Opinion
B299693
06-11-2020
THE PEOPLE, Plaintiff and Respondent, v. OTONIEL JACOMORAN, Defendant and Appellant.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. VA146215) APPEAL from a judgment of the Superior Court of Los Angeles County, Lee W. Tsao, Judge. Affirmed. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Between 2009 and 2011, when appellant Otoneil Jacomoran was 57 to 58 years old and living in his friend's garage, he repeatedly sexually abused his friend's daughters Karen (then 11 to 12 years old) and Denise (six to seven). His friend kicked him out when Denise reported the abuse to her mother, but appellant moved back into the garage five years later. The next year, Denise reported the abuse to her therapist, leading to appellant's arrest. During a post-arrest interview, appellant admitted touching Karen's genitals once or twice over her clothes, but denied further abusing Karen or touching Denise at all. At trial on eight counts of lewd acts upon a child under 14, Karen and Denise each testified that appellant had touched their genitals on many occasions, both over and under their clothes, and threatened to hurt them or their family if they told anyone. Appellant neither testified nor presented evidence. He was convicted on all counts and sentenced under the One Strike Law (Pen. Code, § 667.61) to an aggregate term of 120 years to life. The trial court found him ineligible for presentence conduct credits under the One Strike Law.
On appeal, appellant contends: (1) his 120-years-to-life sentence is cruel or unusual in violation of the California Constitution; and (2) the trial court erred in finding him ineligible for presentence conduct credits. We reject each contention and affirm.
PROCEEDINGS BELOW
A. Prosecution Case
The state charged appellant with three lewd acts upon Denise, one non-forcible (Pen. Code, § 288, subd. (a); count one) and two forcible (id., § 288, subd. (b)(1); counts two and three). It further charged appellant with five lewd acts upon Karen, one non-forcible (count four) and four forcible (counts five through eight). The state alleged two circumstances warranting sentencing under the One Strike Law: (1) appellant committed charged offenses against more than one victim (id., § 667.61, subds. (c)(4), (c)(8), (e)(4)); and (2) appellant committed a charged offense during the commission of a first degree burglary (id., § 667.61, subds. (c)(4), (c)(8), (d)(4)).
1. The Sexual Abuse
Appellant, a friend of the children's father, lived in their family's garage between 2009 and 2011, when Denise was six to seven years old and Karen was 11 to 12. Both girls testified that appellant repeatedly called them into the garage and sexually abused them.
Denise (15 years old at the time of trial) testified that the first time appellant abused her, he grabbed her arm and started rubbing her "vagina area" over her clothes. She felt confused and uncomfortable. When he finished, he told her, "'Don't say anything or I'll hurt you.'"
On ten or more additional occasions, appellant similarly touched Denise over her clothing. She was afraid of him because he had said he would hurt her. On one occasion, when appellant finished touching her, he grabbed her hand and used it to rub his penis over his clothing. She testified, "I would pull back my hand, but he wouldn't let me pull it back until I did it so hard that he let go."
On three or four additional occasions, appellant touched the interior of Denise's vagina. He again threatened to hurt her if she told anyone. She feared he would.
Karen (20 years old at the time of trial) testified that the first time appellant abused her, he sat her on his lap and rubbed her "vagina" over her clothes. Appellant similarly touched her over her clothing 10 to 20 more times.
On five to 10 additional occasions, appellant reached under Karen's clothing and rubbed the interior of her labia. On the first such occasion, he also kissed her until she bit his lip, and threatened to hurt her and her parents if she said anything. When he threatened her, he put his hands around her throat in a choking motion.
On a final occasion, appellant followed Karen into her family's home and into an upstairs restroom, where he began touching her under her clothing. Karen testified, "[H]e pulled out his penis and then he told me -- he told me, like, put it inside my vagina, but I didn't want to so I -- he didn't want me to leave yet, so he, like, h[e]ld my arm and he started to kiss me and I bit him a few times until he, like, finally let go . . . ." She then locked herself in her room. That was the last time appellant touched her, as she "just didn't go outside anymore." Each time appellant touched her, she was afraid he would hurt her or Denise.
2. Appellant's Removal from and Return to His Victims' Home
The girls' father kicked appellant out of the family garage in 2011, the day after Denise told her mother that appellant had been touching her "in the wrong places." In August 2016, however, the girls' father allowed appellant to move back in, over their mother's objection.
Their mother testified that when appellant moved back into the garage, she began watching Karen and Denise (then 17 and 12 years old) more carefully. She was then working at home, unlike during appellant's first period of residence in the garage. Both girls testified they had no contact with appellant during his second period of residence in the garage.
Denise testified that she was "mad and confused why he was back at the house." In September 2017 (about a year after appellant had moved back in), she reported appellant's abuse to her therapist, and was interviewed about it by police almost immediately thereafter. Karen initially felt too embarrassed to divulge to the police what appellant had done to her, but she reported it (on her own initiative) when Denise was interviewed a second time.
Karen was not asked how she felt about appellant's return to the family home.
3. Appellant's Police Interviews
South Gate Police Department detective David Sanchez testified that he interviewed appellant on October 31, 2017. When he informed appellant that Denise had accused him of sexual abuse, appellant initially denied any wrongdoing. Later, appellant claimed not to remember whether he had abused Denise, but that if he had, he had not been "in his five senses" at the time due to his abuse of alcohol and marijuana. Appellant said he would like to apologize, "if he did anything." At the conclusion of the interview, Detective Sanchez arrested appellant.
The next day, after interviewing Karen and informing appellant of his rights under Miranda v. Arizona (1966) 384 U.S. 436, Detective Sanchez interviewed appellant again. A video of the interview was played for the jury. During the interview, appellant denied touching Denise. With respect to Karen, he admitted only that he had touched her over her clothing once or twice. He denied touching Karen more than twice; when asked if she was a liar, he responded, "I think so because, that I remember, no. No." He denied touching her in the restroom. He denied kissing her. He denied showing her his penis.
The video and a transcript thereof (which included both a transcription and an English translation of appellant's and Detective Sanchez's Spanish-language conversation) were admitted into evidence.
In his opening statement, appellant's counsel asserted "all [appellant] did" was touch Karen's "private part area" over her clothes on two occasions. He further asserted that appellant "did not in any way, shape, or form touch Denise."
When asked what he would say to Denise and Karen if required to write them a letter, he responded, "That they forgive me. It's the only thing I can ask of them. [¶] . . . [¶] For all the -- for everything I did to them. That they forgive me. I -- it's the only thing I can tell them. Because I can't tell them more. It's a pardon. Like I tell you, well, because I was another person.[] So, that they forgive me." When Detective Sanchez pressed him to specify the conduct for which he was apologizing, he responded, "[F]or touching them. To help me a little bit to free my -- my conscience, right? [¶] To get out that -- to get out, like -- like you say, that weight, right? Last night [in jail], I tell you, I could hardly sleep thinking and thinking and thinking and thinking. . . . How that -- that happened. [¶] . . . [¶] Don't think . . . that that's easy either. [¶] . . . [¶] This isn't -- don't think that -- that that's easy. Um, it hurts me too, all that. [¶] . . . [¶] It hurts me too."
Appellant repeatedly questioned why he had been arrested after he had "rebuilt" his life and purportedly had become a different person.
B. Defense Case
Appellant neither testified nor presented evidence. In closing argument, his counsel conceded that his recorded admission to touching Karen twice over her clothing satisfied one non-forcible charge (count four), but argued that appellant had committed no other offense.
C. Verdicts and Sentencing
The jury convicted appellant on all counts and found true the multiple-victims allegation. It found the burglary allegation untrue.
As a result of the true finding on the multiple-victims allegation, the One Strike Law required the court to impose a minimum sentence of 15 years to life on each of the eight counts. (Pen. Code, § 667.61, subds. (b), (c)(4), (c)(8), (e)(4).) The statute additionally required the sentences to be imposed consecutively on each of the six forcible counts. (Id., § 667.61, subds. (c)(4), (i).) In a sentencing memorandum, the prosecutor asked the court to impose the sentences consecutively on all eight counts, which would yield an aggregate term of 120 years to life.
In his own sentencing memorandum, appellant did not dispute the applicability of the One Strike Law or contend that its mandatory minimum sentence constituted cruel or unusual punishment. Instead, he argued that his sentences on the two non-forcible counts should be imposed concurrently, which would yield an aggregate determinate term of 90 years rather than 120 years. He relied, inter alia, on a STATIC-99R assessment report and an evaluation report by a clinical psychologist. The STATIC-99R report indicated that appellant had a "very low" risk of being charged with another sexual offense within five years of his (theoretical) release on probation. The psychologist reported that she had administered the Sex Offender Risk Appraisal Guide and the Sexual Violence Risk 20, and that those tests indicated appellant presented a low risk of "dangerousness" and of sexual violence, respectively.
At the sentencing hearing, the court deemed it "fairly clear" that the sentences on each count should be imposed consecutively, explaining, "These were multiple offenses against two young victims that occurred over a period of time. [¶] The victims testified that they were molested by [appellant] on more occasions than were actually charged here. I think one of the victims testified, if I recall correctly, that this had occurred approximately ten times. [¶] The crimes were separate acts. They involved, for the most part, threats of violence." The court acknowledged that appellant's lack of a prior criminal record was a mitigating factor, but found it of little significance, explaining, "[Appellant] was 57 years old. He clearly should have known better at that age. And again, these are offenses that occurred on multiple occasions over a period of time. [¶] So the fact that he has no prior record is of less significance in the larger context."
In fact, each victim testified that appellant abused her on more than 10 occasions.
The court found that appellant had failed to show remorse. It stated, "One of the striking moments in this trial was the testimony of the victims . . . when they detailed . . . their confusion and anger over [appellant's] moving back into the residence. [¶] . . . [T]hey were rightfully confused and upset and although they didn't say so, angry that [appellant] decided to move back into the home after a series of acts committed against them. [¶] And that, to me, is inconsistent with a showing of remorse." The court noted that in making his limited admissions, appellant had expressed his relief in getting the matter off his chest, but had not expressed concern for the well-being of either girl he had harmed. The court found that appellant's lack of remorse indicated a likelihood of reoffending, notwithstanding the STATIC-99R report.
The court found that the aggravating factors -- including appellant's threats of harm, the victims' vulnerability, and appellant's taking advantage of the family's trust in him -- outweighed the mitigating factors, warranting imposition of the maximum term. The court imposed an aggregate term of 120 years to life, comprising consecutive terms of 15 years to life on each of the eight counts.
Counsel for both parties expressed a belief that appellant was entitled to presentence conduct credits. Citing a treatise, the court expressed its contrary understanding that a 2006 amendment to the One Strike Law had rendered defendants sentenced under the statute ineligible for conduct credits. The court placed the matter on second call in order to give counsel an opportunity to consult authority on the issue. On second call, appellant's counsel represented that after contacting the public defender's appellate department, he believed the court was correct regarding appellant's ineligibility for conduct credits. The court awarded no conduct credits.
Appellant timely appealed.
DISCUSSION
Appellant contends: (1) his 120-years-to-life sentence is cruel or unusual in violation of the California Constitution; and (2) the trial court erred in finding him ineligible for presentence conduct credits.
A. Cruel or Unusual Punishment
We reject appellant's contention of cruel or unusual punishment. As respondent observes, appellant forfeited the contention by failing to raise it in the trial court. (See People v. Baker (2018) 20 Cal.App.5th 711, 720 (Baker) ["A claim that a sentence is cruel or unusual requires a 'fact specific' inquiry and is forfeited if not raised below"]; accord, People v. Speight (2014) 227 Cal.App.4th 1229, 1247.) We nevertheless exercise our discretion to consider the merits. (See, e.g., People v. Denard (2015) 242 Cal.App.4th 1012, 1020, 1030, fn. 10.)
"'"To determine whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including its motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including age, prior criminality, and mental capabilities. [Citation.]" [Citation.] "If the court concludes that the penalty imposed is 'grossly disproportionate to the defendant's individual culpability' [citation], or, stated another way, that the punishment '"'shocks the conscience and offends fundamental notions of human dignity'"' [citation], the court must invalidate the sentence as unconstitutional."' [Citation.]" (People v. Landry (2016) 2 Cal.5th 52, 125.) The reviewing court owes "great deference" to the Legislature, particularly where, as here, the challenged sentence was imposed under "legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." (Baker, supra, 20 Cal.App.5th at 729; see also id. at 724-729 [upholding defendant's 15-years-to-life sentence for oral copulation of child, the mandatory minimum under statute enacted to "broaden th[e] net" cast by One Strike Law].) "'Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.'" (Id. at 724.)
Consideration of the nature of the offense and the offender is the "'main technique'" used to analyze a claim of cruel or unusual punishment. (People v. Gomez (2018) 30 Cal.App.5th 493, 500 (Gomez).) There are two alternative techniques: (1) comparing the sentence to punishments for other offenses in California; and (2) comparing the sentence to punishments for comparable offenses in other states. (See, e.g., id. at 502.)
Here, appellant's argument concerning other punishments consists solely of citations to a case depublished by our Supreme Court after he filed his appellate brief. (See People v. Cadena (Aug. 27, 2019, B281175), review den. and opn. ordered nonpub. Dec. 11, 2019.) After respondent noted the depublication order, appellant neglected to file a reply brief. We decline to address appellant's abandoned argument. (See, e.g., In re Phoenix H. (2009) 47 Cal.4th 835, 845 ["'"Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned"'"].)
This is not such a rare case. "'[S]exual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people[.]'" (Baker, supra, 20 Cal.App.5th at 725, quoting Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244.) Appellant was convicted of eight separate instances of such abuse, three of them on a girl as young as six or seven years old. The abuse included fondling of the interior of the girls' genitals. Appellant attempted even more egregious abuse, exposing his penis to Karen and attempting to convince her to put it in her vagina -- he allowed her to leave only after she repeatedly bit him. Finally, each act of sexual abuse was either accompanied by or committed under the shadow of threats of harm to the girls or their family, which appellant reinforced, in Karen's case, with simulated choking. (See Gomez, supra, 30 Cal.App.5th at 501 [rejecting proportionality challenge to 15-years-to-life sentence on conviction for sexual penetration of child, in part because defendant used "fear instilled by threats of harm to the victim and her family members" to commit it and related crimes].) Thus, appellant's culpability is severe.
Appellant's reliance on two purportedly mitigating factors is unavailing. First, his refraining from further abuse of the girls upon moving back into their family's garage is not significant evidence of rehabilitation. Having been kicked out upon Denise's report of his abuse to her mother, appellant was on notice that any repeated abuse would likely be discovered and punished. Moreover, the girls were roughly five years older, potentially diminishing his desire to abuse them or heightening his expectation that they would report or resist abuse. Finally, the girls' mother was then working from home and watching the girls more closely. Second, contrary to appellant's implications, he neither fully "acknowledged his criminal behavior to investigating Detective Sanchez" nor "asked for forgiveness" in a manner suggestive of rehabilitation. After initially denying any wrongdoing, appellant ultimately admitted to Detective Sanchez only that he had touched Karen once or twice over her clothes. He denied the majority of the abuse of Karen, and denied entirely any abuse of six-or-seven-year-old Denise. Moreover, although he asked for forgiveness when prompted, he failed to address any pain he had caused the girls, instead emphasizing his own pain and complaining of the perceived unfairness of being held accountable years later. The trial court reasonably found appellant's behavior more suggestive of a risk of reoffending than of meaningful remorse.
We acknowledge the record is not devoid of mitigating factors. Appellant's lack of a prior criminal record is one, and the test findings indicating a low risk of reoffending are another. But these factors are insufficient, when weighed against the gravity of his crimes, to render his sentence unconstitutional. (See Baker, supra, 20 Cal.App.5th at 718, 725-726 & fn. 4 [rejecting proportionality challenge to 15-years-to-life sentence on conviction for oral copulation of minor, notwithstanding defendant's insignificant criminal record and low-risk score on STATIC-99R assessment].)
Appellant relies on no published authority holding a sentence cruel or unusual. In the published cases on which he relies, the courts rejected challenges to the defendants' sentences under our state Constitution. (See Baker, supra, 20 Cal.App.5th at 723-732; People v. Christensen (2014) 229 Cal.App.4th 781, 806-809 (Christensen); People v. Meneses (2011) 193 Cal.App.4th 1087, 1092-1094.) Appellant emphasizes that the 120-year determinate component of his sentence is much longer than the determinate component of the 27-years-to-life sentence upheld in Christensen. There, however, the defendant was convicted of only five, non-forcible acts. (Christensen, supra, 229 Cal.App.4th at 803- 804.) Here, appellant was convicted of eight acts, six of them forcible. Moreover, our constitutional inquiry does not concern whether a sentence comparable to that in Christensen would have been more appropriate than the sentence prescribed by the Legislature, but whether the latter sentence is so grossly disproportionate to appellant's culpability as to shock the conscience. We conclude it is not.
In sum, appellant's 120-years-to-life sentence does not exceed the bounds of the deference we owe to the Legislature. "This is not that rarest of cases in which a sentence is out of all proportion to the offense in violation of the state constitution." (Baker, supra, 20 Cal.App.5th at 732.)
B. Presentence Conduct Credits
The trial court did not err in concluding that a 2006 amendment to the One Strike Law rendered appellant ineligible for presentence conduct credits. When originally enacted, the One Strike Law stated defendants' eligibility for a limited amount of conduct credits as follows: "Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of . . . 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term . . . be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction." (Stats. 1993-1994, 1st Ex. Sess., ch. 14, § 1, (Sen. Bill No. 26).) The Legislature deleted this language in 2006. (Stats. 2006, ch. 337, § 33 (Sen. Bill No. 1128).) As amended, the One Strike Law "says nothing about credits." (People v. Dearborne (2019) 34 Cal.App.5th 250, 267 (Dearborne).)
As appellant acknowledges, three published cases support the trial court's conclusion that the 2006 amendment eliminated conduct credit eligibility under the One Strike Law. (See Dearborne, supra, 34 Cal.App.5th at 267-268; People v. Adams (2018) 28 Cal.App.5th 170, 182 (Adams); People v. Cervantes (2017) 9 Cal.App.5th 569, 618-619 (Cervantes), disapproved on another ground by People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) The Cervantes court, in the course of determining the defendant's earliest parole eligibility date, concluded that the One Strike Law rendered the defendant ineligible for conduct credits. (Cervantes, supra, 9 Cal.App. at 618-619.) The court relied on materials from the legislative history of the 2006 amendment, including a Legislative Counsel's Digest stating, "'This bill . . . would eliminate the possibility of the person receiving credit to reduce his or her sentence.'" (Id. at 619.) In Adams, our colleagues in Division Five noted an ambiguity regarding whether the Legislature, in deleting the text that had both stated and limited eligibility for conduct credits, had "intended to eliminate presentence conduct credit . . . or to authorize full conduct credit . . . ." (Adams, supra, 28 Cal.App.5th at 182.) Like the Cervantes court, the Adams court consulted the 2006 amendment's legislative history. (Ibid.) It quoted, inter alia, a bill analysis stating, "'This bill eliminates conduct/work credits for inmates sentenced under the one-strike law.'" (Ibid.) The Adams court's analysis was adopted in Dearborne, supra, 34 Cal.App.5th at 268.
The Adams court's analysis has additionally been adopted -- through citations to Adams, Dearborne, or both -- in several leading treatises. (See 3 Witkin & Epstein, Cal. Criminal Law (4th ed. 2020) Punishment, § 463 ["Presentence conduct credits are not authorized under [the One Strike Law]"]; 49 Oakes et al., Cal. Jurisprudence (3d ed. 2020), Penal and Correctional Institutions, § 229 ["Defendants given indeterminate terms under One Strike Law are not entitled to any presentence conduct credit"]; Couzens & Bigelow, Sex Crimes: California Law and Procedure (The Rutter Group 2019) § 13:10 ["After an amendment [to the One Strike Law] effective September 20, 2006, the defendant is not entitled to any conduct credits"]; Couzens et al., Sentencing California Crimes (The Rutter Group 2019) § 19:21 [same].)
We likewise adopt the Adams court's analysis. It is unclear whether the deletion of the statute's former statement of defendants' eligibility for a limited amount of conduct credits was intended to eliminate (1) their eligibility; or (2) the limitation thereon. (See Adams, supra, 28 Cal.App.5th at 182.) In other words, the 2006 amendment reveals a latent ambiguity in the statute, which we may resolve by consulting the statute's legislative history. (See Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1496, fn. 5 ["extrinsic aids can be used to (1) identify the existence of a latent ambiguity and (2) resolve the ambiguity"]; id. at 1500 [staff analysis of bill established latent ambiguity in meaning of statutory phrase].) The legislative history materials quoted in Adams and Cervantes, as set forth above, make plain that the Legislature intended to render defendants sentenced under the One Strike Law ineligible for conduct credits. Appellant does not argue the legislative history can be read to support any other intent.
In sum, defendants like appellant, sentenced under the One Strike Law as amended in 2006, are ineligible for conduct credits. The trial court properly denied appellant presentence conduct credits.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. CURREY, J.