Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge, Super. Ct. No. BF115275A
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Supervising Deputy Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
A jury convicted appellant Ronald Steven Thompson of: (1) four counts of committing lewd or lascivious acts against Jacquelyn J., a minor under age 14 (Pen. Code, § 288, subd. (a)) (counts 1 through 4); (2) exhibiting harmful material to Jacquelyn (§ 288.2, subd. (a)) (count 5); (3) persuading Jacquelyn to be photographed while engaging in sexual conduct (§ 311.4, subd. (c)) (count 6); (4) annoying or molesting Victoria J., a child under age 18 (§ 647.6) (count 7); and (5) committing a lewd or lascivious act against Victoria, a child under age 14 (§ 288, subd. (a)) (count 8). The jury also found true an allegation that Thompson committed an offense in violation of section 667.61, subdivision (c) against more than one victim (§ 667.61, subd. (e)(5)). The court sentenced Thompson to an indeterminate term of life with the possibility of parole at 15 years on the multiple victim allegation attached to count 8, plus a 10-year determinate term comprised of six-years on count 1 and consecutive two-year terms on counts 2 and 3. The court imposed a concurrent six-year term on count 4, and imposed and stayed two-year terms for counts 5 and 6.
All further statutory references are to the Penal Code, unless otherwise noted.
On appeal, Thompson contends: (1) his right to confrontation was violated when the court allowed the victims to testify with their mother behind them, and their father present in the courtroom, without any particularized showing of need; (2) his rights to due process and a fair trial were denied when the prosecutor committed misconduct during closing arguments; (3) he was deprived of his rights to due process, a fair trial, and a jury determination on all issues when the court failed to instruct on the one-strike probation eligibility requirements necessary to make any section 288, subdivision (a) offense a qualifying offense; (4) the use of the term “abiding conviction” in CALCRIM Nos. 103 and 220 so misstates the burden of proof beyond a reasonable doubt as to constitute structural federal constitutional error and prejudicial federal constitutional error; (5) the cumulative effect of these errors deprived him of due process of law and a fair trial; (6) the application of section 784.7 to provide venue for counts 4 and 8 violated his jury-vicinage rights under the Sixth and Fourteenth Amendments of the United States Constitution; (7) given his age, his sentence of 25 years to life is cruel and unusual punishment; and (8) the indeterminate abstract of judgment should be corrected to specify count 8 occurred in 2005, and a statement added that specifies the minimum parole eligibility term is subject to available credits under former section 667.61, subdivision (j). As we shall explain, we will order the abstract of judgment amended to clarify that the former version of section 667.61, subdivision (j) is applicable to Thompson’s indeterminate sentence, but otherwise will affirm the judgment.
STATEMENT OF FACTS
Sheila J. and her husband, who is Thompson’s cousin, are the parents of the victims, Jacquelyn (age 11 at trial) and Victoria (age 13 at trial). Thompson visited the family regularly and accompanied them on trips. At Christmas in 2004 and 2005, he went to Mexico with the family. During the summers of 2005 and 2006, he went on water skiing trips with them. The girls call Thompson “Uncle Ronnie.”
The girls each have their own computer. On June 24, 2006, Sheila was checking Jacquelyn’s computer when she discovered pornographic images of adults. Sheila confronted the girls about the images. They each said they didn’t know how it happened, but then Jacquelyn said it must have been “Uncle Ronnie.” Victoria agreed it was probably “Uncle Ronnie” and the girls indicated it must have been him because he was on their computers all the time.
Around Labor Day 2005, Thompson took the girls to a water park in Southern California. They all stayed in a motel overnight because an interstate closure prevented them from driving home. While at the motel, Thompson came out of the bathroom naked, lay down on the bed the girls were laying on, and masturbated until he ejaculated. The three then went out to eat dinner. After they returned to the motel, the girls wanted to get ice cream. Thompson told them he would only take them for ice cream if they let him “lick on your pee-pees.” The girls took their clothes off and Thompson licked them on their private parts for a couple of seconds. They then got dressed and went out for ice cream. Jacquelyn said that sometime during their stay at the motel, Thompson told her to take her clothes off and sit on him. He touched her chest as she sat on his stomach, facing his feet.
On June 11, 2006, Sheila dropped Jacquelyn off at Thompson’s house so she could go on a bike ride with him. Thompson drove Jacquelyn to her house to get her bike. While there, Thompson, who had used Jacquelyn’s computer before, asked to use it so he could show her a website. At the website, Jacquelyn saw a picture of an Asian girl dancing in a wet t-shirt. Because of “all that stuff” Thompson did to her, like touching and licking her “pee-pee,” she became curious and had started looking at things on her computer she knew she should not be viewing. The two returned to Thompson’s house and went on the bike ride and then to lunch. After lunch, they went back to Thompson’s house, where Thompson put a disk in his computer and showed her still pictures of naked girls. Thompson told Jacquelyn he wanted her to pose like the girls in the pictures so he could take pictures of her. Jacquelyn took her clothes off because the girls in the pictures were naked, and Thompson took pictures of her as she copied poses she saw on the computer images. After this, Jacquelyn wanted to play pool. Thompson told her she would have to play naked. Jacquelyn complied. While she was playing pool naked, Thompson poked her with his finger on her butt. Jacquelyn eventually told her mother Thompson took photographs of her.
On another occasion, when her family went waterskiing with Thompson, he told Jacquelyn to open her bathing suit so he could see her “pee-pee.” She complied. While they were playing cards, Thompson poked her. Once, when Thompson visited Jacquelyn’s home, he licked her “pee-pee” while her mother was shopping and her dad and sister were in the backyard.
Victoria told her parents Thompson “continually tried to poke at her and would say things to her such as your boobs are getting big, let me see your boobs.” He repeatedly asked Victoria to show him her boobs, and he got angry when she said no.
In addition to the conduct which led to the charges in this case, Jacquelyn testified that during a family trip to Mexico, Thompson removed his pants and told her to “play with his … pee-pee.” Thompson told her not to tell anyone about what they did. While in Mexico, Thompson also asked Jacquelyn to remove her pants “so he could lick on my pee-pee.” She complied. Victoria saw her sister with Thompson “jacking him off.”
A pretext call from Jacquelyn to Thompson was played for the jury. In the call, Jacquelyn asked Thompson the name of the site that had the Asian girl with the wet t-shirt. Thompson told her the website’s name. Thompson asked if her parents were home, because “they would shit all over themselves.” Jacquelyn said they weren’t home, and told Thompson her sister said “we should stop doing stuff.” Thompson asked, “Nasty stuff?” Jacquelyn said yes, and that her sister had seen “you touch my boobs, but I never told her you touched me down there.” Thompson replied, “She seen that?” and asked if she wanted him to stop. When Jacquelyn said yes, Thompson agreed to stop. Jacquelyn asked if she could get in trouble for what “we did … do.” Thompson said “heck yeah,” but “as long as we stop then nothin’, no big deal.”
The parties disputed whether Jacquelyn said “you touch my boobs” or “me touch my boobs.” The original tape was admitted at trial and played for the jury. Competing transcripts with the two different versions were also admitted at trial.
Defense
Thompson testified in his defense. He denied ever being sexually involved with anyone under the age of 18. Thompson said he never touched the girls inappropriately and never orally copulated them.
Thompson admitted taking the nude photographs of Jacquelyn. Thompson said he let Jacquelyn use his computer on June 11, and she was the one who pulled up images of women posing nude on the Internet and asked Thompson to take pictures of her “like that.” Thompson did not ask her to take off her clothing and said it was her idea to pose and for him to take the photographs. Thompson denied touching Jacquelyn. He also denied exposing himself or masturbating in front of the girls, or asking them to touch him.
Thompson acknowledged he was on the pretext tape. Thompson claimed it was Jacquelyn who previously had shown him the video of the girl in the wet t-shirt. Thompson claimed his responses during the call appeared inappropriate because he had difficulty hearing due to his partial hearing loss. The “nasty stuff” he was referring to was his knowledge of Jacquelyn’s Internet use; he was also worried that she would tell someone about the pictures he had taken of her. He thought Jacquelyn said her sister had seen her touch her own boobs, and when he asked her if she wanted him to stop, he was thinking only of the pictures.
Thompson acknowledged taking pictures of his genitals and sending them to his girlfriend. He also admitted taking videos of himself having sex with other women.
DISCUSSION
I. Presence of Support Personnel
In certain criminal cases, a prosecuting witness is entitled to the supporting attendance of two persons a trial, one of whom may accompany the witness to the witness stand. (§ 868.5, subd. (a).) If a support person is also a prosecuting witness, the support person’s testimony must be presented first and the prosecuting witness excluded from the courtroom. (§ 868.5, subd. (c).) When a prosecuting witness is chosen as a support person, “the prosecution shall present evidence that the person’s attendance is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness,” and “[u]pon that showing, the court shall grant the request unless information presented by the defendant or noticed by the court establishes that the support person’s attendance during the testimony of the prosecuting witness would pose a substantial risk of influencing or affecting the content of that testimony.” (§ 868.5, subd. (b).)
As pertinent here, section 868.5, subdivision (a) provides: “Notwithstanding any other law, a prosecuting witness in a case involving a violation of Section ... 288 ..., shall be entitled, for support, to the attendance of up to two persons of his or her own choosing, one of whom may be a witness, at ... the trial, ... during the testimony of the prosecuting witness. Only one of those support persons may accompany the witness to the witness stand, although the other may remain in the courtroom during the witness’ testimony....”
Section 868.5, subdivision (c) provides in pertinent part: “The testimony of the person or persons so chosen who are also prosecuting witnesses shall be presented before the testimony of the prosecuting witness. The prosecuting witness shall be excluded from the courtroom during that testimony.…”
Section 868.5, subdivision (b) further provides that “the judge shall admonish the support person or persons to not prompt, sway, or influence the witness in any way. Nothing in this section shall preclude a court from exercising its discretion to remove a person from the courtroom whom it believes is prompting, swaying, or influencing the witness.”
Thompson contends his Sixth Amendment right to confront witnesses was violated by the presence during the girls’ testimony of their father in the audience and their mother behind them in the witness stand because no constitutionally required inquiry on the necessity of support persons occurred.
A. Trial Proceedings
During a pretrial hearing on in limine motions, defense counsel informed the court that both parties were going to move to exclude witnesses, but there was a problem as the prosecutor “has indicated that both of the girls want their mother present while they testify. She wants to be present.… [¶] … [¶] The problem is we’re trying to work out or figure out a way to do this that we can honor that request of the minors without having any influence asserted, and I think [the prosecutor] had indicated he might want to have her not be in line of sight, sitting behind them, but not in a position to influence them by touch or speech. I’m not sure how we could work that out.” The prosecutor explained he envisioned the mother sitting behind the girls, so she would not be in the line of sight. Defense counsel responded “[a]s long as the jury’s admonished to watch the witness and not her, because essentially we know that she’ll be giving visual testimony while the child testifies. That’s just a fact.”
The court noted that if the mother sat behind the witness, both counsel and the court would have “a good look at her to make sure that there’s no visual cues.” The court questioned the prosecutor about the mother’s mental state and whether she would be more emotional sitting behind her children. The prosecutor stated he didn’t think she would “be any more emotional being behind the children or being in their line of sight.” When the court asked defense counsel whether he would prefer the mother to be behind her children when they testified, he responded “[t]hat was the suggestion that [the prosecutor] came up with. [¶] … [¶] However, if she shows the slightest sign of emotion, then we’re talking about influencing the jury through visual unsworn testimony. [¶] … [¶] And I think that we need to be very careful about that, because I don’t want this jury returning a verdict based on the emotional impact the allegations have on the mother.”
The girls’ mother, Sheila, testified before either girl. When Jacquelyn, the first victim, testified, the prosecutor questioned her about the presence of the support persons and their role:
“Q. Okay, now are your mom and dad in court here today?
“A. Yes.
“Q. Is your mom sitting behind you?
“A. Yes.
“Q. And is your dad out in front of you sitting in the audience?
“A. Yes.
“Q. All right. Now, you know that they are not to talk to you or gesture to you or do anything, right?
“A. Yeah.
“Q. All right. But you know that they’re there.
“A. Yes.”
Sheila also was present in the witness stand with Victoria while she testified.
B. Analysis
Thompson now contends that despite his lack of objection, his Sixth Amendment right to confront witnesses was violated because no constitutionally required inquiry on the necessity of support persons occurred before the court allowed the girls’ parents to be present in the courtroom during their testimony. His argument is based primarily on People v. Adams (1993) 19 Cal.App.4th 412, 443, 444 (Adams), which rejected a constitutional challenge to the support person statute, but held there must be a case-by-case showing of necessity for a support person presented at an evidentiary hearing.
A defendant, however, may waive the claim he was denied a constitutional right to an evidentiary hearing on the necessity of a support person. (People v. Lord (1994) 30 Cal.App.4th 1718, 1722 (Lord).) In Lord, the defendant argued the trial court erred by failing to hold the hearing required by Adams and determine whether the six-year-old victim had a need for a support person’s presence, who sat next to the victim while she testified at trial. The appellate court noted the showing required at such a necessity hearing is “debatable,” but suggested in dicta the required showing is that set forth in section 868.5, subdivision (b), i.e., that “the support person’s attendance ‘is both desired by the prosecuting witness for support and will be helpful to the prosecuting witness[,]’” and that in the case of a molested six-year-old victim, such a showing would be perfunctory, as in that situation “it is almost given that the support person’s presence is desired and would be helpful.” (Lord, supra, 30 Cal.App.4th at pp. 1721-1722.) The court did not resolve that point, however, because the defendant “waived any claim of error by failing to request a hearing and determination of necessity, or otherwise object to the presence of a support person.” (Id. at p. 1722.)
Here (as in Lord), Thompson did not request a hearing and determination of necessity or otherwise object to the presence of the girls’ parents before the court allowed them to be present in the courtroom during their testimony. Accordingly, he has waived any claim of error.
Thompson urges us to either reject the holding of Lord or find it inapplicable here. Thompson asserts the trial court had a sua sponte duty to ensure the requisite necessity exists before the support person’s presence is permitted, citing Adams and the case Adams relies on, Maryland v. Craig (1990) 497 U.S. 836 (Craig). In both of these cases, however, an objection to the procedure was made, and therefore the cases are not authority for a court’s duty to conduct a hearing in the absence of an objection. (See Craig, supra, 497 U.S. at p. 842; Adams, supra, 19 Cal.App.4th at p. 434.)
Thompson also asserts a sua sponte duty to hold a necessity hearing should be imposed since trial courts have been held to bear some sua sponte duties in ensuring that minimum foundational evidentiary showings are met. A necessity hearing, however, cannot be analogized persuasively to the showing of foundational facts necessary to support the admissibility of evidence, since the presence of a support person is a statutory right granted to the complaining witness, not an item of evidence one party seeks to introduce against another. (See, e.g., Evid. Code, §§ 402, 403, subd. (a) [proponent of proffered evidence has burden of producing evidence as to the existence of disputed preliminary fact].) For this reason, Thompson’s reliance on People v. Keelin (1955) 136 Cal.App.2d 860, 870-871, in which the appellate court concluded the trial court erroneously admitted certain statements under the spontaneous declaration exception to the hearsay rule over defense counsel’s objections without sufficiently assessing whether there was sufficient evidence to establish the exception, is misplaced. The issue here does not concern the court’s role in admitting evidence and unlike Keelin, Thompson did not object to the procedure. While section 868.5, subdivision (b) does state that if the support person is also a prosecuting witness, the prosecutor “shall” present evidence the person’s attendance is desired by, and helpful to, the complaining witness, there is nothing in the statute or case law to suggest that the prosecutor cannot be relieved of that burden where, as here, defense counsel actually agrees to the support person’s presence without such evidence.
Thompson argues we should excuse his failure to object because the statute is apparently mandatory, discouraging an objection, yet the case law regarding whether a case-specific showing of necessity is required is unsettled. While it is not clear from Adams and Lord precisely what showing is required in all cases, since Lord was decided in 1994, there is no dispute the failure to object to the absence of a showing of necessity constitutes a waiver or that the defendant may require some type of antecedent showing before a support person is allowed to accompany a witness. Moreover, in situations where the support person is also a prosecuting witness, the statute itself allows the defendant to present information that the support person’s attendance during the prosecuting witness’s testimony would pose a substantial risk of influencing or affecting the testimony’s content. (§ 868.5, subd. (b).) Thus, it was abundantly clear that Thompson could have objected to the presence of the girls’ parents as support persons or presented his own evidence or arguments that there was a substantial risk of influencing or affecting the girls’ testimony. Although defense counsel did express some concern about the mother’s presence in the witness stand, he ultimately agreed to the procedure used.
Finally, Thompson asks us to exercise our discretion to review the issue despite his failure to object. We decline to do so since, by not objecting, Thompson deprived the trial court of the opportunity to make an evidence-based finding as to the witnesses’ need for a support person. (Lord, supra,30 Cal.App.4th at p. 1722.) Therefore, we conclude he has waived the issue. (Ibid.)
II. Prosecutorial Misconduct
Thompson contends the prosecutor committed misconduct during closing argument in two ways: first, by repeatedly calling him names such as weirdo, animal, and predator, which he asserts were made only to appeal to the jury’s passion and prejudice, and second, by misstating the reasonable doubt standard.
The threshold problem, as Thompson acknowledges, is that defense counsel did not object to any of the statements he now contends constituted misconduct. A claim of prosecutorial misconduct is usually waived by failure to object. (People v. Coddington (2000) 23 Cal.4th 529, 595, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The record does not support Thompson’s reliance upon the futility exception recognized in People v. Hill (1998) 17 Cal.4th 800, 821 (Hill). In Hill, the court excused defense counsel’s failure to object because the court not only failed to rein in the prosecutor’s excesses (which consisted of “a constant barrage of … unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods”) in the face of defense objections, the court also made comments in front of the jury characterizing the defense objections as meritless, chastising defense counsel for making them, and suggesting that defense counsel was an obstructionist. (Id. at pp. 821-822.) By contrast here, the prosecutor’s conduct did not remotely approach the level of misconduct found in Hill, and there is no record of the court criticizing defense counsel. Under these circumstances timely objections would not have been futile, and the failure to assert these objections at trial waived his claims of misconduct on appeal. (People v. Noguera (1992) 4 Cal.4th 599, 638.)
The other case Thompson relies on, People v. Bandhauer (1967) 66 Cal.2d 524, 530 (Bandhauer), also is distinguishable. In that case, defense counsel was excused from objecting to the prosecutor’s statement that the defendant was the most depraved character he had seen, since by the time the prosecutor made that statement he had already gradually injected other testimonial statements into the argument, making it too late to cure the error by admonition or by the prosecutor retracting his previous statements. In contrast here, defense counsel would have recognized the objectionable nature of the prosecutor’s statements from the outset and, had he objected when the statements were first made, an admonition would have cured any harm.
To the extent his claims based on prosecutorial misconduct have been waived, Thompson argues counsel was ineffective for failing to object. (See People v. Pitts (1990) 223 Cal.App.3d 606, 693.) In this context, Thompson must show that counsel’s omission fell outside the range of an objective standard of reasonableness. (People v. Ledesma (1987) 43 Cal.3d 171, 216.) When the claim of misconduct is based on arguments or comments the prosecutor made before a jury, “‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’” (People v. Ochoa (1998) 19 Cal.4th 353, 427.) If the challenged statement or argument was not misconduct then, of course, it would not be outside the range of competence for counsel to fail to object. Even where the prosecutor may have engaged in objectionable conduct, mere failure to object does not establish incompetence. (People v. Wharton (1991) 53 Cal.3d 522, 567.) Thompson must show that counsel’s omission involved a critical issue, and that the failure to object could not be explained as a reasonable trial tactic. (People v. Lanphear (1980) 26 Cal.3d 814, 828-829; People v. Jenkins (1975) 13 Cal.3d 749, 753.) If counsel’s performance does fall outside the range of reasonable competence, Thompson then bears the burden of showing that counsel’s omission resulted in prejudice. (People v. Ledesma, supra, at p. 217.) We shall apply these standards to our review of the instances of misconduct Thompson cites.
A. Name-Calling
During closing argument, the prosecutor referred to Thompson at various points as “warped,” “disgusting,” “despicable,” a “weirdo,” an “animal,” a “predator,” “sexually bizarre,” and “every parents’ nightmare.” He also compared Thompson’s conduct to that of a “lioness out on a hunt, stalking the prey, careful of every move so as not to alert the prey and have them run off.” As noted above, Thompson’s defense counsel did not object to any of these references.
Thompson also asserts the prosecutor called him a “monster.” The reporter’s transcript reveals, however, that the prosecutor did not directly call him this, but instead used the word in the context of the following hypothetical, which he asserted showed the girls were not lying: “If they’re lying to avoid getting in trouble, then what do you come out and say? Uncle Ronnie’s a monster, he’s this wicked child molester, and here’s what he did, woe is me, love me. You don’t come out as a child that has been played on to feel bad and guilty about what they’ve done.”
A failure to object in closing argument can often be explained by an attorney’s tactical determination that: (1) the objectionable statement is not sufficiently damaging to warrant objection; or (2) an objection would highlight the objectionable statement (or inference to be drawn from that statement), causing more prejudice than the objectionable statement alone. Given these considerations, and the split-second decision required to lodge a timely objection during an opponent’s closing argument, courts routinely have recognized that “the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one” (People v. Padilla (1995) 11 Cal.4th 891, 942, overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1), and that “a mere failure to object to ... argument seldom establishes counsel’s incompetence.” (People v. Ghent (1987) 43 Cal.3d 739, 772.)
Thompson has not established that his defense counsel did not have a tactical reason for failing to object to the prosecutor’s name-calling. Under the prosecutor’s theory of the case, Thompson was a sexual predator who, through his position of trust within the family, groomed his victims by gradually increasing their exposure to sexually explicit materials and conduct so they would be receptive to his advances. When defense counsel began his argument, he stated that he wanted it “to be about substance and not name-calling. I want my argument to be about your job and not anger, not the emotional response of the prosecutor.” Defense counsel conceded that Thompson had taken the pictures of Jacquelyn and was guilty of that crime, and stated that if he and the prosecutor “agree on anything else it’s that my client is a weirdo. My client is so weird he doesn’t think he’s a weirdo, but he’s definitely a weirdo.” Defense counsel also conceded Thompson was “despicable,” but urged the jurors to set aside their intuition that because he is “weird” and a “freak,” he is guilty of all of the charged crimes.
Given defense counsel’s argument, it is entirely possible he did not object to the prosecutor’s characterizations of Thompson because he wanted to use the prosecutor’s argument to show the prosecution’s case was based on emotions, not the evidence. Since the evidence showed Thompson had engaged in atypical conduct with adult women, such as photographing his genitals and videotaping sex acts, and admittedly had taken the pictures of Jacquelyn when she was naked, defense counsel understandably conceded Thompson was at least weird, a freak, and despicable. From this, defense counsel argued the prosecutor was asking the jury to infer from those facts that Thompson was necessarily guilty of all of the charged crimes. As defense counsel stated during his closing, “[w]e have the prosecution’s story, again made with those leaps without the connecting facts, which is essentially Ron Thompson’s a pervert. He is a predator. He gained trust. He showed nasty things. The kids trusted him, they didn’t tell, and he was setting the kids up to do really bad things, like take pictures, and, therefore, he must touch and he’s a big liar.” Defense counsel would have been hard pressed to make this argument had he objected to the prosecutor’s name-calling.
Even if defense counsel had no tactical reason for failing to object to the prosecutor’s statements, Thompson’s claim fails. The prosecutor’s comments were not objectionable appeals to the jury’s passions. A prosecutor has wide latitude during closing argument and may argue the case vigorously as long as the argument amounts to fair comment on the evidence and the reasonable inferences or deductions therefrom. (Hill, supra, 17 Cal.4th at p. 819.) Prosecutors are not limited to “‘Chesterfieldian politeness’” (Bandhauer, supra, 66 Cal.2d at p. 529), and may “‘use appropriate epithets warranted by the evidence.’” (People v. Fosselman (1983) 33 Cal.3d 572, 580 (Fosselman); see also Hill, supra, 17 Cal.4th at p. 819.)
For example, the California Supreme Court in People v. Thornton (1974) 11 Cal.3d 738 (disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, and abrogated on another ground in People v. Martinez (1999) 20 Cal.4th 225, 232-238), concluded a prosecutor’s remarks that the evidence revealed the defendant to be a sadist who “reveled in hearing human outcry” was not misconduct because it fairly argued the evidence before the jury. (People v. Thornton, supra, 11 Cal.3d at pp. 762-763.) Prosecutorial statements are improper where they are based on the prosecutor’s personal beliefs, rely on inflammatory characterizations of the defendant that are unsupported by the evidence, or otherwise impermissibly appeal to the passions or sympathies of the jurors for the victim. (Fosselman, supra, 33 Cal.3d at p. 580; People v. Fields (1983) 35 Cal.3d 329, 362-363.)
The prosecutor’s comments were amply supported by the evidence and did not exceed the bounds of proper argument. As even defense counsel conceded, the evidence of Thompson’s behavior with women and the photographs he took of Jacquelyn supported the prosecutor’s characterization of Thompson as “warped,” “despicable,” a “weirdo,” and “sexually bizarre.” The prosecutor’s characterization of Thompson as an “animal,” a “predator,” and “every parent’s worst nightmare,” as well as the comparison of Thompson to a lioness stalking her prey, were all permissible comments on the evidence that showed Thompson had used a position of trust within the family to gain access to the girls, and had exposed them to sexually explicit pictures and conduct. Moreover, the prosecutor’s remarks were tempered by the prosecutor’s admonition to the jury that they should not “convict him because he’s a weirdo. I want you to convict him because he is a child molester and that’s what he did,” and they should not convict him because he was “sexually bizarre,” but “because he’s a child molester.”
The prosecutor’s comments were attempts to characterize Thompson’s actions, as established by the evidence, as reprehensible conduct. As such, the comments were fair argument and did not traverse the boundary between vigorous advocacy and impermissible appeal to the jury’s sympathies for the victims.
B. Standard of Proof
Thompson also argues the prosecutor erred by mischaracterizing the reasonable doubt standard. Specifically, during rebuttal the prosecutor argued Thompson was lying because the girls were believable and the photographs and pretext call supported their testimony. The prosecutor then stated: “As you look at the case and you go in back for deliberations – and I’m not removing what the requirement for beyond a reasonable doubt is. However, when you go into deliberations and you think to yourself well, I know he’s guilty, but I just don’t know if it’s been proven beyond a reasonable doubt, well, if you know he’s guilty, hasn’t it been proven beyond a reasonable doubt?”
Thompson asserts this argument is erroneous because (1) it risked “substituting overall subjective belief or impressions – intuition – for an abiding conviction based on the evidence”; (2) posed a risk of diluting the overall degree of certainty required; and (3) conflicted with the rules of circumstantial proof, which require each circumstantial fact essential for guilt to be proven beyond a reasonable doubt and to the exclusion of all rational innocent inferences.
We disagree the argument constituted misconduct. From the entirety of the prosecutor’s argument, it is apparent he was essentially asserting that if the jury knew something, that is proof beyond a reasonable doubt. We note that after making this statement, the prosecutor argued that defense counsel wanted more evidence of the other acts, such as videotapes or photographs, but the pretext phone call and photographs were sufficient evidence to convict him. In our view, the prosecutor was merely arguing, not that the jury should disregard the evidence, but as the reasonable doubt instructions given to the jury state, that proof beyond a reasonable doubt is proof that leaves the jury with “an abiding conviction that the charge is true.” (CALCRIM Nos. 103, 220.)
As discussed below in Section IV, we reject Thompson’s challenge to the “abiding conviction” language in CALCRIM Nos. 103 and 220, and conclude the jury was properly instructed on the issue of reasonable doubt.
To the extent the argument could be interpreted as asserting the jurors could rely on their feelings in assessing guilt, we also find no misconduct. In People v. Berryman (1993) 6 Cal.4th 1048, 1075, overruled on other grounds in Hill, supra, 17 Cal.4th 800, the prosecutor referred repeatedly to a “feeling” and stressed that the question for the jury was whether they felt, based on the evidence, that the defendant committed the crimes. Our Supreme Court rejected the defendant’s argument that the statements lessened the burden of proof and appealed to the passions of the jury, concluding that there was no reasonable likelihood that the jury applied the remarks in an objectionable fashion. (Ibid.) Considering that the prosecutor in this case referred only once to relying on knowledge of guilt to determine whether the reasonable doubt standard had been satisfied and did not unduly emphasize the point, we see no basis for reaching a contrary conclusion.
Even if the prosecutor minimized the reasonable doubt standard, any error was harmless because the court properly instructed the jury, there is no indication the jury was confused about the standard, and we may presume therefore that the jury was able to understand and follow it. (Cf. People v. Nguyen (1995) 40 Cal.App.4th 28, 36-37 [finding misconduct based on misstatement of reasonable doubt standard harmless because of presumption that jury followed the proper instructions].) Although in Nguyen the prosecutor also directed the jury to read the instructions and the prosecutor here did not do so, in this case the prosecutor did tell the jury he was “not removing … the requirement for beyond a reasonable doubt.” Given this statement, along with the trial court’s correct instructions on reasonable doubt and reminder to the jury that what attorneys say is not evidence and in case of conflicts, they must follow the law as given by the court, and defense counsel’s emphasis on the burden of proof and reasonable doubt standard, we conclude it was not reasonably probable the jury was misled by the prosecutor’s statements, even if they were erroneous. Therefore, any deficiency in defense counsel’s failure to object was not prejudicial.
III. Instructions on the One Strike Law
Thompson contends the trial court erred when it failed to instruct on the probation eligibility requirements necessary to make any section 288, subdivision (a) offense a qualifying offense under the “One Strike” law, section 667.61. Thompson asserts the failure constitutes federal constitutional error requiring reversal of the life term on count 8.
The crimes with which Thompson was charged began in 2005 and ended, at the latest, at his arrest in June 2006. The One Strike law in effect during that period required imposition of a sentence of life in prison, with eligibility for release on parole at 25 or 15 years (§ 667.61, former subds. (a) & (b), respectively), if a person was convicted of one of the offenses enumerated in subdivision (c) and certain other triggering circumstances enumerated in subdivisions (d) or (e) were found to apply to the offenses enumerated in subdivision (c). (People v. Hammer (2003) 30 Cal.4th 756, 759.) One such triggering circumstance was that the defendant was convicted in the present case of committing a subdivision (c) offense against more than one victim. (§ 667.61, subd. (e)(5).) Section 667.61, subdivision (c)(7) specifies section 288, subdivision (a) as one of the offenses for which a person must serve an indeterminate life sentence if a subdivision (e) triggering circumstances is found true, “unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”
Section 667.61 was significantly amended twice in 2006, first by legislation effective September 20, 2006, and then by voter approval of Proposition 83, effective November 8, 2006. (Stats. 2006, c. 337, § 33, pp. 2163-2165; Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006.) The citations to section 667.61 in this discussion are to the law as it existed before these amendments, at the time of Thompson’s crimes, which occurred in 2005 and 2006.
Section 1203.066, subdivision (a)(7) provides that probation will not be granted for any person convicted of committing a violation of section 288 against more than one victim. Pursuant to former subdivision (c) of section 1203.066, the probation ineligibility requirement of subdivision (a)(7) will not apply, and therefore probation may be granted, when the court makes all the following findings: (1) the defendant is the victim’s relative or is a member of the victim’s household who has lived in the victim’s household; (2) a grant of probation is in the child’s best interest; (3) rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant will be placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation; (4) the defendant is removed from the victim’s household until the court determines that the victim’s best interests will be served by returning the defendant to the victim’s household; and (5) there is no threat of physical harm to the child victim if probation is granted.
Section 1203.066 was amended effective 2006. (Stats. 2005, c. 477, § 5, pp. 2981-2982.) The probation eligibility provision of former subdivision (c) was moved to subdivision (d), and amended to provide that a person convicted under section 288 could be granted probation if the factors establishing ineligibility for probation, such as a commission of a violation of section 288 against more than one victim, are not pled or proven, and certain terms and conditions are met. (§ 1203.066, subd. (d)(1).) Thompson asserts, and the People do not contest, that the 2005 version of section 1203.066 applies here. Without deciding the issue, we will also assume the 2005 version applies to Thompson.
Thompson recognizes the barriers to an actual grant of probation in this case, namely section 1203.066, subdivision (a)(7). Nevertheless, Thompson argues the language of section 1203.066, former subdivision (c), together with the holdings of Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), require the jury to make separate section 1203.066, former subdivision (c) probation-eligibility findings as to count 8 to support One Strike sentencing in this case.
This argument was squarely rejected in People v. Benitez (2005) 127 Cal.App.4th 1274 (Benitez). In that case, the court noted that Blakely held that “any fact other than ‘recidivism’ that increases the punishment for an offense beyond the ‘statutory maximum’ (the maximum a trial court may impose on facts necessarily reflected in the jury verdict for the offense), must be the subject of a jury finding.” (Benitez, supra, 127 Cal.App.4th at p. 1277.) The court found, however, the proviso of section 667.61, subdivision (c)(7) – that a defendant convicted of section 288, subdivision (a) shall be imprisoned unless he qualifies for probation under 1203.066, former subdivision (c) – is not an element of the enhancement to be negated upon proof to a jury, but instead is the Legislature’s grant of authority to the trial court to entertain a request for probation despite the defendant’s being otherwise subject to sentencing pursuant to section 667.61. (Benitez, supra, at p. 1278.) As the court explained, “[f]inding a defendant ineligible for probation is not a form of punishment, because probation itself is an act of clemency on the part of the trial court. [Citation.] Because a defendant’s eligibility for probation results in a reduction rather than an increase in the sentence prescribed for his offenses, it is not subject to the rule of Blakely.” (Benitez, supra,127 Cal.App.4th at p. 1278.)
We agree with Benitez’s conclusion that the determination of factors that may reduce the “statutory maximum” punishment by granting probation need not be made by a jury. Thompson, however, urges us to reject Benitez because section 667.61, subdivision (c) “refers to classification of ‘offenses’ to which this ‘section’ shall ‘apply.’” As he argues, this language “indicates that the probation qualification for section 288 [subdivision](a) offenses is meant to describe a class of offenses/offenders, not as a surplusage serial directive authorizing a grant of probation which is already authorized under other law. This specific class of offenses/offenders was discussed in [People v.] Jeffers [(1987) 43 Cal.3d 987, 994]: incestuous and opportunistic intra[-]familial offenders who have brighter prospects for rehabilitation and eventual reunification with a healthy family. [¶] The [L]egislature could easily determine this class of opportunistic intra-familial offenses should not be subject to drastic life terms (Pen. Code, § 667.61) any more than mandatory determinate prison terms in lieu of probation (Pen. Code, § 1203.066). The [L]egislature could determine this narrow class of offenses should remain subject to the usual options under section 1203.066, if any, where these probation findings are made, not life terms. (Pen. Code, § 1203.066, subd. (c)(5).) [¶] … Nothing in [section 667.61, subdivision (c)] indicates the [L]egislature sought to eliminate the middle ground (determinate term) treatment which punishes and hopefully rehabilitates, yet permits eventual family reunification, for this class of offenders. Appellant’s construction [of section 667.61, subdivision (c)] merely places this class of offenses among a host of other sex offenses (including attempts and statutory rape) which are not subject to the drastic life terms.” (Italics in original.)
To reiterate, section 667.61, former subdivision (c) states: “This section shall apply to any of the following offenses: ... (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”
Thompson’s argument does not alter the plain meaning of the One Strike statute that when a violation of section 288, subdivision (a) and any of the circumstances specified in section 667.61, subdivisions (d) or (e) have been proved, the statute mandates an indeterminate sentence of 15 or 25 years to life. The only permissible deviation is not, as Thompson appears to argue, imposition of the midterm of the determinate sentence applicable to a conviction of section 288, subdivision (a) if none of the section 667.61, subdivision (d) or (e) circumstances were proved; instead, it is the lessening of this mandatory indeterminate sentence to a grant of probation if the court makes affirmative findings on all five factors in section 1203.066, former subdivision (c), and there is no other statutory proscription against probation. The Blakely holding is not implicated here where all factual findings requiring imposition of the “statutory maximum” sentence were made by the jury, i.e., conviction of section 288, subdivision (a) and the “strike” allegation.
IV. CALCRIM Nos. 103 and 220
Thompson argues the use of the term “abiding conviction” in CALCRIM Nos. 103 and 220, which both state that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true,” so misstates the burden of proof beyond a reasonable doubt as to constitute structural federal constitutional error (Sullivan v. Louisiana (1993) 508 U.S. 275).With commendable candor, he acknowledges numerous court of appeal opinions have rebuffed challenges to the use of the term in analogous CALJIC No. 2.90. (See, e.g., People v. Aguilar (1997) 58 Cal.App.4th 1196, 1207-1209; People v. Hurtado (1996) 47 Cal.App.4th 805, 815-816; People v. Tran (1996) 47 Cal.App.4th 253, 262-263; People v. Light (1996) 44 Cal.App.4th 879, 884-888; People v. Torres (1996) 43 Cal.App.4th 1073, 1077, disapproved on another ground by People v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3.) He admits to making this argument for the purpose of exhausting state remedies.
We consider these authorities, as well as the California Supreme Court’s rejection of an analogous challenge to CALJIC No. 2.90, dispositive of Thompson’s argument. “‘An instruction cast in terms of an abiding conviction as to guilt, without reference to moral certainty, correctly states the government’s burden of proof.’” (People v. Brown (2004) 33 Cal.4th 382, 392, quoting Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor).) The federal due process clause “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he [or she] is charged.” (In re Winship (1970) 397 U.S. 358, 364 (Winship).) The issue here is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Victor, supra, at p. 6; see Estelle v. McGuire (1991) 502 U.S. 62, 72-73; People v. Clair (1992) 2 Cal.4th 629, 663.) Accordingly, we reject his argument.
V. Cumulative Errors
Thompson contends reversal is required based on the cumulative effect of the prejudice from the above claimed errors. We have either found that error did not occur or when it did occur, it was harmless. Accordingly, we conclude the cumulative effect does not warrant reversal of the judgment. (People v. Geier (2007) 41 Cal.4th 555, 620.) “A defendant is entitled to a fair trial but not a perfect one.” (Lutwak v. United States (1953) 344 U.S. 604, 619.) Thompson received a fair trial.
VI. Section 784.7
Counts 5 and 8 were alleged to have occurred in Los Angeles County, but were tried in Kern County Thompson argues section 784.7, by authorizing (subject to certain conditions and procedures) the prosecution in one county of an offense committed in a different county, transgresses his rights under the Sixth Amendment to the United States Constitution and is therefore unconstitutional. As Thompson recognizes, this precise argument was raised in and rejected by the court in Price v. Superior Court, supra, 25 Cal.4th 1046, which concluded section 784.7 (in its pre-2002 form) did not offend the Sixth Amendment’s vicinage protections. Accordingly, we must adhere to Price (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and reject Thompson’s claim.
When section 784.7 was originally enacted, it required that the defendant and the victim be “the same for all of the offenses.” (Stats. 1998, ch. 302, § 1, p. 1249.) In 2002, however, the Legislature amended the section to eliminate that requirement. At the same time, the Legislature added the provision relating to the procedures for consolidating the charges. (See Stats. 2002, ch. 194, § 2, p. 683; People v. Betts (2005) 34 Cal.4th 1039, 1058, fn. 14.)
VII. Cruel and Unusual Punishment
Thompson contends his sentence of 15 years to life plus 10 years constitutes cruel and unusual punishment in violation of article I, section 17, of the California Constitution and the Eighth Amendment to the United States Constitution. The People assert Thompson has waived the issue on appeal for failure to raise it in the trial court and argues his sentence is neither cruel nor unusual.
A challenge to a sentence on cruel and unusual grounds is a fact-specific challenge and must be raised first in the trial court if it is to be considered on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Thompson did not do so. Thus, he may not challenge his sentence by arguing that it constitutes cruel and unusual punishment.
Even if not waived, however, the claim fails. To determine whether a lengthy prison sentence constitutes cruel or unusual punishment, federal and state courts consider whether the sentence is proportional to the crime committed. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193-1197 (Weddle).) Courts generally examine the nature of the particular offense and the offender (intracase proportionality), as well as the penalty imposed in the same jurisdiction for other offenses and the punishment imposed in other jurisdictions for the same offense (intercase proportionality). (Id. at pp. 1194-1195, fn. 2.) Intercase proportionality review is not mandated under the federal Constitution, however, while intracase review is considered appropriate only in rare cases where the sentence was grossly disproportionate to the crime. (See Weddle, supra, at pp. 1194-1195 [analyzing holding of Harmelin v. Michigan (1991) 501 U.S. 957; Ewing v. California (2003) 538 U.S. 11, 22-23.) California courts apply intracase proportionality review to determine whether a sentence is unconstitutionally excessive, which is defined as “‘so disproportionate ... that it shocks the conscience and offends fundamental notions of human dignity.’” (Weddle, supra, 1 Cal.App.4th at p. 1197; People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon); In re Lynch (1972) 8 Cal.3d 410, 424.) The California Supreme Court has declined to find that comparative, intercase proportionality review is required under the state constitution. (Weddle, supra, 1 Cal.App.4th at pp. 1196, 1198, fn. 8; see also People v. Stone (1999) 75 Cal.App.4th 707, 715.)
Thompson argues that given his age (48 at time of sentencing) and life expectancy, his sentence amounts to life in prison without possibility of parole, which is grossly disproportionate to the crime in that he was, “at most” an “older, remorseful, first-time, opportunistic intrafamilial sex offender with a fiancé, gainful employment, and a minimal prior record.” Thompson also cites the “unusual support” he received from “a wide array of friends, co-workers, and family,” the non-violent nature of his offenses and that they do not involve predatory pedophilia “as would indicate the sort of premeditation or risk of recidivism and extreme danger to society.” Thompson must overcome a “considerable burden” in challenging his penalty as cruel or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.) The selection of an appropriate penalty for a criminal offense is a “legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will.” (In re Lynch, supra, 8 Cal.3d at p. 423.)
To measure the proportionality of Thompson’s sentence, our intracase review considers the nature of both the offense and the offender. (Dillon, supra, 34 Cal.3d at p. 479.) Lynch requires courts to (1) examine the nature of the offender, (2) compare the punishment with the penalty for more serious crimes in the same jurisdiction, and (3) compare the punishment with the penalty for more serious crimes in other jurisdictions. (Id. at pp. 425-427.) Dillon interpreted the Lynch factors to require an examination of the entire circumstances of: the crime, including motive, method, results, and the extent of the defendant’s involvement; and of the criminal, including his age, prior criminality, personal characteristics, and state of mind. (Dillon, supra, 34 Cal.3d at p. 479.)
The continued usefulness of the second and third prongs of the Lynch analysis is questionable, because the California Supreme Court has indicated that all that is required is “intracase” review, i.e., an evaluation of whether the sentence is “grossly disproportionate” to the offense. (See, e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1384; see also People v. Barnett (1998) 17 Cal.4th 1044, 1182.)
The first Lynch factor does not support a finding of disproportionality. Thompson’s convictions involved gaining the trust of two young children and their family and then abusing that trust by sexually violating the victims. While reasonable minds may differ as to whether sexual molestation of a child is more serious when it involves “predatory pedophilia” as opposed to an opportunistic breach of trust, society’s most vulnerable victims face life-long ramifications in any event. Finally, although Thompson admitted culpability to some of the charges, he minimized his responsibility for those charges by blaming the victim for his reprehensible conduct and only expressed remorse for those charges at sentencing. Thompson’s sentence is neither shocking nor inhumane when the nature of the offense and offender is considered. (See, e.g., Dillon, supra, 34 Cal.3d 441, 479, 482-488 [determinations whether a punishment is cruel or unusual may be based solely on the nature of the offense and offender]; Weddle, supra, 1 Cal.App.4th 1190, 1198-1200.)
As for the second Lynch factor, comparison of the penalty for more serious crimes in California, Thompson contends he has in effect been sentenced to life without parole because he was 48 years old at time of sentencing. He maintains his sentence is harsher than sentences for voluntary manslaughter, kidnapping, and forcible rape. He further claims his sentence is the same as for the “much more serious offense” of second degree murder.
His comparisons fail to prove his point for several reasons. The fact a sentence exceeds a defendant’s life expectancy does not necessarily render the sentence constitutionally cruel or unusual. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 (Byrd); People v. Ayon (1996) 46 Cal.App.4th 385, 396-401 [finding 240-years-to-life sentence, which was the functional equivalent of a life sentence without the possibility of parole, did not constitute cruel or unusual punishment], disapproved on other grounds by People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10.) As the court in Byrd reasoned: “[I]t is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution.” (Byrd, supra, 89 Cal.App.4th at p. 1383.)
In addition, no viable comparison can be made between the “unenhanced” offenses to which Thompson refers and his sexual offense convictions, with the mandatory one-strike sentencing enhancement. Punishment under the One Strike law “is precisely tailored to fit crimes bearing certain clearly defined characteristics.” (People v. Estrada (1997) 57 Cal.App.4th 1270, 1280 (Estrada) [also rejecting the argument that no crime can be punished more severely than homicide].) For the 15-year minimum term to apply, the predicate offense must be a crime of sexual violence or must involve a victim under the age of 14 years (§ 661, subd. (c)), and it must be committed under circumstances that would increase the risk of injury or death to the victim such as kidnapping, burglary, firearm use, or by binding the victim or by forcefully administering a controlled substance, or be committed against more than one victim (§ 667.61, subd. (e).) (See Estrada, supra, 57 Cal.App.4th at p. 1280.) Thus, Thompson was not subjected to an indiscriminate sentencing scheme meting out the same severe punishment for a broad variety of offenses that may, in and of themselves, be more serious. Thompson’s sentence is unusually lengthy because of the serial nature of his conduct as well as the vulnerability of his victims. (See People v. Crooks (1997) 55 Cal.App.4th 797, 807.)
With respect to the third Lynch factor, comparing sentences imposed in other jurisdictions for similar offenses, Thompson contends California’s one-strike sentencing scheme is the most aggressive of any state’s, specifying the longest terms with the least amount of judicial discretion. Thompson, however, has omitted any evidence to support this claim and it is his ultimate burden to prove the disparity between California and other jurisdictions. (In re DeBeque (1989) 212 Cal.App.3d 241, 255.) The enactment of the One Strike law obviously reflects California’s heightened concern about the sexual abuse of children. Significantly, as the concern for child victims of sexual abuse has grown over the years, the Legislature has been increasing the penalties for violations of section 288. (Compare, Stats. 1978, ch. 579, § 17, p.1984; Stats. 1981, ch. 1064, § 1, p. 4093.) The fact that defendants now face an obligatory indeterminate sentence “merely reflects the Legislature’s zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendant’s sentence excessive as a matter of law in every case.” (People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201.) The legislative purpose underlying section 667.61 was clearly to isolate certain individuals like Thompson to prevent them from the opportunistic or predatory sexual molestation of another child.
Although Thompson’s sentence is lengthy, his conduct was reprehensible and he has not demonstrated that his sentence is “grossly disproportionate” to his crimes. (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 [Mandatory life term without possibility of parole for nonrecidivist who possessed 1.5 pounds of cocaine].) The application of the One Strike law to Thompson did not result in that “exquisite rarity” where the sentence is so harsh as to shock the conscience or offend fundamental notions of human dignity. (Weddle, supra, 1 Cal.App.4th at pp. 1196-1197, see People v. Alvarado, supra, 87 Cal.App.4th 178 [sentence of 15 years to life for rape during commission of burglary for nonrecidivist constitutionally permissible]; Estrada, supra, 57 Cal.App.4th 1270 [25 years to life for rape during burglary for nonrecidivist constitutionally permissible]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [129 years for sexual abuse of stepdaughter constitutionally permissible for nonrecidivist].)
VIII. Correction of Abstract of Judgment
Thompson contends his indeterminate sentence and the abstract of judgment on that sentence were in error in two respects: (1) they both wrongly state count 8 carries a minimum parole date of 15 years; and (2) the abstract wrongly states count 8 was committed in 2006, which suggests later amendments to the One Strike law eliminate his ability to obtain credits against the minimum term. The People agree the description of the sentence on the abstract of judgment is incorrect and should reflect a 15-years-to-life term for count 8.
At the time of Thompson’s crimes, which began in 2005 and ended at the latest when he was arrested in June 2006, section 667.61 provided that a person convicted of a violation of section 288 against more than one victim “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j).” (§ 667.61, former subds. (b), (c)(7), (e)(5).) Former subdivision (j) of section 667.61, also in effect at the time of Thompson’s crimes, further provided, in pertinent part: “Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of … 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of … 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of … 15 years in the state prison. ”
As we have noted previously, section 667.61 was amended by legislation effective September 2006 and by initiative effective November 2006. (Stats. 2006, c. 337 § 33, p. 2163-2165; Initiative Measure (Prop. 83, § 12, approved Nov. 7, 2006.) Following these amendments, which repealed former subdivision (j), subdivision (b) of section 667.61 provides that a person convicted of violations of section 288 against more than one victim “shall be punished by imprisonment in the state prison for 15 years to life.”
In its oral pronouncement of the sentence, the court sentenced Thompson on count 8, the violation of section 288, subdivision (a), with the section 667.61, subdivision (e)(5) multiple victim enhancement, to prison “for the term prescribed by law of life in prison, with a minimum parole eligibility date of 15 years.” The abstract of judgment for the indeterminate sentence on this count states on line 1 that the crime was committed in 2006, on line 5 that Thompson was sentenced to state prison for an indeterminate term of “life with the possibility of parole on count[] 8,” and on line 11, “[o]ther orders,” “minimum parole eligibility date of 15 years.”
As Thompson points out, because his crimes were committed before the fall of 2006, his indeterminate sentence is subject to reduction by credits as provided in former subdivisions (b) and (j) of section 667.61. Thompson’s concern is that when the above information on the abstract of judgment is considered together, the California Department of Corrections and Rehabilitation (CDCR) may interpret his sentence as not being subject to credit reduction. Accordingly, he asks us to order the abstract be corrected to specify (1) on line 1 that count 8 occurred in 2005, (2) on line 11, the minimum parole eligibility term is subject to available credits under former subdivision (j) of section 667.61 as applicable in 2005, and (3) the term imposed is 15 years to life.
We disagree with the parties that the court incorrectly described Thompson’s sentence as “life in prison, with a minimum parole eligibility date of 15 years,” as former subdivision (b) of section 667.61 provides that he “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years.” We note, however, that nowhere did the court state the exception to the 15-year period contained in subdivision (b), i.e., “except as provided in subdivision (j),” applied to his sentence. We agree with Thompson that in light of the 2006 amendments to the statute, the statement in the abstract of judgment that the crime occurred in 2006, and the statement on line 11 that the minimum parole eligibility date is 15 years, there is a real possibility of confusion in the future regarding whether the prior version of section 667.61, allowing for credit reductions, applies to his sentence. Therefore, in the interests of justice (§ 1260), we will order that line 11 of the indeterminate abstract of judgment be amended to read, “minimum parole eligibility date of 15 years subject to reduction with credits under former subdivision (j) of section 667.61 as applicable prior to September 20, 2006.” With this amendment, we find it unnecessary to also direct the year the crime occurred be changed, especially in light of the evidence that some of the crimes that may have formed the basis of the multiple victim enhancement occurred in 2006.
DISPOSITION
The abstract of judgment on the indeterminate sentence is modified by amending line 11 to read “minimum parole eligibility date of 15 years subject to reduction with credits under former subdivision (j) of section 667.61 as applicable prior to September 20, 2006.” The trial court is directed to amend the abstract of judgment accordingly and forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Kane, J.