Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 04CF3189, Patrick Donahue, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted Gerardo Ruiz-Eugenio Mercado of four counts of committing lewd acts upon a child (counts 1-4) in violation of Penal Code section 288, subdivision (a), and one count of exhibiting harmful material to a minor (count 5) in violation of Penal Code section 313.1, subd. (a). As to counts 1 through 4, the jury found true the allegation Mercado had committed the lewd act offenses against more than one victim within the meaning of Penal Code section 667.61, subdivisions (b), (c)(7), and (e)(5). The trial court sentenced Mercado to a prison term of 15 years to life on count 1, with concurrent sentences on counts 2, 3, and 4, and with a concurrent jail term of one year on count 5.
We affirm. In response to Mercado’s contentions, we conclude: (1) the trial court did not err by admitting evidence of an uncharged sexual offense; (2) any error made by the trial court in allowing a nurse practitioner to testify the lack of physical findings in examining one victim was “consistent” with sexual abuse was harmless; and (3) Mercado’s sentence of 15 years to life in prison was neither cruel and unusual punishment prohibited under the United States Constitution, nor cruel or unusual punishment prohibited under the California Constitution.
Facts
We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)
I. Victim Jessica R.—Counts 1 and 2
Jessica R. was 10 years old when she testified at trial in May 2006. On October 24, 2004, Jessica and her brother walked to a produce truck parked in their neighborhood to buy bread for their mother. Mercado worked inside the truck. When Jessica was at the truck, Mercado grabbed her arms, pulled her inside, and pushed her brother away. Once Jessica was inside the truck, Mercado grabbed her in the vaginal area. Mercado had Jessica sit on his lap and touched her vagina beneath her clothing. While Jessica sat on Mercado’s lap, she felt something that hurt “[i]n the place where you do pee-pee.” When Jessica initially testified, she said Mercado kept his trousers on and she did not see his skin. Later, she testified Mercado did pull down his trousers and she saw his penis while he was touching her.
After Mercado let Jessica go, she and her brother went home. Jessica, though scared, told her mother that inside the produce truck a man grabbed her and placed her on his lap. Jessica said that while she was seated on the man’s lap, he touched her private area underneath her clothing, he moved his hips up and down, and she could feel something hard coming from his pants. Jessica’s mother contacted the police.
Santa Ana Police Officer Nelson Menendez responded to the call. Jessica told Menendez that when she was inside the produce truck, a man grabbed her, placed her on his lap, and touched her vaginal area underneath her clothing. Jessica told Menendez she asked the man to stop, but he continued touching her. She also told Menendez the man was “moving in an up and down motion, kind of like moving his hips up and down” and she could feel a hard object from the man’s private area. Jessica’s brother told Menendez he saw Mercado grab Jessica, place her on his lap, move his knees up and down, and place his hand inside of her pants.
After speaking with Jessica and her brother, Menendez went to the produce truck and spoke with Mercado. While Mercado stood outside of the truck, Menendez returned to Jessica and her brother and asked them to look back toward the truck. Both Jessica and her brother identified Mercado as the man who had grabbed and touched Jessica.
Nurse practitioner Jeanie Ming, a member of the Child Abuse Services Team, conducted a genital examination of Jessica on October 28, 2004. The examination produced no abnormal findings, but Ming testified such lack of abnormalities “is consistent” with allegations of child abuse. Based on her examination of Jessica, Ming could neither confirm nor deny sexual abuse.
Rita Rangel, a social worker supervisor with the Orange County Social Services Agency, interviewed Jessica on November 3, 2004. During the interview, Jessica stated that while inside the produce truck, Mercado grabbed her and would not let her go. After giving her candy, Mercado placed his hand inside of her pants and touched her vagina. Jessica also told Rangel that after the initial touching, while still inside the truck, Mercado placed her on his lap with her underwear down and penetrated her anus with his penis.
Charles Ferrao, an investigator for the public defender’s office, interviewed Jessica in December 2004. Jessica told Ferrao that Mercado grabbed her off the street and took her inside the produce truck, where he touched her vaginal and anal areas underneath her clothing.
Eric Wiseman, an investigator with the district attorney’s office, interviewed Jessica on November 21, 2005. During the interview, Jessica stated that while sitting on Mercado’s lap, she felt a hard object and pressure in her anal area. She said neither her pants nor his pants were pulled down and Mercado touched her vaginal area on the outside of her clothing. Jessica’s brother also told Wiseman he never saw Mercado touch Jessica on the inside of her clothing and their pants were not pulled down. Jessica told Wiseman that Mercado had said he would not let Jessica go or see her family again.
II. Victim Jennifer M.—Counts 3, 4, and 5
Jennifer M. was eight years old when she testified at trial. Mercado, a longtime friend of Jennifer’s father, lived for about 18 months in the garage of Jennifer’s family home. While Mercado was living in the garage, he touched Jennifer in the vaginal area on about six occasions. He would touch her in the living room or in the garage, each time warning her not to tell her parents. Once, when Jennifer bent over to pick up a remote control, Mercado touched Jennifer’s vaginal area from behind, moving his hand right to left. On another occasion, Mercado touched Jennifer while she was seated in the living room, again moving his hand in her vaginal area. Mercado also touched Jennifer over her clothing and tried to kiss her when she was sitting on a couch in the garage. Mercado would also try to kiss Jennifer on the lips, and showed her pornographic photographs.
Mercado told Jennifer he would yell at her if she told her mother about the touching. She was scared of him.
Jennifer’s older sister Carla M. was 17 years old when she testified at trial. Carla was about 13 or 14 years old when Mercado lived in the garage of her family’s home. Carla noticed that during the 18-month period of time when Mercado lived in the garage, he paid Jennifer a lot of attention, buying her candy and toys. Carla also noticed that Mercado frequently would hug Jennifer while touching her chest with his hand. Once, while cleaning the living room, Carla saw Mercado, seated on a couch a few feet away, unzip his trousers, pull out his penis, and fondle it. Mercado stared directly at Carla as he fondled himself. Later, when speaking with a social worker, Carla denied that Mercado had done anything inappropriate toward her, explaining, “by that time my little sister, she would deny it, too, and . . . by that time I was tired, and . . . I just gave up, so I start denying it, too.
Jennifer’s mother also noticed that Mercado was particularly attentive toward, and even “possessive with,” Jennifer. Jennifer’s mother noticed Mercado did not want Jennifer to go outside and play and would become upset when she went to a friend’s house.
In February 2004, Mercado contacted a community worker at Jennifer’s school to report his concerns about Jennifer’s safety. The community worker reported the contact to the school principal, who spoke with Jennifer on February 23. Jennifer told the school principal that “Gerardo” had been touching her buttocks. The principal reported the matter to the Child Abuse Registry.
On February 24, 2004, Marisa Leon, a social worker with the Orange County Social Services Agency, interviewed Jennifer at her school. Jennifer denied that Mercado had ever touched her inappropriately and expressed no fears about the situation in her home. Jennifer told Leon she did not like Mercado because he had hit her arm. Jennifer’s mother related to Leon there were “some issues between [Mercado] and Jennifer” because he would not let her go to a friend’s house to play. Leon also spoke with Carla, who denied that Mercado had inappropriately touched Jennifer or her.
Social worker Rangel interviewed Jennifer on December 8, 2004. Jennifer told Rangel that Mercado had touched her while she was in the living room and the kitchen, but did not say she had been touched while in the garage. Jennifer said Mercado had touched her buttocks over her clothing. She never indicated there had been skin-to-skin touching and denied that Mercado had ever tried to kiss her. But, when given stuffed toy bears to demonstrate, Jennifer indicated Mercado had touched her vagina. Jennifer told Rangel that Mercado had shown her photographs of naked people.
Jennifer’s mother told Ferrao, the investigator for the public defender’s office, that she had never seen Mercado inappropriately touch Jennifer. Jennifer’s mother told Ferrao she had asked Mercado to move out of her house because he spent too much time watching television or eating with Jennifer and because “he was very possessive.” Ferrao also interviewed Jennifer, who initially denied Mercado ever touched her. Later in the interview, Jennifer told Ferrao that Mercado once had touched her private area after pushing her into the bedroom.
Analysis
I. The Trial Court Did Not Err by Admitting Evidence of an Uncharged Sexual Offense.
Over Mercado’s objection, the trial court permitted Jennifer’s sister Carla to testify about the incident in which Mercado exposed himself to her while she was cleaning the living room. The parties do not dispute such conduct constituted child annoyance under Penal Code section 647.6, an uncharged crime. Mercado argues this evidence was inadmissible as uncharged sexual conduct evidence under Evidence Code section 1108 and its admission was prejudicial.
A. Background
At the outset of trial, the prosecution announced it intended to call Carla to testify about the incident in which Mercado exposed and fondled himself in her presence. The prosecution argued the testimony was relevant under Evidence Code section 1108. Defense counsel objected to admission of the testimony.
The record does not reflect the trial court’s ruling, but Carla testified that once, while cleaning the living room, she saw Mercado, seated on a couch about nine or ten feet away, unzip his trousers, pull out his penis, and fondle it. Mercado stared directly at Carla as he unzipped his trousers and fondled himself. Carla was 13 or 14 years old at the time of the incident. Carla told her mother about the incident. The trial court instructed the jury with CALCRIM No. 1191, regarding evidence of an uncharged sex offense.
Evidence of a person’s character is, as a rule, inadmissible when offered to prove the person’s conduct on a particular occasion. (Evid. Code, § 1101, sub d. (a).) Evidence Code section 1108 sets forth an exception to that rule for certain types of sexual offenses: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” (Evid. Code, § 1108, sub d. (a).) Under Evidence Code section 352, the court may in its discretion exclude evidence if its probative value is substantially outweighed by the probability its admission will unduly consume time or will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
The trial court’s decision to admit evidence of uncharged sexual offenses is reviewed under an abuse of discretion standard. (People v. Falsetta (1999) 21 Cal.4th 903, 919; People v. Frazier (2001) 89 Cal.App.4th 30, 42.)
In People v. Falsetta, supra, 21 Cal.4th at pages 916-917, the California Supreme Court upheld Evidence Code section 1108 against a due process challenge in part because Evidence Code section 352 provides a safeguard against possible undue prejudice arising from admission of evidence of the defendant’s uncharged sexual offenses. By removing the restriction on character evidence in section 1101, section 1108 permits the jury in sex offense cases to consider evidence of prior offenses for any relevant purpose, subject only to the weighing process required by section 352. (People v. Britt (2002) 104 Cal.App.4th 500, 505.)
Here, both the charged offenses and the uncharged offense of child annoyance against Carla were qualifying sexual offenses under Evidence Code section 1108, subdivision (d). “Thus, unless [Carla]’s testimony was inadmissible under section 352, the trial court did not err in allowing the prosecution to present it to the trier fact.” (People v. Branch (2001) 91 Cal.App.4th 274, 281.)
In People v. Falsetta, the court expressed these guidelines for deciding whether to admit evidence of uncharged sexual offenses: “By reason of [Evidence Code] section 1108, trial courts may no longer deem ‘propensity’ evidence unduly prejudicial perse, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (People v. Falsetta, supra, 21 Cal.4th 903, 916-917.)
C. The Uncharged Offense Was Sufficiently Similar to the Charged Offenses.
Mercado argues Carla’s testimony lacked probative value because the uncharged offense against Carla was dissimilar to the charged offenses against Jessica and Jennifer. While there are dissimilarities between the charged and uncharged offenses, those dissimilarities do not mean evidence of the uncharged offense has no probative value. In enacting Evidence Code section 1108, the Legislature decided evidence of uncharged sexual offenses is “‘uniquely probative in sex crimes prosecutions.’” (People v. Britt, supra, 104 Cal.App.4th at pp. 505-506.) As stated in People v. Frazier, supra, 89 Cal.App.4th 30, 40-41: “The charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.”
Similarity or dissimilarity of the offenses affects the degree of probative value and is therefore a consideration in the Evidence Code section 352 analysis required by section 1108. (See People v. Falsetta, supra, 21 Cal.4th at p. 917.) The charged offenses and the uncharged offense were sufficiently similar to show Mercado was disposed toward displaying an aberrant interest in young girls. The evidence of the uncharged offense not only was probative of Mercado’s disposition, but also tended to show that Jessica’s and Jennifer’s accusations were credible.
The dissimilarities between the charged and uncharged offenses (most notably, the uncharged offense did not involve touching) did mitigate somewhat the probative value of the uncharged offense evidence. But under an Evidence Code section 352 analysis, the probative value of the uncharged offense evidence was not substantially outweighed by the risk its admission would cause substantial danger of undue prejudice. The uncharged offense committed against Carla was close in time to—indeed, virtually contemporaneous with—the charged offenses. The uncharged offense did not involve sexual touching and therefore was less inflammatory than the charged offenses. There were no less prejudicial alternatives to the outright admission of Carla’s testimony about the uncharged offense, which did not consume much time and was not cumulative.
Relying on People v. Harris (1998) 60 Cal.App.4th 727, Mercado argues Carla’s testimony was inadmissible because the only similarity between the charged and uncharged offenses was all the victims were young girls. In Harris, the defendant was charged with molesting two adult victims who had been patients at the mental health facility where he worked. (Id. at pp. 731-732.) The defendant molested the victims by undressing them, touching and licking their private parts, and by digital penetration. (Ibid.) The trial court permitted the prosecution to present evidence that 23 years before the charged crimes, the defendant had been found guilty of residential burglary after entering an apartment at night and brutally beating and stabbing the victim with an ice pick while she was sleeping. (Id. at pp. 733-734.) The appellate court, reversing the defendant’s conviction, concluded the trial court erred by admitting this evidence under Evidence Code sections 352 and 1108 because the uncharged offense was quite remote in time, was inflammatory “in the extreme,” and likely would confuse the jury by leading it to believe the defendant had escaped all but burglary charges. (People v. Harris, supra, 60 Cal.App.4th at pp. 738-739.) Evidence of the uncharged offense was not probative, the appellate court concluded, because the only similarity between the charged and uncharged offenses was that all three victims were Caucasian women in their 20’s or 30’s. (Id. at p. 740.)
Here, the charged offenses and uncharged offense shared a far greater degree of similarity than those in People v. Harris. But assuming the same degree of similarity as in Harris, here, unlike that case, the uncharged offense was not as inflammatory as the charged offenses and was not remote in time, and evidence of the uncharged offense was not likely to have misled or distracted the jury.
Mercado argues, “it is highly probable” Carla’s testimony about the uncharged offense confused the jury. However, Carla’s testimony of the uncharged offense was easily distinguishable from the evidence of the charged offenses committed against Jessica and Jennifer. The trial court instructed the jury with CALCRIM No. 1191, which clearly distinguished the uncharged offense from the charged ones, stating, “[t]he People presented evidence that the defendant committed the crime of child annoyance, Penal Code section 647.6 on Carla M. That was not charged in this case.”
In conclusion, we find no abuse of discretion in the trial court’s decision to permit Carla to testify about the uncharged sexual offense.
II. Any Error in Admitting the Nurse Practitioner’s “Consistent with” Testimony Was Harmless.
Mercado argues the trial court erred by permitting nurse practitioner Ming to testify the lack of abnormalities in Jessica’s genital examination was “consistent with” Jessica’s allegations of sexual abuse. Before trial, Mercado moved to exclude nurse practitioner Ming’s “consistent with” testimony, arguing such an opinion would take “expert testimony a step too far” and could mislead the jury. The trial court concluded Ming’s testimony would be “more probative than prejudicial” and denied the motion. Ming testified the lack of abnormalities in Jessica’s genital examination was “consistent with” Jessica’s allegations of sexual abuse.
Mercado argues Ming’s “consistent with” testimony was inadmissible because it constituted an impermissible opinion on the truthfulness of Jessica’s testimony. For our analysis, we assume Ming’s “consistent with” testimony was inadmissible, albeit for a different reason than posited by Mercado. The flaw in Ming’s “consistent with” testimony is that it was neither factually nor logically true. To say a fact is “consistent with” a conclusion is to say the fact directly supports that conclusion. For example, a body temperature of 102 degrees is consistent with having the flu. In contrast, to say a fact is “not inconsistent with” a conclusion is to say the fact does not rule out that conclusion. For example, the ability to walk is not inconsistent with having the flu. Certainly what Ming meant to say, or should have said, was the lack of abnormalities in the genital examination was “not inconsistent with” claims of sexual abuse—that is, the lack of abnormalities did not rule out the possibility Jessica had been sexually abused. But to opine the lack of abnormalities is “consistent with” claims of sexual molestation is to say the lack of abnormalities directly supports the conclusion Jessica was sexually abused. That plainly is not true.
Any error was not, however, prejudicial. “The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (People v. Prieto (2003) 30 Cal.4th 226, 247.) On cross-examination, Ming in essence corrected her testimony by conceding she could neither confirm nor deny Jessica had been molested. The evidence of Mercado’s guilt was strong. Although Jessica varied in describing the details, she consistently stated or testified Mercado grabbed her, took her inside the produce truck, sat her on his lap, and touched her in the genital area. Jessica told her mother, a police officer, and a social worker she felt Mercado’s erect penis against her bottom as she sat on his lap. Jessica’s brother told the police officer he saw Mercado place Jessica on his lap, move his knees up and down, and place his hand inside her pants.
Thus, we conclude, it was not reasonably probable the jury would have reached a result more favorable to Mercado had the trial court excluded Ming’s “consistent with” testimony.
III. Mercado’s Sentence Was Not Grossly Disproportionate to the Crime Under the United States Constitution or the California Constitution.
The jury convicted Mercado of four counts of lewd action upon a child (Pen. Code, § 288, sub d. (a)) and found true the multiple victim allegation (id., § 667.61, subds. (b), (c), & (e)). As a result, the trial court sentenced Mercado to a term of 15 years to life on count 1, as required by Penal Code section 667.61, subdivision (b), with a six-year concurrent term on count 2 and 15-years-to-life concurrent terms on counts 3 and 4.
Penal Code section 667.61, subdivision (b) provides that “any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.” The multiple victim circumstance of section 667.61, subdivision (e)(5) was applicable to Mercado.
Mercado argues this sentence, as applied to him, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and cruel or unusual punishment in violation of article I, section 17 of the California Constitution. We conclude the sentence was not grossly disproportionate to the crime and therefore did not violate either constitutional proscription.
A. United States Constitution
The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” For prison sentences, “[t]he Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to non capital sentences.’” (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing).) In Ewing and the companion case of Lockyer v. Andrade (2003) 538 U.S. 63, 73, the United States Supreme Court confirmed the appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is the gross disproportionality principle as stated in Justice Kennedy’s concurrence in Harmelin v. Michigan (1991) 501 U.S. 957 . That is, “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. [Citations.]” (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 (conc. opn. of Kennedy, J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.) Successful grossly disproportionate challenges are “‘exceedingly rare’” and appear only in an “‘extreme’” case. (Lockyer v. Andrade, supra, 538 U.S. at p. 73.)
In Ewing, the defendant was sentenced under California’s Three Strikes law to a prison term of 25 years to life for stealing three golf clubs with prior theft-related convictions and a lengthy criminal history. (Ewing, supra, 538 U.S. at pp. 18-19.) The Supreme Court explained it traditionally defers to state legislatures in making policy decisions about criminal sentencing, emphasizing it does not sit as a “‘superlegislature’” to second-guess a legislature’s policy choices so long as there is a reasonable basis for the legislature’s decision. (Id. at p. 28.) Applying principles of gross disproportionality and deference to legislative policy choices, the Supreme Court concluded Ewing’s sentence of 25 years to life “is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id.. at pp. 30-31.)
In this case, we too defer to the California Legislature’s policy choice in enacting Penal Code section 667.61 to impose lengthy sentences on certain sexual offenders. If a sentence of 25 years to life is not grossly disproportionate to the crime of stealing golf clubs with prior convictions, then certainly 15 years to life is not grossly disproportionate to the crime of child molestation against two victims, even without a criminal history. Mercado’s sentence did not violate the Eighth Amendment to the United States Constitution.
Article I, section 17 of the California Constitution states, “[c]ruel or unusual punishment may not be inflicted.” Punishment is cruel or unusual within the meaning of the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) Lynch identified three “techniques” a court must use to determine whether a punishment is disproportionate to the crime: (1) the court considers the nature of the offense and the offender “with particular regard to the degree of danger both present to society”; (2) the court compares the punishment imposed with punishments for more serious crimes in the same jurisdiction; and (3) the court compares the punishment imposed with punishments for the same crimes in different jurisdictions. (Id. at pp. 425-427; see People v. Dillon (1983) 34 Cal.3d 441, 479-482.) A punishment need not be disproportionate under all three techniques to violate the California Constitution. (People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38.)
Lynch admonished: “Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (Lynch, supra, 8 Cal.3d at pp. 423-424.)
Mercado limits his cruel or unusual challenge to the first “technique” identified in Lynch: He argues his punishment was grossly disproportionate in light of the nature of the offense and his lack of a criminal record. We disagree. In considering the nature of the offense, we consider not only the crime as defined by the Legislature but also “‘the facts of the crime in question’ [citation] . . . including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (People v. Dillon, supra, 34 Cal.3d at p. 479.) In considering the nature of the offender, we look at such factors as the defendant’s “age, prior criminality, personal characteristics, and state of mind.” (Ibid.)
Child molestation is a heinous crime, and Mercado molested two children. “[P]ersons convicted of sex crimes against multiple victims within the meaning of [Penal Code] section 667.61, subdivision (e)(5) ‘are among the most dangerous’ from a legislative standpoint.” (People v. Wutzke (2002) 28 Cal.4th 923, 930-931.) Mercado forcibly molested Jessica and Jennifer, taking advantage of their vulnerability and, in the case of Jennifer, violating a position of trust with her parents. The fact Mercado did not have a criminal record does not make his conduct any less grave or his threat to other children less certain. Courts have rejected similar cruel or unusual challenges to sentences under Penal Code section 667.61. (E.g., People v. Alvarado (2001) 87 Cal.App.4th 178 [cruel and/or unusual punishment argument rejected for 18 year old who received a 15-years-to-life sentence for rape during the commission of a burglary, even though defendant had no criminal record and had a polysubstance abuse problem]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1282 [cruel or unusual punishment argument rejected for 38-year-old defendant who received a 25-years-to-life sentence for his conviction for rape during the commission of a burglary with the intent to commit rape, even though he had no prior felony convictions, used no weapon during the offenses, did not cause or threaten any harm beyond that inherent in the crime of rape and expressed remorse after the crime]; People v. Crooks (1997) 55 Cal.App.4th 797, 805-809 [cruel and unusual punishment argument rejected by this court for 39-year-old defendant who received a 25-years-to-life sentence for conviction for rape during the commission of a burglary with the intent to commit rape, even though he had an insignificant prior criminal record, had led a productive life as a husband and father, and had an alcohol problem].)
The Legislature, exercising its skills and prerogative, chose to impose lengthy prison sentences on child molesters under the circumstances specified in Penal Code section 667.61. Under the circumstances of this case, we cannot say the penalty prescribed by section 667.61, subdivision (b) “shocks the conscience and offends fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.