 Cal.App.4th 356. The trial court noted that it had previously excluded the testimony because "if everybody that was around [appellant] that didn't get molested were to testify, we'd be here forever under [Evidence Code section] 352." The court decided that its original ruling was "appropriate," and it therefore denied appellant's request to reopen for the purpose of presenting Carranza's testimony.
Pursuant to Callahan, the trial court abused its discretion in excluding Carranza's testimony. In Callahan the prosecution presented evidence of the defendant's commission of a prior uncharged sexual offense pursuant to Evidence Code section 1108. The Callahan court held that the defendant was entitled to rebut the propensity evidence by introducing evidence of specific incidents of good behavior committed under circumstances similar to those surrounding the charged sexual offense. Thus, the Callahan court concluded that the trial court had erred in refusing to allow the defendant's niece to testify that the defendant had not touched her in an inappropriate manner when she was a child. (People v. Callahan, supra, 74 Cal.App.4th at pp. 374-375, 379.)
We reject the trial court's rationale that allowing Carranza to testify would have imposed an unreasonable burden on the court by opening the door to testimony by "every child that [appellant] had ever contacted." Appellant sought to introduce the testimony of only one witness on this issue.
Respondent contends that the trial court did not abuse its discretion because, prior to resting her case, appellant's counsel "never argued that Carranza's testimony was . . . admissible to rebut the People's theory under Evidence Code section 1108." We disagree. Before resting, counsel told the court that Carranza's testimony was admissible "to rebut the People's theory of the [Evidence Code section] 1108 coming in, the 1108 witnesses coming in." Respondent also contends that Callahan was "wrongly decided" and requests that we hold to the contrary. We decline to do so.
The trial court's exclusion of Carranza's testimony is not reversible error. It is not reasonably probable that, in the absence of the error, a result more favorable to appellant would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against appellant was overwhelming. No reasonable juror would have voted to acquit merely because appellant had not molested every child who had been left alone with him.
Appellant argues that the trial court's error should be reviewed not under the Watson standard of prejudice, but under the more stringent "harmless-beyond-a reasonable-doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]. (AOB 69) This argument is without merit because the exclusion of Carranza's testimony did not rise to the level of federal constitutional error. (See People v. Fudge (1994) 7 Cal.4th 1075, 1103 [Watson standard of review applicable where trial court excluded defense evidence "on a minor or subsidiary point"].) In any event, reversal would not be warranted even under the stricter Chapman standard.
J.H.
J.H. is appellant's son. The trial court sustained a relevance objection to defense counsel's question whether J.H. had "an opinion about whether or not [Samantha K. is] a truthful person." Appellant contends that the trial court's ruling constituted reversible error.
Respondent concedes that "[o]pinion testimony of a witness's character for honesty is admissible to attack the witness's credibility." But respondent argues that any error in excluding J.H.'s opinion on Samantha K.'s veracity was harmless. We agree. Appellant made no offer of proof as to what J.H.'s opinion would have been. For all we know, he may have not had an opinion on this issue. J.H. testified that he could not remember whether Samantha K. had ever lied to him. "[E]ven where the question is relevant on its face, the appellate court must know the 'substance' or content of the answer in order to assess prejudice. [Citation.] This requirement is met only where the wording or context of the question makes the expected answer clear, or where the proponent of the evidence makes an offer of proof. [Citations.]" (People v. Whitt (1990) 51 Cal.3d 620, 648.)
Instruction on Statute of Limitations
Count 5 charged appellant with committing the crime of continuous sexual abuse (Pen. Code, § 288.5) against Amanda C. between May 24, 1991 and April 30, 1994. Appellant alleges: "[T]he applicable statute of limitations for Count 5 is set forth in Penal Code section 803, subdivision (f), which requires . . . that there be evidence of 'substantial sexual conduct' as well as 'independent evidence that corroborates the victim's allegations.' The trial court's refusal to instruct the jury in this regard requires reversal of Count 5." Respondent, on the other hand, argues that the applicable statute of limitations is section 801.1, subdivision (a), which provides that the prosecution of a violation of section 288.5 "that is alleged to have been committed when the victim was under the age of 18 years, may be commenced any time prior to the victim's 28th birthday."
All further statutory references are to the Penal Code.
Section 803, subdivision (f)(1)(B) and (C), provides in relevant part that "a criminal complaint may be filed within one year of the date of a report to a California law enforcement agency by a person of any age alleging that he or she, while under the age of 18 years, was the victim" of a violation of section 288.5 if the crime "involved substantial sexual conduct" and "[t]here is independent evidence that corroborates the victim's allegation."
We need not determine whether the applicable statute of limitations is section 803, subdivision (f), or section 801.1, subdivision (a). Contrary to appellant's contention, the trial court did not refuse to give an instruction pursuant to section 803, subdivision (f). It was never asked to so instruct the jury. The trial court denied appellant's request to instruct the jury pursuant to CALCRIM No. 3410, which has nothing to do with section 803, subdivision (f). (8RT 2029-2031; 2CT 469) CALCRIM No. 3410 provides in relevant part: "A defendant may not be convicted of _________ <insert crime[s]> unless the prosecution began within _______ years of the date the crime[s] ((was/were) committed . . .). The present prosecution began on ________ <insert date>." (AOB 70) CALCRIM No. 3410 is clearly inapplicable here because the relevant statute of limitations is not section 800, which provides that an offense punishable by imprisonment for eight years or more shall be commenced within six years after its commission.
Appellant does not contend that the trial court was required to instruct sua sponte pursuant to section 803, subdivision (f), nor does he cite any authority to this effect. His argument is based on the trial court's refusal to so instruct. Since such a refusal never occurred, the trial court did not err.
Even if the trial court had erred by not instructing pursuant to section 803, subdivision (f), the error would not be reversible. We would apply the prejudice standard of People v. Watson, supra, 46 Cal.2d at p. 836. (People v. Thomas (2007) 146 Cal.App.4th 1278, 1289-1290.) We reject appellant's contention that the error would be prejudicial because of a lack of independent evidence corroborating Amanda C.'s accusations. "The critical corroboration is the evidence that [appellant] committed sexual offenses against the . . . other victims." (Id., at p. 1290.) "Evidence of other sexual offenses committed by a defendant is uniquely probative to the section 803, subdivision (g) [now subdivision (f)] corroboration determination. [Citation.]" (Ibid.) Thus, it is not reasonably probable that the outcome would have been more favorable to appellant if the jury had been instructed pursuant to section 803, subdivision (f).
Cruel and Unusual Punishment
Appellant contends that his 60-year prison sentence constitutes cruel and unusual punishment in violation of the federal and state constitutions. (AOB 75-79) Appellant waived the issue by failing to raise it in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27; People v. Ross (1994) 28 Cal.App.4th 1151, 1157, fn. 8.)
In any event, appellant's contention is without merit. "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.)
Appellant's 60-year prison sentence does not shock the conscience or offend fundamental notions of human dignity. He committed multiple sexual offenses against multiple child victims. "It was [appellant's] conduct, not his sentence, that was cruel and unusual." (People v. Wallace (1993) 14 Cal.App.4th 651, 666.) In Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d 836], the United States Supreme Court concluded that a term of life without the possibility of parole for possessing more than 650 grams of cocaine did not constitute cruel and unusual punishment. It follows that, in view of appellant's far more serious sexual crimes against children, his sentence passes constitutional muster "Children are a class of victims who require paramount protection." (People v. Tate (1985) 164 Cal.App.3d 133, 139; see also People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531-532 [consecutive prison terms totaling 129 years for multiple sexual crimes against a single child victim does not constitute cruel or unusual punishment].)
Disposition
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.