Opinion
A149807
10-16-2018
THE PEOPLE, Plaintiff and Respondent, v. FABIAN SALAZAR JACOBO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR 312273)
I.
INTRODUCTION
Appellant Fabian Jacobo was convicted of sexual intercourse, sodomy, and lewd acts upon a child under the age of 10, his stepdaughter, J.C. He contends the trial court erred in allowing a witness to testify about J.C.'s positive test for chlamydia and in admitting the laboratory report because it was inadmissible hearsay. He further contends his sentence of 50 years to life constitutes cruel and unusual punishment under both the federal and state constitutions. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Solano County District Attorney filed an information charging Jacobo with one count of sexual intercourse with a child under age 10 (Pen. Code, § 288.7, subd. (a)), one count of sodomy on a child under age 10 (§ 288.7, subd. (a)), and two counts of lewd acts upon a child under age 14 (§ 288, subd. (a)).
Subsequent references to a statute are to the Penal Code, unless otherwise indicated.
A. Evidence at Trial
Jacobo was married to J.C.'s mother, Maria, from 2009 to 2014. Jacobo acted as a father to J.C., who called him "dad." During their marriage, Maria and Jacobo had a daughter, I.S., J.C.'s half-sister. When Jacobo and Maria divorced, Jacobo continued to see I.S. on weekends. After the divorce, Jacobo went to live in his cousin's house where he had a small room with bunk beds in the garage.
One weekend, J.C. went to stay with Jacobo and I.S. J.C. was in third grade at the time. During the day they went to the zoo and then spent the night in Jacobo's room. J.C. and her little sister slept next to each other. J.C. testified that during the night, after she returned from using the bathroom and was lying on the ground next to her little sister, Jacobo hurt her. She testified he touched her "private spot" with his "private spot." Using a diagram, she described how Jacobo touched his penis to her bottom and then her vagina; the contact was "skin to skin." She recounted how he put his penis in her anus and her vagina which hurt her "a lot." She testified that he put his penis in her vagina more than once. J.C. knew that this was not "appropriate" behavior because her mother had told her not to let anyone touch her body parts.
J.C. testified about a second incident with Jacobo that took place on the same weekend when I.S. was playing with her toys. J.C. was sitting on the bottom bunk of Jacobo's bed watching television when he grabbed her and pushed her back on the bed. Jacobo then inserted his penis into J.C.'s vagina. J.C. testified that she told him to stop but he did not stop until his nephew opened the door to the garage to ask the girls to come outside to play.
J.C.'s mother, Maria, testified that when J.C. returned from the visit, she would not look her in the eye and J.C. seemed nervous. J.C. did not want to talk to Jacobo anymore. Maria noticed that J.C. was distant, nervous, and angry. J.C. testified that she did not immediately tell her mother what happened because she was scared she might get in trouble. She eventually told her mother what Jacobo did to her because she could not "release the pain."
The jury saw a video recording of J.C.'s multidisciplinary interview with a third party interviewer, wherein she described what Jacobo did to her. A police sergeant, a deputy district attorney and a child protective services worker observed the interview via closed circuit television in another room. In the interview, J.C. stated that Jacobo touched her "boobs," "butt," and "private spot" under her clothing. She said he went "[i]nside [her] private spot" with his private spot. He also put his "private spot" inside her butt. J.C. kept repeating that she did not let him do it, but he did it anyway. She stated I.S. was in the room when it happened. She pulled away from him and went to her sister and he told her to come back. He told her not to tell anybody and if she told anyone, he would be mad at her.
The police interviewed Jacobo at the time of his arrest and a video recording of the interview was played for the jury. Jacobo initially said that everything was "normal" on the night in question. He denied sexually abusing J.C. The officers told him J.C. was diagnosed with chlamydia and that she told the police he had sexually assaulted her. Later in the interview, Jacobo stated, "I accept the case." Jacobo then told the officers J.C. hugged him and touched his penis and told him it was okay because everyone does it. He said, "she started it." He said his "mind went down" and "it was like what a man does with an older woman." The officer asked if he had sex with her and Jacobo responded: "you can say so, yes." He then said "yes . . . it did happen." He admitted lowering her panties to her knees and putting his penis between her legs. He said he did not attempt to penetrate her "hard" or "do it right" because she was a little girl. He said, "I didn't do it all the way inside." He admitted J.C. told him to stop.
On October 24, 2014, Dr. Pamela Verder-Bautista, a pediatrician, examined J.C. at Maria's request because Maria was concerned J.C. had been sexually molested by her former stepfather. Maria reported that J.C. was going to the bathroom frequently, so Dr. Verder-Bautista ordered a urine test. Dr. Verder-Bautista also conducted a genital culture of JC's vaginal area as she wanted to check for sexually transmitted diseases. When Dr. Verder-Bautista's assistant performed a "urine dip" test, the results indicated signs of an infection.
Dr. Verder-Bautista testified that J.C.'s urine specimen testified positive for chlamydia and that J.C. could have contracted chlamydia on September 12, the date of the incident, and still be infected if she received no treatment. She testified that chlamydia is a negative bacterial infection and is one of the most commonly sexually transmitted diseases. Dr. Verder-Bautista testified the usual way to be infected with chlamydia is through sexual intercourse. However, it is possible to get chlamydia if an infected person rubs his penis on the outside of a female's vagina. Dr. Verder-Bautista had never seen chlamydia in an eight-year-old before. As a result of the tests, Dr. Verder-Bautista prescribed antibiotics to J.C. to treat her infections.
Jacobo provided a urine sample that tested positive for chlamydia.
B. The Quest Laboratory Report
Emilia Higgins, a clinical laboratory scientist for Quest Diagnostic Laboratory (Quest), testified that the Quest received a urine specimen from J.C. on October 24, 2014. Another lab technician, Marisel, received the specimen. Higgins testified that as part of her duties and responsibilities, she checks the instruments used in the laboratory before testing, checks other lab technicians' work, and prepares reports. She trains all the other employees to use the testing equipment and she is the one who releases the reports for each sample.
Jacobo objected to Higgin's testimony as hearsay and the court overruled the hearsay objection and stated: "I don't think any of this is testimonial. So I'm not sure if Crawford applies, at least as interpreted by our State Supreme Court. So that's my tentative ruling."
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Prior to trial, Jacobo objected to introduction of the Quest report showing J.C. tested positive for chlamydia but the court reserved ruling until the testimony and report were proffered at trial.
Higgins testified J.C.'s specimen was put into a machine to test for chlamydia and gonorrhea. The machine then input the information into an electronic interface. J.C.'s sample tested positive for chlamydia. Higgins personally checked the testing results.
People's Exhibit 16, the Quest report for J.C.'s specimen, was introduced at trial. The report showed a positive test for chlamydia with no gonorrhea detected. People's Exhibit 17, a multipage exhibit which included a copy of the same single page report in Exhibit 16, was also introduced at trial. Higgins testified, and a custodian of records for Quest certified, that the test results were prepared in the normal course of business for Quest. Higgins stated that Quest keeps records of every specimen it receives and records of the testing it does on the specimens it receives. These documents are created near the time the testing occurs. Higgins testified that she conducted daily maintenance checks on the instruments in the lab to ensure they were properly calibrated and functioning. In this case, once the J.C.'s specimen tested positive for chlamydia, Higgins physically checked the specimen for contamination and confirmed the result. She had also conducted a maintenance check on the Tigris instrument, used to conduct the testing of J.C.'s specimen, earlier that same day. Higgins testified that the test results do not indicate whether someone has been a victim of child molestation.
The court admitted Exhibit 16, the single-page Quest report, and Exhibit 17, which contained the single-page Quest report, over defense objection. The court stated, "I don't see a Crawford issue here as long as the business records exception was satisfied. So I don't think any of this was testimonial." The Quest workers are simply loading the sample into a machine and the machine reports the results.
C. Defense Case
Dr. Caroline Salvador-Moses, a clinical psychologist, evaluated Jacobo's neuro-cognitive functioning. She administered the Wechsler adult intelligence scale and the Wechsler memory scale in Spanish. Jacobo scored a 57, which is low IQ. He scored in the low range for verbal comprehension and memory as well. Dr. Salvador-Moses diagnosed Jacobo as having a mild intellectual disability. On cross-examination, Dr. Salvador-Moses stated that the Wechsler test was designed for the English-speaking United States population, but she translated it into Spanish for Jacobo. Jacobo is a Spanish speaker who immigrated to the United States as an adult. She did not administer the Wechsler test that was normed for a Spanish-speaker. Dr. Salvador-Moses admitted that the tests are not reliable if administered to a non-English speaker.
Psychologist, Dr. Deborah Davis, testified about false confessions. Dr. Davis testified that individuals make false confessions because they are so distressed they want to end the interrogation, they believe it is beneficial to them to confess, or they succumb to the authority of the interrogator. Children, minorities, immigrants, and people with intellectual deficits are more likely to falsely confess to a crime.
On cross-examination, Dr. Davis stated that at least one study found the average length of an interrogation that produces a false confession is 16.3 hours.
Jacobo's brother and his brother's girlfriend testified that Jacobo did not have a character trait for sexual deviance with respect to children and he had behaved properly around their children.
D. Jury Verdict and Sentencing
The jury convicted Jacobo of all counts.
The probation report recommended sentences of 25 years to life on counts one and two. Jacobo filed a statement in mitigation and argued that the proposed sentence was cruel and unusual punishment. He claimed imposing a sentence of 50 years to life on someone with a mild intellectual disability is cruel and unusual punishment.
The court stated it had read the probation report and recommendation and Jacobo's statement in mitigation. Probation recommended two consecutive sentences of 25 years to life plus the high term of 10 years for the first section 288 conviction and one-third the middle term for the second section 288 conviction.
J.C.'s mother, Maria, submitted a victim impact statement and explained that Jacobo's sexual abuse of J.C. happened at the same time their daughter, I.S., was undergoing heart surgery. J.C. was angry and struggling with her emotions. The crime had impacted her other children as well.
Jacobo's trial counsel argued the proposed sentence was cruel and unusual punishment. She argued for concurrent sentences. Counsel argued this was not a particularly egregious crime given that the contact between Jacobo and the victim was relatively brief. Jacobo had no significant prior criminal history. ~ This all occurred during one night over a brief period of time. Jacobo's low IQ also impacted his culpability and mental state.
The prosecution argued that Jacobo was found to have a mild intellectual disability, but Dr. Salvador-Moses's finding was called into doubt by the unreliability of her testing methods. The prosecutor agreed, however, that the crimes occurred close in time and that weighed in favor of concurrent sentencing, but everything else weighed in favor of consecutive sentences. The crimes were charged separately as separate violations of J.C.'s body. Jacobo did not show remorse for his actions and tried to claim that J.C., an eight-year-old child, had initiated the sexual contact. Jacobo had occupied a position of trust as J.C.'s stepfather. Furthermore, he committed the sexual assaults of J.C. in the presence of his four-year-old daughter. Finally, as a result of his sexual conduct, he infected J.C. with chlamydia, a sexually transmitted disease.
The court sentenced Jacobo to 25 years to life on count one and 25 years to life on count two to run consecutively. The court stated: "I'm ordering consecutive sentencing for two reasons: One, as his demonstration during his interview indicated, he had to relocate the victim in order to commit this act of sodomy after having committed an act of intercourse. So he had the opportunity to stop and control his behavior and did not. And, secondly . . . he occupied a position of trust. He was a father figure to her, if not a father. And he completely violated that. So that is the reason for consecutive sentencing."
The court selected the mid-term of six years for counts three and four to run concurrently to the indeterminate counts. The court stated that he committed the crimes while on probation and J.C. was a vulnerable victim, but also acknowledged that Jacobo had some intellectual deficits and his prior record was relatively insignificant.
The court stated in evaluating Jacobo's intellectual capacity, it took "Dr. Moses's testimony and findings somewhat with a grain of salt." Jacobo's responses when questioned by police belied the fact he had such intellectual deficits.
III.
DISCUSSION
A. Admissibility of Testimony About the Quest Laboratory Report
Jacobo argues that the trial court erred in admitting Higgins's testimony about the Quest report and the report itself into evidence. He argues it violated his Sixth Amendment right to cross-examine the witnesses against him.
Our Supreme Court addressed the constitutionality of a prosecution witness testifying about information contained in a report prepared by someone else in People v. Lopez (2012) 55 Cal.4th 569 (Lopez) and People v. Dungo (2012) 55 Cal.4th 608 (Dungo). Under Crawford, supra, 541 U.S. 36, the prosecution may not rely on a testimonial, out-of-court, statement unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. (Lopez, at p. 576.) Although the United States Supreme Court has not defined the term "testimonial," our Supreme Court has held: "First, to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity. [Citations.]" (Id. at p. 581.) Second, a statement is testimonial if its primary purpose is criminal prosecution. (Id. at p. 582.)
In Lopez, the trial court admitted a six-page report consisting of data generated by a gas chromatography machine to measure the concentration of alcohol in a blood sample. The laboratory technician, Peña, did not testify. He was not unavailable and the defendant had no opportunity to cross-examine him. (Lopez, supra, 55 Cal.4th at pp. 581-582.) The court stated it "need not consider the primary purpose of nontestifying analyst Peña's laboratory report on the concentration of alcohol in defendant's blood because, as explained below, the critical portions of that report were not made with the requisite degree of formality or solemnity to be considered testimonial [citation]." (Id. at p. 582.)
Although the analyst's signature or initials appeared on each page of the report, no express or implied "statement" by the analyst appeared on any of the pages. (Lopez, supra, 55 Cal.4th at p. 583.) "Because, unlike a person, a machine cannot be cross-examined, here the prosecution's introduction into evidence of the machine-generated printouts shown in pages 2 through 6 of [the] nontestifying analyst['s] laboratory report did not implicate the Sixth Amendment's right to confrontation." (Ibid.)
The Lopez court stated: "Not yet considered by the United States Supreme Court is whether the prosecution's use at trial of a machine printout violates a defendant's right to confront and cross-examine the machine's operator when, as here, the printout contains no statement from the operator attesting to the validity of the data shown. We agree with those federal appellate courts that have upheld the use of such printouts. [Citations.]" (Lopez, supra, 55 Cal.4th at p. 583 [citing cases].) Neither the testifying witness nor the technician who generated the report signed it, certified it, or swore to the truth of the contents. (Id. at p. 584.) "In Melendez-Diaz 'the certificates were sworn to before a notary . . .' by the testing analysts who had prepared the certificates. (Melendez-Diaz [v. Massachusetts (2009) 557 U.S. 305,] 308.) And in Bullcoming v. New Mexico (2011) 564 U.S. 647 (Bullcoming), the laboratory analyst's certificate regarding the result of his analysis was ' "formalized" in a signed document' that expressly referred to court rules providing for the admissibility of such certificates in court. (Bullcoming, [at p. 665].) Such formality is lacking here." (Lopez, at pp. 584-585.)
In the companion case of Dungo, the court considered whether an autopsy report was testimonial. (Dungo, supra, 55 Cal.4th 608.) The court concluded: "criminal investigation was not the primary purpose for the autopsy report's description of the condition of [the victim's] body; it was only one of several purposes." (Id. at p. 621, italics omitted.) "The autopsy continued to serve several purposes, only one of which was criminal investigation. The autopsy report itself was simply an official explanation of an unusual death, and such official records are ordinarily not testimonial." (Ibid., citing Melendez-Diaz, supra, 557 U.S. at p. 324.)
Under the reasoning of Lopez and Dungo, we conclude the content of the Quest report was not testimonial. This machine generated report was not sufficiently formalized, nor was it produced for the primary purpose of creating evidence for the prosecution.
Jacobo argues the purpose of the Quest report was "to tie appellant directly to the charged sex offenses—the analysis and report was generated to 'accuse' appellant and to 'create evidence for use at trial' against him." This is simply not true. J.C.'s urine sample was sent to Quest for evaluation both because she had symptoms of a urinary tract infection and because she was believed to be the victim of sexual abuse. After receiving the test results, J.C. was given antibiotics as part of her treatment. Medical reports created for treatment purposes are not testimonial. (Dungo, supra, 55 Cal.4th at pp. 619-620). This can be contrasted with Melendez-Diaz and Bullcoming where the laboratory reports were performed to establish that a crime had been committed. (Melendez-Diaz, supra, 557 U.S. at p. 311; Bullcoming, supra, 564 U.S. at p. 665.)
This analysis is supported by the Supreme Court's decision in Williams v. Illinois (2012) 567 U.S. 50 (Williams). In Williams, the court addressed the admissibility of out-of-court statements contained in forensic analyst reports, when the analyst who prepared the report does not testify. Vaginal swabs taken from a woman who was kidnapped, robbed, and raped were sent to both a state crime laboratory and the Cellmark Diagnostic Laboratory (Cellmark). (Id. at p. 59.) At trial, a forensic biologist from the state's laboratory testified about the Cellmark analyst's testing and creation of a DNA profile. (Id. at p. 60.) In the expert's opinion, the Cellmark DNA profile matched the state laboratory's DNA profile for the defendant. (Ibid.) At trial, the Cellmark laboratory report was not introduced into evidence, and no Cellmark analyst testified. (Id. at p. 62.)
The plurality opinion concluded the Cellmark report was not testimonial because it was not prepared "for the primary purpose of accusing a targeted individual." (Williams, supra, 567 U.S. at p. 84 (plur. opn. of Alito, J.).) The defendant was not yet a suspect at the time the report was produced. (Ibid.) Justice Thomas concurred in the result but concluded that the accusatory purpose test, "lacks any grounding in constitutional text, in history, or in logic." (Id. at p. 114 (conc. opn. of Thomas, J.).) He agreed with the result reached by "the plurality that the disclosure of Cellmark's out-of-court statements . . . did not violate the Confrontation Clause . . . solely because Cellmark's statements lacked the requisite 'formality and solemnity' to be considered ' "testimonial" ' for purposes of the Confrontation Clause." (Id. at pp. 103-104 (conc. opn. of Thomas, J.).)
The purpose of the Quest report was not criminal prosecution. The urine sample was sent in for testing because J.C. showed signs of an infection after potential sexual abuse. The primary purpose of the testing was medical treatment. Medical reports generated for treatment are not testimonial. (Dungo, supra, 55 Cal.4th at pp. 619-620). Additionally, the report was not sufficiently "formalized" to be testimonial. The trial court found that the laboratory report was not testimonial because the sample had been simply loaded into a machine and the machine reported the results.
Jacobo's final argument is the lab report was not admissible because it violated the hearsay rule. Here the trial court properly found the report was admissible under the business records exception.
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness." (Evid. Code, § 1271.) Higgins testified the report was made in the regular course of business at Quest. The sample was received and logged on October 24, 2014 and the report was generated the same day. Higgins testified about how the report was generated and she personally checked the testing results after the machine generated the report. There was nothing in the record to indicate a lack of trustworthiness. (See County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1449 [admitting laboratory blood tests results under the business records exception to the hearsay rule].)
Jacobo argues the report was not admissible as a business record because it was produced as evidence for use at trial. As outlined above, the laboratory report was generated to determine whether J.C. had a medical condition that needed treatment. Evaluating urine samples is part of Quest's daily business operations.
We conclude both Higgins's testimony and the Quest report were properly admitted at trial. Even if the report was improperly admitted, any error was harmless beyond a reasonable doubt.
A confrontation clause violation is subject to the harmless error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 395.) Under the Chapman standard, error is harmless when it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, at p. 24.)
The jury heard both J.C.'s compelling testimony in court and her video-recorded interview where she described in detail how Jacobo sexually assaulted her numerous times. J.C. described skin-to-skin contact. She testified that Jacobo inserted his penis into both her vagina and anus in the presence of her little sister and that it hurt "a lot." She told the jury she asked Jacobo to stop but he refused. The jury also saw the recording of Jacobo's police interview where, after initially denying the abuse, he admitted to the same conduct that J.C. described. He admitted to putting his penis between her legs and said he did not attempt to penetrate his former stepdaughter "hard" so his penis did not go "all the way inside," which was also consistent with J.C.'s testimony. Jacobo admitted that he did to J.C., a child under the age of 10 at the time, "like what a man does with an older woman."
Jacobo presented evidence at trial from Dr. Davis about false confessions, however, much of this was discredited during cross-examination. Jacobo's interview lasted only one hour and fifteen minutes and the jury watched the recording. From the interview, the jurors could have reasonably concluded that Jacobo had no difficulty understanding the questions he was asked.
While the Quest report was important circumstantial evidence of Jacobo's sexual assault of J.C., J.C.'s compelling and detailed direct testimony, coupled with Jacobo's confession, provided the jury with ample evidence from which they could have convicted him of all of the charged offenses. A rational jury clearly would have reached the same result even if the Quest report and testimony concerning its content had not been admitted or allowed. Any error was harmless beyond a reasonable doubt.
B. Jacobo's Sentence Does Not Constitute Cruel and Unusual Punishment
Jacobo contends that his sentence constitutes cruel and unusual punishment under both the United States and California Constitutions.
Jacobo's sentence of 25 years to life on counts one and two is mandated by statute. Section 288.7 provides: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life." (§ 288.7, subd. (a).) The court sentenced Jacobo to two terms of 25 years to life to run consecutively and then a mid-range term of six years on counts three and four to run concurrently.
The court ordered consecutive terms on the first two counts because: "One, as his demonstration during his interview indicated, he had to relocate the victim in order to commit this act of sodomy after having committed an act of intercourse. So he had the opportunity to stop and control his behavior and did not. And, secondly . . . he occupied a position of trust. He was a father figure to her, if not a father. And he completely violated that. So that is the reason for the consecutive sentencing." The court also noted the crimes were committed while Jacobo was on probation and that J.C. was a vulnerable victim. The court acknowledged the mitigating factors that Jacobo had some intellectual deficits and his prior record was relatively insignificant. However, the court stated in evaluating Jacobo's intellectual capacity, it took "Dr. Moses's testimony and findings somewhat with a grain of salt . . . ." Jacobo's responses when questioned by police belied the fact he had such intellectual deficits.
A punishment violates the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime. [Citations.]" (Gregg v. Georgia (1976) 428 U.S. 153, 173.) "[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, 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, fn. omitted.) Under Lynch, we examine (1) the nature of the offense, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty for more serious crimes in other jurisdictions. (Id. at pp. 425-427.)
Jacobo contends neither the circumstances of the offense nor his personal characteristics justify a sentence of 50 years to life. He argues the offense occurred over a span of only 10 to 15 minutes and J.C. suffered no physical injury. Jacobo has a minimal criminal record. Jacobo also suffers from a low IQ and cognitive limitations.
The court addressed a similar argument in People v. Alvarado (2001) 87 Cal.App.4th 178 (Alvarado.) The defendant was convicted of rape of an elderly woman during commission of a burglary and sentenced pursuant to statute to the mandatory term of 15 years to life. (Id. at p. 184.) He argued that his troubled background, lack of a criminal record, and sincere remorse militated for a more lenient punishment. (Id. at p. 199.) The court concluded that despite his age and the fact he acknowledged his actions upon being caught, his callous assault of a vulnerable victim warranted harsh punishment. (Id. at p. 200; see also People v. Estrada (1997) 57 Cal.App.4th 1270 [holding a sentence of 25 years to life for forcible rape in the course of a burglary was not cruel and unusual punishment where the defendant, who had no prior felony convictions, used no weapon, made no threats, and expressed remorse].)
Jacobo compares his sentence to someone convicted of attempted murder or murder and claims his sentence is unconstitutionally disproportionate. Jacobo, however, fails to recognize that he was convicted of not one but four felonies. "[T]he commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Jacobo sexually molested J.C., an eight-year-old child, by penetrating her vaginally several times and then readjusting her to penetrate her anally. He did this even though she repeatedly told him to stop and his four-year-old daughter, J.C.'s sister, I.S., was in close proximity. Later, on the same weekend, Jacobo again forced himself on J.C. in the presence of I.S. and inserted his penis into her vagina. Even though she told him again to stop, he refused and continued until his nephew came into the garage and asked J.C. and I.S. to come outside and play. He also showed no remorse for his behavior, telling the police that "she started it." Jacobo claimed J.C. hugged him and touched his penis and told him that it was okay because everybody does it. This was egregious because Jacobo was J.C.'s former stepfather, a man she called "dad." Jacobo also infected J.C. with chlamydia.
Contrary to the authorities cited by Jacobo, there are a host of cases in California with similar sentences for sexual assault that have been upheld on appeal. (See Alvarado, supra, 87 Cal.App.4th 178 [upholding a life term for rape committed during a burglary against a challenge the sentence was cruel and unusual punishment]; People v. Meneses (2011) 193 Cal.App.4th at 1087, 1093-1094 [upholding sentence of 15 years to life for a defendant convicted of a single lewd act with a 12-year-old who became pregnant]; People v. Cartwright (1995) 39 Cal.App.4th 1123 [upholding indeterminate term of 375 plus a determinate term of 53 years for sexual assault charges]; People v. Retanan (2007) 154 Cal.App.4th 1219 [upholding sentence of 135 years to life against a cruel and unusual punishment challenge for defendant's sexual assaults of three young girls].)
"[G]reat deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." (In re Wells (1975) 46 Cal.App.3d 592, 599.) Jacobo's punishment "merely reflects the Legislature's zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendant's sentence excessive as a matter of law in every case." (Alvarado, supra, 87 Cal.App.4th at pp. 200-201.)
Jacobo argues cases in other jurisdictions treat similar conduct more leniently. First, we note that many of the cases cited in Jacobo's brief involve digital penetration, not sexual intercourse. Jacobo's sentences for the two counts of lewd acts were only six years each to run concurrently. His citation to the punishments for digital penetration in Ohio and Connecticut are simply not relevant to his convictions for sexual intercourse. Respondent cites to a case from Michigan that imposed a mandatory 25-year sentence for sexual intercourse with a 12-year-old child. (People v. Benton (2011) 294 Mich.App. 191, 194.) The Michigan court surveyed laws in 18 other states that impose 25-year sentences for sexual intercourse with a minor. (Id. at p. 206, fn. 1.) A recent decision from the Fourth District conducted a similar survey and found 10 states with similar statutes to California. (People v. Baker (2018) 20 Cal.App.5th 711, 731.) The Baker court concluded: "Although California's punishment for orally copulating a child under 10 is no doubt severe, it is not so disproportionate to the punishment imposed in other states to render Baker's sentence constitutionally suspect. [Citation.]" (Ibid.) The same is true for Jacobo's consecutive sentence here.
"We have found 10 similar statutes in other states. (See Fla. Stat. Ann. §§ 800.04(5)(b) & 775.082(3)(a)4 [life or 25-year minimum for lewd act on child under 12]; Kan. Stat. Ann. §§ 21-5506(b)(3)(A), 21-6627(a)(1)(C) ; Nev. Rev. Stat. Ann. §§ 201.230.2 , 200.366.1(b) & (3) [35 years to life for sexual penetration of a child under 14 if no substantial bodily harm; else, life without parole]; Ariz. Rev. Stat. §§ 13-705.A [life sentence for dangerous crimes against children including sexual conduct with a child under 12]; Mich. Comp. Laws Serv. § 750.520b(1)(a) & (2)(b) ; Miss. Code Ann. §§ 97-3-101(3), 97-3-95(1)(d) ; Neb. Rev. Stat. Ann. § 28-319.01(1)(a) & (2) [15-year minimum for sexual penetration of a child under 12]; R.I. Gen. Laws §§ 11-37--8.1, 11-37-8.2 ; S.C. Code Ann. §§ 16-3-651(h), 16-3-655(A)(1), (D)(1) ; Utah Code Ann. § 76-5-403.1(1) & (2)(a) .)" (Baker, supra, 20 Cal.App.5th at p.731, fn. omitted.)
Jacobo has failed to demonstrate that his sentence is so disproportionate to his crimes that it shocks the conscience or offends fundamental notions of human dignity. (See People v. Dillon (1983) 34 Cal.3d 441, 477-478.)
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
LEE, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.