People v. Hughes

Full title: THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY W. HUGHES, Defendant and…

Court: Court of Appeals of California, Sixth Appellate District.

Date published: Jul 11, 2003

No. H022186 (Cal. Ct. App. Jul. 11, 2003)

Opinion

H022186.

7-11-2003

THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY W. HUGHES, Defendant and Appellant.

Rushing

Defendant Timothy Wayne Hughes observed three girls under the age of 14 shoplifting from a drugstore. He followed them home, told them he was a probation officer, and told them that they had to obey his rules or they would go to jail. Over a period of three months, he took the girls to his home and locations outside his home. He conducted phony physical examinations on them during which he had them undress, touched them inappropriately, took sexually explicit photographs of them, and caused objects to be inserted into the vaginas of two of the girls.

A jury convicted defendant of 12 counts of committing lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (b)),¹ 4

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

counts of rape with a foreign object (§ 289, subd. (a)), 19 counts of kidnapping (§ 207, subd. (a)), and 1 count of misdemeanor possession of child pornography (§ 311.11, subd. (a)). The jury found true enhancement allegations on various counts for multiple victims (§ 667.61, subd. (e)(5)), kidnapping (§ 667.61, subd. (e)(1)), aggravated kidnapping (§ 667.61, subd. (d)(2)), impersonation of a police officer (§ 667.17), and kidnapping of a person under the age of 14 for the purposes of committing a sexual offense (§ 667.8, subd. (b)). The jury also found true numerous probation ineligibility allegations (§§ 1203.066, subds. (a)(3), (6) & (7)).

Defendant was sentenced to a total term of 268 years eight months to life in prison, consisting of: (1) three consecutive 15 years to life terms and eight consecutive 25 years to life terms for the forcible lewd act and rape with a foreign object counts, which equal 245 years to life; (2) seven consecutive determinate terms of 32 months each (one-third of the middle term) on the kidnapping counts, which equals 18 years and eight months; and (3) 13 consecutive terms of four months each for the enhancements for impersonating a peace officer, which the court calculated as equal to five years. Defendant was also sentenced to five terms of six years each, or 30 years, on some of the forcible sexual offense counts and 90 years for the kidnapping enhancements on the forcible sexual offenses, which were stayed. He was also sentenced to one year in county jail for possessing pornography.

Defendant contends that the trial court erred in denying his motion for change of venue and committed instructional error regarding the definitions of "duress" and "menace" for the purposes of the forcible sexual offenses (§§ 288, subd. (b); 289, subd. (a); CALJIC No. 10.42). Defendant also claims a series of sentencing errors: (1) that it was error to impose consecutive 25 years to life terms on two of the forcible sexual offenses; (2) that it was error to impose consecutive sentences on two of the kidnapping counts; and (3) that it was error to impose the enhancement for impersonating a peace officer on some counts, since the underlying sentences on those counts had been stayed or ran concurrently with other sentences. Defendant also asserts that the 245 years to life sentence imposed for the sexual offenses is cruel and unusual.

The Attorney General correctly concedes some of the sentencing errors. We also find that the trial court erred in imposing 25 years to life sentences on both Counts 32 and 34, since both offenses occurred on the same occasion as defined by section 667.61, subdivision (g). Consequently, we will modify the sentence. Finding no other prejudicial error, we will affirm the judgment.

TRIAL EVIDENCE AND DEFENSE ARGUMENT

I. Prosecution Case

A. Initial Encounter

On March 23, 1999, L.T. (age 11); her sister, T.T. (age 12); and their friend, L.N.² (age 12), shoplifted some pens and pencils from a drug store in Marina. As the girls walked home, defendant stopped them. He identified himself as a probation officer, told them that he had seen them stealing, and asked to search them. As part of the search, defendant placed one of his hands down the girls pants and touched their "private" areas. T.T. and L.N. testified that his hand was outside their underwear. L.T. said that he touched her skin. He also touched T.T.s chest.

2 At trial, the victims were referred to by their first names only. In the interest of further protective non-disclosure, we shall use their initials. The initials are based on identifying information in Peoples Exhibits 1a, 1b, and 1c.

Defendant asked the girls their names, addresses, and telephone numbers. The girls told defendant that they were all sisters and provided him with T.T.s address and telephone number. Defendant told the girls that they would have to report to him and obey his rules. He also told them that if they did not obey him, they would end up in juvenile hall, that their parents would go to jail, and that they would end up in foster care. Defendant instructed the girls to meet him three days later outside T.T.s apartment building.

B. Non-sexual Encounters

Three days later, the girls met defendant as instructed. Defendant took them in his car to his home. Defendant brought out some papers that said "State of California" on them. He again told the girls that he was a probation officer and that his name was "Officer John." He told them that they would go to juvenile hall, that their mothers would go to jail, and that they would end up in a foster home if they did not cooperate with him. Defendant had each of the girls sign a paper that contained purported conditions of probation, including a statement that they would obey his instructions.

Defendant also had the girls fill out forms entitled "Juvenile Criminal Family Information," which asked for their names, telephone numbers, and addresses; their parents names, the names of their parents employers, and the hours that their parents worked. Defendant told the girls that they could not miss more than three meetings with him or they would go to juvenile hall.

Defendant took the girls to his home on several other occasions between the end of March 1999 and mid-June 1999. Sometimes it was all three girls; some times it was only two of the girls. L.T. recalled going to his house three or four times. T.T. went there seven to ten times; L.N. was there six to ten times. Sometimes, defendant had the girls clean his house. Once, he paid them $ 20 for cleaning his house.³ Later, he told them he could not pay them anymore because they were on probation and were supposed to be punished.

3 T.T. initially testified that he only paid them the first time they cleaned his house. Later, she said he paid them two or three times. L.N. testified that he only paid them once.

The girls signed documents promising to obey "Officer John" on two or three different occasions. The evidence included form documents signed by each of the girls on June 4, 1999, entitled "Rules of Probation."⁴ The Rules of Probation forms referred to a document that each of the girls had signed earlier entitled "Request for Probation and Temporary Release from Juvenile Hall." Copies of the latter forms were not in evidence.

4 The "Rules of Probation" forms provided in part: "1) You will be able to avoid incarceration at Juvenile Hall if, and only if, you agree to be released to the custody and care of Marina Security Forces for a period of one year. Your Probation Officer shall be Officer John. You will call him John. [P] 2) During that one year period, you agree to follow all the rules and requirements made by Marina Security Forces and Officer John. If you violate any of the rules or requirements of Officer John, you shall be punished by being sent immediately to Juvenile Hall. Officer John may choose to punish you himself rather than sending you to Juvenile Hall if he chooses. Officer John may punish you in whatever way he deems necessary. You may not question his punishment, nor shall you complain about any such punishment. All punishments shall be kept confidential and not even discussed among each other [sic], or you shall be sent immediately to Juvenile Hall. [P] 3) You shall meet with Officer John whenever and wherever he tells you to meet with him. He shall meet with you at least once every two weeks. If you miss any meeting, for any reason, you shall be punished and required to make up the meeting with two more meetings. You will do whatever Officer John tells you to do, no matter how much you may think it is wrong, or that you shouldnt have to do it, or dont want to do it. If you do not follow all of the instructions of Officer John, he may immediately drive you to Juvenile Hall for immediate submission to the Juvenile Facility for a period of at least 90 days. [P] . . . [P] 5) You have agreed to keep all these proceedings confidential and secret until death, or you will be immediately sent to Juvenile Hall for one year, and separated from your parents in a foster home until the age of 18. If you do not keep these proceeding confidential, your parents shall be informed of your criminal activities, and they shall be held responsible for your crimes and sentenced to six months in jail. [P] I have read and I hereby agree to follow all of these rules and any other rules made by my Probation Officer. I agree to follow all of his instructions without complaint, no matter how much I might dislike what he makes me do, and no matter how much or in what way he may choose to punish me for my misbehavior. [P] I understand that Office John saved me from having to go to Juvenile Hall for my crimes of shoplifting and theft, and if not for his help, I would have already been incarcerated at Juvenile Hall for thirty days. I promise to thank him for this, and to treat him with love and respect for his help." (Emphasis in original.)

On occasion, defendant told the girls to shower before they left for home. T.T. recalled showering five times. T.T. and L.N. showered together. During the course of the subsequent police investigation, the police found a hole in the wall between the bathroom and a walk-in closet that allowed a person in the closet to observe individuals in the bathroom.

During some of their meetings, defendant took the girls to locations other than his home. One day, he drove them to the main jail in Salinas and told them that if they did not obey him "thats the jail [they were] going to go in." He also took them to the Wal-Mart and Costco stores in Salinas. Another time, he took them to the Kmart in Marina. He bought them a meal at Costco and some personal items at Kmart. One day, he took them out to lunch at McDonalds and then to the beach in Seaside.

C. Physical Examinations

About a month after their first encounter, defendant told the girls that they had to undergo physical examinations. He brought the girls to his house and examined each girl individually in his bedroom. He ordered each girl to remove all of her clothing. He checked the girls for lice and looked at their eyes, ears, and throat. He even took a urine sample. Defendant had L.T. pose for several nude pictures, including one in which, at his direction, she held her vagina open.

Defendant told T.T. that she had to obey him during the examination and that she and her mother would go to jail if she did not. He instructed her to touch her breast to check for breast cancer. He also touched her breast and her genitals, stuck a tampon up her vagina, and photographed her nude and with the tampon protruding from her vagina.

Defendant told L.N. that if he did not examine her, he would take her some place else and have someone else do it, and that that person would probably rape her. Defendant directed L.N. to feel her breast to check for cancer and took several pictures of L.N. while she was nude.

In early June 1999, defendant brought the girls back to his house for the purposes of a second examination. He told them that "there was something wrong with [the first examination] so the state told him to do it over." He instructed the girls to remove all of their clothing. He touched T.T.s chest and genitals. He took more photographs and told T.T. to "spread" her "private parts" while he was taking the photographs.

Defendant again told L.N. that if she did not do the examination that she would "have to go to another place to do it" and that she could be raped there. He photographed L.N. with a cigar tube and a bottle inserted into her vagina. He touched her genitals and penetrated her digitally. He also told L.N. that she would go to juvenile hall or be taken away from her parents if she did not "fake to be his girlfriend." She understood this to mean taking "pictures and stuff."

Defendant had created a medical examination checklist form on his computer. He used it while he was conducting the examinations. The form contained the following entries: "2) Strip to panties & Bra; . . . 9) Breast Cancer Screening & Nipple Leakage; . . . 11) Inspection of hips, buttocks, and venus mound area for herpetic scabs, scars, and open cuts; . . . 16) Taking of anal & vaginal temperature, and fluid samples for laboratory analysis to determine evidence of aids [sic] and other stds; 17) Masturbation to produce vaginal lubrications for sample and to lubricate probes; 18) Insertion of probes to determine depth, and girth of vaginal and anal cavities; . . . 22) Douche; . . . ." (Semicolons added.) There were six entries instructing the examiner to take photographs at different points in the examination.

D. Other Events Involving T.T.

On one occasion, defendant encountered T.T. while she was leaving a 7-Eleven store and accused her of stealing bubble gum. He took her to an apartment, patted her down, put his hand inside her underpants, and penetrated her vagina digitally. Another time, he spanked T.T. with a wooden paddle while her clothes were off to punish her for stealing. Defendants checklist for the physical examinations included the following entry: "Spank naked butt — punishment."

E. Victims Report Crimes; Search of Defendants Residence and Apprehension of Defendant.

On June 14, 1999, L.N. called the police and reported that she had been subject to a strip search by a probation officer at his residence. A police officer went to L.N.s home and found her there with T.T. When the officer arrived, L.N. was on the phone with the defendant. She appeared upset. She was shaking and really frightened. The officer heard an angry, accusatory voice telling L.N. that he knew that she had reported something that he had told her she was not supposed to report. L.N. handed the phone to the police officer. The officer asked defendant whether he was a probation officer. Defendant hung up the phone. The girls took the officer to defendants home. By the time they arrived, he had fled.

A subsequent search of defendants residence uncovered photographs of the girls undressed with close-ups of their genitalia, including photographs of L.N. and T.T. with foreign objects in their vaginas. An expert examination of defendants computer revealed similar pictures on the hard drive.⁵ The computer also had mock sentencing and probation documents concerning the victims.

5 There were 88 separate images that resulted from 24 photographs. Some of the images were close ups or cropped versions of the photographs. The victims were clothed in some of the photographs.

Defendant was apprehended in Mississippi on July 1, 1999. He was planning on leaving the country to avoid prosecution.

II. Defense Case

Defendant did not testify or present any witnesses. In closing, defense counsel stated that defendant was guilty of a number of serious crimes. He argued that defendant had made no effort to blame anyone else or minimize what had happened. He urged the jury to accurately assess responsibility and to be careful not to pile on the charges.

Defense counsel argued that the case was primarily about the two physical examinations. He contended that going to the stores, McDonalds, the beach, and defendants home to do housework was not criminal activity. He suggested that if the jury had a reasonable doubt as to whether the touchings during the first encounter "were motivated by some sexual conduct as opposed to some type of pat down that was trying to assert authority" that the jury convict of the lesser included offense of battery.

DISCUSSION

I. Motion for Change of Venue

Defendant filed a motion for change of venue based on pretrial publicity. The motion was heard on March 2, 2000, two months before jury selection began. The trial court denied defendants motion without prejudice. The court stated that it "will be looking at this issue as we proceed through the jury selection process, . . . [P] If it appears to this Court that at any point in time in jury selection, or any time until the jury is selected, if there are more articles [that] come out that [defendant] cannot receive a fair trial, this Court will re-entertain this motion . . . . [P] . . . [P] At this point in time the Court needs to see what jury panel is called, and what the responses of the jurors will be."

After his motion was denied, defendant sought relief from this court by way of a petition for writ of mandate. The writ was denied.

Jury selection took two days. The first thing prospective jurors did was fill out a questionnaire regarding their knowledge of the case from pretrial publicity, their experiences with physical or sexual abuse, and their ability to be impartial. Sixty-one of the 155 prospective jurors were excused for cause based solely upon their responses to the jury questionnaire. This was done before the court or the attorneys asked a single voir dire question. Another 24 jurors were excused for cause during voir dire. Defendant subsequently exercised 16 of his 22 peremptory challenges. Defendant did not renew his motion for change of venue at any time during the jury selection process.⁶

6 The Supreme Court has stated that when the trial court denies a motion for change of venue without prejudice, the defendant needs to renew the motion at the close of voir dire in order to preserve the issue for appeal. (People v. Howard (1992) 1 Cal.4th 1132, 1166, 824 P.2d 1315.) Although the Attorney General notes that defendant failed to renew his motion for change of venue at the close of voir dire, no claim of waiver is made. Hence, the waiver issue is not before this court.

Defendant contends the trial court erred in denying his motion for change of venue. Pursuant to section 1033, subdivision (a), the court must grant a motion for change of venue if "there is a reasonable likelihood that a fair and impartial trial cannot be had in the county." "`Reasonable likelihood" in the context of a change of venue motion means "`something less than "more probable than not,"" but "`something more than merely "possible." [Citation.]" (People v. Proctor (1992) 4 Cal.4th 499, 523, 842 P.2d 1100 (Proctor) citing People v. Bonin (1988) 46 Cal.3d 659, 673, 250 Cal. Rptr. 687, 758 P.2d 1217, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.1, 952 P.2d 673.) Because the defendant is the party seeking the change of venue, defendant bears the burden of proof on the motion. (People v. Bonin, supra, 46 Cal.3d at p. 673.) In ruling on such a motion, the trial court considers five factors: the gravity and nature of the crime, the size and nature of the community, the status of the victim, the status of the accused, and the extent and nature of the publicity. (Proctor, supra, 4 Cal.4th at p. 523.)

"On appeal after a judgment following the denial of a change of venue, the defendant must show both that the court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [is] reasonably likely that a fair trial was not in fact had. [Citations.]" (People v. Edwards (1991) 54 Cal.3d 787, 807, 819 P.2d 436 (Edwards), italics added; People v. Cooper (1991) 53 Cal.3d 771, 805-806, 281 Cal. Rptr. 90, 809 P.2d 865 (Cooper).)

As to the first part of the showing required of a defendant on appeal, we review the trial courts determination of the reasonable likelihood of an unfair trial de novo. (Proctor, supra, 4 Cal.4th at pp. 523-524.) This requires us to independently determine the weight of the five factors described above. (Id. at p. 524) "With regard to the second part of the showing, in order to determine whether pretrial publicity had a prejudicial effect on the jury, we also examine the voir dire of the jurors. [Citations.]" (Ibid.)

A. Nature and Gravity of Offense

"The peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its `nature; the term `gravity of a crime refers to it seriousness in the law and the possible consequences to an accused in the event of a guilty verdict." (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582, 174 Cal. Rptr. 701, 629 P.2d 502.) Defendant was charged with 12 forcible lewd acts on three victims who were under the age of 14, four acts of forcible penetration, plus 19 counts of kidnapping. He committed the offenses while impersonating a probation officer. Defendant was ultimately sentenced to 268 years to life.

Change of venue issues arise most often in murder cases, particularly death penalty cases. (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 6th ed. 2002) § 16.39, pp. 403-412 [chart summarizing change of venue cases from 1968 through 1999; 61 of 84 cases were death penalty cases].) However, that does not mean that a non-murder, non-death penalty case could not warrant a change of venue if the reasonable likelihood test is met. (See, e.g., Lansdown v. Superior Court (1970) 10 Cal. App. 3d 604, 89 Cal. Rptr. 154.) Conversely, a change of venue will not result simply because a defendant is charged with capital murder. (People v. Hamilton (1989) 48 Cal.3d 1142, 1158, 259 Cal. Rptr. 701, 774 P.2d 730 (Hamilton ).) Generally, this factor is not dispositive. (See, e.g., People v. Dennis (1998) 17 Cal.4th 468, 523, 950 P.2d 1035 (Dennis); People v. Williams (1997) 16 Cal.4th 635, 655, 941 P.2d 752; People v. Sanders (1995) 11 Cal.4th 475, 506, 905 P.2d 420.) Although the crimes charged here were repulsive, their nature and gravity do not weigh compellingly in favor of a venue change.

B. Size and Nature of Community

The second factor, the size and nature of the community, weighs against a change of venue. "`The larger the local population, the more likely it is that preconceptions about the case have not become imbedded in the public consciousness. [Citation.]" (People v. Jennings (1991) 53 Cal.3d 334, 363, 279 Cal. Rptr. 780, 807 P.2d 1009 (Jennings).) The size of the county alone is not determinative. The critical factor is whether it can be shown that the size of the population is large enough to neutralize or dilute the impact of adverse publicity. (Ibid.)

At the time of trial, the population of Monterey County was 401,762. (Cal. Cities, Towns, & Counties, Basic Data Profiles for All Municipalities & Counties (Information Publications 2002), p. 505 [based on 2000 U.S. Census].)⁷ As the court observed in Hamilton, supra, 48 Cal.3d at page 1158, most "successful venue cases, however, have involved nonurban counties which had, at the time, substantially smaller populations: Maine [v. Superior Court (1968)] 68 Cal.2d 375 (Mendocino County, pop. 51,200); Fain [v. Superior Court (1970)] 2 Cal.3d 46 (Stanislaus County, Pop. 184,600); Frazier [v. Superior Court (1971)] 5 Cal.3d 287 (Santa Cruz County, Pop. 123,800); Martinez, supra, 29 Cal.3d 574 (Placer County, pop. 106,500); People v. Williams (1983) 34 Cal.3d 584 (Placer County, pop. 117,000)." In Hamilton, neither the size nor the character of Tulare County (250,000 inhabitants; ranked 20th out of 58 counties) weighed substantially in favor of a change of venue. (Hamilton, supra, 48 Cal.3d at p. 1158-1159.) We conclude that the size of Monterey County, with more than 400,000 inhabitants at the time of trial weighs against a change of venue.

7 In opposition to the motion below, the prosecution submitted evidence from the United States Bureau of the Census that the population of Monterey County was 355,660 at the time of the 1990 census and that the estimated population of the county was 365,605 as of July 1, 1998. The prosecutions evidence also indicated that in 1998 only 19 of Californias 58 counties had a larger population than Monterey County.

C. Status of the Victims and the Accused

Neither the third factor (the status of the victims) nor the fourth factor (the status of the accused) requires a change of venue. The status of the victim weighs in favor of a change of venue where the victim is well known in the community or the community rallies around the victim. (See, e.g., People v. Williams, supra, 34 Cal.3d at pp. 593, 594 [victim was from a prominent family with a favorable reputation]; Frazier, supra, 5 Cal.3d at pp. 289, 293 [victim was prominent surgeon who founded local hospital; his funeral was one of the largest in countys history]; Maine, supra, 68 Cal.2d at p. 385 [victims were popular teenagers from respected families; community raised funds to cover one of the victims medical expenses].) The victims here were unknown in the county. Their names were not used in any of the news reports.

Defendant argues that the victims ages and the facts that defendant posed as a probation officer, took nude pictures of them, and sexually assaulted them "would naturally serve to inflame public passions in the wake of pretrial publicity." However, these facts would not change with a change of venue. Prospective jurors would have reason to sympathize with the victims wherever the case was tried. (People v. Pride (1992) 3 Cal.4th 195, 225, 833 P.2d 643.)

Venue may be changed if there is something about the defendant that makes the defendant subject to the hostility of the local community or if the defendant is a stranger to the community. (Frazier, supra , 5 Cal.3d at pp. 290, 293-294 [local distrust of hippies]; People v. Williams, supra, 34 Cal.3d at p. 594 [defendant was a nonresident and an African American; only 402 of the countys 117,000 residents were African American]; Maine, supra, 68 Cal.2d at p. 385 [defendants were strangers while victims were members of respected local families].) Defendant here was not a member of any minority group. Nor was he a stranger to the community. Defendant had lived in Monterey County during his "early years," before entering the second grade. Defendant returned to Monterey County to attend junior college in the 1970s and moved back to the county after he became separated from his wife in 1996. He had lived in the county for approximately three years prior to committing the crimes. The newspaper accounts described him as self-employed in the real estate business; he was a licensed real estate broker. None of these facts would subject defendant to the hostility of the local community. Furthermore, there is no evidence that he was widely known in the community. (People v. Massie (1998) 19 Cal.4th 550, 578-579, 967 P.2d 29.)

D. Nature and Extent of Publicity

The final factor, the nature and extent of the pretrial publicity, also weighs against a change of venue. In evaluating the extent of coverage, we consider such matters as the length and frequency of the articles, as well as their placement and prominence. (Hamilton, supra, 48 cal.3d at pp. 1157-1158.) In evaluating the nature of the coverage, we look to the content of the reporting. If the coverage has been inflammatory or sensational, a venue change is more likely. (Corona v. Superior Court (1972) 24 Cal. App. 3d 872, 877, 101 Cal. Rptr. 411.) Coverage that includes editorials about the crime and its ramifications weighs in favor of a venue change, as does coverage that is inaccurate or reports facts that would be inadmissible at trial. (Hamilton, supra, 48 Cal.3d at p. 1157; Corona, supra, 24 Cal. App. 3d at pp. 877-878.) On the other hand straightforward, factual coverage does not warrant a venue change. (Odle v. Superior Court (1982) 32 Cal.3d 932, 941, 187 Cal. Rptr. 455, 654 P.2d 225.)

Defendants motion for change of venue was based on 11 articles that appeared in the Salinas Californian and the Monterey County Herald between June 18, 1999, and January 6, 2000. None of the articles appeared on the front pages of the newspapers. They all appeared in the newspapers local sections. Six of the articles appeared in the first month after the crime was reported. Reporting then tapered off. Only one of the articles appeared after October 30, 1999, and that article ran approximately five months before trial commenced. "The passage of time weighs heavily against a change of venue. [Citations.] Even the passage of several months can dispel the prejudicial effect of pretrial publicity in a large community. [Citation.]" (Dennis, supra, 17 Cal.4th at p. 524.) We reach the same conclusion as the court did in Hamilton. "In contrast to Williams, supra, 34 Cal.3d at pages 589, 591-592 (159 newspaper or radio items in two years) and Martinez, supra, 29 Cal.3d at pages 578-579 (97 articles in 14 months), this case lacks the kind of persistent and pervasive publicity which would attract and hold the attention of the community." (Hamilton, supra, 48 Cal.3d at p. 1158.)

Defendant argues that a change of venue is necessary because two of the articles used sensational terms. An article dated June 19, 1999, quoted a police investigator, who described defendant as the "worst type of predator." A June 25, 1999, article described law enforcements efforts to locate defendant, including seeking airtime on the television show "Americas Most Wanted." It quoted the investigating officer as stating that defendant "preys on children." Defendant also contends that a change of venue is necessary because the articles reported inadmissible or inaccurate information. One article described defendants arrest while "cruising a strip mall" in Mississippi. In fact, defendant argues, he was asleep in his car and was not cruising for more victims, as the article implied. Other articles reported defendants efforts to avoid extradition, that his bail was set at $ 10 million, and that he was involved in a fight with another jail inmate and was accused of using racial slurs in that incident.

While the existence of these reports weighs somewhat in favor of a change of venue, there is no evidence that any of the actual jurors were aware of these particular reports. Only four of the 12 jurors had heard any news reports about the case and none of the four provided any information about the details of the news reports they had heard. (See fn. 9.)

In addition, the four jurors who had heard of the case through pretrial publicity stated that they could be fair and impartial, in spite of what they had heard.⁸ Juror exposure to news accounts about the crime with which the defendant is charged does not presumptively deprive the defendant of due process. It is sufficient if the juror can lay aside his or her impressions and render a verdict based on the evidence presented in court. (People v. Daniels (1991) 52 Cal.3d 815, 853, 277 Cal. Rptr. 122, 802 P.2d 906 (Daniels).) Furthermore, our review of the record reveals that there was very little discussion of the news reports during jury selection. The issue of publicity was handled primarily through the juror questionnaires.⁹ During voir dire, the attorneys discussed pretrial publicity with only three of the 155 prospective jurors.¹⁰

8 Juror No. 22 had heard of the case from the newspaper and other media. On the questionnaire, he responded that he was unsure if he could be fair. However, on voir dire, he stated that although he was disgusted by the nature of the charges, he could look at the evidence "unemotionally, objectively, and fairly." After questioning Juror No. 22, defendant passed him for cause. Jurors Nos. 39 and 106 recalled seeing something about the case on television. Both responded that they could be fair and impartial. On voir dire, Juror No. 106 assured defense counsel that he could view the evidence "coolly and calmly." In his questionnaire, Juror No. 110 recalled reading something about the case in the Marina newspaper and stated that he could be fair and impartial. On voir dire, he assured that court and defense counsel that he could be fair.

9 The questionnaires included the following: "QUESTION NO. 1: Have you heard or read anything about this case?" "If your answer to Question No. 1 was yes, what do you recall having read?" and "If your answer to Question No. 1 was yes, do you believe you could be a fair and impartial juror in this case?"

10 One of the prospective jurors remembered reading something about the case, but could not recall what she had read. Another prospective juror, who was not in the habit of throwing out newspapers, had kept one of the articles, but had not reread it. Another recalled reading about the case in the newspaper, but could not recall the details of what he had read. He responded, however, that it would be difficult to set the newspaper stories aside. None of these individuals actually served on the jury.

Both sides compare and contrast this case to People v. Williams (1989) 48 Cal.3d 1112, 259 Cal. Rptr. 473, 774 P.2d 146, a case in which the Supreme Court reversed a judgment of conviction for rape, kidnapping, and murder based upon the denial of a change of venue motion. The comparison does not persuade us that a change of venue was required. In Williams, 52 percent of prospective jurors had heard of the case. Eight of the actual jurors were also familiar with the pretrial publicity. (Id. at p. 1128.) In contrast, only 35 percent of prospective jurors¹¹ here had heard of the case and only four of the actual jurors had any exposure to the publicity. Thus, it appears that the news coverage here was not comparable to that in Williams. Furthermore, the jurors in Williams were not only familiar with the case, but two of them were personally acquainted with the district attorney. (Id. at p. 1130; see Daniels, supra, 52 Cal.3d at p. 853.) There was no such relationship here.

11 According to the juror questionnaires, 55 of the 155 prospective jurors (35 percent of the jury pool) had heard of the case.

Finally, in this case, unlike Williams, defendant did not exhaust his peremptory challenges, using only 16 of his 20 peremptory challenges to the regular jurors and none of his challenges to the two alternates. At the conclusion of jury selection, there were 25 persons left in the jury pool who had not been the subject of a challenge, 21 of which had not even been questioned. "`The failure to exhaust peremptories is a strong indication "that the jurors were fair, and that the defense itself so concluded." [Citation.] (People v. Price, supra, 1 Cal.4th at p. 393.) This last point can be decisive. [Citation.]" (Dennis, supra, 17 Cal.4th at p. 524.) In this case, there was very little that weighed in favor of a change of venue. The unused peremptory challenges confirm our conclusion that the trial court properly denied defendants motion to change venue. (Ibid.)

II. Alleged Instructional Error

A. Instructions Given: CALJIC Nos. 10.42 and 10.30

Defendant was charged with 12 counts of committing a forcible lewd act on a child under the age of 14 (section 288, subdivision (b); hereafter "section 288(b)") and four counts of forcible penetration with a foreign object (section 289, subdivision (a); hereafter "section 289(a)").

As to the forcible lewd acts, the jury was instructed pursuant to CALJIC No. 10.42 that "every person who willfully commits any lewd or lascivious act upon or with the body or any part [or] member thereof with a child under the age of 14 years by use of duress or menace and with the specific intent of arousing, appealing to or gratifying the lust or passions or sexual desires of that person or the child, is guilty of the crime of lewd act with a child by force or fear in violation of Penal Code Section 288(b)(1). PIn this particular case the force and fear is actually transposed into the terms that we have talked about before, that is, duress and menace and we11 talk about as we go along. . . . [P] The term `duress as used in these instructions means a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibility [(1)] to perform an act which otherwise would not have been performed; or [(2)] acquiesce or agree to [an] act to which one would have otherwise submitted. The total circumstances when you consider the age of the child, the relationship to the defendant, are factors to consider in appraising the existence of duress. [P] In order to prove this crime each of the following elements must be proved beyond a reasonable doubt: [(1)] a person touched the body of a child, [(2)] the child was under [the age of] 14 years of age; and [(3)] the touching was done with a specific intent to arouse, appeal to or gratify the lust, passions or sexual desires of that person or the child; and [(4)] touching was done by use of duress or menace."

As to the forcible penetrations, the jury was instructed pursuant to CALJIC No. 10.30 that "every person who for the purpose of sexual arousal or gratification causes the penetration, however slight, of the genital opening of another person . . . by any foreign object, substance, instrument, or device or by any unknown object against the will of that person by use of duress, menace or fear of immediate or unlawful bodily injury to that person or threaten [sic] to retaliate in the future against that person or any other person and there is a reasonable possibility that the person could carry out the threat, that person is guilty of the crime of unlawful penetration by a foreign object. [P] . . . [P] ["]Threatening to retaliate["] as used in the instruction means the threat to kidnap or falsely imprison[; "]against the will["] as used in this instruction means without the consent of the alleged victim. In order to prove this crime each of the following elements must be proved beyond a reasonable doubt: [(1)] person caused the genital opening of the alleged victim, however slightly, to be penetrated by a foreign object, substance, instrument, of device or any unknown object; [(2)] the penetration was against the will of the alleged victim; and [(3)] the penetration was accomplished by the use of duress or menace or threatening to retaliate in the future against the alleged victim or any other person and there was reasonable possibility that the person could carry out that threat; and [(4)] the penetration was done with the purpose and specific intent to cause sexual arousal, gratification, or abuse."

Defendant challenges the definitions of "duress" and "menace" used in these instructions. We shall first consider the Attorney Generals claim of waiver with regard to defendants argument regarding the definition of duress. We shall then address the merits of defendants arguments regarding the definitions of duress and menace, in that order.

B. Waiver of Claims Relating to Definition of "Duress"

Defendant argues that it was error to instruct that "duress" includes a "threat of hardship" for the purposes of sections 288(b) and 289(a). Defendant concedes that there was no discussion on the record regarding whether "hardship" should be included in the definition of duress provided to the jury. The Attorney General argues that defendant therefore waived any claim of error regarding the instruction.

Defendant relies on section 1259, which provides that an "appellate court may, . . . review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (See also People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.) Defendant argues that his substantial rights were affected by the allegedly erroneous instruction, since it permitted the "jury to convict him of 16 forcible sexual offenses based upon the erroneous legal theory that threatened `hardship could satisfy the required force element."

We agree that, in the event the instruction was erroneous, that defendants substantial rights would be affected thereby. The bulk of defendants sentence (245 years out of 268 years 8 months) results from the convictions on the forcible lewd act and forcible penetration charges. Furthermore, a finding of duress on the section 288 counts had a direct impact on defendants sentencing. Under section 288, subdivision (a), a defendant who commits a lewd act on a child under 14 years of age "shall be punished by imprisonment in the state prison for three, six, or eight years." Under section 288(b), the same sentence applies when the lewd at is done "by use of force, violence, duress, menace, . . ." However, when the crime falls under section 288(b) and the circumstances enumerated in section 667.61 apply, the defendant may be subject to increased sentences of 25 years to life or 15 years to life, depending on the number and the nature of the enumerated circumstances that apply. (§ 667.61.) The jury found that certain of the special circumstances enumerated in section 667.61 had occurred in this case. Thus, the existence of duress or menace directly impacted whether defendant was eligible for sentencing under section 667.61, thereby affecting his substantial rights. Since defendants substantial rights were potentially affected by the instruction, the failure to object did not result in a waiver.

C. Instruction on Definition of "Duress"

Defendant argues that the instruction on the definition of duress¹² was erroneous because it included the term "hardship." Defendant points out that, in 1993, the Legislature amended the definition of duress in sections 261 (forcible rape) and 262 (spousal rape) to exclude the term "hardship." He claims that in so doing, the Legislature made an express determination to delete "hardship" as a basis for finding "duress" throughout the chapter of the Penal Code that deals with major sex crimes. There is no merit to this claim.

12 Defendant observes that the term "duress" was defined for the purpose of the section 288(b) charges (forcible lewd act with a child under 14), but not the section 289(a) charges (forcible penetration). He argues that it may be reasonably concluded that the jury understood that the definition of duress from CALJIC No. 10.42 to apply to both the section 288(b) and 289(a) charges. Based upon the wording of the instructions, we agree. Since defendant argues the error in the context of both offenses, we shall review the instructions in that context. However, we note that none of defendants sentence as pronounced by the trial court or modified by this court on appeal is attributable to the forcible penetration counts. (See footnote 16 ante.)

Section 261, subdivision (b), states that, "As used in this section, `duress means . . . ." (Italics added.) Section 262, subdivision (c), similarly states that, "As used in this section, `duress means . . . ." (Italics added.) These plain words limit those definitions of duress to sections 261 and 262. "When a statute is unambiguous, its language cannot `be expanded or contracted by the statements of individual legislators or committees during the course of the enactment process. [Citation.] [Citation.]" (Shah v. Glendale Federal Bank (1996) 44 Cal.App.4th 1371, 1374, fn. omitted.)

Section 288 does not define "duress" for the purposes of a forcible lewd act on a child. Case law defining duress for purposes of section 288 defines the term to include "hardship." (People v. Pitmon (1985) 170 Cal. App. 3d 38, 50, 216 Cal. Rptr. 221.) And repeals by implication are not favored. (Scott Co. v. Workers Comp. Appeals Bd. (1983) 139 Cal. App. 3d 98, 105, 188 Cal. Rptr. 537.) We must therefore assume that when the Legislature amended the definitions of "duress" for purposes of sections 261 and 262 it was aware of the existing case law that defined "duress" differently for purposes of section 288 and chose to leave the section 288 definition of "duress" untouched. (Ibid.)

Defendant relies on People v. Valentine (2001) 93 Cal.App.4th 1241 (Valentine). Valentine disagrees with our analysis and supports defendants analysis. Valentine examines legislative history and concludes that the Legislature intended to exclude "`hardship" from the list of threatened harms which qualify as forcible oral copulation (§ 288a) or forcible penetration with a foreign object (§ 289(a)) because it removed "`hardship" from the definition of "`duress "for purposes of forcible rape and spousal rape. (Id. at p. 1248.) The Valentine court acknowledged that the Legislature did not bother to amend sections 288a or 289(a), "or any other major sex crime statutes [sic]," to incorporate the statutory definition of duress crafted into the forcible rape and spousal rape statutes. (Ibid.) However, the court concluded: "it appears absurd to interpret the statutory scheme as allowing a threat of hardship to justify a conviction for forcible digital penetration or oral copulation but not for forcible rape or spousal rape." (Ibid.)

We disagree with Valentine. "`There is order in the most fundamental rules of statutory interpretation . . . . The key is applying those rules in the proper sequence. [Citation.] `First, a court should examine the actual language of the statute. [Citations.] . . . [P] In examining the language, the courts should give to the words of the statute their ordinary, everyday meaning [citations] unless, of course, the statute itself specifically defines those words to give them a special meaning [citations]. [P] If the meaning is without ambiguity, doubt, or uncertainty, then the language controls. [Citations.] There is nothing to "interpret" or "construe." [Citations.] [P] But if the meaning of the words is not clear, courts must take the second step and refer to the legislative history. [Citations.] [P] The final step-and one which we believe should only be taken when the first two steps have failed to reveal clear meaning-is to apply reason, practicality, and common sense to the language at hand. [Citation.]" (U.D. Registry, Inc. v. Municipal Court (1996) 50 Cal.App.4th 671, 674.)

Here, as we have mentioned, the rape statutes define "duress" for purposes of those statutes only and case law has defined "duress" for purposes of forcible lewd conduct. There is no ambiguity, doubt, or uncertainty here. There is simply nothing to interpret or construe such that legislative history must be consulted. Moreover, there is nothing absurd about the differing definitions of "duress" as the concurring opinion in Valentine acknowledges. The Valentine concurring opinion noted that the "Legislature may very well have had good reason to retain `threat of hardship as inclusive in the term `duress" under other Penal Code sections and noted that the majoritys contrary conclusion was "very close to engaging in judicial legislation." (Valentine, supra, 93 Cal.App.4th at p. 1255 (conc. opn. of Woods, J.).) For these reasons we disagree with Valentine and conclude that the trial court did not err in including "threat of hardship" in the definition of duress for the purposes of section 288(b).¹³

13 The California Supreme Court has granted review of this issue in People v. Edmonton (2002) 103 Cal.App.4th 557, review granted January 22, 2003, S112168 and People v. Leal (2003) 105 Cal.App.4th 833, review granted April 23, 2003, S114399, a decision of this court.

D. Instruction on Definition of "Menace"

The court instructed the jury that "menace includes the threat of unlawful confinement of a person or of an ancestor of a person." This instruction was based in part on the comment to CALJIC No. 10.42 (6th ed. 1996), which provided: "For the purposes of criminal law, the term `menace is given the same meaning as set forth in Civil Code section 1570, and includes the requirement that it be against the will of the child. (People v. Cicero (1984) 157 Cal. App. 3d 465, 473-474, 204 Cal. Rptr. 582 . . .; People v. Quinones (1988) 202 Cal. App. 3d 1154, 1158, 249 Cal. Rptr. 435 . . . .) The Committee has not included a definition for menace. If that becomes an issue, an instruction can be drafted as appropriate from Civil Code sections 1569 and 1570."

Civil Code section 1570 provides in relevant part: "Menace consists in a threat: 1. Of such duress as is specified in subdivisions one and three of the last section; . . ." Civil Code section 1569, subdivision 1 provides: "Duress consists in: 1. Unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife; . . ."

Defendant argues that the trial court erred in giving an instruction based on Civil Code sections 1569 and 1570, as suggested by CALJIC No. 10.42, because (1) CALJIC instructions do not have the force of law; (2) concepts from contract law, like those stated in Civil Code sections 1569 and 1579, do not apply in criminal cases; and (3) there are no published opinions that hold that menace can include a threat of confinement. We disagree.

The court in People v. Moore (1961) 196 Cal. App. 2d 91, 99, 16 Cal. Rptr. 294 (Moore), a case involving a prosecution under section 265 (abduction of a woman for purposes of defilement) held that the defendant off-duty police officers threat to arrest the victim for welfare fraud and take her children away from her constituted a menace within the meaning of section 265. One of the elements of a section 265 offense is that the crime be committed by "force, menace, or duress." Moore cited Civil Code section 1570 in its discussion of menace. (Moore, supra, 196 Cal. App. 2d at p. 99.) The threat in Moore was identical to the threats here. In both cases, the defendants threatened to incarcerate their victims and separate them from their families.

In suggesting the use of the definition of menace from Civil Code sections 1569 and 1570, the Comment to CALJIC No. 10.42 cites People v. Cicero, supra, 157 Cal. App. 3d at pp. 473-474 (Cicero) and People v. Quinones, supra, 202 Cal. App. 3d at p. 1158 (Quinones). In Cicero, the court construed the term "force" in section 288 (b). The court stated, "subdivision (b) also makes criminal a lewd act committed by use of `duress, menace, or threat of great bodily harm. . . . These words are ordinarily used to demonstrate that someone has used some form of psychological coercion to get someone else to do something they dont want to do, i.e., something against their will. . . . [P] By way of example, we focus on the term `menace. For purposes of California criminal law, the term `menace is given the same meaning as is set forth in the Civil Code. (See People v. Moore (1961) 196 Cal. App. 2d 91, 99, 16 Cal. Rptr. 294 . . . .) `Menace means something different from `force; thus, a mere verbal threat to have a mother arrested and to take her children from her constitutes a `menace. (Ibid.) The essential function played by the concept of `menace is to avoid or vitiate consent to an act, so that the act cannot be said to constitute an exercise of free will." (Cicero, supra, 157 Cal. App. 3d at pp. 477-478, fn. omitted.) While Cicero did not construe the term "menace" per se, it relied on the cited authority to explore the parameters of the term "force." In Quinones, a decision of this court, we disagreed with theCiceros construction of the term "force," but did not fault its discussion of the term "menace." (Quinones, supra, 202 Cal. App. 3d at p. 1158.) Based on the above, we find no error in relying on Civil Code sections 1569 and 1570 to define "menace."

Defendant also contends that the proper definition of "menace" for the purposes of sections 288(b) and 289(a) is found in section 261, the rape statute. Section 261, subdivision (c) provides: "As used in this section, `menace means any threat, declaration, or act which shows an intention to inflict an injury upon another." (Italics added.) This argument suffers from the same infirmity as defendants argument suggesting we employ the definition of duress from the rape statute. The plain wording of section 261 limits the definition of "menace" in that section to section 261. As with duress, case law provides a definition of menace for the purpose of sex crimes other than rape, including violations of section 288(b). (Moore, supra , 196 Cal. App. 2d 91, Cicero, supra, 157 Cal. App. 3d 465; Quinones, supra, 202 Cal. App. 3d 1154.) We therefore conclude that the definition of "menace" from the rape statute does not apply in this case.

Defendant also asserts that the instruction was erroneous because it relieved the prosecution of its burden of proving the element of menace. Defendant argues that while the definition of menace used in this case falls short of directing a verdict, it improperly intruded on his right to an independent jury.

"Numerous courts have declared erroneous a variety of instructions which, . . . have deprived the jury of its factfinding role by declaring that certain factual questions have been established. In People v. Nava (1989) 207 Cal. App. 3d 1490, 1498, 255 Cal. Rptr. 903 . . ., and again in People v. Beltran (1989) 210 Cal. App. 3d 1295, 1303, 258 Cal. Rptr. 884 . . ., the courts concluded it was improper to instruct a jury that a bone fracture constitutes a substantial and significant injury within the meaning of a sentencing enhancement, because such factual question must be left to the jury. The court in People v. Jarrell (1987) 196 Cal. App. 3d 604, 607, 242 Cal. Rptr. 219 . . . and in People v. Hutchins (1988) 199 Cal. App. 3d 1219, 1221-1222, 245 Cal. Rptr. 541 . . . concluded it was improper to instruct the jury that if it found the defendant guilty, it must fix the degree of the crime as first degree. In each of these cases the court concluded that, no matter how strong the evidence, it is error for the court to deprive the defendant of the right to a jury determination of relevant factual issues." (People v. Godinez (1992) 2 Cal.App.4th 492, 502 [instruction that homicide is a reasonable and natural consequence of a gang attack for the purpose of aider and abettor liability was erroneous]; see also People v. Higareda (1994) 24 Cal.App.4th 1399, 1406 [instruction that the aiming of a gun at a victim accompanied by a demand and receipt of money or personal property amounts to force and fear within the meaning of section 211 (robbery) was fact intrusive and error]; People v. Snead (1993) 20 Cal.App.4th 1088, 1094-1095 (Snead) [instruction that throwing a substance through a window constitutes "delivery" within the meaning of section 190.2, subdivision (a)(6) (special circumstances enhancements on murder conviction) was fact intrusive].)

However, instructions on points that are "`not open to dispute do not improperly deprive the jury of its factfinding function." (Godinez, supra, 2 Cal.App.4th at p. 502 , citing People v. Brown (1988) 46 Cal.3d 432, 250 Cal. Rptr. 604, 758 P.2d 1135 (Brown).) "The Brown court approved an instruction which merely explained a point of law: that as a matter of law members of a certain police department were `peace officers within the meaning and scope of a statutory enhancement." (Godinez, supra, 2 Cal.App.4th at p. 502, citing Brown, supra, 46 Cal.3d at pp. 443-444 and fn. 6.) Questions of statutory interpretation may present questions of law that are not open to dispute. (Godinez, supra, 2 Cal.App.4th at p. 502.) Furthermore, in instructing a jury, it is proper for a trial court to explain and define terms that might otherwise lead to confusion. (Snead, supra, 20 Cal.App.4th at p. 1094.) "But in explaining or defining a term-which is an offense element-a trial court must exercise care. The `"law/fact" distinction [citation] is elusive and easily breached." (Id. at p. 1095.)

The determination of whether the instruction at issue here was fact intrusive is a close call. On the one hand, the instruction, like the instruction in Brown, presents an issue of statutory interpretation, defining the term "menace" for the purposes of section 288(b). On the other hand, the instruction is similar to those at issue in Higareda and Snead.

Even if we were to conclude that the instruction was fact intrusive, any error in giving it was harmless beyond a reasonable doubt. (Higareda, supra, 24 Cal.App.4th at p. 1406.) Defendant did not claim that his conduct was not menacing or dispute that he had threatened the girls. His counsel argued that the criminal responsibility was in the examinations. He never suggested that these were simple molests under section 288, subdivision (a) as opposed to aggravated molests under section 288(b). In addition, the trial judge left it for the jury to determine whether defendant threatened to incarcerate the victims or their family members and whether the threats were unlawful.

The jury could not have reasonably doubted that defendants behavior was menacing. He impersonated a probation officer. He took advantage of the fact that the girls had committed a petty offense to assert authority over them. He preyed on their fears of being sent to juvenile hall and being separated from their families. He repeatedly reinforced his threats of incarceration, in his verbal communications with the girls, in the documents he had them sign, and by taking them on a trip to the jail. He repeatedly told them they were being punished. He told L.N. twice that if the examinations were done at juvenile hall, she would probably be raped. He told L.T. she would get beaten up in juvenile hall. All three girls testified that they were afraid of him. We therefore conclude that any error in giving the menace instruction was harmless.

III. Alleged Sentencing Errors

A. Sentencing Error Under Section 667.61, Subdivision (g) as to Counts 18 and 19

Defendant was convicted of four crimes arising out of the second physical examination of L.N. He was convicted of one forcible lewd act (§ 288(b)) for having L.N. undress and for touching her genitals (count 18) and three forcible penetrations (§ 289(a)) for penetrating L.N.s vagina with his finger (count 19), a cigar tube (count 20), and a bottle (count 21). The jury found true enhancement allegations that these counts involved multiple victims (§ 667.61, subd. (e)(5)), kidnapping (§ 667.61, subd. (e)(1)), and kidnapping that increased the risk of harm to the victim (§ 667.61, subd. (d)(2)).

Defendant was sentenced to two consecutive terms of 25 years to life pursuant to section 667.61 on counts 18 and 19. He was also sentenced to two consecutive terms of six years each on counts 20 and 21, both of which were stayed. Defendant argues that the trial court erred in sentencing him to two 25 years to life terms on counts 18 and 19, since both acts occurred on a "single occasion" within the meaning of section 667.61. The Attorney General correctly concedes the error.

"Section 667.61 mandates an indeterminate sentence of either 25 years (id., subd. (a)) or 15 years to life (id., subd. (b)) when a defendant is convicted of certain forcible sex offenses committed under specific aggravating circumstances. Penal Code section 667.61 provides, in subdivision (g) as follows: `The term specified . . . shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified . . . shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable." (People v. Jones (2001) 25 Cal.4th 98, 103 (Jones), fn. omitted.) The sex offenses subject to punishment under section 667.61 include a forcible lewd act on a child under 14 and forcible penetration. (§ 667.61, subds. (c)(4) & (5).) The aggravating circumstances included the enhancements the jury found true under section 667.61, subdivisions (d)(2), (e)(1), and (e)(5).

In Jones, which was decided after defendant was sentenced, the Supreme Court concluded that multiple sex offenses occur in a "single occasion" for the purposes of section 667.61, subdivision (g) "if they were committed in close temporal and spatial proximity." (Jones, supra, 25 Cal.4th at p. 107.) The defendant in Jones kidnapped a young woman, forced her into a car inside a garage, choked her and hit her, forced her to orally copulate him, raped her, and then sodomized her three times. The sexual assaults went on for about an hour and a half. (Id. at p. 101-102.) The trial court found that the rape, oral copulation, and sodomy occurred on separate occasions and sentenced the defendant to three consecutive terms of 25 years to life. (Id. at p. 102-103.) The Supreme Court reversed. The court explained that "the rule we adopt should result in a single life sentence, rather than three consecutive life sentences, for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location." (Id. at p. 107, italics in original.)

Similarly, although the second physical examination of L.N. involved at least four different sexual assaults, they occurred in defendants home during an uninterrupted time frame on a single day. According to Jones, defendant can only be sentenced once for these offenses. We shall therefore modify defendants sentence and strike the 25 years to life term imposed on count 19.

B. Sentencing Error Under Section 667.61, Subdivision (g) as to Counts 32 and 34.

Defendant was convicted of three crimes arising out of the first physical examination of T.T. He was convicted of two counts of forcible lewd conduct (§ 288(b)) for touching T.T.s breast and genitals and for having T.T. touch her breast (counts 33 and 34). He was also convicted of one count of forcible penetration (§ 289(a)) for penetrating T.T.s vagina with a tampon (count 32). The jury found true enhancement allegations that these counts involved multiple victims (§ 667.61, subd. (e)(5)), kidnapping (§ 667.61, subd. (e)(1)), and kidnapping that increased the risk of harm to the victim (§ 667.61, subd. (d)(2)).

As with counts 18 and 19, defendant was sentenced to two consecutive terms of 25 years to life pursuant to section 667.61 on counts 32 and 34. He was also sentenced to a consecutive term of six years on count 33, which was stayed. We requested supplemental briefing from the parties, inquiring whether the same analysis that applied to counts 18 and 19 applies to counts 32 and 34.

In their original briefs, both defendant and the Attorney General asserted that counts 32 and 34 arose out of the first physical examination of T.T. In his supplemental brief, defendant asserts that Jones, supra, 25 Cal.4th 98 applies to the sentences imposed on counts 32 and 34 since those counts were committed against the same victim within "an uninterrupted time frame and in a single location" during the course of the first examination. (Jones, supra, 25 Cal.4th at p. 107.) Thus, defendant argues, under the rule stated in Jones, one of the 25 years to life sentences should be stricken.

Although the Attorney Generals original brief attributed the convictions on counts 32 and 34 to the first physical examination of T.T., he now argues that Jones does not apply to counts 32 and 34, since the criminal acts for which defendant was convicted in those counts occurred on different days. The Attorney General relies on the courts pronouncement of sentence in which the court stated, "The defendant was found guilty beyond a reasonable doubt of 36 various counts by the jury, including . . . Count 32, Victim No. 2, Penal Code section 289, June 8th, 1999; Count 34, Victim No. 2, Penal Code section 288(b), on or about June 12, 1999; . . ." The Attorney General also relies on two memoranda of points and authorities filed by the defendant, stating his views on sentencing. Those memoranda incorrectly stated that the conviction on count 32 was attributable to acts that occurred on June 8, 1999 and that the conviction on count 34 was attributable to acts that occurred on June 12, 1999. The trial judge apparently picked up on those dates when he pronounced the sentence. The Attorney Generals reliance on the courts pronouncement and the argument of defense counsel is misplaced.

The evidence and findings of fact in this case lead to the conclusion that the acts in counts 32 and 34 occurred on the same day. The undisputed testimony of T.T. was that defendant committed at least two lewd acts and one penetration on her during the first physical examination. This covered counts 32, 33, and 34. The jury found that the penetration by foreign object in count 32 was committed against T.T. "on or about April 1999 through June 14th, 1999" and that the lewd act in count 34 was committed against T.T. "on or about March 24th, 1999, through June 14th, 1999." A range of dates had been charged on both counts because the victims could not recall precisely when the first set of examinations took place. The jurys findings and the evidence support the conclusion that counts 32 and 34 occurred "during an uninterrupted time frame and in a single location" and that these acts occurred on a single occasion for the purposes of section 667.61, subdivision (g). Consequently, the court erred in imposing two 25 years to life sentences on these counts. We will therefore strike the 25 years to life sentence on count 32.

C. Alleged Sentencing Error Under Section 667.61, Subdivision (f), as to Counts 15 and 24

Defendant was convicted in counts 15 and 24 of simple kidnapping. He argues that it was error to sentence him to two terms of two years eight months each on counts 15 and 24 because the same acts of kidnapping charged in counts 15 and 24 were used to enhance his sentences on the forcible lewd acts and forcible penetrations, counts 14, 18, 19, 22, 23, 32, 34, and 35. Defendant had been sentenced to 25 years to life on each of the forcible sexual act counts pursuant to section 667.61, subdivision (a).

As noted, section 667.61 provides for increased punishment when a defendant is convicted of certain forcible sex offenses under the aggravating circumstances enumerated therein. Subdivisions (d) and (e) of section 667.61 list eleven aggravating circumstances that can result in the increased punishment. The extent of the punishment (whether it is 15 or 25 years to life) depends upon the number and the nature of the aggravating circumstances that apply. A defendant who is convicted of one of the applicable sexual offenses under one or more of the circumstances specified in subdivision (d) or two or more of the circumstance specified in subdivision (e) of section 667.61 shall be punished by imprisonment for 25 years to life. (§ 667.61, subd. (a).) A defendant who is convicted under only one of the circumstances enumerated in subdivision (e) shall be punished by imprisonment for 15 years to life. (§ 667.61, subd. (b).)

Subdivision (f) of section 667.61 provides: "If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e)."

The jury found that defendant had committed one of the enhancements under subdivision (d) and two of the enhancements under subdivision (e) of section 667.61 when he committed the forcible lewd acts and forcible penetrations of the victims during the two physical examinations. In particular, the jury found true enhancement allegations that those offenses involved kidnapping that increased the risk of harm to the victims (§ 667.61, subd. (d)(2)), kidnapping (§ 667.61, subd. (e)(1)), and multiple victims (§ 667.61, subd. (e)(5)). Either the subdivision (d)(2) enhancement or the combination of the subdivision (e)(1) and the subdivision (e)(5) enhancements was sufficient to justify imposition of the 25 years to life sentence. (§ 667.61, subd. (a).)

Defendant argues that since the kidnapping charged in count 15 was used to enhance the sentences on counts 14, 32, 34 and 35 (forcible sexual acts during first examination) and the kidnapping charged in count 24 was used to enhance the sentences on counts 18, 19, 22, and 23 (forcible sexual acts during second examination) section 667.61, subdivision (f), precludes imposition of further sentences for the kidnappings. While we agree with defendants reading of the statute, we conclude that the factual premise of his argument is incorrect.

Defendant argues that count 15 involved the same events as counts 14, 32, 34, and 35 and that count 24 involved the same events as counts 18, 19, 22 and 23. We begin by addressing this argument as to count 24.

In count 24,¹⁴ defendant was convicted of kidnapping the girls "on or about June 8, 1999." The forcible sexual act convictions in counts 18, 19, 22, and 23 related to the second physical examination. The jury found that they occurred "on or about June 4th, 1999." Thus, according to the jury, the kidnapping in count 24 did not occur on the same day as the sex offenses in counts 18, 19, 22, and 23. Thus, the kidnapping conviction in count 24 was not used to enhance the sex offenses in counts 18, 19, 22, and 23.

14 The court sentenced defendant to one third of the middle term of eight years, or 32 months, on each of the kidnapping counts. The court found that the kidnapping counts involved seven different dates and grouped the counts together by date. The court held that the sentences on the kidnappings within each group would run concurrently with one another, but that the sentences as to the seven groups would be consecutive with each other. For example, the sentences on counts 15, 16, and 17 ran concurrently to one another, since they occurred on the same day. Likewise, the sentences on counts 24, 25, and 26 were concurrent to one another. However, the sentences in these two groups ran consecutively with each other and with the sentences for the other groups of kidnapping convictions that occurred on other days. Defendant challenges the sentences on counts 15 and 24 as representative of their groups since the sentences within each group ran concurrently to the sentences on counts 15 and 24. In this part of the discussion, references to count 15 and count 24 include all of the counts within their groups.

As to count 15, the analysis is more complex. The jury found that the kidnappings for which defendant was convicted in count 15 occurred "on or about March 19, 1999, through June 4th, 1999." The forcible sexual acts for which defendant was convicted in counts 14, 32, 34, and 35 arose out of the first physical examination. The jury found that the sex offenses in counts 14, 34 and 35 occurred "on or about March 24th, 1999, through June 14th, 1999;" and that the offense in count 32 occurred "on or about April 1999 through June 14th, 1999." Although each of these counts charged range of dates, the range is different for the kidnapping count and the sexual offenses. Thus, the kidnappings in count 15 did not necessarily occur on the same day as the first physical examination.

Defendant was convicted of kidnapping L.N. seven times, kidnapping T.T. seven times, and kidnapping L.T. five times. The girls could not recall the specific dates that the kidnappings occurred. L.N. recalled being taken to defendants home six to 10 times. She had been to the defendants home five times before the first examination occurred. T.T. went to defendants house seven to 10 times. It was probably closer to seven times. L.T. went there three to four times. In addition, defendant took the girls to locations outside of his home at least three times. The girls described separate trips to Salinas, within Marina, and to Seaside.

If you combine the kidnappings to locations outside of defendants home with the trips to defendants home, the evidence supports a conclusion that defendant kidnapped L.N. nine to 13 times, T.T. 10 to 13 times, and L.T. six to seven times. If we deduct two from each of these numbers to account for the kidnappings incident to the two physical examinations, we get a total of seven to 11 kidnappings for L.N., eight to 11 kidnappings for T.T. and four or five kidnappings for L.T. These numbers are equal to or greater than the number of kidnapping convictions. The record supports the conclusion that the jury found that the kidnappings charged in count 15 occurred on a date other than the date of the first examination. Thus, defendant has not demonstrated that the kidnapping conviction in count 15 was used to enhance the sex offenses in counts 14, 32, 34, and 35.

D. Sentencing Error Regarding Enhancements for Impersonating a Probation Officer

The jury found true allegations that defendant had committed 13 of the forcible sex acts and kidnappings charged while impersonating a police officer (§ 667.17).¹⁵ The court found that each of the allegations required the imposition of a one-year term subject to the one-third limitation for enhancements, resulting in a sentence of four months for each section 667.17 enhancement allegation. The court also found that the four-month terms should run consecutively to one another and imposed a total term of five years for these enhancement allegations.

15 This enhancement was alleged with regard to counts 15 through 17, 20 through 23, and 32 through 36.

Defendant alleges that the court erred in imposing this sentence in two respects. First, defendant asserts that the court made a simple mathematical error since 13 times four months is four years, four months, not five years. The Attorney General correctly concedes this error.

Second, defendant alleges that it was error to impose the four-month sentences on seven out of the 13 counts in which the enhancements were alleged because the court had stayed or imposed concurrent sentences with respect to the underlying sentences on those counts.¹⁶ The Attorney General also correctly concedes this error.

16 Defendant makes this argument regarding counts 16 and 17 (kidnapping of T.T. and L.T. between March 1999 and June 4, 1999), counts 20 and 21 (forcible penetration of L.N. during second examination), count 31 (lewd act on T.T. after following her home from 7-Eleven), and counts 33 and 36 (lewd acts on T.T. and L.T. during first examination). The sentences on counts 16 and 17 ran concurrently with the sentence on count 15. The sentences on counts 20, 21, 31, 33, and 36 were stayed.

"There are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. [Citations.] . . . [Citations.] The second category of enhancements, . . . arise form the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. [Citation.]" (People v. Coronado (1995) 12 Cal.4th 145, 156-157, 906 P.2d 1232, fn. omitted.) Such an enhancement does not have any viability independent of the sentence on the underlying count. (People v. Guilford (1984) 151 Cal. App. 3d 406, 411, 198 Cal. Rptr. 700.) An enhancement that is based in an underlying offense cannot be imposed when the underlying offense is stayed. (People v. Bernard (1994) 27 Cal.App.4th 458, 471-472, disapproved on other grounds in People v. Box (2000) 23 Cal.4th 1153, 1188, fn. 7.) Similarly, such an enhancement cannot be imposed consecutively when the underlying offense is ordered to run concurrently. (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1309-1311.) Consequently, the four-month enhancements should be stricken as to those counts that had sentences that were stayed or that were held to run concurrently with some other count. This includes the enhancements on counts 16, 17, 20, 21, 31, 33, and 36. Since we are striking the 25 years to life sentence on count 32, the four-month enhancement associated with that count will also be stricken. As modified, defendants sentence includes five 4-month enhancements (on counts 15, 22, 23, 34 and 35), for a total sentence enhancement of one year eight months for impersonating a police officer.

IV. Cruel & Unusual Punishment

The bulk of defendants sentence resulted from the application of section 667.61, popularly known as the "One Strike" law. Defendant argues that section 667.61 violates both federal and state constitutional prohibitions against cruel and unusual punishments. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) He asserts that the sentence imposed upon him pursuant to section 667.61 is unconstitutional both on its face and as applied to him.

Before the court sentenced defendant, it considered sentencing memoranda and exhibits filed by both parties. In his papers, defendant argued that the sentence mandated by section 667.61 was cruel and unusual punishment because it was a disproportionate sentence. The court denied defendants motion to alter his sentence on those grounds. As modified on appeal, the portion of the sentence that is attributable to section 667.61 consists of three 15 years to life terms (counts 1, 2, and 3) and six 25 years to life terms (counts 14, 18, 22, 23, 34, and 35). These terms arise out of the forcible lewd acts that occurred during defendants initial encounter with the girls and the two physical examinations.¹⁷

17 Defendant was convicted of 4 counts of forcible penetration in counts 19, 20, 21, and 32. The trial court stayed the sentences on counts 20 and 21 and we are striking the sentences on counts 19 and 32 pursuant to section 667.61, subdivision (g). Consequently, none of defendants modified sentence is attributable to the forcible penetrations counts.

Discussion of defendants federal claim begins with a review of Solem v. Helm (1983) 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (Solem). The Solem court found unconstitutional a life sentence without the possibility of parole for a seventh nonviolent felony. A bare majority of the court held "a courts proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." (Id . at p. 292.)

Eight years later, the Supreme Court decided Harmelin v. Michigan (1991) 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (Harmelin) and upheld a life sentence without possibility of parole for possessing 672 grams of cocaine. Harmelin produced five separate opinions. While seven justices supported a proportionality review under the Eighth Amendment, only four favored application of all three factors cited in Solem. Justice Scalia, joined by Chief Justice Rehnquist, concluded that Solem was wrongly decided and that the Eighth Amendment contained no proportionality guarantee. (Harmelin, supra, 501 U.S. at p. 965.) Justice Kennedy, joined by Justices OConnor and Souter, concluded that the Eighth Amendment encompassed "a narrow proportionality principle" (id. at p. 997) and "does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate to the crime. [Citations.]" (Id. at p. 1001 (conc. opn. of Kennedy, J.).) Consideration of the gravity of the offense and the harshness of the penalty was sufficient to uphold the constitutionality of the defendants sentence. The court observed that intra— and inter-jurisdictional analyses are appropriate only in rare cases. (Id. at pp. 1004-1005.)

"A punishment is cruel or unusual within the meaning of the California Constitution 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, 105 Cal. Rptr. 217, 503 P.2d 921 . . . [(Lynch)].) In Lynch, the Supreme Court extracted from prior decisions a four-pronged analysis for claims of disproportionate sentencing. (Id. at pp. 425-427.) The first two prongs of the analysis focus on the nature of the offense and the offender `with particular regard to the degree of danger both present to society. (Id. at p. 425.)" (People v. Estrada (1997) 57 Cal.App.4th 1270, 1278 (Estrada).) The third and fourth prongs involve comparing the challenged punishment to "punishment prescribed in the same jurisdiction for other more serious offenses" and comparing the challenged penalty to "punishment prescribed for the same offense in other jurisdictions. [Citations.]" (People v. Thompson (1994) 24 Cal.App.4th 299, 304.) We will analyze defendants claim under the California Constitution, as it appears that the federal Constitution affords no greater protection than the state Constitution.

A. Contention that Section 667.61 is Facially Unconstitutional

While acknowledging that constitutional challenges to the One Strike law on the theory that the punishments provided therein are cruel and unusual have been rejected in People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201 (a decision of this court), Estrada, supra, 57 Cal.App.4th 1270 1277-1282, and People v. Crooks (1997) 55 Cal.App.4th 797, 803-809, defendant argues that those cases were wrongly decided and that the One Strike law is unconstitutional on its face. Defendant contends that "the statute is constitutionally defective because it does not recognize significant gradations of culpability depending on the severity of the current offense and it fails to take mitigating factors into consideration." We disagree.

The structure and provisions of the statute recognize varying gradations of culpability. First, the penalties outlined in the statute only apply to certain specified sex offenses. (§ 667.61, subd. (c).) For example, section 667.61 does not apply to all lewd acts. It only applies to lewd acts committed "by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (§ 288, subd. (b); § 667.61, subd. (c)(4).) Second, the increased penalties only apply if the aggravating circumstances enumerated in the statute exist. Third, the statute distinguishes between the types of aggravating circumstances that trigger increased penalties in subdivisions (d) and (e) of section 667.61. One commentator refers to the aggravating circumstances listed in subdivision (d) as "major factors" and those listed in subdivision (e) as "minor factors." (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 6th ed. 2002) Felony Sentencing, § 37.34, pp. 1044-1045.) Fourth, the length of the sentence depends on the number and type of aggravating circumstances in each case. A defendant is subject to a sentence of 25 years to life if one or more of the major circumstances specified in subdivision (d) or two or more of the minor circumstances specified in subdivision (e) exist. (§ 667.61, subd. (a).) If only one of the circumstances listed in subdivision (e) exists, the defendant is subject to a sentence of 15 years to life. (§ 667.61, subd. (b).)

In addition, the sentences authorized by the statute may be imposed only once per victim per occasion. (§ 667.61, subd. (g).) For example, defendant was subject to only one 25 years to life sentence for the forcible sexual offenses committed against L.N. in the second physical examination, even though the jury found that he had committed one forcible lewd act and three separate acts of forcible penetration on that occasion. Thus, the statute does recognize gradations of culpability. (See also Estrada, supra, 57 Cal.App.4th at p. 1280 ["one strike law is precisely tailored to fit crimes bearing certain clearly defined characteristics."].)

As for defendants claim that the statute does not take mitigating factors into consideration, that issue is necessarily part of the analysis used in determining whether the statute was unconstitutional as applied to defendant, since mitigating factors are unique to each defendant. For these reasons, we conclude that the statute does not, on its face, violate constitutional prohibitions against cruel and unusual punishment.

B. Assertion That Section 667.61 is Unconstitutional As Applied to Defendant

1. Nature of the Offense and the Offender

In determining whether section 667.61 was unconstitutional as applied to defendant, we turn to the four-pronged test from Lynch, supra, 8 Cal.3d 410 and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal. Rptr. 390, 668 P.2d 697 (Dillon). We begin with the nature of the offense and the offender. "In contemplating the nature of the offense we consider not only the crime as defined by the Legislature but also `"the facts of the crime in question" . . . including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts. (People v. Dillon, supra, 34 Cal.3d at p. 479.) In considering the nature of the offender we look at such factors as the defendants `age, prior criminality, personal characteristics, and state of mind. (Id. at p. 479.)" (Estrada, supra, 57 Cal.App.4th at p. 1278.)

Defendant caught the girls shoplifting and took advantage of that fact to assert authority over them. He impersonated a probation officer and threatened the girls and their families with incarceration. He preyed on their fears of being separated from their families, by telling them that they would go to jail and end up in foster care if they did not follow his rules. With regard to motive, defendant argues that when he first confronted the girls, he was concerned about their shoplifting. He claims that he was trying "to help them" and that he "assumed parental authority to discipline them." These claims are belied by uncontroverted evidence that he fondled them on the very first encounter.

At trial, the prosecutor argued that the lewd acts were committed with the intent of appealing to defendants lust, passions, or sexual desires. The prosecution relied, in part, on the nude photographs of the girls, many of which had been cropped to focus on their genitals. This was unrefuted at trial. However, at the sentencing hearing, defendant argued that his real motive was financial and that he took nude pictures of the girls so that he could make money by creating a website that featured child pornography. Defendant argues that most of the lewd act and penetration counts "involved instances of the victims being induced to undress or touch themselves." In fact, there was uncontroverted evidence that defendant touched the girls in eight of the 16 forcible sexual offenses of which he was convicted. These touchings included fondling their breasts and penetrating their vaginas with a finger and a tampon. Although not clear from the testimony, it appears he instructed L.N. to insert the cigar tube and bottle into her vagina, as opposed to doing it himself. He told a psychologist that he felt horrible watching her insert the cigar tube into her vagina because he could see that it hurt her.

The way in which the crimes were committed showed considerable planning and preparation. Defendant made up forms on his computer that he used in his meetings with the girls. He had them sign forms regarding the conditions of their probation two or three times. (See "Rules of Probation" form, which is quoted at footnote 4.) Defendant also made up a checklist for the physical examinations and a form to record information about the victims and their families. He spent time downloading 24 photographs of the girls into his computer and then cropped the photos to create 88 images, most of which were sexual in nature.

Defendants computer also contained a form entitled "Request for Deferral of Sentencing," which appears to have been prepared for L.N. The form certifies that the applicant has "been intimately involved as the girlfriend of a California Correctional Department Employee" for "the past year". In order to qualify for deferred sentencing, the applicant was to provide photographs documenting her relationship with defendant, including photos of activities such as kissing, holding hands, sleeping together, full body massages, and "sexual relations — (to include a minimum of 10 orgasms per month per party)." The form provided, "In return, [L.N.s mother] shall not be jailed, and [L.N.s] brothers and sisters shall not be assigned to Foster Homes." There is no evidence that defendant ever showed this form to the girls. However, it was used at trial to support the claims that defendant was motivated by sexual desire and that his conduct was escalating. Defense counsel, while reminding the jury that the things listed on the form did not happen, agreed that it was "suggestive of where it might have been going." In our view, this form also indicates the level of planning and preparation associated with defendants crimes.

The degrading nature of these crimes was compounded by the fact that defendant photographed the girls and that he intended to broadcast the photographs on the Internet. In examining the nature of the offenses, we cannot ignore that these crimes were committed on multiple occasions against multiple victims.

Defendant was 41 years old when he committed his crimes. He had no prior criminal record, except for an arrest for driving under the influence of alcohol in 1993. Defendant was a college graduate and had done some graduate work. His age and level of education indicate that he understood what he was doing and knew that it was wrong. In fact, while he was on the run, he wrote letters to his family acknowledging the reprehensible nature of his conduct. Defendant had held a variety of jobs, including work in fish and game, in real estate, and at NASA. He was not successful financially. He was unemployed at the time he committed the crimes and his unemployment benefits were running out. Although he had obtained additional training in real estate appraisal and insurance, he hoped to get rich by creating a pornography website. Defendant had only been married once, for approximately two years, and was separated from his wife in 1999. He had no children of his own. When he committed the crimes, he was under stress due to his financial and marital difficulties. Several of defendants family members submitted letters to the court, urging leniency. His ex-wife, his brother, his sister, and a niece all reported that he had never acted inappropriately toward his stepdaughter or his nieces; that he was loved and trusted by his family. On the one hand, this suggests that defendant could be trusted around children. On the other hand, it suggests that he understood that sexual behavior with minors was inappropriate within the family but that he had no trouble acting out against total strangers.

Prior to sentencing, defense counsel had defendant evaluated by Timothy Franklin, a marriage and family therapist. As part of his evaluation, Mr. Franklin arranged for defendant to be evaluated by James Eddy, Ph.D., a clinical psychologist. Dr. Eddys primary diagnosis was "paraphilia NOS." According to the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994), pages 522-523 paraphilias are "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors, generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or ones partner, or 3) children or other nonconsenting persons that occur over a period of at least 6 months." Paraphilias includes specifically identified conditions such as pedophilia, exhibitionism, voyeurism and others. (Id. at p. 523.) The phrase "paraphilia NOS" refers to "Paraphilia [that is] Not Otherwise Specified[,] . . . Paraphilias that do not meet the criteria for any of the specific categories." (Id. at p. 532.) Dr. Eddy concluded that defendant had a "history of marginal adjustment in both his relationships with female peers and in vocational achievement," that he had "a high sex drive and a likely obsessive pattern with regard to female sexuality," that "his primary objects of sexual arousal [were] adult women," that he was "self-delusional and lacking in personal insight and appropriate judgment." Dr. Eddy reported that "the present assessment does not indicate that [defendant] has significant antisocial personality traits or that he is particularly prone toward aggressive acting out."

After reviewing Dr. Eddys report, interviewing defendant, and reviewing the literature on pedophilia, Mr. Franklin concluded that while defendant was a "sexual offender against minors and/or child molester," he was not a pedophile. He opined that "rehabilitation through psychotherapy is likely" and that defendant "would never harm a child in this manner again. He is tormented by his guilt for what he did to the children and what he has done to his own family." He concluded that defendant "is not the kind of criminal who presents a danger to society and incarcerating him for life protects no one."

Notwithstanding Mr. Franklins opinion, under our tripartite system of government, it is the Legislature, and not expert consultants, that determines the appropriate penalty for criminal offenses. (Crooks, supra, 55 Cal.App.4th at p. 807.) We note also that although Mr. Franklin concluded that defendant was not a pedophile, both he and Dr. Eddy diagnosed sexual disorders. Defendants sexual compulsiveness and his lack of judgment do not aid his case.

2. Relative Punishment for More Serious Offenses in California

Addressing the third prong of the Lynch-Dillon test-the relative punishment for more serious offenses in California-defendant argues that his sentences is "many multiples of the 25-years-to-life sentence imposed on an individual who commits a cold-blooded premeditated murder" and that a person who commits a second degree murder is only sentenced to 15 years to life. These arguments ignore the fact that defendants acts involved both the commission of more than one offense (a forcible lewd act or forcible penetration plus kidnapping) and the fact that defendant committed the kidnapping for the purpose of committing the sexual offenses. "The penalties for single offenses, such as those defendant cites, cannot properly be compared to those for multiple offenses-especially where, as here, one offense was committed in order to commit another." (Crooks, supra, 55 Cal.App.4th at p. 807.) Moreover, the gravity of the two crimes defendant committed (kidnapping and child molestation) is greater than the sum of their parts. Except for murder, kidnapping and the sexual molestation of a child is every parents worst nightmare. (See ibid.) We also cannot ignore the fact that these crimes were committed on multiple occasions against multiple victims.

Defendant also argues that a defendant who is guilty of engaging in continuous repetitive sexual molestation of a child he resides with is exposed to a maximum determinate sentence of only 16 years under section 288.5. He asserts that his culpability is no greater than that of a residential serial child molester. Defendants reliance on section 288.5 is misplaced.

"Section 288.5 was enacted in reaction to People v. Van Hoek (1988) 200 Cal. App. 3d 811, 246 Cal. Rptr. 352 . . ., where a childs inability to discern specific times of incidents of continuous abuse led to a reversal of her fathers conviction of various sexual abuse charges." (People v. Gohdes (1997) 58 Cal.App.4th 1520, 1526-1527, disapproved on other grounds in People v. Rodriguez (2002) 28 Cal.4th 543, 547-550.) "Section 288.5 provides that a person who resides in the same home or has recurring access to a child, and who engages in three or more acts of substantial sexual conduct with the child over a period of not less than three months, shall be punished by a prison term of not less than six, twelve, or sixteen years. [P] Section 288.5 was enacted because of problems of proof that can arise where the molester resides in the same house as the child. Under such circumstances the child may recall she was molested repeatedly over a period of time, but may not be able to recall discrete instances with sufficient precision to prove multiple counts. The People, however, are not required to prosecute under section 288.5 in order to gain a conviction against a resident child molester . . . ." (People v. Johnson (1995) 40 Cal.App.4th 24, 26.) The prosecutor has the discretion to charge either a single count covering a course of repetitive conduct under section 288.5 or multiple counts under section 288. (Id. at pp. 25-26.) The purpose of section 288.5 is to make it easier to obtain "significant penalties" against a resident child molester, not to limit the offenders liability to a single count. (Id. at p. 26.)

3. Comparison of Punishments Imposed for Similar Offenses in Other Jurisdictions

As to the final prong-a comparison to punishments imposed for similar offenses in other jurisdictions-defendant asserts that there are only two states that provide comparable sentences for aggravated rape: Louisiana (life without possibility of parole) and Washington (minimum 20 years). As we concluded in People v. Alvarado, supra, 87 Cal.App.4th at page 200, that fact that some other jurisdictions allow for the same or even harsher punishment indicates that the One Strike term imposed here is not irrational or obviously excessive.

At first blush, defendants modified sentence of 195 years to life for the forcible sexual offenses appears outrageous. However, the fact that the sentence is based on multiple sexual offenses that were committed against three victims on three separate occasions dispels that impression. That impression is dispelled further after applying the four-pronged test from Lynch and Dillon. Given all of the relevant considerations, defendant has failed to establish that his sentence is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity. (Lynch, supra, 8 Cal.3d at p. 423-424.)

DISPOSITION

The two 25 years to life terms imposed as a result of the convictions on counts 19 and 32 are ordered stricken. The four-months enhancements on counts 16, 17, 20, 21, 31, 32, 33, and 36 for impersonating a police officer are also stricken. The sentence is also reduced by eight months to adjust for the mathematical error in calculating the portion of the sentence attributable to the enhancements for impersonating a probation officer. The judgment is modified and defendants overall sentence is reduced to an indeterminate term of 195 years to life for the sexual offenses, plus determinate terms of 18 years eight months for the kidnappings and one year eight months for the enhancements for impersonating a probation officer, for a total sentence of 215 years four months to life.

As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting these modifications and to furnish a copy of the amended abstract to the Department of Corrections.

WE CONCUR: PREMO, J., and ELIA, J.