Opinion
F070843
03-21-2017
THE PEOPLE, Plaintiff and Respondent, v. ALAN D. STEPHENSON, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kelly E. LeBel, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F11906121)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee Whitehead, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kelly E. LeBel, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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Alan D. Stephenson was found guilty of 12 counts of child molestation, one count of possessing child pornography and one count of using a child to produce pornography; he received an enhanced sentence consisting of 12 consecutive indeterminate terms of 50 years to life plus a determinate term of 60 years. On appeal, he argues: (1) the evidence was insufficient to support the convictions on counts 1 and 6, which required proof of intercourse occurring during specific time frames; (2) Penal Code section 654 should have been applied to stay the sentence on count 9; (3) the trial court abused its discretion when it denied Stephenson's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to reduce the sentence by striking a prior conviction allegation; (4) the trial court should have applied a rule allowing only one life term for each of the two victims; and (5) the sentence is unconstitutionally disproportionate to the crimes.
We will affirm the judgment.
FACTS AND PROCEDURAL HISTORY
J. was Stephenson's daughter and was born in December 1997. H. was his stepdaughter and was born in April 1999. The victims had the same mother, who married Stephenson in 2003. Stephenson was arrested in October 2011, after J. reported the abuse to her mother.
The district attorney filed an information charging Stephenson with 14 counts. Because of the complexity of the document, we will present the charges in tabular form.
| Count | Offense | Victim | Dates | Place or otherspecification | |
|---|---|---|---|---|---|
| 1 | Sexualintercourse orsodomy with achild 10 yearsold or younger | 288.7, subd. (a) | J. | Sept. 20, 2006,to Dec. 21, 2008 | |
| 2 | Lewd act upon | 288, subd. (a) | J. | Dec. 22, 2008, | "Garage" |
| a child under14 | to Oct. 16, 2011 | ||||
| 3 | Lewd act upona child under14 | 288, subd. (a) | J. | Dec. 22, 2008,to Oct. 16, 2011 | "Living room" |
| 4 | Lewd act upona child under14 | 288, subd. (a) | J. | Dec. 22, 2008,to Oct. 16, 2011 | "Her Bedroom" |
| 5 | Lewd act upona child under14 | 288, subd. (a) | J. | Dec. 22, 2008,to Oct. 16, 2011 | "Parent'sbedroom" |
| 6 | Sexualintercourse orsodomy with achild 10 yearsold or younger | 288.7, subd. (a) | H. | Sept. 20, 2006,to April 7, 2010 | |
| 7 | Lewd act upona child under14 | 288, subd. (a) | H. | Apr. 8, 2006, toOct. 16, 2011 | "MasterBedroom" |
| 8 | Lewd act upona child under14 | 288, subd. (a) | H. | Apr. 8, 2006, toOct. 16, 2011 | "her bedroom" |
| 9 | Lewd act upona child under14 | 288, subd. (a) | H. | Aug. 1, 2008, toOct. 16, 2011 | "while living withAunt" |
| 10 | Lewd act upona child under14 | 288, subd. (a) | H. | Apr. 8, 2006, toOct. 16, 2011 | "Frontroom/living room" |
| 11 | Lewd act upona child under14 | 288, subd. (a) | H. | Jan. 2009, toMay 31, 2011 | "First garage/ElPaso" |
| 12 | Lewd act upona child under14 | 288, subd. (a) | H. | June 1, 2010, toOct. 16, 2011 | "Second garage-ElPaso" |
| 13 | Possession ofchildpornography | 311.11, subd.(a) | June 1, 2009, toOct. 16, 2011 | ||
| 14 | Using a minorto preparematterdepictingsexual conduct | 311.4, subd. (c) | J. andH. | June 1, 2009, toOct. 16, 2011 | "Posed" |
Subsequent statutory references are to the Penal Code unless otherwise noted.
The information alleged that counts 2 to 5 and 7 to 12 involved multiple victims. (§ 667.61, subd. (e)(4).) It also alleged that Stephenson had a prior conviction of a serious felony, an assault with a deadly weapon (§ 245) from 1995.
At trial, the prosecution relied primarily on the testimony of the victims. Each said Stephenson engaged in sex acts with them on many occasions, over several years and in multiple residences. He also took pictures of them when they were undressed. We will describe this testimony in more detail later in this opinion.
The jury was shown a set of pornographic photos that had been saved on an SD card in the cell phone found in Stephenson's possession when he was arrested. The photos are not included in the appellate record, but the children's mother testified that she used her computer to access Stephenson's cell phone account and found photographs showing J. and H. posing nude.
The jury also was shown a video recording of an interview given by Stephenson to the police at the time of his arrest. He admitted he had sex with J. once when she was 12 and another time when she was 13. He said he had been "put[ting] his hand on" H. for " a couple of years" but did not have sex with her. He also admitted he took some of the pictures of J., but only because she asked him to do it. At trial, however, Stephenson testified that he did not commit the sex acts J. or H. described and did not take any of the pictures. He said he had lied to the officer to protect the children's mother. He claimed he believed she was responsible for the nude pictures and the pictures were somehow a result of the mother dating other men.
As will be seen, the locations and time periods of the family's residences are significant in connection with some of Stephenson's arguments. The evidence at trial established that from 2003 until July 2006, J., H., their mother, and Stephenson lived together on East Saginaw Way in Fresno. After that, they lived in Clovis for a month or two. Next, still in 2006, J., H., and their mother moved to Colorado. Stephenson did not go with them. At some point during their time residing in Colorado, the three of them visited San Diego. During this visit, J. and H. stayed with Stephenson at Stephenson's brother's house. J. and H. moved back to Fresno in August 2008 and lived with their aunt (their mother's sister) on San Pablo Avenue. Stephenson did not live there but had access to the children. The mother remained in Colorado until January 2009, when she also moved to the San Pablo house. In June 2009, J., H., their mother and their aunt moved to a single-story house on East El Paso Avenue in Fresno. After about two months, Stephenson moved in with them there. In June 2010, J., H., the mother, and Stephenson moved to a two-story house, also on East El Paso. That house had a partially furnished garage containing some recording equipment. In July 2011, the four of them moved to Arizona. They returned and lived on Barstow Avenue in Clovis in September 2011.
The jury found Stephenson guilty of all charges and found the multiple-victim allegation to be true. The court found the prior conviction allegation true.
The court imposed sentence as follows. On counts 1 and 6, sexual intercourse with a child 10 years old or younger (§ 288.7, subd. (a)), the sentence for each count was 25 years to life, which was doubled to 50 years to life pursuant to section 667, subdivision (e)(1), based on the prior strike offense. On counts 2 through 5 and 7 through 12, lewd act upon a child under 14 (§ 288, subd. (a)), with the multiple-victim enhancement (§ 667.61, subd. (e)(4)), the sentence on each count was 25 years to life pursuant to section 667.61, subdivision (j). These sentences also were doubled to 50 years to life based on the prior strike. The 12 indeterminate sentences were required to be served consecutively. On each of counts 1 through 12, the court also imposed an enhancement of five years pursuant to section 667, subdivision (a)(1), based on the prior offense. On each of counts 13 and 14, the court imposed a sentence of two years, doubled to four, to run concurrently with the other sentences. The total sentence was thus 660 years to life.
DISCUSSION
I. Sufficient evidence of counts 1 and 6
Stephenson argues that the evidence was insufficient to support the verdicts on counts 1 and 6. When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
A. Count 1
Count 1 alleged that Stephenson had sexual intercourse with J. in violation of section 288.7, subdivision (a), between September 20, 2006, and December 21, 2008. Stephenson concedes J. testified that sexual intercourse took place, but he claims the evidence did not show that this happened in the specified time frame and therefore did not prove the victim was 10 years old or younger. He is mistaken.
This is the date on which section 288.7 became effective. (Stats. 2006, ch. 337, § 9.)
J. testified that Stephenson touched her vagina, breasts, and behind with his penis and hands on many occasions. The acts began when she was six or seven years old, and continued until 2011. The acts happened when J. was living in Fresno and in Clovis. They took place in a garage, a living room, J.'s bedroom and the parents' bedroom. The acts happened on two or three occasions in a garage, more than 20 occasions in a living room, and more than 20 occasions in J.'s bedroom.
According to J.'s testimony, the sex acts included penetration of J.'s vagina by Stephenson's penis. This happened many times when J. went into the bathroom to take a shower. It happened in many of the residences in which the family lived. When asked what was the earliest age when Stephenson "put his private within" hers, J. said six or seven, when she was in kindergarten or first grade. In response to a follow-up question whether "it would go on . . . during the whole time," J. said yes.
On cross-examination, J. was asked about an occasion of sexual abuse that took place at her grandmother's (Stephenson's mother's) house in Fresno. She said Stephenson penetrated her vagina with his penis on that occasion. She believed this happened in the summer of 2007, when she was nine years old. She was visiting her grandmother's house for only a day or two at the time.
This evidence amply supported the conviction on count 1. J. testified that Stephenson had sexual intercourse with her at his mother's house in Fresno in the summer of 2007. This was between the dates set forth in the information. Stephenson argues that this is "impossible" because the mother said she was living with the children in Colorado in the summer of 2007 and Stephenson was either in San Diego or in jail. The record, however, does not show that what J. testified to was impossible. According to Stephenson's own testimony, he was living in San Diego in 2007, until he came to Fresno in July or early August that year and stayed with his mother. On August 23, 2007, he was arrested and he remained in custody until December 2007. This testimony places Stephenson at his mother's house around the same time J. said she was there in the summer of 2007. Further, there is no inconsistency between J.'s testimony and the evidence that J., H. and their mother were living in Colorado at that time. J.'s testimony was that when Stephenson raped her in the summer of 2007, she was at Stephenson's mother's house in Fresno for a brief visit, not that she lived in Fresno. It was hardly impossible for the children to visit their grandmother in Fresno during a period when they resided in Colorado.
Further, the evidence would be sufficient even without J.'s testimony about the summer 2007 rape. J. said the first act of sexual intercourse happened when she was six or seven years old. Stephenson told the police he was having intercourse with J. when she was 12 and 13. J. testified that acts of penetration went on "the whole time." J.'s testimony as a whole described a continuous course of sexual abuse spanning this period. From all this evidence, the jury could properly infer that one or more acts of sexual intercourse happened between the dates stated in the information.
In a letter submitted to the court on December 16, 2016, Stephenson cited People v. Rojas (2015) 237 Cal.App.4th 1298, saying it supports his arguments on count 1 and count 6 because it pertains to "lack of congruity between charging dates and the evidence at trial." We do not see how this case helps Stephenson. In it, the court reversed part of the judgment on ex post facto grounds because the jury was allowed to find the defendant guilty of an offense based on facts occurring more than a year before the statute creating the offense took effect. (Id. at pp. 1306-1307.) Nothing similar is at issue here.
B. Count 6
Count 6 alleged that Stephenson had sexual intercourse with H. between September 20, 2006, and April 7, 2010. He claims the evidence failed to show an act of penetration ever took place. If it did take place, he maintains that the evidence did not show when. He says H.'s testimony was consistent with an act or acts of intercourse, if there were any, taking place only after April 7, 2010, when she was older than 10, so the jury could not reasonably find him guilty. Again, we disagree.
In his opening brief, Stephenson erroneously says the information alleged intercourse between September 20, 2006, and April 7, 2007. He corrects this mistake in his reply brief.
In her testimony, H. said, "I was raped." She said Stephenson raped her repeatedly from when she was 7 to when she was 13 years old. It happened more than 40 or 50 times. It happened in multiple houses, in her bedroom, a living room, a garage, and her parents' bedroom. Sometimes it happened in the afternoon, when others were in the house, and sometimes at night when everyone else was sleeping.
Ten to 15 of the occasions took place when H. and J. were living with their aunt. They lived at their aunt's house from August 2008 to June 2009.
When asked what she meant by "raped," H. said, "I don't know how to specifically phrase it," but she went to describe in detail the type of sex act Stephenson repeatedly inflicted on her. He took off all his clothes and all her clothes and touched her breasts, buttocks, and vagina with his hands. Then he made her lie on her back and got on top of her. Next, he rubbed his penis, which she described as hard, on her vagina. Finally, he ejaculated on her stomach. She said this description applied to more than 40 or 50 occasions. When the prosecutor asked her to describe the assaults that happened in each house and each room, she said Stephenson did the same things each time.
H. testified that there were "[a] few times" when the feeling of Stephenson's penis against her vagina was slightly different from the other times. Most of the time, his penis would stay "[o]ut" of her vagina, but on these few occasions she felt more pressure toward the inside. In those instances, she said, "he attempted to go in, but it couldn't, I guess." His penis would slide back farther than usual as he rubbed it on her vagina, and then when he moved it forward again, the tip would press toward the opening. When asked whether Stephenson's penis would "go in some" in these instances, H. said no. On cross-examination, however, H. gave a somewhat different answer. Counsel asked H. if she remembered saying no when an interviewer asked if she ever felt Stephenson's penis inside her. H. replied, "A little bit, but not all the way."
For purposes of the charged offense, sexual intercourse means "any penetration, no matter how slight, of the vagina or genitalia by the penis." (People v. Mendoza (2015) 240 Cal.App.4th 72, 79.) The genitalia include the outer lips or labia majora. As Stephenson concedes, penetration of the vagina thus is not necessary; the crime is proven even if it is shown only that the penis penetrated between the labia majora. (People v. Dunn (2012) 205 Cal.App.4th 1086, 1097-1098.)
We conclude the evidence of penetration during the charged time period was sufficient. It is true that H. said she felt Stephenson's penis pushing harder than usual toward the opening of her vagina only a few times, and it is true that she was not asked the dates on which or places where those few times happened. But it would be a mistake to focus the analysis on those few instances, since penetration of the vaginal opening is not required to complete the crime. H. testified that Stephenson routinely rubbed his penis directly on her vagina during the entire period from when she was 7 to when she was 13—more than 40 to 50 times—including 10 to 15 times during the period from August 2008 to June 2009, which was within the time circumscribed by the information. Stephenson's practice on all these occasions was to remove all their clothes, get on top of her, and rub his erect penis on her vagina until he ejaculated. It strains credulity to suggest that in the course of all these assaults his penis never once passed between her labia majora, or never until after April 7, 2010. The jury could properly find otherwise beyond a reasonable doubt. In light of the record as a whole and the rule that penetration of the labia is sufficient, the fact that H. said Stephenson's penis did not go inside her vagina does not undermine this conclusion. H. was never asked whether his penis passed between her labia, and the jury could reasonably interpret her testimony to mean only that it never entered the opening of the vagina. II. Section 654
Stephenson argues that there was "no distinction between" the allegations in count 9 of the information and the allegations of count 10. His view is based on the facts that the time periods specified in the two counts overlapped substantially (they both included August 1, 2008 to October 16, 2011) and the locations specified (at the aunt's house and in the living room) were not mutually exclusive. He says this means the sentence on count 9 should have been stayed pursuant to section 654. We reject this argument.
Section 654 provides, in part, as follows:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
This statute bars multiple punishment not only for a single criminal act but for a single indivisible course of conduct in which the defendant had only one criminal intent or objective. (People v. Bauer (1969) 1 Cal.3d 368, 376; In re Ward (1966) 64 Cal.2d 672, 675-676; Neal v. State of California (1960) 55 Cal.2d 11, 19, overruled on other grounds by People v. Correa (2012) 54 Cal.4th 331, 344.) We review under the substantial-evidence standard the court's factual finding, implicit or explicit, of whether or not there was a single criminal act or a course of conduct with a single criminal objective. (People v. Coleman (1989) 48 Cal.3d 112, 162; People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) As always, we review the trial court's conclusions of law de novo. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1687.)
The overlap or similarity between counts 9 and 10 has little to do with section 654. The question under section 654 is whether the evidence supported a finding of separate acts and objectives. It did. H. testified to many separate occasions in many places over many years, and more than one of these satisfied the criteria in counts 9 and 10. H. described 10 to 15 occasions at her aunt's house between August 2008 and June 2009. All of these satisfied the criteria for count 9. H. recalled one specific occasion in the front room or living room of the house she lived in when she was seven, eight and nine years old, which satisfied the criteria in count 10. The occasions were related to each other only by the fact of repetition. This state of evidence hardly compelled a finding at sentencing that the convictions on counts 9 and 10 were based on a single act or on a course of conduct with a single objective. This would be so even if the occasion in the front or living room that proved count 10 turned out to be the same as one of the 10 to 15 occasions at the aunt's house. There would still be nine to 14 other occasions to prove count 9.
Stephenson may be suggesting that section 654 must be applied unless the record shows the jury assigned separate acts and objectives to each count, but there is no authority for that notion. He could also be suggesting that if it could possibly, in light of the evidence, be found that there was only one act that satisfied the criteria in both count 9 and count 10, then the trial court's decision must be reversed. But that is not how appellate review works under the substantial-evidence standard. We do not reverse just because the evidence is reconcilable with findings other than those the trial court made. In any event, we do not think the evidence is reconcilable with the view taken by Stephenson. J.'s testimony clearly described multiple occasions consistent with the criteria stated in counts 9 and 10.
The decision not to apply section 654 here must be affirmed if there was sufficient evidence to support a finding by the sentencing judge that the crimes of conviction on counts 9 and 10 were based on separate acts and separate objectives. The evidence of this was ample. III. Romero motion
The above discussion resolves the section 654 issue in the terms discussed by the parties. There is, however, an independent and equally sufficient reason for affirming that was not discussed in the briefs. Counts 9 and 10 alleged two violations of the same provision of the Penal Code: section 288, subdivision (a). Our Supreme Court has held that section 654—which refers to multiple punishment of the same conduct under different provisions of law—does not bar multiple punishments for multiple violations of the same provision. (People v. Correa, supra, 54 Cal.4th at pp. 335-338.)
Stephenson argues that the trial court erred when it denied his Romero motion to strike the prior felony allegation and avoid application of section 667, subdivision (e)(1), which resulted in the doubling of the parole-eligibility term (from 25 years to 50) on each of the 12 indeterminate sentences. We disagree.
A trial court has discretion to strike, at a defendant's request or on its own motion, prior felonies alleged for sentence enhancement purposes. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior felony allegation, the court must "consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [sentencing] scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 160 (Williams).) We review a trial court's decision to deny a request to strike prior strike allegations for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374) The court abuses its discretion if its application of the factors set forth in Williams "'falls outside the bounds of reason.'" (Williams, supra, 17 Cal.4th at p. 162.)
The court's decision fell well within the bounds of reason. Stephenson engaged in a years-long pattern of sexual abuse of his young children. H. was not mistaken when she called it rape. At trial, Stephenson denied responsibility and blamed the children's mother. In addition to the prior assault with a deadly weapon, Stephenson had three other adult felony and five adult misdemeanor convictions, as well as one felony and six misdemeanor juvenile priors. The three other adult felonies were escape, attempted grand theft and receiving stolen property, all in 1997. Two of the adult misdemeanors were corporal injury to a spouse or cohabitant, in 1996 and 2002. On the Static-99R risk assessment instrument, Stephenson had a score placing him in the category of low to moderate risk for committing further sex offenses if released, but the Static-99R does not measure certain risk factors, including substance abuse. Stephenson told the probation officer he had a marijuana habit of "7 to 8 'blunts' per day" and a cocaine habit of "$20 to $50 worth every other day." Stephenson had been unemployed for seven months at the time of his arrest and had no source of income. The probation report stated that he was a Villa Posse Crips gang member from 1989 to 2001. On the other side of the ledger, Stephenson said he had been physically abused by his parents and recently had been told that an uncle once sexually molested him. He contemplated suicide and put a gun to his head when another daughter of his died in 1997. In light of the record and the factors stated above, the trial court could reasonably find Stephenson did not fall outside the spirit of the sentencing scheme.
Stephenson cites People v. Garcia (1999) 20 Cal.4th 490 (Garcia), but that case does not show the trial court was obligated grant the Romero motion here. In Garcia, our Supreme Court held that a prior strike allegation can properly be stricken for purposes of some counts and not stricken for others. (Id. at pp. 496-499.) Among the grounds that can support a ruling of this kind is the argument that if the strike is applied to some counts, the defendant's sentence will be increased and his prospects for future offenses will be reduced correspondingly, so there would be less reason to apply the strike to the remaining counts. (Id. at p. 500.) But the holding of Garcia is merely that the application of this type of consideration is not an abuse of discretion. The Garcia court did not require trial courts to grant Romero motions where such considerations are present. IV. One-life-term rule
Section 667.61, subdivision (g), formerly provided:
"The term specified in subdivision (a) or (b) [i.e., 25 to life or life with parole] shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable."
Under this provision, sex offenses were deemed to occur on a single occasion if they happened in "close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107.) The provision was removed from section 667.61 effective September 20, 2006. (Stats. 2006, ch. 337, § 33.)
Counts 7, 8, and 10 each alleged a lewd act against H. between April 8, 2006, and October 16, 2011. Former section 667.61, subdivision (g), applied during approximately the first five and half months of this five and a half year period. Count 7 specified commission in a master bedroom, count 8 in H.'s bedroom, and count 10 in a front room or living room.
Stephenson argues that no more than one life term should have been applied to these counts because H.'s testimony would have been consistent with a finding that all the assaults she described in these three rooms took place on a single occasion between April 8, 2006, and September 20, 2006. He points out that no express finding was made to the contrary.
Stephenson's argument is without merit. He cites no authority and supplies no reasoning in support of the view that the limitation in former section 667.61, subdivision (g), was required to be applied any time the evidence did not exclude the bare logical possibility that multiple crimes happened on a single occasion and there was no express finding that they did not. Since this is the crux of his position and is unsupported by him, he has forfeited the issue by inadequate briefing. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
Further, an interpretation of H.'s testimony according to which all the assaults fitting the criteria in counts 7, 8 and 10 happened on a single occasion before the repeal of the provision is wildly implausible. H. testified that Stephenson sexually assaulted her 10 times in her parents' bedroom, molested her from ages seven to nine in the living room, and did so once in her bedroom. There was no basis for construing this testimony as referring to a single occasion before September 20, 2006. The court did not abuse its discretion by not construing it that way.
Stephenson also asserts in passing that under Cunningham v. California (2007) 549 U.S. 270, "the question of 'single occasion' or 'close proximity' is a sentencing factor which must be submitted to a jury." Making the same assertion in his reply brief, Stephenson adds citations of People v. Black (2007) 41 Cal.4th 799 and Alleyne v. United States (2013) ___ U.S. ___ . All these cases deal with the issue of when facts necessary for the imposition of a sentence must be found by a jury, but none of them relate to the specific point at issue in this case and Stephenson's briefs contain no attempt to show how their principles would apply here. Again, this type of failure forfeits the issue. Further, any such error would be harmless under any standard. As we have said, the interpretation of the evidence that would be necessary to support Stephenson's position is wildly implausible. It is clear beyond a reasonable doubt that the jury would not have adopted it. (People v. Sandoval (2007) 41 Cal.4th 825, 838-839 [Cunningham error harmless if reviewing court determines, beyond a reasonable doubt, that jury's verdict would have authorized sentence had question been submitted to jury].)
In the same section of his opening brief as his argument about former section 667.61, subdivision (g), Stephenson makes a somewhat related argument based on section 667.61, subdivisions (e)(4) and (j)(2). These provisions call for a term of 25 years to life for a violation of section 288, subdivision (a), if there is more than one victim. Stephenson proposes interpreting these provisions to mean there can be no more than one life term for each victim no matter how many offenses he committed against each victim. Consequently, he says he should have been given two life terms instead of 12.
The reason Stephenson gives for this proposed interpretation is that otherwise, a defendant who commits one offense against each of 12 victims would get the same number of life terms as Stephenson got, even though Stephenson had fewer victims. It seems wrong to Stephenson that a defendant with more victims would not necessarily get more life terms.
Stephenson's position is supported by no language in the statute. Further, as Stephenson acknowledges, essentially the same argument was rejected by the Court of Appeal in People v. Valdez (2011) 193 Cal.App.4th 1515, 1522-1524. He says, however, that to apply the statute as written—without a limitation of one life term per victim—is irrational because the Legislature must have intended to make sure defendants who attack more victims get more life terms than defendants who attack fewer victims, regardless of the total number of attacks. As we do not perceive any such legislative purpose, we decline to adopt the proposed interpretation. V. Cruel or unusual punishment
Stephenson argues that his sentence constitutes cruel or unusual punishment under the state and federal constitutions because it is disproportionate to the crimes of which he was convicted. We disagree.
Under the California Constitution, punishment is cruel or unusual if, although not cruel or unusual in its method, it nevertheless 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, fn. omitted.) The cruel-and-unusual punishment clause of the Eight Amendment of the federal Constitution also includes a "'narrow proportionality principle' that 'applies to noncapital sentences.'" (Ewing v. California (2003) 538 U.S. 11, 20.) A determination of whether a punishment is cruel or unusual because of disproportionality may be made based on an examination of the nature of the offense and the offender, "with particular regard for the degree of danger both present to society." (In re Lynch, supra, at p. 425; see People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.) With respect to the offense, we consider "the totality of the circumstances surrounding the commission of the offense in the case at bar." (People v. Dillon (1983) 34 Cal.3d 441, 479.) With respect to the offender, we consider his "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.) A proportionality analysis can also take account of punishments imposed for similar or greater crimes in other cases in California and other jurisdictions. (People v. Ruiz (1996) 44 Cal.App.4th 1653, 1661.)
Discussing the nature of the offenses, Stephenson says they were not serious enough to make the sentence constitutional because a defendant who commits a first degree murder can receive a sentence of only 25 years to life. On the nature of the offender, Stephenson says his individual culpability is not great enough to make the sentence constitutional because his prior criminality was not serious enough and the Static-99R did not find his recidivism risk to be high.
We are not constitutionally compelled to view a single murder as categorically worse than many years of sexual abuse of a defendant's children. This comparison does not show that Stephenson's sentence is grossly disproportionate to the nature of the offenses. As for the nature of the offender, the magnitude of Stephenson's prior criminality by itself may not be great when compared with the severity of the sentence. But when the long-term pattern of sexual abuse demonstrated by the victims' testimony in the current case is taken into account, it his clear that his record of criminality is of the most serious kind. Stephenson has not demonstrated cruel or unusual punishment.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.