Opinion
D073427
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT CHRISTOPHER NASH, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE371032) APPEALS from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed; sentence vacated and remanded with directions. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Eric A. Swenson and Christine Y. Friedman, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Robert Christopher Nash of committing a lewd act upon E.N., a child under the age of 14 (Pen. Code, § 288, subd. (a); count 1); a lewd act upon K.T. (§ 288, subd. (a); count 2); and a lewd act upon K.T., a child under the age of 14 (§ 288, subd. (a); count 3). It found true allegations as to all counts that Nash committed the lewd acts against more than one victim (§ 667.61, subds. (b), (c), (e)), and as to count 2, that he had substantial sexual conduct with K.T. (§ 1203.066, subd. (a)(8).)
Undesignated statutory references are to the Penal Code.
The court sentenced Nash to ten years in prison: six years on count 1 plus two years on count 2 plus two years on count 3. It declined to impose the mandatory 15-year-to-life sentence under section 667.61, subdivision (b), finding that such a sentence would be cruel or unusual under the facts of this case.
Nash contends: (1) his trial counsel was ineffective for failing to request a jury instruction on voluntary intoxication; and (2) the court erred by not allowing him to cross-examine his wife regarding her habitual intoxication and about her own sexual molestation. The People contend the court's sentence was unauthorized and it should have imposed a mandatory 15-year-to-life sentence. In a petition for writ of habeas corpus (D074325 In re Robert C. Nash), Nash reiterates his ineffective assistance of counsel claim. We affirm the conviction but vacate the sentence and remand for resentencing. Our resolution of this appeal renders the writ petition moot and we deny it by separate order.
FACTUAL AND PROCEDURAL BACKGROUND
The E.N. Incident
On January 1, 2017, Nash, his wife, and other family members were watching a movie. Nash's niece, E.N., was then three years old. She sat on his lap and his wife sat next to him. Nash covered E.N. from the chest down with a blanket. Nash's wife saw Nash moving his hand around E.N.'s private area under the blanket and also saw what she called Nash's "horny drunken face." She immediately removed the blanket and saw Nash's right hand down the front of E.N.'s pants. Nash pulled his hand up to between E.N.'s "navel and her hipbone but his fingertips were still in her pants, like to the knuckle." Nash's wife screamed, "What the fuck," and ran out of the room. Nash did not say much to his wife that day; he instead slept. Nash's wife testified she was not intoxicated and she had made a New Year's resolution not to drink alcohol.
A day or two later, Nash told his wife the incident would not have happened if he had not been drunk. They both agreed not to drink alcohol anymore. Days later, Nash's wife recorded him on her cell phone as they argued about the incident. Nash said, "I've explained it to you a hundred—ten different ways to how that shit did not matter and it wasn't her and there was nothing there and it wasn't a child. And it was stupid and I was fucking drunk and maybe if you fucking would have put out more, it never would've fucking happened, how about that? How about if my wife actually would have had sex with me more than fucking once a month . . . that shit never might have fucking never happened." Nash added, "It wasn't her, it wasn't a child, it had nothing to do with anything. I fucked up, I was drunk and there was nothing there. There was no fucking significance, there was no heart, there was no nothing, there was just me being stupid and being fucking drunk and I'm fucking sorry."
In January 2017, different witnesses heard Nash make similar statements about the incident. One person heard Nash say, "I fucked up, I am an asshole." After one of Nash's brothers learned about the incident from Nash's wife, he became mad and fought with Nash. Both the mother and stepmother of Nash's wife heard Nash angrily protest that his wife was "making a big deal out of nothing," as E.N. was young and would not remember the incident. The K.T. Incident
K.T.'s father testified that in April 2017, he had a house party and invited Nash, who was his coworker. That night, when K.T.'s father went inside the living room to send the children to sleep, he saw Nash laying on a couch and covered with a blanket. K.T., who was then five years old, was sitting next to him. About three weeks later, K.T. told her father that Nash had stuck his hands down the front of her pants, touching her vagina in a "wiping motion." Nash also stuck his hand down the rear of her pants, grabbing her buttocks. K.T. said she was uncomfortable with Nash's touching.
On May 31, 2017, a social worker conducted a forensic interview of K.T., a video recording of which was played for the jury. K.T. told the social worker that her father's coworker had a beard. According to K.T., the coworker told her to hide under the blanket, then he put his hand in her pants. K.T. demonstrated a wiping motion with her index finger in her vaginal area.
At trial, K.T. testified that one of Nash's coworkers, who she identified by his beard, touched her vagina while they lay underneath a blanket. K.T. demonstrated by moving her index finger back and forth. She said, "He gave me a scratch." K.T. said that the coworker also touched her buttocks and legs.
K.T.'s brother, who was 13 years old at the time of the incident, testified he was watching television on one side of a couch with Nash when K.T. came and hugged Nash, who put a blanket over her. He saw Nash move around under the blanket for a few minutes. Afterwards, when K.T. got up, she fixed her pants.
Nash's counsel argued in closing that the prosecution had not adduced evidence to show Nash was guilty of the charged crimes: "So if I look at this case correctly, I see no child that identifies my client as the perpetrator. I'm not sure that it ever happened with K.T. And as far as the E.N. situation is concerned, you have a situation where the complaining party never actually saw the touching in that area or that it was sexually minded."
Nash's counsel also argued Nash was intoxicated during the E.N. incident: "I know what [Nash] was doing and you know what he was doing on New Year's Eve, and that was drinking, drinking probably until after midnight, up all night drinking." Defense counsel continued, "Well, we know that [Nash's wife] testified that she didn't stop drinking until the New Year's resolution, so we know that she probably drank that night, and if she drank that night, [Nash] probably drank that night, too, plus when he says I was drunk, that's pretty good evidence that he had too much to drink."
The probation report stated Nash, who was 33 years old, had an above average risk of reoffense as he scored a "four" on the Static-99R, an actuarial measure of risk for sexual offense recidivism. K.T.'s parents were attempting to obtain counseling for her. The probation officer recommended Nash be sentenced to 45 years to life in prison.
The court refused to impose section 667.61 subdivision (b)'s mandatory 15-year-to-life sentence, finding that doing so would constitute cruel or unusual punishment under the California Constitution. It reasoned the mandatory sentence would be grossly disproportionate to Nash's individual culpability. In discussing the nature of the offense, the court stated Nash "was substantially intoxicated on both occasions. The molests likely involved 'skin to skin' contact of the vaginal area of [E.N.] and the vaginal and buttocks areas of [K.T.]. There was little evidence (and certainly no medical evidence) to suggest any type of penetration. There was no credible evidence of 'masturbation' as understood in a traditional sense. But there may have been rubbing of the vaginal and/or buttocks area of each victim that would constitute 'masturbation' under the legal definition. . . . [¶] There was minimal evidence to suggest any physical injury to either child as a result of the touching. There was no evidence to suggest that either child had touched [Nash] or had been encouraged to do so. At the time of the molests, there was no indication from either victim, by word or action, that any type of inappropriate touching had taken place."
In analyzing the "nature of the offender," the court pointed out Nash had suffered two driving under the influence convictions. It concluded, "What escalates this case to a 'life top' status is the fact that [Nash] stands convicted of touching two separate minor victims. In essence, that fact, and that fact alone, [w]rests from the trial court any opportunity to fashion a determinative prison term that meets the sentencing objectives of both the legislative and judicial branches of government. The implementation of a 'one size fits all' sentencing scheme on the facts of this case results in punishment, that by any objective standard, is cruel or unusual and shocks the conscience."
DISCUSSION
I.
Jury Instruction Regarding Voluntary Intoxication
Nash contends his trial counsel was ineffective for failing to ask the court to instruct the jury with CALCRIM No. 3426 on voluntary intoxication because evidence showed he was often drunk and he had told several people he could not remember what happened in the incidents with the minors because he was drunk. Nash points out that in his habeas petition, his trial counsel submitted a declaration stating he failed to request the instruction due to oversight, not trial tactics.
Trial counsel declared: "I had no tactical reason not to request a jury instruction on voluntary intoxication. In fact, at the time that I was preparing for this case, it did not cross my mind that involuntary intoxication could have negated the mental state of my client. [¶] If the jury had found that [Nash] committed any of the charged offenses but was intoxicated at the time that he committed the act, then through voluntary intoxication the jury could have found that [Nash] did not possess the specific intent to engage in sexual conduct by 'arousing, appealing to, and gratifying the lusts of, passions, or sexual desires.' [¶] Without a jury instruction on voluntary intoxication, the jury was never informed of this potential defense. [¶] In retrospect, considering the facts in this case, I believe I should have requested a jury instruction on voluntary intoxication."
An instruction regarding voluntary intoxication is a pinpoint instruction that the defendant must request. (People v. Verdugo (2010) 50 Cal.4th 263, 295.) Even when requested, "[a] defendant is entitled to such an instruction only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's actual formation of specific intent." (People v. Williams (1997) 16 Cal.4th 635, 677, internal quotation marks omitted and italics added.) "Generally, a party forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if the party fails to object in the trial court. [Citations.] The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights." (People v. Franco (2009) 180 Cal.App.4th 713, 719.) We will analyze the claim on the merits.
"Section 288 proscribes the commission of any lewd or lascivious act on a child under the age of 14 with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the perpetrator or the child." (People v. Whitham (1995) 38 Cal.App.4th 1282, 1289, internal quotations omitted.) "[I]t is settled that section 288 is a specific intent crime." (Whitham, at p. 1289; accord, People v. Martinez (1995) 11 Cal.4th 434, 440.)
Under California law, "[e]vidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent[.]" (§ 29.4, subd. (b).) "Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance." (§ 29.4, subd. (c).) If a crime falls within the pertinent statutory class, an instruction may properly alert the jury that it can consider such intoxication for determining whether the defendant possessed the requisite mental state. (E.g., People v. Sanchez (1950) 35 Cal.2d 522, 526-527; People v. Garcia (1967) 250 Cal.App.2d 15, 20.)
CALCRIM No. 3426 on voluntary intoxication provides: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted [or failed to do an act] with <insert specific intent or mental state required . . . or 'knowledge that . . .' or 'the intent to do the act required'>. A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. In connection with the charge of <insert first charged offense requiring specific intent or mental state> the People have the burden of proving beyond a reasonable doubt that the defendant acted [or failed to act] with <insert specific intent or mental state required, e.g., 'the intent to permanently deprive the owner of his or her property' or 'knowledge that . . .'>. If the People have not met this burden, you must find the defendant not guilty of <insert first charged offense requiring specific intent or mental state>. You may not consider the evidence of voluntary intoxication for any other purpose." (Bold omitted.)
To establish ineffective assistance of counsel, a defendant must show not only that counsel's performance was deficient and fell below an objective standard of reasonableness, but also that it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Without a showing of prejudice, a claim of ineffective assistance fails and inquiry into the adequacy of counsel's performance is unnecessary. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Nash contends that he was entitled to a voluntary intoxication instruction because the evidence showed he was intoxicated during both incidents. We disagree. Evidence that a defendant consumed alcohol or took drugs, without more, is not sufficient to warrant a voluntary intoxication instruction. "[A]n intoxication instruction is not required when the evidence shows that a defendant ingested drugs or was drinking, unless the evidence also shows he became intoxicated to the point he failed to form the requisite intent or attain the requisite mental state." (People v. Ivans (1992) 2 Cal.App.4th 1654, 1661; see also People v Marshall (1996) 13 Cal.4th 799, 848 (Marshall) [for the court to instruct on voluntary intoxication, there must be "evidence from which a reasonable jury could conclude defendant's mental capacity was so reduced or impaired as to negate the required criminal intent"].)
Marshall is instructive on the point that there must be evidence of the effect of Nash's intoxication on his state of mind to warrant a voluntary intoxication instruction. In Marshall, the defendant was convicted of murdering his wife and two other people. (Marshall, supra, 13 Cal.4th at pp. 816-817.) The evidence showed that the night before the murders (New Year's Eve) and into the early morning hours the next day, the defendant consumed multiple alcoholic drinks. (Id. at p. 847.) When he was arrested later that day, the arresting officer described the defendant as "dazed," and a subsequent blood alcohol test revealed a .10 percent blood-alcohol level. (Ibid.) At the defendant's trial, a criminalist testified the defendant's blood-alcohol level would have impaired his ability to drive a car. (Id. at pp. 847-848.) On appeal, the defendant claimed the court erred by failing to instruct the jury on voluntary intoxication. (Marshall, supra, 13 Cal.4th at p. 846.) In affirming the trial court's refusal to instruct on voluntary intoxication, the California Supreme Court reasoned that while there was evidence the defendant "had drunk an unspecified number of alcoholic drinks over a period of some hours," no instruction was required because "evidence of the effect of defendant's alcohol consumption on his state of mind [was] lacking." (Id. at p. 848.) The court further reasoned that evidence the defendant was impaired to the point of being an unsafe driver did not support a conclusion that he was unable to form the requisite mental state for the charged crimes. (Ibid.)
Nash offered no trial evidence to demonstrate that his intoxication resulted in his inability to formulate the specific intent necessary to violate section 288. (People v. Verdugo, supra, 50 Cal.4th at p. 295.) Accordingly, he was not entitled to the voluntary intoxication instruction because no substantial evidence showed the intoxication affected his ability to form the requisite specific intent. (People v. Ivans, supra, 2 Cal.App.4th at p. 1661.) Section 288 requires "the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused." (People v. Warner (2006) 39 Cal.4th 548, 556, internal quotation marks omitted.) To the contrary, abundant evidence supported the convictions. Nash used a blanket to conceal his touching of both victims. When his wife confronted him about the E.N. incident, Nash knew exactly what she was referring to, and this was confirmed by his admissions that it might never have happened if his wife had sex with him more often, thus indicating he had the intent to gratify his sexual urges with E.N. He also was not deterred after his wife discovered his actions, as approximately four months later, he touched K.T. more extensively, notwithstanding the fact she was a coworker's child, and other people were around. He did not learn from the E.N. incident, despite his recognition that it happened because he had drunk alcohol, and his resolve to stop drinking alcohol. The jury therefore could reasonably conclude that Nash intended to commit the crimes otherwise he would have changed his behavior. In light of the compelling evidence of his mental state in committing the crimes, it is not reasonably likely the jury would have reached a verdict more favorable to Nash even if it had received the voluntary intoxication instruction. Therefore, the ineffective assistance of counsel claim fails because Nash cannot show prejudice.
II.
The Court's Ruling Regarding Nash's Wife's Alcohol Use
Before trial, Nash's counsel argued that he should be able to introduce evidence regarding Nash's wife's history of excessive drinking. He argued the E.N. incident occurred on New Year's Day, when most people drink alcohol, thus supporting an inference she was drunk when she saw Nash touch E.N. The court rejected that argument: "I'm not going to allow some predisposition testimony that she's a stone righteous alkie, therefore she must have been drunk at the time that she makes these observations. It's not going to happen." A. Standard of Review
"While a defendant's confrontation right includes the right to cross-examine adverse witnesses regarding bias or prejudice, the right is not absolute." (People v. Gutierrez (2009) 45 Cal.4th 789, 807.) "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." (Delaware v. Fensterer (1985) 474 U.S. 15, 20, italics omitted.) A trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680; People v. Cooper (1991) 53 Cal.3d 771, 817.)
For the most part, the mere erroneous exercise of discretion under "normal" rules such as Evidence Code section 352 does not implicate the federal Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right." (People v. Cunningham (2001) 25 Cal.4th 926, 999; see also Nevada v. Jackson (2013) 569 U.S. 505, 509 ["Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence"].) B. Nash Forfeited His Constitutional Claim
Nash argues that his rights under the Sixth and Fourteenth Amendments of the federal Constitution were violated as a result of the court's restriction of the defense's cross-examination of Nash's wife. However, Nash did not object on the basis of a constitutional violation in the trial court. Therefore, his constitutional claim is forfeited. (People v. Thornton (2007) 41 Cal.4th 391, 427 [failure to raise claim that restriction of cross-examination violated Sixth Amendment resulted in forfeiture].) C. The Court Did Not Abuse Its Discretion in Excluding Evidence Regarding Nash's Wife's Alcohol Use
In any event, the claim fails on the merits. Nash contends that evidence of his wife's frequent drinking and intoxication was admissible under Evidence Code section 1105 to prove "conduct on a specified occasion in conformity with the habit or custom." Nash claims this evidence would have cast doubt on her testimony that she was not drinking on New Year's Day because of a resolution, and would provide grounds for questioning her recollection of that day's events.
However, a history of frequent drinking or intoxication generally does not rise to the level of a "habit" within the meaning of Evidence Code section 1105. To constitute a habit, the conduct must be a "regular or consistent response to a repeated situation." (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22.) "This statute is inapplicable to the present case. Custom or habit involves a consistent, semi-automatic response to a repeated situation." (Bowen v. Ryan (2008) 163 Cal.App.4th 916, 926.) Even assuming for purposes of argument that the evidence showed Nash's wife's frequent drinking would not have constituted inadmissible character-trait evidence, such evidence would have been irrelevant. Even if Nash's wife frequently drank alcohol, it would have been completely consistent with that trait for her to make a New Year's resolution not to drink and to abstain from drinking on that particular day, as she testified. Accordingly, evidence of her drinking history would not tend to prove that she was drinking on New Year's Day.
III.
Evidence Regarding Nash's Wife's Alleged Sexual Molestation as a Child
Nash contends, "The jury was not allowed to hear some of the most compelling part of the defense theory of the case, that [Nash's wife's] perception of the incident regarding [the E.N. incident] was flawed because of [Nash's wife's] own previous trauma. Second, [Nash's wife's] was more inclined to believe that [Nash] committed the sexual assault against [K.T.] because she had been molested."
Before trial, Nash's counsel sought to introduce evidence that Nash's wife had been molested for many years as a child, claiming such evidence was highly relevant to her state of mind. He further argued her prior molestation caused her to be "overly protective, overly cautious, overly offended," and resulted in her assuming that she saw something inappropriate. He explained, "I'm saying that she assumed [Nash] was doing that because it happened to her, and so she sees this kind of activity. She never saw him do what she says that she thinks or assumed."
The court rejected Nash's request on relevance grounds: "[I]t still boils down to what [Nash's wife] saw or what she didn't see. I mean, she's not going to be able to opine as to what was going on. She can testify as to what she saw." The court added, "I still don't see the relevance of it, not given the limited nature of the facts that she's going to present."
"Only relevant evidence is admissible at trial." (People v. Merriman (2014) 60 Cal.4th 1, 74; see Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) " 'Except as otherwise provided by statute, all relevant evidence is admissible.' [Citations.] " 'Evidence is relevant if it tends " 'logically, naturally, and by reasonable inference' to establish material facts." ' " (People v. Clark (2011) 52 Cal.4th 856, 892.) Under Evidence Code section 352, a trial court "may exclude evidence 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."
Here, the asserted evidence that Nash's wife was molested as a child was not relevant to the central issue in this case, which was whether Nash molested E.N. and K.T. As she did not witness the K.T. incident, Nash's wife's testimony was only relevant regarding what she saw Nash do to E.N. She specifically saw him move his hand under the blanket around E.N.'s body. When she removed the blanket, she saw Nash move his fingers, but his fingertips remained partially in E.N.'s pants. It was for the jury to decide what weight to give that percipient witness testimony. We also point out that under Evidence Code section 352, this excluded testimony was overly prejudicial and would have confused the jury and required a trial within a trial. The jury concluded beyond a reasonable doubt Nash was guilty. (Accord, People v. Adames (1997) 54 Cal.App.4th 198, 209 ["We do not find any Sixth Amendment violation of appellant's right to confrontation. We conclude the trial court was well within its discretion in ruling that the potential prejudice flowing from the proffered line of cross-examination outweighed the only marginal relevance of the collateral inquiry into the history of the alleged molestation of Sylvia as a child, which would have created confusion regarding the real issue, i.e., did appellant molest Carmen"].)
In any event, as noted abundant evidence supported the convictions. Nash therefore cannot show prejudice from the admission of his wife's testimony. Several people heard Nash admit he touched E.N., but minimize it, claiming she was a child who would not remember anything. Finally, the jury could reasonably conclude Nash acted with intent to obtain pleasure because he told his wife that if she had sex with him more often, the incident with E.N. would not have happened.
IV.
The People's Objection to Nash's Sentence
The People contend the court's 10-year sentence was unauthorized because as to all of the counts, the jury found true the allegation that Nash committed lewd acts against more than one victim (§ 667.61, subds. (b), (c), (e)) and therefore he was subject to a mandatory 15-year-to-life sentence under section 667.61, subdivision (h), which provides: "Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section." The People argue the court failed to give proper consideration to the harm Nash caused the victims and their families, and his continued danger to the community. The People contend Nash's sentence is neither cruel nor unusual punishment, considering the nature of the offense and the offender, the punishments imposed for more serious crimes in California, and the punishments imposed for the same crime in jurisdictions outside California.
Nash argues that imposition of the 15-year-to-life sentence under section 667.61, subdivision (h) would be cruel or unusual punishment: "While [his] crimes are serious, his conduct falls on the low end of the continuum of offenses under section 288, subdivision (b). The touchings were brief, and the younger victim, E.N., was probably not even aware of the touching. There is very little evidence that [he] committed the touching to gratify himself, and the children were so young that the acts could not have been done for their gratification. At the worst, what [he] did was to engage in two inappropriate touchings that were the product of his gross intoxication." A. Standard of Review
The California Constitution bars "[c]ruel or unusual punishment." (Cal. Const., art. I, § 17.) "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) Because the definition of crime and the determination of punishment are uniquely in the domain of the Legislature, appellant must overcome a considerable burden to establish that his sentence is cruel or unusual. (People v. Johnson (2010) 183 Cal.App.4th 253, 296.)
In reviewing this kind of claim, an appellate court must "decide whether the penalty given 'is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,' thereby violating the prohibition against cruel and unusual punishment of the Eighth Amendment of the federal Constitution or against cruel or unusual punishment of article I, section 17 of the California Constitution." (People v. Cunningham, supra, 25 Cal.4th at p. 1042.) Outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare and require an extreme case. (Rummel v. Estelle (1980) 445 U.S. 263, 272; Lockyer v. Andrade (2003) 538 U.S. 63, 73; People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
California Constitution
A punishment is cruel or unusual in violation of the California Constitution "if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) "[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit, regardless of whether a lesser term may be fixed . . . ." (Id. at p. 419.)
In assessing whether the maximum life sentence is " 'out of all proportion to the offense,' " we employ three "techniques" identified by the Lynch court. (Lynch, supra, 8 Cal.3d at pp. 424-425.) First, we "examine[] the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (Lynch, at p. 425.) Next, we compare the sentence with the "punishments prescribed in the same jurisdiction for different offenses which . . . must be deemed more serious." (Id. at p. 426.) Finally, we compare the sentence with "the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision." (Id. at p. 427.)
This court addressed the issue of cruel and unusual punishment in People v. Baker (2018) 20 Cal.App.5th 711 (Baker), a case in which the defendant convicted of oral copulation with a child 10 years of age or younger challenged his mandatory 15-year-to-life sentence on appeal without having objected in the trial court. Consistent with Baker, in which this court applied the Lynch "techniques" and rejected a challenge to a maximum life term under section 288.7, subdivision (b), we conclude that Nash's sentence is not cruel or unusual punishment under the state Constitution. Here, as in Baker, the nature of the offense—lewd conduct upon a child under 14 years of age—suggests the punishment was not cruel or unusual. " 'There exists a strong public policy to protect children of tender years,' " and, "[a]long a spectrum ranging from murder, mayhem, and torture on one end to petty theft on the other, 'lewd conduct on a child may not be the most grave of all offenses, but its seriousness is considerable.' " (Baker, supra, 20 Cal.App.5th at pp. 724-725.) As we have noted, "lewd conduct 'may have lifelong consequences to the well-being of the child.' " (Id. at p. 725.) Here, for instance, K.T.'s family was seeking counseling for her in light of what she had experienced.
Two aggravating factors relating to the nature of the offenses further support our conclusion. The girls were only three and five years old respectively during the sexual assaults and, therefore, were particularly vulnerable victims. (Cal. Rules of Court, rule 4.421(a)(3); Baker, supra, 20 Cal.App.5th at p. 725.) Additionally, E.N. was Nash's family member and K.T. was a coworker's daughter. Thus, Nash abused a position of trust or confidence during commission of the offenses. (Cal. Rules of Court, rule 4.421(a)(3); Baker, at p. 725; People v. Quintanilla (2009) 170 Cal.App.4th 406, 413 [aggravating circumstances found where defendant "exploited the cordial relationship he had built up over years" to sexually assault child].)
Facts pertaining to the offender similarly weigh in favor of a finding that a 15-year-to-life sentence is not cruel or unusual. Like the defendant in Baker, Nash was a mature adult. (Baker, supra, 20 Cal.App.5th at p. 725.) Nothing in the record indicates Nash has a mental disability, a low IQ, or a learning disorder. (Id. at p. 726; cf. In re Rodriguez (1975) 14 Cal.3d 639, 655-656 [punishment was excessive where defendant's "conduct was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems"].) Further, Nash's Static-99R score correlates to an above average—not a low— risk of recidivism.
We recognize Nash had a limited criminal history, consisting of two DUI convictions. This fact is favorable to Nash. (Baker, supra, 20 Cal.App.5th at p. 724.) However, as in Baker, where the defendant likewise had a limited criminal history, it does not outweigh all other factors relating to the nature of the offense and the offender. (Ibid.)
Proceeding to the second "technique" identified by the Lynch court, we consider the punishments prescribed in California for more serious offenses. (Lynch, supra, 8 Cal.3d at p. 425.) As to this issue, our analysis in Baker is controlling and need not be duplicated here. However, we briefly note, as discussed more fully in Baker, that section 288.7, subdivision (b) sits "along a spectrum" of offenses involving sex crimes against children, " 'whereby punishment increases as the victim's age decreases and the seriousness of sexual acts increases, with the harshest punishment meted out to adults who orally copulate or penetrate a child aged 10 or younger.' " (Baker, supra, 20 Cal.App.5th at p. 728.) Further, as we explained in Baker, a defendant "convicted of lewd acts or forcible oral copulation of a child under 14 and over 10 years younger than the defendant faces a 25-year-to-life sentence" under the "One Strike" sex offender law (§ 667.61) if certain aggravating factors are found true. (Baker, at pp. 728-729.) Thus, a comparison of the mandatory 15-year-to-life sentence under section 288, subdivision (a) to the punishments for similar and more serious sex offenses in California "does not suggest this is that 'rarest of cases' in which 'the length of a sentence mandated by the Legislature is unconstitutionally excessive.' " (Id. at p. 730.) A court need not separately analyze each of the Lynch techniques. (People v. Norman (2003) 109 Cal.App.4th 221, 230.) Therefore, we need not discuss the third Lynch technique of comparing Nash's punishment under section 667.61, subdivision (b) with the same offense in other jurisdictions having an identical or similar constitutional provision.
In Baker, we noted that the People likely could have prosecuted the defendant for aggravated sexual assault for the same conduct, which carries a 15-year-to-life sentence. (Baker, supra, 20 Cal.App.5th at p. 728.) It is doubtful the prosecution in this case could have done the same, given the apparent lack of force exerted during the offenses. (§ 269, subd. (a)(4).) This does not alter our conclusion, however, as it rests on the remainder of the Baker court's analysis comparing punishments under section 288.7, subdivision (b) and those for similar or more serious sex offenses in California. --------
Federal Constitution
The Eighth Amendment to the federal Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (U.S. Const., 8th Amend.) " 'Although it has always been uniformly accepted that the federal cruel and unusual punishment clause prohibits the infliction of certain modes of punishment (for example, inherently barbaric punishments such as "punishments of torture" [citation]), there has been some dispute, particularly outside the context of capital punishment, whether the provision also prohibits the imposition of punishment that is "excessive" or "disproportionate" in relation to the offense or offenses for which the punishment is imposed.' " (Baker, supra, 20 Cal.App.5th at p. 732.) Recent decisions from the United States Supreme Court, however, have instructed that the Eighth Amendment "contains a 'narrow proportionality principle,' that 'does not require strict proportionality between crime and sentence' but rather 'forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Graham v. Florida (2010) 560 U.S. 48, 59-60.) To decide whether a sentence is grossly disproportionate to a crime, a court "begin[s] by comparing the gravity of the offense and the severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Id. at p. 60.)
For the reasons set forth ante in our analysis under the first Lynch prong, the gravity of the offense and severity of the sentence do not give rise to a preliminary determination that sentencing Nash to 15 years to life would be excessive. On this basis alone, we conclude that such a sentence would not be not "grossly disproportionate" under the Eighth Amendment to the federal Constitution. (See Harmelin v. Michigan (1991) 501 U.S. 957, 1005 (conc. opn. of Kennedy, J.) ["[I]ntrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality"].)
Turning to the remedy for the court's sentencing error, we decline to impose a particular sentence and simply remand with directions to resentence Nash consistent with the views expressed in this opinion. (Accord, People v. Keogh (1975) 46 Cal.App.3d 919, 935 [56-year sentence for four forgery convictions was unconstitutional; court "remanded for resentencing in light of the views expressed in [the] opinion"].) For the trial court's guidance, we point out the court retains discretion regarding whether to impose consecutive or concurrent sentences. Section 667.6 lists sexual offenses for which the court must impose consecutive terms for each violation involving separate victims or involving the same victim on separate occasions. (See § 667.6, subds. (d)-(e).) That list does not include offenses under section 288.7, subdivision (b), or section 288, subdivision (a). (§ 667.6, subd. (e).) Whether to impose consecutive or concurrent terms for convictions on those offenses is left to the sentencing court's discretion under section 669. (See People v. Woodworth (2016) 245 Cal.App.4th 1473, 1479 ["Absent an express statutory provision to the contrary, section 669 provides that a trial court shall impose either concurrent or consecutive terms for multiple convictions"]; People v. Valdez (2011) 193 Cal.App.4th 1515, 1524 [the absence of a contrary provision left "the decision to impose consecutive or concurrent terms to the sentencing court's discretion under section 669"].) We express no view on how the court should exercise its discretion.
DISPOSITION
The judgment of conviction is affirmed. Robert Christopher Nash's sentence is vacated and the matter is remanded for resentencing with directions that the court resentence him under section 667.61, subdivision (b) consistent with this opinion. Following resentencing, the court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.