Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 05-0302679
Jones, P.J.
Martin Orlando Torres appeals his conviction by jury verdict of four counts of felony indecent exposure (Pen. Code, § 314, subd. (1)) and seven counts of lewd act on a child under the age of 14. (§ 288, subd. (a).) In a bifurcated proceeding the court found true the allegations that appellant had previously been convicted of three counts of violating section 288, subdivision (a) within the meaning of the Three Strikes law (§ 667, subd. (b)-(i)) and within the meaning of the One Strike law (§ 667.61, subd. (d)), and that he had two prior serious felony convictions. (§ 667, subd. (a).)
Unless otherwise indicated, all further section references are to the Penal Code.
Appellant contends the trial court erroneously admitted evidence of prior misconduct, that it erroneously instructed that the jury could reject all testimony of a witness who testified falsely unless it believed the probability of truth favored his testimony (CALJIC No. 2.21.2), and that it failed to instruct on the elements of the One Strike law. He also contends his sentence of 380 years to life constitutes cruel and unusual punishment.
BACKGROUND
Mr. and Mrs. Doe are the parents of John Doe, born in 1989, Jane Doe 1, born in 1992, and Jane Doe 2, born in 1994. Appellant is the father of Mrs. Doe and the maternal grandfather of the three children.
Between January 1, 2001 and July 21, 2002, the period of the charged offenses, appellant lived in a studio apartment. All three children occasionally spent the night at the apartment, and on other occasions the two girls, without their brother, spent the night.
John’s Testimony
During what turned out to be the last visit of John, then 13 years old, and his sisters, then 10 and 8 years old, to appellant’s apartment, John was sitting on the floor playing a video game in front of the television. His back was to the couch. Jane 1 was sitting next to him facing the couch, where appellant was lying. John heard Jane 1 say, “Ewww, you are nasty, grandpa.” Appellant responded, “I just stuck out my tongue to you,” and went outside. John then asked Jane 1 what had happened. Jane 1 told her brother that appellant had showed his “private” to her.
When their mother picked them up later that day and was driving them home, John told Jane 1 to tell their mother about the incident. Jane 1 was too scared to do so, so John relayed Jane 1’s story. Jane 1 was crying as he did so. During the ride home John also told their mother about the “popcorn” incident that occurred the same day. He was sitting in front of the television playing a video game, and his sisters were sitting with appellant on the couch, eating popcorn. He saw appellant begin to eat the popcorn crumbs that had fallen in Jane 1’s lap with his mouth; she pushed him away.
Some time after this last visit, John learned from his Uncle [D.] that appellant had done something that “wasn’t right” to John’s two uncles when they were little.
Jane Doe 1’s Testimony
Jane 1 was 12 years old at trial. Appellant sometimes pulled down his pants in front of her, and she sometimes saw a little bit of his “private,” which she identified as where he “goes pee.” Jane 1 told both her parents she did not want to stay at appellant’s house, but she did not give a reason. She told her brother what appellant did, but she did not tell their mother because she was scared. She told John something “nasty” had happened; she explained that “nasty” can sometimes mean seeing someone’s private parts all the time. John told their mother about appellant’s acts during the drive home.
Jane Doe 2’s Testimony
Jane 2 was 9 years old at the time of the May 2004 trial. One time while she was staying at appellant’s apartment he tried to “yank” her pants down. They ripped because she was holding them up. She told her mother how the rip occurred. One time appellant put his hand down the inside her pants and poked at the inside of her “private” with his hand. She identified the “private” as the “one in the front” that is used “to go pee.” Three other times he kissed her private with his tongue. He told her not to tell her parents about what he did. One time her sister’s bell bottom pants ripped when appellant was trying to pull them down and she and her sister were holding them up. She saw appellant’s “private” “[a] lot of times” when he would take off his clothes in front of her. He would wiggle his body and his “private” would move from side to side. He would sit naked on the couch. He did not take his pants off when adults were present.
Mrs. Doe’s Testimony
Between January 2001 and July 2002 Mrs. Doe observed that Jane 1, who had been very talkative, became quiet all the time. The last time she took her daughters to stay with appellant, Jane 2 told her, “Mom, I don’t want to go.” On the July 21, 2002 ride home after that visit, she heard John say to Jane 1, “Tell mom. Just tell mom.” Mrs. Doe saw that Jane 1 was crying and plugging her ears. She asked Jane 1 what happened, and Jane 1 responded that appellant showed “his thing” to her, which Mrs. Doe understood to be appellant’s penis. When Mrs. Doe asked how many times this happened, Jane 1 replied “a couple.” During the same car ride, Jane 2 told her that appellant had kissed her vagina three times and had showed her his “private area.” Following these disclosures, Jane 1 “came out of [her] shell” and returned to being a happy and talkative child.
In May 2002, after the girls had returned from a visit to appellant, Mrs. Doe, while doing laundry, noticed rips in a pair of black capri pants belonging to Jane 2 and a pair of blue shorts belonging to Jane 1. When she asked the girls about the tears, Jane 1 replied that the shorts were ripped on a nail while she was sitting outside. Jane 2 replied that the capris were ripped while she was in a tree. After the July 2002 disclosure in the car, the girls told her the rips occurred when appellant was trying to pull down their pants.
When Mrs. Doe was in the sixth grade, approximately 1986, appellant was arrested in Colorado for molesting her two older brothers, R. and D.
Mr. Doe’s Testimony
Mr. Doe testified that in February 2002 he noticed that his daughters did not want to stay with appellant. One time Jane 2 specifically told him she did not want to “stay with grandpa,” and was almost crying as she did so.
Sharon Sparvoli
Sharon Sparvoli is a detective in the sexual assault unit of the county sheriff’s department. She was assigned to investigate the present offenses on July 22, 2002. She interviewed Mrs. Doe on July 25 and the three children on July 29. Jane 1 told her that she had not observed appellant do anything with Jane 2. Jane 2 told her that Jane 1 was present two of the times appellant kissed her “private.” Jane 2 also told Sparvoli that appellant “should go to jail” because of what happened to “Uncle [D.].” John told her he saw appellant eating crumbs off Jane 1’s lap four or five times. The July 29 interviews with the children were videotaped; the Jane 1 and 2 videos were shown to the jury.
D.
Appellant’s stepson, D., was 33 years old at the time of trial. He testified that when he was 12 or 13 years old and the family was living in Colorado, appellant committed acts of oral copulation on him several times. On one occasion appellant directed D.’s brother, R., to sodomize appellant while appellant orally copulated D. When D. was younger than 12, appellant touched D.’s penis with his hand on several occasions. He told D. that there would be a divorce and appellant would go to jail if D. told anybody about the behavior.
Sabrina B.
Sabrina B. was 26 years old at trial. As a girl she was friends with appellant’s daughter De., sister of Mrs. Doe and aunt of the victims in the present case. On May 5, 1989, Sabrina B. and her cousin, Hilary P., then 11 and 12 years old, respectively, went to De.’s apartment to spend the night. De. was then 12 years old. De.’s brother M. was at the apartment for a while. Appellant was the only adult present. He gave all three girls several wine coolers during the course of the evening. Sabrina B. had never had alcohol and became dizzy and disoriented. While De. and Hilary P. were out of the room, appellant tried to put his tongue in her mouth and reached into her clothes with his hands and touched her breasts and squeezed her vagina. She told him not to touch her “like that.” She also saw appellant hugging and kissing De. as De. was dancing; his hands were “inappropriately” around De.’s vagina and buttocks.
Hilary P.
Hilary P. testified that within a month prior to the May 5, 1989 incident, she went to De.’s apartment to spend the night. She woke up in the middle of the night when she felt something touching her buttocks. Keeping her eyes partially closed, she turned over and saw appellant standing along side her. He was not wearing any clothing underneath his open bathrobe. She pretended to be waking up and acted like she missed her mother so she could telephone her mother to pick her up. Her mother came to the apartment and brought her home.
Hilary P. returned to De.’s apartment with Sabrina B. on May 5, 1989, because she wanted to see De., who was her best friend. She thought she would be more protected if all three girls and De.’s nine-year-old brother were present. Appellant, who was intoxicated, gave them wine coolers to drink. Hilary P. did not like the wine cooler and asked De.’s brother to get her a soda; she was lying at the end of the bed at the time. Appellant came into the bedroom, held her head with his hands, and started French kissing her. She pushed him away. He left the room, and she and Sabrina B. called their mothers to pick them up. Sabrina B. subsequently gave a statement to the police, but she never testified in court.
Defense
John Doe testified on direct examination as a defense witness that when he was 11 or 12, his father’s brother, Herschel, touched his private area “lots of” times with his hands and tried to kiss him on his lips. John told his parents and grandmother about his Uncle Herschel’s behavior. On cross-examination he testified that he did not tell his parents or grandmother about Uncle Herschel’s behavior until Uncle Herschel was no longer at the house very often because he was scared, and his uncle had instructed him not to tell anyone. He never told his sisters what Uncle Herschel did. He did not tell the prosecutor about it until the morning he testified. Uncle Herschel was currently now “in jail.”
De., appellant’s other daughter, testified on direct examination that during the period relevant to this case she allowed her two daughters and a son, then seven, six and three years of age, respectively, to spend the night several times at appellant’s apartment. She did not recall any bad touching of her children by appellant. One daughter told her she did not want to stay at appellant’s house because he yelled at her and because she had nightmares from a scary movie on television.
On cross-examination she testified that she told appellant about the pending investigation of the present case, although she had been instructed not to do so. She had declined Detective Sparvoli’s request to interview her children.
Convictions and Sentence
The jury found appellant guilty of two counts of violating section 314.1 (indecent exposure with prior conviction of section 288, subdivision (a), counts 1 & 2) as to Jane 1; two counts of violating section 288, subdivision (a) (lewd act on a child under age 14, counts 3 & 4) as to Jane 1; two counts of violating section 314.1 (counts 5 & 6) as to Jane 2; and five counts of violating section 288, subdivision (a) (counts 7 through 11) as to Jane 2.
In a bifurcated proceeding, the court found true the allegation of a September 1989 serious felony conviction of three counts of violation of section 288, subdivision (a), pursuant to sections 667, subdivisions (b)-(i) and 1170.12 (three strike allegation), section 667.61, subdivisions (a) and (d) (one strike allegation, 25 years to life imprisonment), and section 667.61, subdivisions (b) and (e) (one strike allegation, 15 years to life imprisonment).
The court committed appellant to the Department of Corrections for an indeterminate sentence of 375 years to life, plus a five-year enhancement pursuant to section 667, subdivision (a)(1), as follows:
Count 1: 25 years to life
Count 2: 25 years to life, consecutive to the term imposed in count 1
Count 3: 25 years to life, pursuant to section 667.61, subdivision (a), trebled to 75 years pursuant to sections 667, subdivision (b)-(i) and 1170.12, consecutive to counts 1 and 2
Count 4: 25 years to life, trebled to 75 years, consecutive to counts 1, 2, and 3
Count 5: 25 years to life, concurrent to the terms imposed in counts 1-4
Count 6: 25 years to life, concurrent to the terms imposed in counts 1-5
Count 7: 25 years to life, trebled to 75 years, consecutive to counts 1-6
Count 8: 25 years to life, trebled to 75 years, consecutive to counts 1-7
Count 9: 25 years to life, trebled to 75 years, consecutive to counts 1-8
Count 10: 25 years to life, trebled to 75 years, consecutive to counts 1-9
Count 11: 25 years to life, trebled to 75 years, consecutive to counts 1-10
DISCUSSION
I. Evidence of Prior Misconduct
Appellant contends the trial court erred in admitting evidence of a 1989 California conviction for lewd acts on three girls and one 1984 Colorado conviction for sexual assault on a boy.
a. Background
Before trial the People moved to introduce evidence of appellant’s prior sexual misconduct, pursuant to Evidence Code sections 1101 and 1108. They sought to introduce testimony from D., the 12-year-old victim in appellant’s 1984 Colorado guilty plea of sexual assault on a child, who would testify regarding appellant’s molestation of him and his brother R. They also sought to introduce evidence from Sabrina B. and Hilary P., the victims of two of appellant’s three 1989 California guilty pleas of lewd acts on a child under the age of 14 (§ 288, subd. (a)), who would testify of appellant’s molestation of them and appellant’s daughter, De., the third victim. The People argued the evidence was relevant to provide evidence of disposition, intent, common scheme or plan, and lack of mistake.
Appellant opposed admission of the evidence of the prior offenses on lack of relevance grounds because there was no similarity between the prior and current offenses. He argued that the prior offenses involved molestation of boys or molestation of females after “plying” them with alcohol, whereas the present charges alleged molestation of girls, and there was no evidence of the presence of alcohol. He also argued, pursuant to Evidence Code section 352, that any probative value was outweighed by the prejudicial effect, given the inflammatory nature of the prior offenses and the remoteness of the 1984 and 1989 prior offenses to the 2002 present charges.
The court concluded the prior offenses were highly probative on the issues of intent, lack of accident, and disposition to commit the crimes, notwithstanding the fact that boys as well as girls were victims of the priors. It concluded remoteness might have been a factor if the only prior offense was the one from 1984, but appellant’s intervening 1989 repetition of the behavior and his subsequent three-year incarceration lessened the remoteness. After applying an Evidence Code section 352 analysis to the proposed evidence, it permitted the People to introduce evidence of the prior conduct but with the caveat that the testimony should not be presented in a way that went beyond what was necessary to show disposition, intent, and lack of accident. It particularly warned against seeking details of the sodomy of D., although a generalized reference thereto was appropriate.
b. Analysis
Appellant contends Evidence Code section 1108 violates due process on its face and as applied to this case. Section 1108 provides generally that when a defendant is charged with a sexual offense, evidence of his commission of other sexual offenses is not inadmissible under Evidence Code section 1101 if it is not inadmissible under Evidence Code section 352. Section 1101 generally excludes evidence of prior bad acts to prove a defendant’s criminal disposition. (People v. Brown (2000) 77 Cal.App.4th 1324, 1334, fn. 6.) Section 352 gives the trial court discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect. Evidence Code section 1108, in short, is an exception to the historical proscription against propensity evidence to prove a present charge. (Brown, supra, 77 Cal.App.4th at pp. 1333-1334.)
People v. Falsetta (1999) 21 Cal.4th 903, 917-918 held that propensity evidence may be considered in charges of sex offenses under Evidence Code section 1108 without violating due process because its incorporation of Evidence Code section 352’s safeguard balancing test prevents an unfair trial. Appellant recognizes Falsetta’s holding and candidly acknowledges he makes his due process contention to preserve it for any further post-conviction proceedings. This court is bound to follow Falsetta, under the rule of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
Appellant also contends Evidence Code section 1108 on its face and as applied to his case violates his right to equal protection because it treats people accused of sex offenses differently from those accused of non-sex offenses. The same argument was made in People v. Fitch (1997) 55 Cal.App.4th 172. Fitch first held that because section 1108 does not violate due process, it does not infringe on constitutional rights, and its creation of two classes of defendants--those accused of sex crimes and those accused of other crimes--is subject to rational basis analysis, not to strict scrutiny analysis. (Id. at p. 184.)
Fitch then concluded Evidence Code section 1108 withstood this relaxed scrutiny. “The Legislature determined that the nature of sex offenses, both their seriousness and their secretive commission which results in trials that are primarily credibility contests, justified the admission of relevant evidence of a defendant’s commission of other sex offenses.” (Fitch, supra, 55 Cal.App.4th at p. 184.) We find this analysis well-reasoned and agree with it. (See also People v. Jennings (2000) 81 Cal.App.4th 1301, 1311: similar factors to those articulated in Fitch provide a rational basis for Evidence Code section 1109, which permits evidence of uncharged acts of domestic violence when the defendant is charged with a domestic violence offense.)
Our Supreme Court has not directly addressed an equal protection challenge to Evidence Code section 1108. However, in Falsetta it wrote favorably of Fitch when it noted that the Fitch court had rejected an equal protection challenge. (Falsetta, supra, 21 Cal.4th at p. 918.) In so doing, it implied in dicta that the Fitch analysis was sound.
Appellant argues that even if the prior offenses met the threshold test of relevance under Evidence Code section 1108, Evidence Code section 352 precluded their admission. He reiterates the arguments he made below: the details of the homosexual acts forced on his stepsons and plying the girls with alcoholic drinks were unnecessarily inflammatory, the prior and present acts are dissimilar, and the prior acts were temporally too remote.
Whether or not to admit evidence after a Evidence Code section 352 analysis is left to the sound discretion of the trial court, whose ruling will not be disturbed absent a manifest abuse of discretion. (People v. Mickey (1991) 54 Cal.3d 612, 655.)
We find no abuse. First, the fact the prior acts differed from the present acts because the victims in the prior acts were either boys or were girls who had been given alcoholic beverages does not make admission of the prior acts unduly prejudicial. “Section 1108 does not require ‘more exacting requirements of similarity between the charged offense and the defendant’s other offenses. . . .’ [Citation.] Such a requirement was not added to the statute because ‘doing so would tend to reintroduce the excessive requirements of specific similarity under prior law which [section 1108] is designed to overcome, . . . and could often prevent the admission and consideration of evidence of other sexual offenses in circumstances where it is rationally probative. Many sex offenders are not “specialists,” and commit a variety of offenses which differ in specific character.’ [Citation.]” (People v. Soto (1998) 64 Cal.App.4th 966, 984.) “It is enough the charged and uncharged offenses are sex offenses as defined in section 1108.” (People v. Frazier (2001) 89 Cal.App.4th 30, 41, fn. omitted.) Here, while the prior offenses may be distinguished from the present offenses in certain particulars, the fact that is significant and common to all offenses makes the priors especially probative: the child victims were all appellant’s relatives or friends of his relatives who had been entrusted to his care.
Second, the prior acts were not so remote as to be prejudicial. As the trial court recognized, staleness or remoteness is an appropriate factor to consider in a Evidence Code section 352 analysis, but it is relevant only when the defendant has lived a long blameless life in the interim since the prior act. (People v. Harris (1998) 60 Cal.App.4th 727, 739.) Appellant has not done so. He committed the first set of offenses in 1984, committed the second set of offenses five years later in 1989, was incarcerated until 1991, was paroled to a residential program from which he was discharged in 1995, and six years later began committing the present offenses. Appellant’s pattern of behavior over this 17-year period does not reflect a long blameless life. Within six years of completing his parole he resumed the behavior that had resulted in his previous convictions and punishment.
Finally, the court confined the evidence of the priors to “what [was] necessary to show disposition or intent or lack of accident, and so forth” without going into inflammatory detail about the acts. The prosecutor adhered to this directive in her examination of the witnesses, eliciting only the basic fact of the unlawful acts themselves and the minimum facts sufficient to demonstrate the acts were not unintentional or accidental.
The trial court could reasonably conclude that the prior offenses were highly probative of appellant’s disposition to commit the present offenses and that this evidence did not “uniquely tend[] to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues,” the characteristic of the prejudicial evidence referred to in Evidence Code section 352. (People v. Scheid (1997) 16 Cal.4th 1, 19.)
II. CALJIC No. 2.21.2
Appellant contends the trial court erred in instructing with CALJIC No. 2.21.2 because the instruction permitted evaluation of the pivotal prosecution testimony by a probability standard and thereby denied him due process. As given to the jury, this instruction states: “A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who [sic] you find has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.”
Again, appellant candidly acknowledges that our Supreme Court has held that the instruction does not impermissibly permit a jury to assess prosecution witnesses by seeking only a probability of truth in their testimony. (People v. Nakahara (2003) 30 Cal.4th 705, 714.) When, as here, the jury has been correctly instructed on the reasonable doubt standard and instructed to consider all instructions as a whole and regard each in light of all others, it has been correctly instructed on the prosecution’s burden of proof. (People v. Riel (2000) 22 Cal.4th 1153, 1200.)
III. Propensity Evidence/Circumstantial Evidence Instructions
Appellant contends that giving CALJIC No. 2.50.01, “Evidence of Other Sexual Offenses (Evid. Code, § 1108)” supplemented with the trial court’s modification to CALJIC No. 2.50.1, “Evidence of Other Crimes by the Defendant Proved by a Preponderance of the Evidence,” was error and denied him due process.
In addition to CALJIC Nos. 2.50.01 and 2.50.1, the People’s proposed instructions included CALJIC No. 2.01, “Sufficiency of Circumstantial Evidence--Generally” and CALJIC No. 2.50, “Evidence of Other Crimes.” During discussion of the instructions, the court and counsel agreed CALJIC No. 2.01 was appropriate. Counsel also agreed with the court’s tailoring of CALJIC Nos. 2.50.01 and 2.50 to the evidence that had been presented.
CALJIC No. 2.01, as given to the jury, states:
As given to the jury, CALJIC No. 2.50.01 states:
The court next considered CALJIC No. 2.50.1, “Evidence of Other Crimes by the Defendant by a Preponderance of the Evidence.” It remarked that it had “always wondered” about the accuracy of the instruction. It commented that, in light of CALJIC No. 2.01’s general circumstantial evidence instruction that each fact or circumstance on which an inference necessarily rests must be proved beyond a reasonable doubt, it “would seem to me” that if the defendant’s conviction of other crimes was a basis of finding guilt beyond a reasonable doubt, the prosecution would have to prove those other crimes beyond a reasonable doubt, not by a preponderance of the evidence. It further noted that appellate decisions had uniformly upheld CALJIC No. 2.50.1’s preponderance of the evidence standard, while at the same time holding that in order to find a defendant guilty beyond a reasonable doubt, every fact on which that finding rested had to be proved beyond a reasonable doubt. It then commented: “So . . . even though [the jury] may consider [other crimes], [it] can’t find him guilty unless [it finds] that [the other crimes have] been proved beyond a reasonable doubt. I suppose, in the totality, the instructions say that.”
The standard CALJIC No. 2.50.1 states:
Defense counsel agreed with the trial court’s observation that existing case law had approved CALJIC No. 2.50.1, and consequently all she could do on behalf of appellant was object to the instruction “on federal and state due process grounds.” The trial court agreed to give CALJIC No. 2.50.1, but, over the prosecutor’s objection and with no objection by defense counsel, added to it a paragraph repeating the principle of CALJIC 2.01 that each fact on which an inference rested had to be proved beyond a reasonable doubt.
The paragraph added by the court at the end of the standard CALJIC No. 2.50.1 (see fn. 4) states: “Also, remember that before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests--including, if applicable, the commission of other crimes--must be proved beyond a reasonable doubt.”
As the trial court, defense counsel, and now appellant have acknowledged, our Supreme Court has approved the language of CALJIC No. 2.50.01 and has rejected the argument that it misleads the jury concerning the limited purpose for which the jury can consider the prior-crimes evidence or misleads the jury concerning the prosecutor’s burden of proof. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) Contrary to the concern that “a jury could interpret the instructions to authorize conviction of the charged offenses under the preponderance-of-the-evidence standard[, we] do not find it reasonably likely a jury could interpret the instructions to authorize conviction of the charged offenses based on a lowered standard of proof. Nothing in the instructions authorized the jury to use the preponderance-of-the-evidence standard for anything other than the preliminary determination [of] whether defendant committed a prior sexual offense in 1991 involving S.B. The instructions instead explained that, in all other respects, the People had the burden of proving defendant guilty ‘beyond a reasonable doubt.’ [Citations.] Any other reading would have rendered the reference to reasonable doubt a nullity. In addition, the jury was told that circumstantial evidence could support a finding of guilt of the charged offenses only if the proved circumstances could not be reconciled with any other rational conclusion (CALJIC No. 2.02[])--which is merely another way of restating the reasonable-doubt standard. [Citation.] The jury thus would have understood that a conviction that relied on inferences to be drawn from defendant’s prior offense would have to be proved beyond a reasonable doubt.” (Reliford, at p. 1016.)
CALJIC No. 2.02 is an alternative instruction to CALJIC No. 2.01. It is limited to the sufficiency of circumstantial evidence to prove specific intent or mental state, whereas CALJIC No. 2.01 includes all issues. (See Use Note to CALJIC No. 2.02.) Mental state was a critical issue in Reliford because the defense was consent to the sexual acts. (29 Cal.4th at p. 1010.)
Appellant argues that Reliford did not address “the problem that crystallized in this case.” As he explains the problem, “the preponderance standard for inferring ultimate guilt [as set forth in CALJIC No. 2.50.01] conflicts with the [beyond a reasonable doubt] burden of proof specified in CALJIC No. 2.01, and, notwithstanding limiting language [in CALJIC No. 2.50.01] that conveys little more than a corpus delicti requirement jurors would apply anyway, permits an ultimate finding of guilt based upon prior conduct proven only by a preponderance of the evidence. [CALJIC No. 2.50.01] still fails to distinguish the lesser standard of proof to establish the prior conduct from the greater standard of proof applicable to the ultimate propensity and guilt inference. Further, the instruction suggests the prior conduct is sufficient to support conviction if jurors find the conduct to be true beyond a reasonable doubt.” (Italics in original.)
We fail to see how appellant’s argument differs from the argument made by the Reliford defendant and rejected by the Supreme Court. As in Reliford, the jury here was instructed several times on the People’s burden of proving guilt beyond a reasonable doubt, e.g., CALJIC Nos. 2.61, 2.90, 17.10. The jury was instructed on the elements of each charged offense and instructed that a conviction required proof of each element. It was instructed that the crimes charged required a union of act and requisite intent. Of course it was instructed to consider the instructions as a whole and in light of each other.
Finally, contrary to appellant’s assertion, the court’s modification of CALJIC No. 2.50.1 with the additional paragraph reiterating CALJIC No. 2.01’s requirement that facts on which inferences necessarily rest must be proved beyond a reasonable doubt (see fn. 5) does not conflict with the preponderance-of-the-evidence language in CALJIC Nos. 2.50.01 and 2.50.1. Rather, the additional paragraph dispels any suggestion that guilt of the presently charged offenses could be inferred from prior sexual offenses proved by the lesser preponderance standard.
Taking the instructions as a whole, no reasonable juror, to paraphrase Reliford, could have believed the requirements for finding appellant guilty beyond a reasonable doubt could be satisfied solely by proof of the prior offenses by a preponderance of the evidence. (Reliford, supra, 29 Cal.4th at pp. 1013, 1014.) Instead, we may presume that the jurors understood that they were to apply the preponderance standard to the preliminary fact identified in CALJIC No. 2.50.01 and to apply the reasonable doubt standard to all other determinations. (Reliford, at p. 1016.)
IV. CALJIC No. 2.20.1
CALJIC No. 2.20.1 instructed the jury: “In evaluating the testimony of a child ten years of age or younger you should consider all of the factors surrounding the child’s testimony, including the age of the child and any evidence regarding the child’s level of cognitive development. A child, because of age and level of cognitive development, may perform differently than an adult as a witness, but that does not mean that a child is any more or less believable than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child. [¶] ‘Cognitive’ means the child’s ability to perceive, to understand, to remember, and to communicate any matter about which the child has knowledge.” This instruction incorporates the mandate of section 1127, subdivision (f), that such an instruction be given when a child under 10 years of age testifies.
Appellant contends the second sentence of the instruction, beginning with “A child, because of age [etc],” tells the jury that even though a child witness “may perform differently” from an adult witness, the jury should disregard this fact in assessing the child’s credibility. He argues this sentence “clearly invaded the jury’s exclusive province of assessing witness credibility, and created an aura of special deference around the crucial testimony of” Jane 2. By “bolstering” her testimony, the instruction “effectively lightened the prosecution’s burden of proof” and thereby denied him due process and also ran afoul of the rule that the court should not single out a particular witness and charge the jury how the witness’s evidence should be considered.
Four Court of Appeal cases have rejected similar constitutional challenges to CALJIC No. 2.20.1. (See People v. McCoy (2005) 133 Cal.App.4th 974, 979, 980; People v. Jones (1992) 10 Cal.App.4th 1566, 1572, 1574; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1393; People v. Harlan (1990) 222 Cal.App.3d 439, 455-457.) These cases variously hold that the instruction does not excessively inflate a child’s testimony. It does not impermissibly usurp the jury’s role as arbiter of witness credibility. It does not violate the accused’s right to confront the child witness. It does not require the jury to draw any particular inferences from the child’s cognitive ability, age, and performance as a witness, but to consider these factors in evaluating the testimony. The instruction presupposes the jury must make a credibility determination after considering all factors related to the child’s testimony, including his or her demeanor on the stand, without foreclosing independent jury consideration of the child witness’s credibility. The instruction tells the jury not to make its credibility determination solely on the basis of the child’s age and level of cognitive development but invites the jury to take these and all other factors surrounding the child’s testimony into account. It provides sound and rational guidance to the jury for assessing the credibility of a class of witnesses as to whom traditional assumptions may have previously biased the factfinding process. (See McCoy, supra, 133 Cal.App.4th at p. 979.) “‘Obviously a criminal defendant is entitled to fairness, but just as obviously he or she cannot complain of an instruction the necessary effect of which is to increase the likelihood of a fair result.’ [Citation.]” (Ibid.)
We find the collective holdings of these cases persuasive and reject appellant’s constitutional challenge to CALJIC No. 2.20.1. Furthermore, the jury was instructed with CALJIC No. 2.20, which sets forth the factors to consider in determining the believability of “each” witness. The jury may be presumed to have applied these CALJIC No. 2.20 factors to the child witnesses in assessing their credibility, and nothing in CALJIC No. 2.20.1 implies that the jury was to disregard the CALJIC No. 2.20 factors in its determination of the credibility of a child under 10 years old.
V. Instructions re: One Strike Law
Appellant contends the trial court failed to instruct on two elements of the One Strike law (§ 667.61) that were later applied to his sentence: (1) the probation eligibility requirements necessary to make any section 288, subdivision (a) offense an offense that qualifies as one strike, and (2) the “separate occasions/same victim” determination that supports multiple life terms.
a. Probation Eligibility
Section 667.61 is commonly known as the “One Strike” law. It requires imposition of a sentence of 25 or 15 years to life in prison (subds. (a) & (b), respectively) if a person is convicted of one of the offenses enumerated in subdivision (c) and certain other triggering circumstances enumerated in subdivisions (d) and/or (e) are found to apply to the offenses enumerated in subdivision (c). (People v. Hammer (2003) 30 Cal.4th 756, 759.) One such triggering circumstance is that the defendant was convicted in the present case or cases of committing a subdivision (c) offense against more than one victim. (§ 667.61, subd. (e)(5).) As stated in the last paragraph of the “Background,” the trial court in the bifurcated proceeding found true the section 667.61, subdivision (e) allegation.
Section 667.61 was significantly amended, effective November 8, 2006, by voter approval of Proposition 83, section 12. The citations to the One Strike law in this discussion are to the law as it existed at the time of appellant’s 2004 trial.
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 circumstance is found true, “unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”
Section 1203.066, subdivision (a)(7) and (8) provides that probation will not be granted for any person who was convicted of committing a violation of section 288 against more than one victim. However, pursuant to section 1203.066, subdivision (c), subdivision (a)(7) and (8) will not apply 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 to the defendant is in the best interest of the child; (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 will be removed from the household of the victim until the court determines that the best interests of the victim will be served by returning the defendant to the household of the victim; and (5) There is no threat of physical harm to the child victim if probation is granted.
Section 1203.066 was also amended by Proposition 83. The citations herein are to section 1203.066 as it existed in 2004.
Appellant recognizes that section 1203.066, subdivision (a)(5) provides that, notwithstanding any other law, probation shall not be granted to a person convicted of committing a violation of section 288 who has previously been convicted of section 288. Here, following appellant’s waiver of his right to have a jury make the finding, the court found that he had been convicted in 1989 of three violations of section 288. Nevertheless, appellant argues that the language of section 1203.066, 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, subdivision (c) probation-eligibility findings as to each count and each victim to support One Strike sentencing on any of the counts in this case.
Blakely held that any fact other than “recidivism” that increases the punishment for an offense beyond the statutory maximum, i.e., the maximum a trial court may impose on facts necessarily reflected in the jury verdict, must be subject to a jury finding. (Blakely, supra, 542 U.S. at p. 303.) However, as People v. Benitez (2005) 127 Cal.App.4th 1274, 1278, explained, 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, subdivision (c)--is not an element of the enhancement to be negated upon proof to a jury. Rather, it is the Legislature’s grant of authority to the trial court to entertain a request for probation (assuming all section 1203.066, subdivision (c) criteria are satisfied), despite the defendant’s being otherwise subject to sentencing pursuant to section 667.61. “Finding 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, at p. 1278, italics in original.) 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.
Since the briefing in this appeal, Cunningham v. California (2007) ____ U.S. ____ (127 S.Ct 856) held that the California Determinate Sentencing Law violates a defendant’s right to jury trial by placing sentence-elevating factfinding within the province of the court. The Cunningham holding does not bear on appellant’s argument.
Appellant urges us to reject the Benitez conclusion 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, [It is not meant as] a 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, 984]: incestuous and opportunistic intrafamilial offenders who have brighter prospects for rehabilitation and eventual reunification with a healthy family. [¶] 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, 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.”
Appellant’s argument does not alter the plain meaning of the One Strike statute that when a violation of section 288, subdivision (a) and a circumstance or circumstances specified in section 667.61, subdivisions (d) and/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 appellant 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. 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, 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 by the court after appellant waived his right to have the jury make them, i.e., the “strike” allegations in the information.
b. Separate Occasions Element
Section 667.61, subdivision (g) states that the 25 or 15 years to life terms specified in subdivisions (a) and (b) “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 these subdivisions 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. . . .”
For purposes of section 667.61, subdivision (g), People v. Jones (2001) 25 Cal.4th 98, 106-107 concluded that “sex offenses occurred on a ‘single occasion’ if they were committed in close temporal and spatial proximity.” Appellant contends that under Blakely, he was entitled to have the jury determine the “separate occasions” beyond a reasonable doubt before multiple life terms could be imposed.
The instructions and the verdict forms demonstrate that the jury made such determinations. The jury was instructed that to find appellant guilty of any count, it was necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act or acts constituting the crime, and that it had to agree unanimously upon the commission of the same specific act that constituted the crime. The verdict form for each count identifies the particular act constituting the offense. For example, count 1 is identified as “the first time” appellant exposed himself to Jane 1; count 2 identified as “the last time” he exposed himself to her; count 3 is identified as the time appellant pulled Jane 1’s clothing and it ripped; count 7 is identified as the time appellant touched Jane 2’s vagina with his hand; count 8 is identified as the time appellant pulled Jane 2’s clothing and it ripped; count 11 is the time appellant kissed Jane 2’s vagina. By finding appellant guilty of the different counts, the jury necessarily found the acts occurred on separate occasions. Furthermore, at sentencing the court determined that counts 1 and 5 occurred on the same occasion, so count 5 was to run concurrently to count 1. It determined counts 7, 9, and 10 occurred on the same occasion and counts 3 and 8 occurred on the same occasion. It therefore imposed concurrent terms on counts 3 and 8 and on counts 7, 9 and 10. It ordered counts 2, 3, 4, 6, 7, and 11 consecutive to count 1. Appellant has not disputed the imposition of the consecutive terms for these counts because the offenses constituting the counts occurred on separate occasions. He thus impliedly concedes there was substantial evidence for the jury to find these offenses did not occur in a single occasion.
VI. Cruel and Unusual Punishment
Appellant contends his sentence of 380 years to life violates the federal and state constitutional proscriptions against cruel and unusual punishment.
A prison sentence violates the Eighth Amendment of the United States Constitution if it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) It violates the California Constitution if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.)
Lynch set out three guidelines for assessing a cruel and unusual claim: (1) the nature of the offense and the offender; (2) how the punishment compares with punishments for more serious crimes in the same jurisdiction; and (3) how the punishment compares with the punishment for the same offense in other jurisdictions. (In re Lynch, supra, 8 Cal.3d at pp. 425-427.) That a sentence exceeds a defendant’s life expectancy, or that it is unlikely he will live long enough to become eligible for parole does not make the sentence unconstitutional. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383; People v. Ayon (1996) 46 Cal.App.4th 385, 396-401.)
Under the facts here, the punishment did not violate constitutional proscriptions. Appellant molested his young granddaughters, in one case with the significant act of oral copulation. He took advantage of them as their grandfather while they were entrusted to his care by their mother, his daughter. He had a history of such behavior with his young relations: first his stepsons, and then his own daughter and her friends. Despite incarceration and residential parole after the latter conviction, he was not rehabilitated but perpetuated his conduct with the next generation.
Nor has he demonstrated that his punishment is cruel and unusual when compared with that for other offenses in California or other jurisdictions. For example, a 25 year to life sentence for a third strike possession of heroin and receiving stolen property was held to be not cruel and usual. (People v. Mantanez (2002) 98 Cal.App.4th 354, 357, 364-365.) That such a punishment for a nonviolent, allegedly victimless crime does not run afoul of the constitution would surely dictate that neither, proportionally, would the punishment imposed here for multiple sexual offenses by an opportunistic offender against his own young grandchildren. Likewise, if a life sentence without possibility of parole imposed under Michigan law for possession of 672 grams of cocaine is held not violative of the constitution (Harmelin v. Michigan (1991) 501 U.S. 957), the nature of the offenses in this case are, by proportion, not unduly cruel or unusual.
In short, appellant has failed to overcome the “considerable burden” to establish his sentence was disproportionate to his level of culpability under either the state or federal constitutions. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1193, 1197.)
VII. Concurrent Sentences for Counts 9 and 10
At sentencing the trial court determined that the offenses constituting counts 7, 9, and 10, all involving Jane 2, occurred on the same occasion. Pursuant to the One Strike law, it imposed a sentence of 25 years to life, tripled to 75 years under the Three Strike law, on count 7. (§ 667, subd. (e)(2).) It imposed the same trebled 25 years to life sentences on counts 9 and 10, to run currently with the sentence imposed on count 7. Appellant contends, and the People agree, that the concurrent 75 years terms imposed on counts 9 and 10 were not subject to the “One Strike” law.
Section 667.61, subdivision (g) of the One Strike law provides that the 25 years to life sentence specified in subdivision (a) shall be imposed “once” for any offenses committed against a single victim during a single occasion, with terms for other offenses committed during a single occasion against a single victim imposed as authorized by other laws. Thus, a “defendant shall be sentenced to one life term per victim per occasion no matter how many [qualifying] offenses listed in [section 667.61] subdivision (c) the defendant committed against a particular victim on a particular occasion.” (People v. Murphy (1998) 65 Cal.App.4th 35, 40.)
Under the section 667.61 One Strike law scheme, appellant was sentenced to 25 years to life on count 7, trebled to 75 years, under the implied following calculation:
(1) The count 7 offense, section 288, subdivision (a), is a qualifying offense under section 667.61, subdivision (c).
(2) Under section 667.61, subdivision (d), a previous conviction of an offense specified in subdivision (c) is a circumstance that mandates the 25 year to life punishment set forth in subdivision (a).
(3) The court made a section 667.61, subdivision (d) finding that appellant had been convicted in 1989 of three counts of a violation of section 288, subdivision (a).
(4) Two or more prior convictions of a violation of section 288, subdivision (a) mandate that the term for the current felony conviction shall be an indeterminate term of life imprisonment three times the term otherwise provided as punishment for the current felony conviction (§§ 667, subds. (d)(1), (e)(2)(A)(i), 667.5, subd. (c)).
(5) The court made a section 667, subdivisions (b)-(i) finding that appellant had two such prior convictions.
(6) The 25 years to life One Strike sentence imposed on count 7 multiplied by three is 75 years.
However, because the One Strike indeterminate sentence can be imposed only once in the case of a single victim/single occasion, all other section 667.61, subdivision (c) offenses committed against Jane 2 during the same occasion as the count 7 offense, i.e., the count 9 and count 10 violations of section 288, subdivision (a), are not to be sentenced under the One Strike law; the sentence for counts 9 and 10 is to be imposed under other applicable sentencing laws. (§ 667.61, subd. (g); Murphy, supra, 65 Cal.App.4th at p. 40.) The punishment for a violation of section 288, subdivision (a) is three, six, or eight years imprisonment. If the defendant, as here, has two or more prior convictions of section 288, subdivision (a), his punishment shall be an indeterminate prison term with the minimum term calculated as the greater of either three times the term provided for each current felony conviction or imprisonment for 25 years. (§ 667, subd. (e)(2)(A).) As 25 years is greater than three times the upper term for violation of section 288, subdivision (a) (8 x 3 = 24), the concurrent sentences imposed for counts 9 and 10 are 25 years, not 75 years.
DISPOSITION
The judgment is modified by reducing the concurrent terms imposed on counts 9 and 10 from 75 years to life to 25 years to life. The matter is remanded to the trial court with directions to enter an amended abstract of judgment with the corrected length of the concurrent terms on counts 9 and 10 and to forward a copy of the amended abstract of judgment to the Department of Corrections. In all other regards, the judgment is affirmed.
We concur: Simons, J., Needham, J.
“However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion.
“Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.
“Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to his guilt.
“If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” (Italics added.)
“Evidence has been introduced for the purpose of showing that the defendant engaged in a sexual offense on one or more occasions other than that charged in the case.
“‘Sexual offense’ means a crime under the laws of a state or of the United States that involves any of the following:
“A. Any conduct made criminal by Penal Code section 288(a). The elements of this crime are set forth elsewhere in these instructions.
“B. Contact, without consent, between any part of the defendant’s body or an object and the genitals or anus of another person.
“C. Contact, without consent, between the genitals or anus of the defendant and any part of another person’s body.
“If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant has a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused in the instant case.
“However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”
As given to the jury CALJIC No. 2.50 states:
“Evidence that the defendant committed crimes other than that for which he is on trial may also be considered by you for the purpose of determining if it tends to show:
“(1) A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offenses in this case which would further tend to show the existence of the intent which is a necessary element of the crimes charged or a clear connection between the other offenses and those of which the defendant is accused in the present case so that it may be inferred that if defendant committed the other offenses defendant also committed the crimes charged in this case;
“(2) The existence of the intent which is a necessary element of the crimes charged in this case; and
“(3) That defendant’s conduct was not accidental.”
“Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed crimes or sexual offenses other than those for which he is on trial.
“You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes or sexual offenses.
“If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.”