Opinion
A162599
10-10-2023
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER M. JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 19CR003549
STREETER, J.
Defendant Christopher Johnson appeals his sentence and 13 of his 22 convictions for sexually abusing his nine-year-old daughter. A jury found him guilty on nine counts of aggravated sexual assault of a child (Pen. Code,§ 269, subd. (a)(4)); nine parallel counts, based on the same conduct, of sexual acts on a child (§ 288.7, subd. (b)); and four counts of forcible lewd acts on a child (§ 288, subd. (b)(1)). Johnson admits the sexual conduct and concedes that substantial evidence supports his convictions on the nine lesser counts, but for the other thirteen convictions he argues the evidence is insufficient to show he used force, fear, or duress to effect the abuse. He also argues that the court abused its discretion and denied his right to confront witnesses by precluding questions about past sexual abuse of the victim; that his aggregate sentence of 32 years plus 135 years to life is unconstitutionally cruel and/or unusual; and that the court infringed his right to a jury trial when, as mandated by section 667.6, subdivision (d) (section 667.6(d)), it imposed "full, separate, and consecutive" terms on all 22 counts based on a fact found not by a jury but by the judge-namely, that he committed the crimes on "separate occasions."
All statutory references are to the Penal Code unless otherwise noted.
We conclude that all of defendant's contentions lack merit. When this case originally came before us, the issue of whether the operation of section 667.6(d) complied with the Sixth Amendment to the United States Constitution was pending before the California Supreme Court. (People v. Catarino, review granted Jan. 19, 2022, S271828.) In our original opinion resolving this matter, we held that, insofar as section 667.6(d) mandated the imposition of "full" terms on the second through fourth forcible lewd act counts, it increased the mandatory minimum sentence for those offenses based on judicial factfinding in a way inconsistent with the Sixth Amendment as construed in Alleyne v. United States (2013) 570 U.S. 99 (Alleyne).
The California Supreme Court granted review in this case pending resolution of People v. Catarino. (People v. Johnson, review granted May 17, 2023, S279198.) It then held in People v. Catarino (2023) 14 Cal.5th 748 (Catarino), certiorari denied Oct. 2, 2023, No. 23-5298, that section 667.6(d)'s mandate to impose full terms on second and subsequent forcible lewd act convictions is not inconsistent with the Sixth Amendment, disapproving our prior opinion. (Catarino, at pp. 755-757.) The court then transferred this matter to us with directions to vacate our decision and reconsider the matter in light of Catarino. We hereby vacate our previous decision.
Having reconsidered the cause, we affirm the judgment in full.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2015, defendant and his former wife Sheree took custody as foster parents of Jane Doe and her younger brother, who are the children of Sheree's sister. In September 2018, just before Jane turned eight, defendant and Sheree adopted her.
Because Sheree shared a last name with defendant at the relevant times, we refer to her by first name only, without intending any disrespect.
Defendant started sexually abusing Jane in late 2018 or early 2019. He began with cuddling and playful touching, such as tickling on the sofa, progressed to tickling her vagina, and eventually engaged in several forms of copulation. (He later made a comment suggesting that he waited to begin abusing Jane until the adoption was finalized, to avoid discovery in adoption-related inspections.) In all, defendant admitted that he licked Jane's vagina approximately two dozen times; had her lick his penis or put it in her mouth as many as a dozen times; engaged in mutual oral copulation a few times; and tried to penetrate her vagina twice with his finger and twice with his penis, stopping because the penetration hurt her. He abused Jane in the early morning while Sheree was at the gym.
The abuse ended one morning in October 2019 when Sheree came home early from the gym and found defendant and Jane, who was naked, together in bed. Sheree ordered defendant to leave. She then spoke with Jane, who was scared and embarrassed but eventually told Sheree that "when you're at the gym, he licks my vagina."
On the day she discovered the abuse, Sheree asked defendant to stay at his parents' home. Later that day, she told defendant's parents what she had learned. At trial, Sheree recounted part of the conversation as follows: "They did ask, . . . '[Jane] does have a tendency to lie, are you sure[?],' and I told them, 'I believe her because a child would not talk about something that graphically.' And they were like, 'well, this has happened to her before,' and I said, 'yeah, but she's never talked about it before. Um, this is different.' "
Thereafter, defendant stayed with his parents and had no unsupervised contact with Jane. Sheree did not report the abuse at once, as she feared the consequences for her custody of her children. But two months later, in December 2019, a police officer and Child Welfare workers visited her to investigate an anonymous report that Jane had told a friend about "naked time with daddy." Sheree reported what she had seen, and been told by Jane, in October.
As Sheree recounted it at trial, the report was that Jane had said that she "used to have naked time with daddy and now she gets to have naked time with daddy at grandma and grandpa's house." After the officers' visit, Sheree confirmed with defendant's parents that they had not in fact allowed him to have more than fleeting contact with Jane during Jane's periodic visits to their home. The People have not alleged any further abuse after the day Sheree discovered defendant and Jane in bed.
The next day, police officers recorded a forensic interview of Jane, two pretext calls about the abuse that Sheree made to defendant, and an interview of defendant after his arrest.
Defendant was charged with nine counts of aggravated sexual assault of a child via forcible oral copulation (§§ 269, subd. (a)(4), 287, subd. (c)(2)(B)), nine parallel counts of sexual acts on a child (§ 288.7, subd. (b)), and four counts of forcible lewd acts on a child (§ 288, subd. (b)) with special allegations that those four counts involved substantial sexual conduct (§ 1203.066, subd. (a)(8)).
At trial, three witnesses gave testimony relevant to the issues on appeal: Jane, Sheree, and Dr. Anna Washington, an expert in "sexual abuse, suggestibility, false allegations, and the [e]ffects of abuse on children." The jury heard recordings of the December 2018 police interviews of defendant and Jane, as well as the pretext calls. In those recordings, Jane described defendant licking her vagina, while he admitted the full range of sexual conduct set out above. In her testimony at trial, Jane, then 10 and a half years old, described the full range of sexual conduct defendant had admitted. She testified that he never hit or physically hurt her, except that it hurt when he put his penis in her vagina.
The only material discrepancy between defendant's recorded statements and Jane's account-in both her December 2018 interview and her March 2021 testimony-concerned whether defendant facilitated the abuse via threats.
In her interview, Jane repeatedly said that defendant "forced [her] to do it" or to "let him do it" by saying that he would take away her iPad or "electronics or other things" and by threatening that he would "give [her] a consequence." At other points, she referred to "lots of consequences," "bad, bad consequences," or "weird mean consequences," but taking away her iPad or "electronics" was the only specific threatened consequence she identified.
Defendant did not address the issue in the pretext calls, but in his police interview he denied having ever threatened Jane and specifically denied having threatened to take away her iPad or electronics.
At trial, Jane testified that she was naked when defendant licked her vagina. Asked why she took off her clothes, she testified that defendant would say "a threaten," and tell her she would get in trouble if she did not. When asked if defendant ever threatened to take anything away from her, she answered, "I don't remember," but when asked specifically if she recalled anything about her "iPad, or games, or anything like that," she replied, "My iPad." In questioning about times defendant touched her vagina with his finger, Jane replied affirmatively when asked if he would "threaten you to take off your clothes" or say things that made her "feel scared," but shook her head when asked if she could recall "examples of what he would say." She responded similarly to questions about times defendant put his penis in her mouth.
"Q: . . . Did he say something to you that would then have you take your own clothes off or how did that happen[?] [¶] A: He'd say something. [¶] Q: What kind of thing would he say? [¶] A: A threaten. [¶] Q: He would threaten you? [¶] A: (The witness nods her head.) [¶] Q: . . . [W]hat do you mean by that? Like do you remember any of the things he would say to you that would happen if you didn't do it? [¶] A: Um-(The witness shakes her head.) [¶] Q: Did he ever say that somebody could get in trouble? [¶] A: Yeah. [¶] Q: Did he say that you would get in trouble or somebody else? [¶] A: I would get in trouble. [¶] Q That you would get in trouble if you didn't take off your clothes and do that? [¶] A: (The witness nods her head.) [¶] Q: Is that a yes? [¶] A: Yes."
Jane said in her interview that defendant had said that what they were doing "was against the law," that "mama . . . wouldn't like it," and that he "would go to jail" if "anybody finds . . . out." At trial she testified that she did not tell Sheree what was happening because she was "scared" she would "get in trouble"; asked if she was scared because of things defendant had said, she replied, "I don't really know why I was scared."
Dr. Washington explained Child Sexual Abuse Accommodation Syndrome, a model for understanding how children respond to and report sexual abuse. Washington testified that children past preschool age are rarely suggestible, or easily "influenced by another person to [b]elieve [events] or respond in a certain way . . . that they wouldn't have otherwise responded"; that studies have shown children with a history of trauma, including sexual abuse, to be less suggestible in general than other children; that for ethical reasons no studies exist of how suggestible children are to false memories of sexual abuse; and that while it is normal for children to lie about little things or to get out of trouble, it is rare for them to lie to get caregivers in trouble, or to falsely report negative events or ones outside their experience.
On recross, Dr. Washington tied together some of those points as follows: "it's hard to create a false memory if it's an implausible memory for a child. . . . Sexual abuse is . . . difficult to understand and imagine for most children who haven't had that experience, and so that would be an implausible event to . . . come up with for a child on their own. It would be potentially easier to have the understanding of sexual abuse if the child has been previously sexually abused, and so in that way it would be more of a plausible event. [However] the research studies that looked at suggestibility showed that children with [a] . . . history [of] sexual abuse or physical abuse were even more resistant to suggestibility probably for other reasons .... So even though [sexual abuse is] more plausible maybe for them they have other reasons to be more resistant to suggestibility in forensic interview settings."
The jury found defendant guilty on all twenty-two counts and found true the allegations that the four forcible lewd act counts involved substantial sexual conduct. The court sentenced him to prison for 32 years (comprising the eight-year middle term on each of the four forcible lewd act counts) (§ 288, subd. (b)(1)) plus 135 years to life (comprising nine terms of 15 years to life, as required by section 269, subdivision (b), for each count of aggravated sexual abuse of a child). (The court also imposed sentences of 15 years to life on each of the nine counts of sexual acts with a child (§ 288.7, subd. (b)) but stayed those sentences pursuant to section 654.) Defendant timely appealed.
II. DISCUSSION
A. Defendant's Challenges to His Convictions
Defendant contends that we must reverse his convictions of aggravated sexual abuse and forcible lewd acts, each of which includes the element of "force, violence, duress, menace, or fear of immediate and unlawful bodily injury" (§§ 269, subd. (a)(4), 287, subd. (c)(2)(B), 288, subd. (b)), because no substantial evidence showed that he used such means to abuse Jane.
A substantial-evidence claim can succeed on appeal only if, after reviewing the record in a light most favorable to the judgment, we find no evidence that is" '" 'reasonable, credible, and of solid value, from which a rational trier of fact could find [the disputed element] beyond a reasonable doubt.'" '" (In re O.D. (2013) 221 Cal.App.4th 1001, 1009.) We do not reweigh, resolve conflicts in, or reevaluate the credibility of the evidence; nor do we decide if we find that it proves guilt beyond a reasonable doubt, but only if any rational trier of fact could have so found. (People v. Cochran (2002) 103 Cal.App.4th 8, 13, overruled on another point in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12 (Soto).) The Attorney General, implicitly conceding a lack of proof that defendant used force or fear of injury, argues that the record includes evidence he used duress. We agree.
Duress is"' "a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted." '" (Soto, supra, 51 Cal.4th at p. 246, quoting People v. Leal (2004) 33 Cal.4th 999, 1004, italics omitted.) Duress "involves psychological coercion" and "can arise from various circumstances," including a defendant and victim's relationship and relative ages and sizes. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320.) If the victim is young and the defendant is a family member,"' "the position of dominance and authority of the defendant and his continuous exploitation of the victim" '" are relevant to the issue of duress. (Id. at p. 1320.) The "reasonable person of ordinary susceptibilities" whose reactions we must assess is thus a reasonable person of the victim's age and relationship to the defendant (Soto, supra, at p. 246, fn. 9)-here, the eight- or nine-year-old daughter of an adult man.
Seen from that perspective, the evidence amply sufficed to permit a rational jury to find that defendant subjected Jane to threats of hardship or retribution sufficient to psychologically coerce a reasonable eight- to nine-year-old daughter of ordinary susceptibilities to perform or acquiesce in sexual acts she would not otherwise have performed or acquiesced in. Jane clearly and repeatedly said, in the recorded interview played for the jury, that defendant "forced" her to submit to or perform sexual acts by threatening to take away her iPad or impose other "mean," "weird," or "bad" "consequences" if she did not. At trial, Jane testified consistently. Although, as defendant emphasizes, the only specific threats she could recall at trial were that she would get in trouble and have her iPad taken away-and those only after being prompted-the limited specificity in her accounts was simply a factor for jurors to consider in deciding whether to believe her. Jane's inability to consistently and without prompting recall more detail did not make it impossible for a rational juror to believe her testimony. That testimony thus constitutes substantial evidence of duress.
Jane also reported that defendant told her that he would go to jail and Sheree would be upset if she disclosed the sexual abuse. The Attorney General relies on these threats as a further form of duress, while defendant contends that such statements do not count because they were directed at inhibiting" 'later disclosure of the sex acts and not [facilitating] the sex acts themselves.'" (People v. Hecker (1990) 219 Cal.App.3d 1238, 1251, fn. 7, overruled on another point in Soto, supra, 51 Cal.4th at p. 248, fn. 12, quoting People v. Bergschneider (1989) 211 Cal.App.3d 144, 154, fn. 8, overruled on another point in People v. Griffin (2004) 33 Cal.4th 1015, 1028.) But the same court that issued Hecker later disavowed its language as "overly broad" and held that threats about the consequences of reporting abuse can create duress because they represent an abuser's "attempt to isolate the victim and increase or maintain her vulnerability to his assaults." (People v. Cochran, supra, 103 Cal.App.4th at p. 15, overruled on another point in Soto, supra, 51 Cal.4th at p. 248, fn. 12; accord, People v. Senior (1992) 3 Cal.App.4th 765, 775 [rejecting distinction drawn in Hecker].) We agree with that court's later insight: by making threats of how disclosure would result in hardship, defendant psychologically coerced Jane not to report past acts of abuse and thereby ensured his ongoing ability to perform further acts of abuse.
Defendant's second contention is that the court abused its discretion and infringed his rights under the confrontation and due process clauses (U.S. Const., 6th &14th Amends.; Cal. Const., art. I, §§ 15, 28) by preventing his attorney from cross-examining Jane about the past sexual abuse to which Sheree briefly alluded when she testified that defendant's parents had said, "this has happened to [Jane] before," and she had replied, "yeah, but ...."
When defense counsel asked Jane, "Has anyone other than [defendant] ever touched your vagina before that you didn't want to?" the prosecutor objected. After a sidebar discussion not relevant on appeal, defense counsel argued that the prior abuse might be relevant based on Dr. Washington's testimony that "having had an experience would increase the suggestibility" of a child to false memories of the same experience. Defense counsel conceded that he did not know if Jane knew of the past abuse (assuming it had in fact occurred).
After the prosecutor objected under Evidence Code section 782, which requires a defendant seeking to offer "evidence of sexual conduct of the complaining witness . . . to attack the credibility of [that] witness" to file a written motion with a sealed offer of proof as to the relevance of the evidence (id., § 782, subd. (a)), defense counsel asked to research section 782 over a recess. After doing so, counsel apologized for not having known of the need for a motion and explained that he had not decided that past abuse might be relevant until he heard certain testimony. The court sustained the objection to questions about past abuse on two grounds: the lack of an Evidence Code section 782 motion, and the fact that the evidence was inadmissible under Evidence Code section 352 because its likely prejudice outweighed its probative value. On defense counsel's inquiry, the court clarified that requesting a continuance to file an Evidence Code section 782 motion would be futile because the court still would sustain the objection based on Evidence Code section 352 alone. Defendant was not obliged to then perform the idle act of requesting a continuance and filing a motion under Evidence Code section 782 that, even if granted, could not lead to admission of the evidence. (Civ. Code, § 3532 ["The law neither does nor requires idle acts"]; see People v. Ayala (2000) 23 Cal.4th 225, 263-264 .) The exclusion of potential pastabuse evidence can thus be upheld on appeal only under Evidence Code section 352.
The court sustained the objection based in relevant part (see fn. 5, ante) on Evidence Code section 352, because "the probative value is far outweighed by the prejudice in the consumption of time and confusing the issues."
The court did not abuse its discretion. A court may exclude evidence under section 352 if "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) In assessing such a ruling, we must identify the probative value of the excluded evidence (or, as here, potential evidence). At trial, defendant contended only that past abuse, if Jane knew of it, might be relevant to her suggestibility as to the existence of abuse by defendant, based on the expert testimony that children are less suggestible about matters outside their experience. But as defendant now concedes, the fact that he admitted the sexual abuse means that the issue on which his counsel argued that the evidence had probative value-Jane's suggestibility as to whether such abuse did in fact occur-was inconsequential.
Defendant thus raises a new theory on appeal: Evidence of past abuse was relevant to impeach Jane's credibility not just on the issue of whether the abuse occurred, but on the issue of whether it was facilitated by duress, "because the prior abuse made her more suggestible on that issue." Defendant forfeited this claim by not raising that theory below as a basis for finding the evidence more probative than prejudicial. (See People v. Cornejo (2016) 3 Cal.App.5th 36, 55 [defendant forfeited theory that evidence was admissible for one purpose by advocating admission only for another].)
Defendant's brief concludes with a blanket claim that, insofar as he has forfeited any arguments, he was denied his right to effective assistance of counsel. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) Such a claim requires a showing that an attorney's performance both fell short of reasonable competence and prejudiced the defendant's case. (Strickland v. Washington (1984) 466 U.S. 668, 686.) Given the layers of speculation in defendant's theories about the possible probative value of the potential evidence, as detailed in text, he is unable to show the requisite prejudice.
But even if defendant had raised his new theory below, the court would have been well within its discretion to reject it. Defendant notes testimony by Dr. Washington that, while children who have been abused are generally less suggestible, they may be more suggestible on the topic of sexual abuse insofar as it is not an event outside their experience. He speculates that "[t]he same principle would seem to apply to a child who had previously been sexually abused by [duress]." He also notes Washington's testimony that children who suffer sexual abuse often feel shame and guilt and believe the abuse was their fault. On that basis, he suggests that evidence of the circumstances of Jane's past abuse might have shown that she had a motive to fabricate claims of duress because she "may have been even more fearful than a child who had not previously been sexually abused that she would be blamed for it," and because she may have been blamed for the prior abuse or alternatively may have "escaped blame because the prior abuse was accomplished by force or threats."
That array of contingent theories does not show the evidence defendant sought to develop was likely to have significant, or any, probative value on the issue of duress. It rests on layers of speculation about whether past abuse occurred, whether Jane was aware of it at the time, how adults around her reacted to the past abuse, whether and how she perceived those reactions, and how if at all those events affected her in 2019. Weighing against admissibility is the time that a mini-trial as to what a ten-and-a-half-year-old child recalled about abuse that may have occurred five or more years earlier would have consumed, and the confusion of the issues it could have caused. The court did not abuse its discretion in excluding such potential evidence.
Defendant's claim fares no better under the confrontation or due process clauses. To show a violation of the former, he must establish that, absent a limit on impeachment, "[a] reasonable jury might have received a significantly different impression of [the witness's] credibility ...." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680; see People v. Dyer (1988) 45 Cal.3d 26, 48 [confrontation clause affords judges "wide latitude" to impose reasonable limits on cross-examination into potential bias of prosecution witness to avoid prejudice, confusion of issues, or questioning that is repetitive or marginally relevant].) A court denies due process if it bars a defendant from presenting "relevant evidence of significant probative value." (People v. Jennings (1991) 53 Cal.3d 334, 372.) For all the reasons the potential evidence lacked probative value for purposes of Evidence Code section 352, it also fell short under those standards.
B. Defendant's Challenges to His Sentence
As noted, defendant was sentenced to 32 years (comprising four consecutive eight-year middle terms on the four convictions of forcible lewd acts) (§ 288, subd. (b)) plus 135 years to life (comprising nine consecutive terms of 15 years to life on the nine convictions of aggravated sexual assault) (§ 269, subd. (a)(4)).
1. The Sixth Amendment Challenge
Defendant argues that the court infringed his right to a jury trial by relying on a fact found by the judge-that his offenses occurred on "separate occasions"-to find all the counts of conviction subject to section 667.6(d). That statute requires a court to impose a "full, separate, and consecutive term" for each conviction to which it applies. Section 667.6(d) and California Rules of Court, rule 4.426(a) require that the sentencing judge, not the jury, make the finding that triggers the statute's application.
The text of section 667.6(d) strongly implies that the judge, not the jury, must determine if a defendant convicted of multiple crimes committed them on separate occasions: "In determining whether crimes against a single victim were committed on separate occasions under this subdivision, the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant's actions and nevertheless resumed sexually assaultive behavior." (§ 667.6(d)(2), italics added.) Rule 4.426(a) unambiguously confirms that the judge must make those findings: "When a defendant has been convicted of multiple violent sex offenses as defined in section 667.6, the sentencing judge must determine whether the crimes involved separate victims or the same victim on separate occasions. [¶] . . . [¶] (2) Same victim, separate occasions. [¶] If the crimes were committed against a single victim, the sentencing judge must determine whether the crimes were committed on separate occasions."
a. The Statutory Framework
Defendant's Sixth Amendment challenge applies only to his four convictions for forcible lewd acts (§ 288, subd. (b)), not those for aggravated sexual assault (§§ 269, subd. (a)(4), 287, subd. (c)(2)(B)), because only the former are subject to the determinate sentencing law (DSL) (§ 1170 et seq.). The DSL governs most felony sentences, although some crimes carry indeterminate sentences in the form of X years to life-such as the sentences of 15 years to life that section 269 required the trial court here to impose on each of defendant's nine convictions of aggravated sexual assault. Section 667.6(d) did not affect the length of those terms.
Such exceptions aside, the DSL designates a triad of "three fixed-year, or determinate, sentencing options for nearly all felony offenses." (People v. Sasser (2015) 61 Cal.4th 1, 8.) If a defendant is convicted of multiple crimes, "[s]ection 669 authorizes the court to decide whether sentences should run concurrently or consecutively" (People v. Jones (1988) 46 Cal.3d 585, 592) unless another statute mandates consecutive terms.
If a court makes multiple terms concurrent, they must all be full terms. (People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3, overruled on other ground in People v. Poisson (2016) 246 Cal.App.4th 121, 125.) If it makes multiple terms consecutive, section 1170.1 governs calculation of their length unless a more specific statute applies. (People v. Sasser, supra, 61 Cal.4th at pp. 8-9.) Under section 1170.1, "the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for [certain] enhancements ...." (§ 1170.1, subd. (a).) Enhancements aside, the principal term is the longest term imposed for any of the offenses, while the subordinate term comprises one-third of the middle term for each other conviction at issue. (Ibid.) Thus, the minimum term on a second or subsequent felony conviction subject to the DSL is one-third the middle term, unless a more specific statute applies.
Section 667.6 is such a statute. It creates a "special sentencing scheme" for defendants convicted of specified sex offenses. (People v. Craft (1986) 41 Cal.3d 554, 558, superseded in part by statute as stated in People v. Jones (2001) 25 Cal.4th 98, 112 (dis. opn. of Chin, J.).) If a defendant is convicted of one or more offenses listed in section 667.6, subdivision (e), such as forcible lewd acts (§ 288, subd. (b)) (see § 667.6, subd. (e)(5)), the sentencing court in some circumstances may exercise discretion to impose, and in some circumstances must impose, a "full, separate, and consecutive term" for each such offense. (§ 667.6, subds. (c)-(d).)
Specifically, "if the crimes involve separate victims or involve the same victim on separate occasions," then "a full, separate, and consecutive term shall be imposed" for each crime (§ 667.6(d), italics added); if "the crimes involve the same victim on the same occasion," then "a full, separate, and consecutive term may be imposed" for each "in lieu of the term provided in Section 1170.1" (§ 667.6, subd. (c), italics added). As the term "may" indicates, if the crimes involve the same victim and same occasion, the court may decline to impose full consecutive terms under section 6676, subdivision (c) (section 6676(c)) and instead impose terms dictated by the default rules of sections 669 and 11701-ie, either full, concurrent terms or consecutive terms consisting of one full upper, middle, or lower term and one-third the middle term on each other count. As noted, the sentencing judge makes the key finding whether crimes involving the same victim occurred on separate occasions-triggering section 667.6(d) and mandating full terms-or the same occasion. (§ 667.6(d); rule 4.426(a).)
b. Constitutional Analysis
For purposes of defendant's Sixth Amendment challenge to the operation of section 667.6(d), which mandated the imposition of full terms on each of his four forcible-lewd-act convictions, this case is in all relevant respects identical to Catarino, supra, 14 Cal.5th at pages 754-757. Like defendant, Catarino was convicted on multiple counts of forcible lewd acts on the same child under the age of 14 (§ 288, subd. (b)(1)) (Catarino, at pp. 750, 752), the sentencing court made a factual finding that the offenses occurred on separate occasions (id. at p. 750), and the court therefore sentenced him to full, consecutive terms on each count as required by section 667.6(d) (id. at pp. 750-751).
Following the California Supreme Court's transfer of this cause to this court for reconsideration in light of Catarino, Johnson had the right to file a supplemental brief, in which he could have striven to distinguish his case from Catarino. (See Cal. Rules of Court, rule 8.200(b).) He did not do so.
Defendant's argument as to why the use of a judicially found fact to trigger section 667.6(d) violated the Sixth Amendment is less persuasive than the one rejected in Catarino. Each argument begins with the same three high court cases: Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), which held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (id. at p. 490); Oregon v. Ice (2009) 555 U.S. 160, 163-164 (Ice), which held that the Sixth Amendment restriction on judicially found facts does not apply to facts necessary to the imposition of consecutive rather than concurrent terms; and Alleyne, supra, 570 U.S. 99, which held that the rule of Apprendi applies "with equal force to facts increasing the mandatory minimum" sentence for a crime (id. at p. 112), thereby overruling the contrary holding in Harris v. United States (2002) 536 U.S. 545 (Harris). In addition, defendant raises a fourth case not mentioned in Catarino-United States v. Haymond (2019) 588 U.S. ___ (Haymond), which involved a federal statute authorizing a judge, on hearing a petition to revoke supervised release, to find facts amounting to a new crime and, based on that judicial factfinding, impose a new prison term with a mandatory minimum greater than the term based on the jury's factfinding. (Id. at p. ___ [139 S.Ct. at pp. 2373-2374].) This violated the rule of Alleyne. (Id. at p. ___ [139 S.Ct. at pp. 2378-2379] (plur. opn. of Gorsuch, J.); id. at p. ___ (conc. opn. of Breyer, J.).)
In Catarino, the defendant tried to distinguish Ice by distinguishing section 667.6(d)'s effect of mandating full terms from its effect of requiring consecutive terms. (See Catarino, supra, 14 Cal.5th at p. 755 ["[defendant] argues that section 667.6(d) has 'two distinct consequences': first, it requires that each term imposed be a full term instead of one-third of the middle term as authorized by section 1170.1; second, it requires that each term be imposed consecutively. The latter, he asserts, is controlled by Ice, while the former is not"].) Our Supreme Court rejected the distinction, concluding that "although the high court in Ice was confronted with a statutory regime that only addressed concurrent versus consecutive sentencing, its rationale is equally applicable to section 667.6(d)." (Catarino, at p. 755.)
Defendant here does not rely on any such distinction to avoid the rule of Ice. Instead, though he never squarely says so, he asks us to conclude that Alleyne and Haymond have effectively overruled Ice. Noting the holding in Haymond that the government cannot "dodge the demands of the Fifth and Sixth Amendments" simply by "[c]alling part of a criminal prosecution a 'sentence modification' imposed at a 'postjudgment sentence-administration proceeding'" (Haymond, supra, 588 U.S. at p. ___ ), he argues, "Similarly, the government cannot evade the Fifth and Sixth Amendments by relabeling a criminal prosecution a 'post-verdict consecutive sentencing choice,'" for otherwise "the government could impose a modest sentence [on] each count, but then allow a judge to make a later factual finding . . . supporting imposition of an effective life-without-possibility-of-parole sentence in the aggregate." But that is precisely what Ice allows. (Ice, supra, 555 U.S. at pp. 167-170.)
While we would be reluctant in any case to hold that the United States Supreme Court had implicitly overruled one of its precedents, here it is a precedent on which the California Supreme Court relied earlier this year to resolve the same legal question-if not the same legal arguments-raised in this case. (See Catarino, supra, 14 Cal.5th at p. 750, relying on Ice, supra, 555 U.S. at p. 163.) And in any event, defendant offers no good reason to take the extraordinary step of treating Alleyne and Haymond as having implicitly overruled Ice. He contends that Ice, decided in 2009, relied on Harris, supra, 536 U.S. 545, which the Court overruled three years later in Alleyne, but that overruling is irrelevant. Although Ice cited Harris once for a general principle of Sixth Amendment law (Ice, supra, 555 U.S. at p. 168), Harris's holding was in no way necessary to the holding in Ice.
Defendant also contends that "Alleyne and Haymond must apply to consecutive sentencing based on judicial factfinding because consecutive sentencing raises the statutory minimum" (meaning the minimum aggregate sentence for multiple offenses). But in precisely the same way, Ice has, since its issuance, authorized consecutive sentencing based on judicial factfinding even though it raises the statutory maximum aggregate sentence. If raising a defendant's aggregate sentence based on judicial factfinding implicated the Sixth Amendment, the high court would have reached the opposite holding in Ice in 2009, because allowing a judge to make a finding raising the maximum aggregate sentence would have violated Apprendi.
In sum, defendant does not suggest any basis for distinguishing his case from Catarino, and the legal argument he makes that was not addressed in Catarino-i.e., that Ice has been implicitly overruled-is not persuasive. His Sixth Amendment challenge to his sentence therefore fails.
2. The Claim of Excessive Punishment
Defendant contends that his aggregate sentence of 32 years plus 135 years to life is excessive under the Eighth Amendment of the federal Constitution and article I, sections 6 and 17 of the California Constitution. A sentence violates the federal and state Constitutions, respectively, if the defendant shows that it is" 'grossly disproportionate'" to the severity of the crime (People v. Russell (2010) 187 Cal.App.4th 981, 993, quoting People v. Carmony (2005) 127 Cal.App.4th 1066, 1076 [U.S. Const.]) or" 'so disproportionate . . . that it shocks the conscience and offends fundamental notions of human dignity'" (People v. Dillon (1983) 34 Cal.3d 441, 478 [Cal. Const.]). (See People v. Crooks (1997) 55 Cal.App.4th 797, 808 [defendant bears burden of persuasion].) Courts consider several factors in assessing the proportionality of a sentence under the federal and California Constitutions, but the only factor defendant addresses is what California authority deems "the nature of the offense and the offender with regard to the degree of danger present to society" (Russell, supra, 187 Cal.App.4th at p. 993) and federal authority calls "the gravity of the offense and the harshness of the penalty" (Solem v. Helm (1983) 463 U.S. 277, 292).
California law also permits intra- and inter-jurisdictional proportionality review, i.e., comparison of the punishment with those prescribed for more serious crimes in the same jurisdiction, and for the same crime in other jurisdictions. (People v. Russell, supra, 187 Cal.App.4th at p. 993.) Defendant's brief does not set forth either sort of comparison.
Defendant contends that his "de facto [life without possibility of parole] sentence" is grossly disproportionate to his crimes because he did not use force or threats; his abuse did not prevent Jane from wishing to see him (based on evidence she left drawings at his parents' house saying, "I miss you," and said she wanted him to go not to jail but "somewhere nice" where she could visit); he had no criminal record; and a recidivism test showed a below-average risk of reoffense, which would be yet lower by the time of any possible parole, given his current age of 48. The Attorney General cites a decision in a similar case upholding a total sentence of 129 years for a defendant who repeatedly sexually abused his 11-year-old stepdaughter, and whose lack of criminal record and "mental impairment" did not outweigh the severity of his crimes and the threat he posed to the community. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 523, 528-530; see People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [upholding sentence of 135 years to life on 16 counts of sexually abusing four young girls, in some cases by force or threats to harm relatives].) Similarly, here, precedent does not enable us to say that defendant's cumulative sentence of 32 years plus 135 years to life shocks the conscience and is grossly disproportionate to the 13 crimes of which he was convicted and sentence was imposed.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: BROWN, P. J., HIRAMOTO, J. [*]
STREETER, J., Concurring.
On the issue of excessive punishment, defendant's primary argument is that he cannot complete his sentence in his lifetime. Quoting Justice Mosk's assertion that "[a] sentence . . . that cannot possibly be completed in the defendant's lifetime, makes a mockery of the law and amounts to cruel or unusual punishment" (People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); see People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.)), defendant contends that, in this case, a sentence that amounts de facto to life in prison without the possibility of parole (LWOP) offends the federal and state Constitutions. I write to say there may be something to his complaint.
The position Justice Mosk took in Hicks and Deloza, of course, is not the law (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383) and has not gained any traction within our Supreme Court in the decades since Deloza was decided. Meanwhile, some Court of Appeal colleagues have rejected his analysis (see People v. Haller (2009) 174 Cal.App.4th 1080, 1089-1090; Byrd, supra, 89 Cal.App.4th at pp. 1382-1383), while upholding lengthy, impossible-to-complete prison sentences. We follow these cases here, accepting the Attorney General's cited authority for the sentence. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 528-530; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231).
The opinions disagreeing with Justice Mosk's perspective on this issue are in line with the prevailing view under the federal Constitution since the 1980's that courts have virtually no role in setting constitutional boundaries on criminal punishment. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 996, 1004-1005 (conc. opn. of Kennedy, J.); Rummel v. Estelle (1980) 445 U.S. 263, 272; see also Ewing v. California (2003) 538 U.S. 11, 20-24.) Justice Mosk's view, on the other hand, recognizes that California courts carrying out their paramount duty to apply the "evolving standards of decency" standard enunciated in Furman v. Georgia (1972) 408 U.S. 238, 269 (conc. opn. of Brennan, J.) and Trop v. Dulles (1958) 356 U.S. 86, 100-101 (plur. opn. of Warren, C. J.) may properly intervene under the "cruel or unusual" clause of the California Constitution (Cal. Const., art. I, § 17, italics added) when a legislatively prescribed sentence has gone too far.
Justice Mosk recognized-rightly, I believe-that at some point sentencing may cross a line distinguishing punishment in service of legitimate societal ends from performative cruelty, which is what tyrannical government does. As guardians of the rule of law, courts must stand ready to point out where that boundary is. It is one of the most important things we do. So rather than dismiss Justice Mosk's view as an outlier that remains little more than an artifact of California judicial history, I believe there remains the possibility his view was simply ahead of its time. The California Constitution is a charter of" 'independent force.'" (People v. Buza (2018) 4 Cal.5th 658, 684.) Although the "federal Constitution affords no greater protection than the state Constitution" in this area (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510), it may well be that Justice Mosk anticipated the need to begin giving article I, section 17 of the California Constitution a more expansive reading than its federal counterpart. Indeed, in an era when prison overcrowding itself has presented serious constitutional issues (see Brown v. Plata (2011) 563 U.S. 493, 517-522), his perspective on the issue of excessive sentencing may have greater resonance today.
Until and unless the People, by initiative constitutional amendment, authorize a new type of special circumstances finding for LWOP sentences in specified non-homicide offenses, I believe Justice Mosk's view may have merit where a concatenation of consecutive non-homicide sentences results in an aggregate sentence so long that no human being could ever serve it.
Whatever penological objectives may be claimed, it is perfectly clear that the sheer length of such a sentence, as imposed, is intended to transform punishment into spectacle. On the right record in such a case, in light of various recent developments in criminal sentencing and other aspects of criminal law, and in light of the greater judicial willingness today to recognize constitutional limits on the harshest forms of criminal punishment than was once the case, I can envision the California Supreme Court adopting some form of this view as a matter of California Constitutional law. And I would urge it to consider doing so.
See, e.g., Senate Bill No. 567 (Stats. 2021, ch. 731, §§ 1.3, 3(c)) (adding § 1170, subd. (b)(1)-(3) [revising the statutory sentencing triad in determinate sentencing cases to require that the chosen term shall not exceed the middle term absent specified findings]), Proposition 36 (ballot initiative reducing the punishment imposed when a defendant's third felony conviction is not serious or violent [§§ 667, subd. (e)(2)(c), 1170.12, subd. (c)(2)(C), as amended by Prop. 36, §§ 2, 4, approved by the voters at Gen. Elec. (Nov. 6, 2012)]).
See, e.g., Senate Bill No. 1437 (Stats. 2018, ch. 1015, §§ 1, 4) [ameliorative revision of homicide law adding statutory procedure that permits defendants previously convicted of murder under a felony murder or natural and probable consequences theory to petition for resentencing], Proposition 47 (approved by the voters at Gen. Elec. (Nov. 4, 2014) and codified as § 1170.18 [ameliorative revision of various penal laws that reclassifies as misdemeanors certain narcotics and theft offenses previously cast as felonies and allows felons convicted under reclassified laws to petition for resentencing]).
See, e.g., Roper v. Simmons (2005) 543 U.S. 551, 568, Graham v. Florida (2010) 560 U.S. 48, 75, and Miller v. Alabama (2012) 567 U.S. 460, 465 (curtailing on Eighth Amendment grounds the imposition of sentences of death or life without the possibility of parole for juvenile offenders).
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.