Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 196983
Marchiano, P.J.
A jury convicted defendant Evile Seuseu of seven sexual offenses against a child. The trial court sentenced him to 60 years to life. He contends that the reasonable doubt instruction, CALCRIM No. 220, and related instructions are flawed and deprived him of due process. He also contends his 60 years-to-life sentence constitutes cruel and unusual punishment. We reject defendant’s contentions and affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
The victim is defendant’s daughter, V. She was born in a Pacific Island nation in 1991. She came to San Francisco when she was about six, with her grandparents and two cousins and moved in with other relatives.
Defendant joined the family when V. was eight or nine. The morning after defendant’s arrival, V. awoke to defendant touching her breasts and kissing her. A week or two later, defendant, who was wearing a sarong and no underwear, was masturbating in front of V. He placed her hand on his erect penis and moved it up and down.
Defendant continued to make V. touch his penis. He would touch her under her clothing and touch her vagina. When she was nine, defendant touched and kissed her three to five times a week.
When V. was 9½ or 10, defendant progressed to oral copulation and vaginal penetration, mostly in his bedroom. He would tell V. to go upstairs to do a chore, and he would follow her upstairs. He would force her into his room, tell her to remove her clothes, and get into bed with her. He would touch her breasts and vagina, force her to orally copulate him, and rape her. Sometimes she put a pillow over her face because she was terrified and in pain. Defendant engaged in this sexual misconduct with V. four to six times a week, for a period of several years, totaling over 100 instances of sexual misconduct.
Once when V. was 11, she refused defendant’s command to go into his room. He beat her with a broom until it broke and she couldn’t walk. V. believed that if she revealed defendant’s sexual misconduct he would beat her to death.
When V. was 11 or 12, defendant began to sodomize and forcibly orally copulate her.
When V. was 12, defendant’s wife came to live with the family. Defendant’s sexual misconduct decreased.
V. began menstruating when she was 10. When she was 12 and starting the seventh grade, her periods stopped. Hospital tests showed that she was pregnant. V. said that defendant—who had not used condoms—was responsible.
An inspector with the San Francisco Police Department had V.’s aunt make a pretext call to defendant, in which he admitted he was responsible for V.’s pregnancy. Defendant insisted he had only had sex with V. once, when he had been drinking. The inspector then called defendant, who said V. had asked him how to have sex, so he showed her. Both calls were recorded and played for the jury.
On that same day, the inspector interviewed defendant at her office. Defendant said that when he was “tipsy” on a six-pack of beer he caught V. looking through one of his Playboys. Defendant and V. started kissing while they looked through the magazine. She wanted defendant to show her how to have sex, so he showed her. She was not fearful. After he ejaculated, he realized it was wrong. He said it was an accident and he wanted to die. He insisted that was the only time he had sex with V. This interview was recorded and played for the jury.
V. gave birth to a girl. The day after the birth, a social worker spoke to defendant in jail. Defendant was tearful and acknowledged that he was the father of V.’s child. He said he had made one mistake and had wanted to raise the baby.
At trial, a doctor testified that a woman was fertile for about 14 days a month, and the chances of conception from only one act of intercourse during that time was only 8 percent. A criminalist testified that a paternity test showed that defendant was the likely father of V.’s child.
Defendant testified. He denied committing the lengthy pattern of sexual offenses described by V. and denied using physical force upon her. He testified he only had sex with her once, and that it was an accident and a mistake. His description of the incident varied from his previous statements. He said he drank a six-pack of beer on a Friday night and went to sleep. He claimed V. came to his room, placed her breasts on his mouth and all over his body, and placed his penis inside her vagina. She got on top of him and moved up and down. He ejaculated. Defendant blamed “the devil.”
Several family members testified that defendant was nice to V. and behaved appropriately with her.
The jury convicted defendant of aggravated sexual assault of a child (rape) (Pen. Code, § 269, subd. (a)(1), counts 1 and 6); lewd and lascivious conduct with a child (§ 288, subd. (a), counts 2 and 5); aggravated sexual assault of a child (sodomy) (§ 269, subd. (a)(3), count 3); aggravated sexual assault of a child (oral copulation) (§ 269, subd. (a)(4), count 4); and continuous sexual abuse of a child (§ 288.5, subd. (a), count 7).
Subsequent statutory citations are to the Penal Code.
The trial court sentenced defendant to four consecutive terms of 15 years to life on counts 1, 3, 4, and 6, for a total sentence of 60 years to life. The court dismissed counts 2, 5, and 7 in the interests of justice (§ 1385).
II. DISCUSSION
The trial court gave the reasonable doubt instruction, CALCRIM No. 220, and three related instructions, CALCRIM Nos. 200, 222, and 223. Defendant focuses primarily on CALCRIM No. 220’s admonition that in deciding whether the People have proved their case beyond a reasonable doubt, “[Y]ou must impartially compare and consider all the evidence that was received throughout the entire trial.”
CALCRIM No. 200 tells the jury to reach its verdict “based only on the evidence that has been presented to you in this trial.” CALCRIM No. 222 states, “You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom.” CALCRIM No. 223 tells the jury it “must decide whether a fact in issue has been proved based on all the evidence.”
Defendant contends that these instructions are flawed and deprived him of due process because they improperly told the jury that reasonable doubt must arise from evidence presented at trial and cannot be based on the absence of evidence. This argument has been repeatedly rejected, on the ground that CALCRIM No. 220 makes it clear to the jury that absence of evidence may lead to reasonable doubt. (See, e.g., People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1268-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093.) We agree with these cases.
Defendant also challenges CALCRIM No. 220’s definition of proof beyond a reasonable doubt as “proof that leaves you with an abiding conviction that the charge is true.” Challenges to the “abiding conviction” language have also been repeatedly rejected. (See, e.g., People v. Stone (2008) 160 Cal.App.4th 323, 332-334; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287; People v. Miller (1999) 69 Cal.App.4th 190, 213-214.) We agree with these cases.
Finally, defendant argues that his 60 years-to-life sentence constitutes cruel and unusual punishment. He relies on a concurring opinion by the late Justice Mosk in which he expresses his view that a prison sentence which cannot possibly be served in the defendant’s lifetime amounts to cruel and unusual punishment. (People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.) (Deloza).) Defendant is 39 years old. He argues he cannot possibly complete a 60-year sentence, hence the sentence is cruel and unusual punishment.
Justice Mosk expressed this view five years earlier in People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.).
But as the Attorney General correctly notes, Justice Mosk’s Deloza concurrence is of no precedential value. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383.) We follow the analysis based on In re Lynch (1972) 8 Cal.3d 410 employed in People v. Huber (1986) 181 Cal.App.3d 601, 633-635, and conclude there is nothing in the nature of the offense or the offender that renders the sentence in this case cruel and unusual. Defendant committed over 100 serious sexual offenses on his young daughter over a period of several years, beginning when she was only eight or nine years old. He impregnated her when she was 12. The impact of that behavior on her young life is almost unimaginable. With regard to the nature of the defendant, given such behavior he is clearly a threat to the community. More importantly, he persists in minimizing his behavior by claiming he had sex with V. only once.
III. DISPOSITION
The judgment and sentence are affirmed.
We concur: Stein, J., Margulies, J.