Opinion
A131242
12-23-2011
THE PEOPLE, Plaintiff and Respondent, v. ARNOLDO MONROE RIVAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC068435A)
A jury convicted defendant Arnoldo Monroe Rivas of committing the following crimes against his stepdaughter and two step-granddaughters: three counts of sexual intercourse with a child 10 years younger than himself (Pen. Code, § 288.7, subd. (a)); four counts of molestation (Pen. Code, § 288, subd. (a)); and one count of committing more than three acts of sexual conduct with a child under the age of 14 (Pen. Code, § 288.5, subd. (a)). The jury found true an enhancement allegation that during the course of committing one of the molestation counts defendant "engaged in the tying or binding of the victim" (Pen. Code, § 667.61, subd. (e)(5)). The trial court found true additional enhancement allegations that defendant now had eight convictions for molestation and one for continuous sexual abuse (Pen. Code, § 1192.7, subds (c)(6), (c)(35)), following which it sentenced defendant to state prison for an aggregate term of 27-years-to-life.
On this timely appeal, defendant presents two arguments: First, that the trial court erred by instructing the jury with CALCRIM No. 361. Second, that his prison sentence violates the state and federal constitutional guarantees against cruel and/or unusual punishment. We reject both arguments, and affirm.
BACKGROUND
Given that defendant does not challenge its sufficiency to support the jury's verdicts, the evidence introduced at his trial need not be summarized in distasteful detail. The following abbreviation will suffice for present purposes:
H.C., defendant's step-granddaughter, testified that on the evening of June 21, 2008, she was sleeping in her grandparents' bedroom when defendant entered, slipped his hand under H.C. 's nightgown and underwear, and put a finger in her vagina. H.C. told defendant to stop, but he did not. This happened at least twice that night, but H.C. told a police investigator that there were at least five entries. H.C. was nine years old at the time. She told her mother about the incident a week later.
L.C., who was 16 years old at the time of trial, testified that after she learned that H.C. had told police what defendant had done to her, she told the investigating officer that defendant had done much the same thing to her when she was 11 or 12. The only difference was that defendant did not digitally penetrate her, but rubbed her chest while his hand was between her shirt and undershirt.
A.D., defendant's stepdaughter, was 27 years old at the time of trial. She testified that, starting when she was between six-to-eight years old and continuing until she was 14, defendant, whom at the time she thought was her natural father, subjected her to the same abuse as H.C. and L.C.
H.C. and L.C. went to police in July 2008. A.D. was interviewed in December 2008 when another family member identified her as someone police should interview. Defendant was arrested five days later.
When he testified, defendant adamantly denied touching H.C., L.C., or A.D. in any inappropriate manner. According to defendant, the incident H.C. described never occurred. He admitted that he and H.C. slept in the same bed, but "nothing happened" and he never put a hand on H.C. He never touched L.C. or A.D. with any sexual intent. Defendant testified that A.D.'s false accusations were motivated by resentment as the result of being disciplined after she was found in bed, drunk, with a boy. Defendant testified that he did admit some of the accusations when interviewed by police, but he was nervous, "I didn't know what I was doing" and "I wasn't feeling all right."
REVIEW
The Trial Court Did Not Err By Instructing
The Jury With CALCRIM No. 361
At the prosecutor's request, the trial court instructed the jury with CALCRIM No. 361 as follows: "If the defendant failed in his testimony to explain or deny evidence against him, and he could reasonably be expected to do so based on what he knew, you may consider his failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure."
Defendant first attacks the instruction because it "impermissibly singled out" his testimony, "instructed the jury to scrutinize omissions in his testimony," and thereby violated his "due process right to a fair trial and . . . his Sixth Amendment right to testify and present a defense at trial." The cautionary language in the instruction that a failure to explain or deny "is not enough by itself to prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt" has been held to make the instruction consistent with a defendant's due process rights. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1066-1067, citing People v. Saddler (1979) 24 Cal.3d 671, 679-680.)
Defendant next contends that use of the instruction was procedurally defective because the prosecutor did not "notify the court of its intention to request the instruction," and because the trial court did not require the prosecutor to specify the matter defendant had failed to explain or deny.
As to defendant's first point, the prosecutor requested the trial court to give the instruction, and we do not understand what more could be required from the prosecutor in terms of alerting opposing counsel and putting the matter of the instruction's use at issue. Concerning his second point, defendant cites pages 681-682 of People v. Saddler, supra, 24 Cal.3d 671, as recording our Supreme Court's "recommend[ation] that a trial court require the prosecution to notify the court and the defense at the close of the defendant's cross-examination of its intention to request the predecessor of CALCRIM 361 and to state the claimed evidentiary basis for the instruction so that the court may give the defendant an opportunity to further testify as to any explanation of evidence against him, which explanation he may have overlooked or forgotten to give." We have carefully checked pages 681 and 682, and found no such "recommendation." On the contrary, on page 680 we did find the following: "Defendant . . . suggests that principles of fairness require that he and the jury be given notice of the precise evidentiary facts upon which the inference of guilt shall be drawn and that he was denied due process in that he and the jury were not so informed. Under the instruction, however, inferences are permissible only if the jury finds the defendant failed to explain or deny evidence that he could reasonably be expected to explain or deny. Implementation of defendant's suggestion would constitute an obvious invasion of the jury's province as the finder of fact and would impermissibly restrict defendant's right to trial by jury." This appears to knock the bottom out of defendant's argument.
Lastly, defendant contends giving the instruction was error because at trial he "answered all of the questions asked him by both his counsel and the prosecutor," ergo there was nothing he could be charged with failing to explain or deny.
The Attorney General points out that the instruction has not been restricted to instances where a defendant was literally silent and thus unable to explain or deny damaging testimony, but is deemed appropriate when the accused puts a bizarre or implausible explanation before the jury. (See People v. Sanchez (1994) 24 Cal.App.4th 1012, 1029-1030.) Defendant testified that he admitted to the investigating officer that he did commit some of acts of which he was accused, but not all. At trial, his version was that he was guilty of none of those acts, and that his false admissions to the officer were the product of mental stress. However, he did not present an explanation why he admitted only some of the acts and the basis for why he implicitly denied the remaining accusations as fabricated. That this discrepancy was not developed in cross-examination does not establish error in giving CALCRIM No. 361. In her closing argument, the prosecutor did call defendant's version to the police as "Bologna," explaining how defendant's limited admissions were grudgingly elicited only once he realized the scope of the accusations from all three victims. Moreover, it bears repeating that the instruction is permissive, thus allowing the jury to decide whether defendant did in fact fail to explain or deny something, and, if so, "it is up to you to decide the meaning and importance of that failure."
Defendant's Sentence Is Not Cruel
And/Or Unusual
Defendant was required to be sentenced in accordance with Penal Code section 667.61, the so-called "One Strike" law. That statute required the trial court to impose a life sentence when the defendant is convicted of an enumerated sexual offense and the People plead and prove one or more of the specified aggravating circumstances. Depending upon how the circumstances are categorized, the defendant must receive either a 15-year-to-life term or a 25 year-to-life term. (Pen. Code, § 667.61, subd. (a).) The trial court cannot grant probation or strike any proven or admitted allegations. (Id., subds. (g), (h).) The scope for concurrent sentencing exists, but consecutive sentencing is the norm. (Id., subd. (i); see People v. Wutzke (2002) 28 Cal.4th 923, 930-931.)
Thus, at the time of sentencing, there was no doubt that defendant was going to prison for a very long time. The only reasonable strategy was to try to minimize the sentence. The arguments employed were defendant's age (56), his total lack of a criminal record, a favorable risk assessment by a psychologist, and the pointlessness of discretionary consecutive sentencing because of his age and the likelihood of deportation if and when he was released. The effort was only partially successful. Defendant was sentenced to a term of 15-years-to-life for one count of sexual intercourse with one of his step-granddaughters, together with a 12-year term for the continuous sexual abuse of his step-daughter. All other sentences, each for a term of 15-years-to-life, was ordered to be served concurrently with the aggregate term of 27-years-to-life. This type of claim is fact specific and must be raised in the trial court to be considered on appeal. (People v. Collins (2004) 115 Cal.App.4th 137, 156; People v. Norman (2003) 109 Cal.App.4th 221, 229; People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Anticipating that his counsel's silence at sentencing might fall to this principle, defendant seeks to have that silence condemned as ineffective assistance. We will address the merits of defendant's Eighth Amendment claim to forestall his Sixth Amendment claim. (People v. Norman, supra, at p. 230.)
The Eighth Amendment "prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." (Rummel v. Estelle (1980) 445 U.S. 263, 271.) However, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Id. at p. 272.) More recently, the chances of a sentence being overturned under federal law have been restricted to "the 'exceedingly rare' and 'extreme' case." (Lockyer v. Andrade (2003) 538 U.S. 63, 73.) Unless the punishment gives rise to an inference that the sentence is grossly disproportionate, the Eighth Amendment does not require an individualized proportionality review. (Harmelin v. Michigan (1991) 501 U.S. 957, 995-996.) For adults, no such inference arises for a sentence of less than death. (Id. at pp. 995-996.)
Under the California Constitution, punishment is cruel or unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441, 478-479; In re Lynch (1972) 8 Cal.3d 410, 424.) California courts are more inclined to evaluate individual proportionality, looking to (1) the nature of the offense and the offender, (2) penalties for different offenses in California, and (3) penalties for similar offenses in different jurisdictions. (In re Lynch, supra, at pp. 425-428; People v. Mantanez (2002) 98 Cal.App.4th 354, 359.)
An analysis of "the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.) The nature of the offender looks at "such factors as his age, prior criminality, personal characteristics, and state of mind." (People v. Dillon, supra, 34 Cal.3d 441, 479.)
Because it entails setting aside the Legislature's conceded competence to define and punish crimes, defendant has a considerable burden to overcome. (People v. Wingo (1975) 14 Cal.3d 169, 174; People v. Meneses (2011) 193 Cal.App.4th 1087, 1092.) Defendant makes no effort to demonstrate the second or third of the Lynch considerations. Instead, he devotes his exclusive attention to himself and the nature of the offenses. As in the trial court, he emphasizes his blameless life up to this prosecution, his current age, and the unlikelihood of his reoffending should he receive a more lenient sentence. Defendant's appellate counsel does as well as can be expected in the circumstances, but it is ultimately unpersuasive because we conclude that defendant has not sustained that burden under either the federal or the state standard.
It is not shocking to the conscience to contemplate a 27-year-to-life sentence in these circumstances. As noted by the prosecutor at the sentencing hearing, and as shown by the record, "the conduct . . . in this case . . . starts [in] 1991 and goes all the way to 2006," involved three "vulnerable young girls," and a profound violation of defendant's position of trust. (See Pen. Code, § 1203.066, subd. (d)(1)(A) [ordinarily forbidding probation "If the defendant is a member of the victim's household"].) "[P]ersons convicted of sex crimes against multiple victims within the meaning of section 667.61 . . . 'are among the most dangerous' . . . ." (People v. Wutzke, supra, 28 Cal.4th 923, 930931; accord, People v. Valdez (2011) 193 Cal.App.4th 1515, 1523.) With section 667.61, "the Legislature was expressing the view that multiple . . . sex offenses deserve more severe punishment . . . because of the predatory nature of the perpetrator." (People v. Murphy (1998) 65 Cal.App.4th 35, 41.) At sentencing, the trial court noted that the impact of defendant's acts upon his stepdaughter, the longest sufferer, was the most severe of the victims, and that that impact continues to "affect[] her quite substantially." These factors more than neutralize the positive points raised by his counsel at sentencing. Two generations of victims are enough.
DISPOSITION
The judgment is affirmed.
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Richman, J.
We concur:
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Kline, P.J.
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Lambden, J.