Opinion
G051617
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO VERGARA, Defendant and Appellant.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12WF0276) OPINION Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed. William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Francisco Vergara appeals from the judgment after a jury found him guilty of four counts of committing lewd acts upon a child under 14 years old, three counts of sexual intercourse with a child 10 years of age or younger, and one count of oral copulation with a child 10 years of age or younger. The jury also found true as to certain of the offenses that Vergara committed the offense against more than one victim within the meaning of Penal Code section 667.61. (All further statutory references are to the Penal Code.) The trial court sentenced him to 120 years to life in prison.
Vergara contends his trial counsel provided ineffective assistance for failing to move for the suppression at trial of Vergara's police interview in violation of his constitutional rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also argues his total sentence of 120 years to life in prison violates his federal and state constitutional prohibitions on cruel and unusual punishments. For the reasons we explain, Vergara's contentions are without merit. We therefore affirm.
FACTS
Vergara was about 34 years old at the time of trial. Vergara's then 13-year-old daughter, N., testified that Vergara started molesting her when she was seven years old. She testified about instances where he touched her breasts and genital area, put his mouth on her mouth and genital area, and engaged in sexual intercourse with her. During her Child Abuse Services Team (CAST) interview, N. described the conduct in more detail, stating that the last incident of sexual conduct with Vergara had occurred the Monday before the CAST interview; she was 10 years old at that time. She stated that there had been 10 instances of sexual abuse in the bathroom, four occasions of sexual conduct in her room, and one instance of sexual abuse in a closet.
Vergara's then 11-year-old niece, A., testified that Vergara began engaging in sexual conduct with her when she was around five or six years old. Vergara's wife was A.'s babysitter. Vergara would pick up A. from school and take her to his house. Vergara's conduct included taking off A.'s clothes and removing his own. He kissed her on the mouth, put his mouth on her breasts and vagina, touched her breasts and vagina, inserted his finger into her vagina, sodomized her, and engaged in sexual intercourse with her.
A. testified that on one occasion, after she and N. returned from the pool, Vergara "clean[ed]" them. When the two girls were in Vergara's room, Vergara told A. to go into the closet. A. complied but, at one point, stepped out of the closet to chase a ball, at which time she saw Vergara inserting his penis into N.'s vagina. Vergara told A. to go back into the closet. After Vergara was done with N., he told N. to go into the closet and proceeded to engage in sexual intercourse with A.
On another occasion, Vergara had N. and A. sit next to each other on small chairs. He took their clothes off and licked their vaginas. During N.'s CAST interview, N. said she thought Vergara had engaged in sexual conduct with A. five times.
When she was seven years old, A. told her mother what Vergara had been doing to her. A social worker thereafter spoke to N. who initially denied she had been touched but later told her stepmother that Vergara had been touching her.
Detective Mario Martinez of the Garden Grove Police Department met with Vergara at the Garden Grove Police Department in an interview room. The interview was audio-recorded and the audio recording was played for the jury. Martinez testified that he understood that Vergara had come to the police department "on his own"; Vergara told Martinez that he was there at his wife's request. Martinez testified that Vergara was very cooperative and was willing to talk. Vergara assured Martinez that he was there voluntarily. He was not in handcuffs.
Martinez told Vergara that since he had already been at the police station for more than an hour, he wanted to advise Vergara of some rights that he had so that he was not confused about the rights he had that day. Vergara responded, "[o]kay." The record contains the following colloquy:
"Martinez: . . . [¶] . . . You have the right to remai-, to remain, remain silent. I'm sorry is that I have a bit of . . . .
"Vergara: [¶] Okay, it's fine. Yes.
"Martinez: [¶] Um, anything that you say can be, can be used against you in court, you have the right to an attorney before and during questioning. If you cannot afford an attorney if, an attorney will be appointed to you before questioning if you wish. Do you understand each one of these, these rights that I have explained to you?
"Vergara: Uh-huh.
"Martinez: [¶] Yes or no?
"Vergara: . . . (Yes[.])
"Martinez: [¶] Okay. It's that I have a little bit of a cold it's going away, but that's why . . . [.]
"Vergara: Uh-huh.
"Martinez: [¶] A bit sick, but either way here we are, okay. Um, I want to obtain all of your information. Do you have identification?
"Vergara: Uh, . . . (yes)." (Boldface & some capitalization omitted.)
Vergara's interview thereafter continued. Vergara admitted molesting N. on multiple occasions and stated that the molestation had begun three or four years earlier and had continued until about a month and a half before the interview. He admitted kissing N.'s breasts and touching her vagina and buttocks. He denied engaging in sexual intercourse with her. He also denied inserting his fingers into her vagina. Vergara admitted he had tried to have sex with N., but never penetrated her.
Vergara also admitted he had touched A.'s buttocks and vagina and kissed her on the mouth. He denied having sexual intercourse with A. and denied penetrating her with his fingers.
PROCEDURAL BACKGROUND
In January 2015, Vergara was charged in an amended information with four counts of committing a lewd act upon a child under 14 years of age, in violation of section 288, subdivision (a) (counts 1, 2, 5, and 6); three counts of engaging in sexual intercourse with a child 10 years of age or younger, in violation of section 288.7, subdivision (a) (counts 3, 7, and 8); and one count of committing oral copulation with a child 10 years of age or younger, in violation of section 288.7, subdivision (b) (count 4). As to the counts of committing a lewd act upon a child under 14 years of age, the amended information alleged that, pursuant to section 667.61, subdivisions (a) and (e), in the commission of each offense, Vergara committed an offense enumerated in section 667.61, subdivision (c) against more than one victim.
The jury found Vergara guilty as to all counts and found true the multiple victim allegations. Vergara was sentenced to a total prison term of 120 years to life by imposition of (1) consecutive 25-year-to-life terms on counts 3, 7, and 8; (2) consecutive 15 year-to-life terms on counts 2, 4, and 5; and (3) concurrent 15-year-to-life terms on counts 1 and 6. Vergara appealed.
DISCUSSION
I.
VERGARA'S TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO FILE
A MOTION TO SUPPRESS VERGARA'S INTERVIEW.
Vergara contends his trial counsel was ineffective in violation of Vergara's constitutional rights because counsel failed to move to suppress the admission of Vergara's interview with Martinez. To prevail on a claim of ineffective assistance of counsel, Vergara must prove both (1) his attorney's representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney's deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.) Prejudice means a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, at p. 694.) A reasonable probability means a "probability sufficient to undermine confidence in the outcome." (Ibid.)
"Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.] If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 746.) We reverse on direct appeal for ineffective assistance of counsel only when "the record on appeal demonstrates there could be no rational tactical purpose for counsel's omissions." (People v. Lucas (1995) 12 Cal.4th 415, 442.)
In this case, Vergara's trial counsel reasonably could conclude a motion to suppress Vergara's interview with Martinez was unwarranted. The record shows that after Martinez advised Vergara of his Miranda rights and asked Vergara if he understood each one of those rights, Vergara responded by saying, "[y]es." Nothing in the record suggests Vergara did not understand his rights or the consequences of his decision to talk to Martinez; Vergara does not argue otherwise on appeal. Whether Vergara's response constituted an express or implied waiver of his Miranda rights, his trial counsel reasonably could have determined a motion to suppress Vergara's interview would be futile. (People v. Price (1991) 1 Cal.4th 324, 387 [counsel does not render ineffective assistance by failing to make motions that counsel reasonably determines are without merit]; see People v. McPeters (1992) 2 Cal.4th 1148, 1173 [trial counsel is "not required to advance unmeritorious arguments on the defendant's behalf"].) Vergara's trial counsel did not render ineffective assistance in deciding to forego a motion to suppress Vergara's interview.
The California Supreme Court has explained that "decisions of the United States Supreme Court and of this court have held that such an express waiver is not required where a defendant's actions make clear that a waiver is intended." (People v. Whitson (1998) 17 Cal.4th 229, 250.) Courts look to the totality of the circumstances surrounding the interrogation to determine if the suspect validly waived his or her rights. (Id. at pp. 246-247.) In People v. Whitson, the Supreme Court found the defendant impliedly waived his Miranda rights despite possessing relatively low intelligence and receiving an explanation of his rights shortly after suffering severe injuries in a traffic collision as there was no evidence that the defendant lacked sufficient intelligence to understand his rights and the consequences of his waiver. (Id. at pp. 249-250.)
II.
VERGARA'S SENTENCE OF 120 YEARS TO LIFE DOES NOT CONSTITUTE
CRUEL AND/OR UNUSUAL PUNISHMENT UNDER THE FEDERAL
CONSTITUTION OR STATE CONSTITUTION.
A.
Introduction and Standard of Review
Vergara was sentenced to 120 years to life in prison, which, he asserts in his opening brief, "is the equivalent of life without possibility of parole (LWOP)." He argues, "[d]espite the severity of [Vergara]'s crimes . . . , the sentence he received violates the Eighth and Fourteenth Amendments as well as article I, section 17 of the California Constitution." The determination as to "'[w]hether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment.'" (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
B.
United States Constitution
The Eighth Amendment to the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." For noncapital cases, the Eighth Amendment contains a proportionality principle, but it is "'narrow.'" (Ewing v. California (2003) 538 U.S. 11, 20.) The appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is gross disproportionality. That is, "[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime. [Citations.]" (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.), citing Solem v. Helm (1983) 463 U.S. 277, 288.) Successful grossly disproportionate challenges are "'exceedingly rare'" and appear only in an "'extreme'" case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
The companion cases of Ewing v. California and Lockyer v. Andrade demonstrate the very narrowness of the Eighth Amendment's disproportionality principle. Gary Ewing was sentenced to a term of 25 years to life under the California "Three Strikes" law for stealing three golf clubs priced at $399 each, as petty theft with a prior conviction for theft. (Ewing v. California, supra, 538 U.S. at pp. 18, 20.) The United States Supreme Court applied the principles of gross disproportionality and deference to legislative policy choices to conclude that Ewing's sentence of 25 years to life "is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on cruel and unusual punishments." (Id. at pp. 30-31.) Leandro Andrade was sentenced under California's Three Strikes law to two consecutive terms of 25 years to life on two counts of petty theft with prior theft-related convictions. (Lockyer v. Andrade, supra, 538 U.S. at p. 68.) On habeas corpus review, the United States Supreme Court rejected Andrade's claim that his sentence violated the prohibition against cruel and unusual punishment, holding "it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison." (Id. at p. 77.)
In support of his argument that his sentence violates the Eighth Amendment to the United States Constitution, Vergara argues, "Eighth Amendment analysis requires comparison of the sentence imposed with 'sentences imposed on other criminals in the same jurisdiction.' [Citation.] In California, the sentence of life without possibility of parole may be imposed only after a jury unanimously finds one or more of 22 special circumstances to be true, circumstances which aggravate the already heinous offense of murder. [Citation.] As the Supreme Court has held, 'If more serious crimes are subject to the same penalty that is some indication that the punishment at issue may be excessive.' [Citation.] In the present case, [Vergara]'s de facto sentence of LWOP is as serious as the de jure punishment of life without parole that may be lawfully imposed only after a jury has found particular circumstances in aggravation beyond a reasonable doubt."
Alternatively, citing Whitley v. Albers (1986) 475 U.S. 312, Vergara argues his sentence runs afoul of the federal constitutional guarantee of due process because, in a murder case, the trial court would have had to meet the extensive procedural and substantive requirements of section 190.2. In Whitley v. Albers, supra, 475 U.S. at page 327, the United States Supreme Court held: "We think the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, 'conduct that shocks the conscience' or '[affords] brutality the cloak of law,' and so violates the Fourteenth Amendment, [citation], were not also punishment 'inconsistent with contemporary standards of decency' and '"repugnant to the conscience of mankind,"' [citation], in violation of the Eighth. We only recently reserved the general question 'whether something less than intentional conduct, such as recklessness or "gross negligence," is enough to trigger the protections of the Due Process Clause.' [Citation.] Because this case involves prison inmates rather than pretrial detainees or persons enjoying unrestricted liberty we imply nothing as to the proper answer to that question outside the prison security context by holding, as we do, that in these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause." Vergara provides no analysis to support his due process argument, and specifically does not explain how the Whitley v. Albers case might apply to his 120-year-to-life prison sentence. --------
If terms of 25 years to life and 50 years to life are not "'grossly disproportionate'" (Harmelin v. Michigan, supra, 501 U.S. at p. 1001 (conc. opn. of Kennedy, J.)) for petty theft with prior theft convictions, then Vergara's total sentence of 120 years to life is not grossly disproportionate for convictions for multiple sex crimes against his young daughter and niece, which include four counts of committing lewd acts upon a child under 14 years of age, three counts of sexual intercourse with a child 10 years of age or younger, and one count of oral copulation with a child 10 years or younger. His sentence, therefore, does not violate the Eighth Amendment to the United States Constitution.
C.
California Constitution
1.
Relevant Law
Article I, section 17 of the California Constitution prohibits infliction of "[c]ruel or unusual punishment." A sentence violates this prohibition 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.'" (People v. Dillon (1983) 34 Cal.3d 441, 478.) A defendant has a "considerable burden" to show a punishment is cruel or unusual under the California Constitution. (People v. Wingo (1975) 14 Cal.3d 169, 174.) "The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment." (Ibid.) It is therefore only in the "'rarest of cases'" that a court may declare a punishment mandated by the Legislature to be "'unconstitutionally excessive.'" (People v. Meneses (2011) 193 Cal.App.4th 1087, 1093.)
We use a three-part test to determine whether a particular sentence is disproportionate to the offense for which it is imposed. First, we examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society." (In re Lynch (1972) 8 Cal.3d 410, 425 (Lynch).) Second, we compare the punishment imposed with punishments prescribed by California law for more serious offenses. (Id. at pp. 426-427.) Third, we compare the punishment imposed with punishments prescribed by other jurisdictions for the same offense. (Id. at pp. 427-429.)
In applying the three-part test, we consider the "'totality of the circumstances'" surrounding the commission of the offense. (People v. Rhodes, supra, 126 Cal.App.4th at p. 1389.) The importance of each part depends on the facts of the case. (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
2.
Nature of the Offense and the Offender
Vergara does not make any argument in his appellate briefing regarding the first part of the Lynch test, although he acknowledges "the severity" of his crimes. As to the first part of the Lynch test, Vergara's offenses of committing three counts of engaging in sexual intercourse with a child 10 years of age or younger, four counts of committing a lewd act on a child under 14 years of age, and one count of oral copulation with a child 10 years old or younger, constitute heinous acts that the Legislature could, and did, determine to warrant harsh punishments. Children are particularly vulnerable members of society and "[t]here exists a strong public policy to protect children of tender years." (People v. Olsen (1984) 36 Cal.3d 638, 646.)
A statute valid on its face might be unconstitutional as applied. (People v. Wingo, supra, 14 Cal.3d at p. 180.) The first part of the Lynch test incorporates an "as applied" determination by requiring the court to examine the nature of the offender with particular regard to the degree of danger he or she presents to society. (Lynch, supra, 8 Cal.3d at p. 425.) The nature of the offender is viewed "in the concrete rather than the abstract" as "each offender is necessarily an individual." (People v. Dillon, supra, 34 Cal.3d at p. 479.) "This branch of the inquiry therefore focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Ibid.)
Vergara is a mature adult; he does not argue that he suffered any mental, intellectual, or developmental impairments. He violated a position of trust over the course of years by engaging in sexual acts, including sexual intercourse, with his daughter and his niece. It is well established that the Legislature was entitled to take a "zero tolerance" approach toward those who commit sex offenses against children (People v. Alvarado (2001) 87 Cal.App.4th 178, 200-201), and does not have to take any risk that a sex offender will reoffend, no matter how slim that risk might be.
3.
Comparison with Punishments Prescribed for More Serious Offenses
The prison sentence imposed on Vergara for his convictions is not disproportionate in comparison to some crimes that do not result in death but result in substantial or even greater sentences than his. (See People v. Meneses, supra, 193 Cal.App.4th at pp. 1092, 1093-1094 [15 years to life for a defendant convicted of a single lewd act with a 12 year old who became pregnant not cruel and unusual punishment]; People v. Nichols (2009) 176 Cal.App.4th 428, 431, 437 [25 years to life for failure to register as a sex offender within five days of moving not cruel and unusual punishment].)
More important than counting up the number of offenses carrying lesser or greater penalties is that in addressing the second part of the Lynch test, we must remember the Legislature (or, as the case may be, the electorate) has the responsibility for making normative penological decisions. "The judicial inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.]" (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
The Legislature made such a judgment as to penological approaches when, for example, it fixed the sentence for oral copulation of a child 10 years old or younger at 15 years to life in prison, and by fixing the same punishment for sexual penetration of a child 10 years old or younger. (§ 288.7, subd. (b).) Although section 288.7, subdivision (b) is a general intent crime, the conduct it criminalizes (oral copulation and sexual penetration) is overtly and unquestionably sexual. Children are particularly vulnerable victims, and "great deference is ordinarily paid to legislation designed to protect children, who all too frequently are helpless victims of sexual offenses." (In re Wells (1975) 46 Cal.App.3d 592, 599.) Oral copulation with a child 10 years of age or younger, like the offense of engaging in sexual intercourse with a child 10 years of age or younger or committing a lewd act upon a child under 14 years of age, is a heinous crime and the fact it carries a punishment the same as or greater than those imposed for other heinous crimes does not make that punishment grossly disproportionate to the offense.
4.
Conclusion
Vergara does not present an argument based on the third part of the Lynch test. In the respondent's brief, the Attorney General states: "[T]he Legislature has enacted other sentencing schemes, such as the Three Strikes law, that provide for multiple consecutive terms which can result in a de facto LWOP sentence. 'Because it is the Legislature which determines the appropriate penalty for criminal offenses, [a] defendant must overcome a "considerable burden" in convincing [a reviewing court that] his [or her] sentence was disproportionate to his [or her] level of culpability. [Citation.]' [Citation.] Here, [Vergara] does not overcome this burden. In fact, he does not assert that his sentence is disproportionate to the particular crimes he committed based on the offenses and his circumstances, and he does not offer any proportionality analysis of sentences for the same crime in other jurisdictions."
We conclude Vergara's prison sentence, though significant, was not "so disproportionate to the crime[s] for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.