Opinion
G052391
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. GERMAN ZAPATA, Defendant and Appellant.
Edward J. Haggerty, 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, Barry Carlton and James H. Flaherty III, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12WF1243) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Edward J. Haggerty, 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, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant German Zapata of two counts of sodomy of a child 10 years old or younger (Pen. Code, § 288.7, subd. (a); all further statutory references are to the Penal Code; counts 1, 2), sexual penetration of a child (§§ 288.7, subd. (b), 289; count 3), and two counts of lewd acts on a child (§ 288, subd. (a); counts 4, 5). The jury found true an allegation defendant committed counts 4 and 5 against multiple victims within the meaning of the "One Strike" law (§ 667.61, subds. (b)(8), (e)).
The court imposed an indeterminate term of 25 years to life on count 1, a concurrent 25 years to life on count 2, a consecutive 15 years to life on count 3, and concurrent terms of 15 years to life on counts 4 and 5. The court also ordered defendant to pay a $300 restitution fine (§ 12024), and a $300 parole restitution fine (§ 1202.45).
Defendant challenges the court's denial of his motion to suppress post-Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) statements, the court's charge to the jury, the conduct of the prosecutor, the constitutionality of his sentence, the imposition of $300 fines, and his attorney's performance. We reject these challenges to the judgment and affirm.
FACTS
Crime
a. Background
In 2012, Rick S. (father) shared an apartment with his then nine-year-old daughter, A.S. and his severely autistic and blind son, Am. S. The family received respite care through a local regional care center, and defendant was one of the agency's caregivers. As Am. S.'s caretaker, defendant visited the family apartment every Saturday and Sunday for about nine months.
b. Police Intervention
On the night of May 20, Huntington Beach Police Officer James Lopez was dispatched to the family apartment after a report of a possible sexual assault. Lopez first questioned A.S. on the steps outside of her apartment and audio-recorded her answers. Lopez first asked A.S. if defendant had ever tried to touch her. A.S. replied, "Yeah[,]" and "that happened a lot." She said defendant had started "doing it" a "long time" ago. Lopez asked A.S. if defendant touched her private parts, and A.S. said, "Yeah." She also told Lopez defendant had warned her not to tell anyone.
A.S. explained to Lopez that she and Am. S. had been left in defendant's care while her father went somewhere to observe the solar eclipse. D.B., A.S.'s 10-year-old neighbor and friend, came to the apartment for a visit. Defendant acted overly friendly with D.B., and he suggested all three of them play spin the bottle. A.S. said D.B. "freaked out," ran home, and told her family what defendant had done.
A.S. also told Lopez defendant put his finger inside her "butt," and he put his hands under her clothing. However, when Lopez asked A.S. if defendant had done more than just touch her, she said, "No."
After talking to A.S., Lopez and defendant sat down at the dining room table. Lopez turned on an audio recorder and told defendant that he was going to be arrested. Lopez asked defendant some questions before advising him of his Miranda rights (Miranda v. Arizona, supra, 384 U.S. 436), and he continued to question defendant after the advisement. At one point, Lopez emphasized to defendant that he could "decide at any time to exercise these rights and not answer any of my questions or make any statements."
Defendant indicated he understood his rights. He then admitted touching A.S., but he said, "it's only a few time[s]." Lopez asked about the most recent incident, "when you put your finger in her anus did you take her clothes off or did you go under her skirt?" Defendant responded, "Uh . . . just kind of pulled the . . . ." Lopez interrupted, "pulled the skirt down?" Defendant said, "Yeah." However, defendant denied putting his finger in A.S.'s anus on any other occasion. Defendant also told Lopez he felt bad because his first baby was on the way, and he "did something so stupid now, nothing going to help me . . . ."
A.S. was taken to a hospital for a physical exam. There was a scratch and bruise on A.S.'s buttocks, but no visible injuries to her vagina or anus. There was foreign DNA on A.S.'s vulva. The sample matched defendant's haplotype, which also matches the haplotype of one in 877 Caucasians and one in 649 African-Americans.
A haplotype was roughly defined as a collection of DNA markers passed "from generation to generation."
c. Child Abuse Services Team
i. A.S.
Two days later, a social worker and member of the Child Abuse Services Team (CAST) interviewed A.S. at the CAST offices. A.S. told the CAST social worker defendant provided weekly care for her brother, and he periodically babysat both children when father left the apartment.
On May 20, defendant told A.S. to invite her friend over so they could play spin the bottle and look at the solar eclipse. A.S. called D.B. A.S. explained that D.B. "freaked out" when defendant asked them to play spin the bottle.
When asked about the first time defendant touched her, A.S. recounted an incident that happened about ten days after her ninth birthday. She and her brother were home alone with defendant. At some point, defendant walked out of her brother's bedroom, sat down on the couch, and unzipped his pants. He pulled up A.S.'s dress, pulled down her panties, and "kinda put his pee-pee in [her] butt."
Defendant told A.S. he "like[d] it." He asked A.S. if she liked it, too. A.S. said, "I don't like to do this. Please, please stop." Defendant stopped, and A.S. went to bed because she felt sad. She also experienced very painful elimination for some time.
When the CAST social worker asked A.S. if there were, "any other times where [defendant] put his pee-pee in your butt," A.S. replied, "Um it was probably every time." She said defendant "kind of put his pee-pee in my butt lots of times." A.S. also said defendant put his pee-pee in her pee-pee one time, and he kissed her on the cheek and the pee-pee. Defendant had put his hands on her buttocks to "open it." Defendant did not touch A.S.'s breasts, or take pictures of her, but he did warn her to keep quiet about what he had done.
ii. D.B.
D.B. told a social worker A.S. invited her over for a visit and to watch the solar eclipse. They were in A.S.'s room when defendant came in and suggested they play spin the bottle. When the bottle pointed at A.S., defendant asked D.B. if she wanted him to dare A.S. to do "'like, grown up stuff and kissing and stuff.'" D.B. was shocked, and she wondered how she was "'gonna get out of here?' Like he's a bad person." D.B. also said defendant offered her $100 to take off her clothes, and he admonished her to not "'tell anybody what we're doing here. You can't tell them that we're playing spin the bottle.' He said, 'It's only between us three.'"
When D.B. suggested she and A.S. go outside to jump rope, defendant hugged her and said, "'I love making new friends.'" D.B. said defendant stared at her the whole time they jumped rope. When it was time to watch the eclipse, D.B. ran home and told her family about defendant's conduct.
d. Trial Testimony
At trial, A.S. testified defendant frequently put his penis into her buttocks. She said this happened whenever her father was away from the apartment. Defendant would usually put A.S. on his lap, take off her underwear, unzip his pants, pull out his penis, and put it in A.S.'s anus. Afterward, defendant's penis emitted a white liquid. This caused A.S. to experience pain in her rectum, but defendant told her not to tell anyone what he was doing or he would do something worse.
A.S. also testified defendant once put his penis into her vagina, and he digitally penetrated her anus when she was eight or nine years old. On another occasion, defendant forcibly pulled her out of her room and into the living room so that he could penetrate her anus with his penis.
D.B. testified she did not meet defendant until May 20. On that day, she and A.S. went into A.S.'s room to play. Within minutes, defendant joined them and asked if the girls wanted to play spin the bottle. When D.B. asked how to play the game, defendant told her it involved "grown up stuff," like kissing. He also offered D.B. money to take off her clothes.
D.B. became alarmed and suggested she and A.S. go outside to play jump rope. Before they went outside, defendant hugged D.B. and told her that he liked to make new friends. As soon as possible, D.B. ran home and told her brother, Julian, what had happened.
Julian testified D.B. was very frightened when she got home from A.S.'s apartment. In fact, she had trouble opening the apartment door. Based on D.B.'s report, Julian immediately called his mother.
D.B.'s mother and Julian's godmother, went to A.S.'s apartment and pounded on the door for several minutes. They screamed for defendant to come out. As one of them looked through the window, she saw A.S. walk into the hallway from a bedroom. She was pulling up her underwear. Someone tried to open the front door, but it was roughly pushed closed. Nevertheless, A.S. eventually made it out of the apartment. Defendant, on the other hand, locked himself inside.
Father testified defendant did "a fairly good job" with Am. S. as a caregiver, and he left A.S. and Am. S. in defendant's care around six or seven times. Although father never suspected defendant of engaging in inappropriate behavior with his children, he did recall that A.S. started to wet the bed and complain that it hurt when she "pooped" during the previous February. 2. Defense
Defendant called two character witnesses. Both had received respite care from defendant, and neither had noticed anything inappropriate in defendant's behavior with children.
DISCUSSION
1. Miranda Violation
a. Background
Lopez obtained two recorded statements from defendant at the scene, only one of which followed Miranda warnings.
Defendant filed a pretrial motion to suppress both statements. At the suppression hearing, Lopez testified there were a number of officers in and out of the apartment on May 20, in addition to several witnesses and family members. Lopez took both of defendant's statements while they were seated at the dining room table. Lopez did not handcuff, or otherwise restrain defendant.
According to the transcript and recording of the first interview, Lopez began with the advisement, "[w]e're going to be taking you in custody . . . ." Defendant asked why. Lopez said, "She told her mom that you touched her." Defendant replied, "Okay."
Lopez continued, "I need you to tell me the truth, okay. She's telling me that you had touched her in the past, and, and you touched her today, okay?" Defendant admitted patting A.S. on the butt, but he said he was "[j]ust playing." Lopez asked defendant if he ever kissed A.S., or "ever touched her in her private parts." Defendant said, "No, maybe by mistake but no not that I know of."
Lopez repeated his warning that defendant would be placed under arrest. Defendant asked to make a phone call to his wife, but Lopez said he would be able to "do that all from jail." Lopez said there would be DNA testing, and he suggested it "might be a good idea" for defendant to tell him everything. Defendant told Lopez he "went through that," so he was just telling A.S., "[d]on't let anybody touch you here, don't let anybody touch you there, that's it." Defendant said he now realized he had made "a big mistake."
Lopez continued, "She's telling me that you . . . you put a finger in her anus area, in her butt." Defendant admitted, "Yeah just once." Defendant said he did not know why he digitally penetrated A.S., but that day had been the first time. Defendant admitted he knew what he had done was wrong. Lopez terminated questioning after less than five minutes.
In the second interview, which followed closely after the first, Lopez again told defendant he would be arrested. Lopez read defendant his Miranda rights, and defendant indicated he understood his rights. Lopez asked, "[D]o you wish to talk to me right now?" Defendant replied, "Yeah we already did I guess."
Lopez asked "when you put your finger in her anus did you take her clothes off or did you go under her skirt?" Defendant responded, "Uh . . . just kind of pulled the . . . ." Lopez interrupted, "pulled the skirt down?" Defendant said, "Yeah."
Defendant denied doing "this" to anyone else. When Lopez asked defendant how he felt, defendant replied that he felt bad because he had his first baby on the way, and he "did something so stupid now, nothing going to help me . . . ."
Lopez testified he had not been trained on how "to violate somebody's Miranda rights to get a statement, and then Mirandize them and get a later statement[.]" When the prosecutor asked Lopez why he failed to Mirandize defendant before the first interview, Lopez testified, "It has never been my practice to tell somebody that they are under arrest and not read them their Miranda rights. That was a mistake by me. Again, it's never been my practice to do so." By way of explanation, Lopez said, "there was a lot of commotion going and I think I got caught up in everything that was going on."
The court credited Lopez's mea culpa and concluded he had not intentionally circumvented Miranda. The court also concluded both defendant's pre- Miranda and post-Miranda statements were voluntarily made. The court excluded evidence of the pre-Miranda interview. However, relying on Lopez's testimony and defendant's voluntary Miranda waiver, the court admitted his post-Miranda statements.
b. Applicable Law and Analysis
"'In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda . . . the scope of our review is well established. "We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained."' [Citation.] '"Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.'"' [Citation.]" (People v. Camino (2010) 188 Cal.App.4th 1359, 1370-1371 (Camino).)
Defendant argues the court should have excluded evidence of both his pre-Miranda and post-Miranda statements. He relies on Missouri v. Seibert (2004) 542 U.S. 600 (Seibert) and its progeny, including Camino. But Seibert is inapt. There, the United States Supreme Court considered the constitutionality of a deliberate two-step police protocol that utilized successive interrogations to produce unwarned confessions, which were then reaffirmed after Miranda warnings. (Seibert, supra, 542 U.S. at pp. 604-605.)
A divided Supreme Court decided the defendant's statements were inadmissible at trial. (Seibert, supra, 542 U.S. at pp. 617 (plur. opn. of Souter, J.), 622 (cone. opn. of Kennedy, J.).) However, Justice Kennedy's concurrence limited the holding to cases where the interrogator acts in a calculated way to undermine Miranda warnings. (Seibert, at p. 622 (conc. opn. of Kennedy, J.).) Seibert's plurality holding applies when the interrogating officers deliberately withhold Miranda warnings until after the suspect confesses. (Ibid.)
The concurring opinion of Justice Kennedy is considered to represent the Seibert holding because he "'concurred in the judgment[] on the narrowest grounds' [citation]." (Camino, supra, 188 Cal.App.4th at p. 1370, quoting Marks v. United States (1977) 430 U.S. 188, 193.)
The court found Lopez credible. Lopez attributed his failure to give Miranda warnings prior to the first interview to the distraction of a hectic crime scene. We review this determination in light of the officer's testimony and objective evidence like "the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." (Camino, supra, 188 Cal.App.4th at p. 1370.)
Lopez denied being trained on a two-step Miranda process, and he denied making it a practice to intentionally withhold Miranda warnings to obtain a confession. Lopez questioned defendant at father's dining room table, not in a police facility or jail, and he maintained a low-key persona throughout. Although Lopez advised defendant of his imminent arrest, Lopez did not restrain defendant until after the second interview. Lopez never threatened or promised defendant anything to induce his inculpatory statements, nor did he employ coercive interrogation techniques. In short, Lopez admitted making a mistake, and the court believed him.
Defendant asserts Lopez's testimony as "improbable." However, Lopez's argument assumes a wholesale rejection of the court's credibility determination, and "the trial court's determination of deliberateness is a factual finding entitled to deference." (Camino, supra, 188 Cal.App.4th at pp. 1372, 1376, fn. omitted.) The record here supports rather than undermines the court's finding Lopez did not deliberately employ a two-step process.
Furthermore, when there has been no deliberate contravention of Miranda, the defendant's post-warning inculpatory statements can be admitted if the record demonstrates they were voluntarily made. (Oregon v. Elstad (1985) 470 U.S. 298, 318 (Elstad).)
In Elstad, the court explained "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion" concerning the second, post-warning confession. (Elstad, supra, 470 U.S. at p. 314.) A "suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." (Id. at p. 318.) In such circumstances, "the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an 'act of free will.' [Citation.]" (Id. at p. 311.)
Here, the court concluded defendant's statements were voluntary, and substantial evidence supports this determination. The setting was informal. Defendant was not restrained. Lopez made no effort to trick defendant. He simply made a mistake. At one point, Lopez mentioned DNA and encouraged defendant to be truthful, but he did nothing more. "Mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or a promise, does not . . . make a subsequent confession involuntary." (People v. Boyde (1988) 46 Cal.3d 212, 238, overruled on other grounds by People v. Johnson (2016) 62 Cal.4th 600, 646.) Defendant's post-Miranda statements were properly introduced at trial. 2. Instructional Error
a. Background
As noted, defendant was charged with two counts of sodomy of a child 10 years old or younger (counts 1, 2), one count of sexual penetration of a child (count 3), and two counts of lewd acts on a minor (counts 4, 5). The court gave instructions on the charged crimes, propensity evidence, simple battery as a lesser included offense of counts 1 and 2, simple assault and battery as lesser included offenses of count 3, and attempted lewd acts with a child as a lesser included offense of counts 4 and 5.
b. Count 3 - CALCRIM No. 1128 and Lesser Included Offenses
First, defendant argues the court's instructions on count 3, sexual penetration of a child, failed to clearly identify the intent required because CALCRIM No. 1128 does not include the words specific intent. We disagree.
We review jury instruction challenges de novo. We consider the instructions as a whole and assume jurors are intelligent persons, capable of understanding and correlating all given jury instructions. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) When the defendant challenges an instruction on grounds it is subject to an erroneous interpretation by the jury, the defendant "must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68.)
We conclude there is no reasonable likelihood the jurors understood CALCRIM No. 1128 in the way defendant suggests. CALCRIM No. 1128 told the jury the sexual penetration must be "for the purpose of sexual arousal or gratification." (Italics added.) Even without the words specific intent, "the trial court actually instructed the jury on the specific intent required . . . ." (People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1168, italics added; see People v. Ngo (2014) 225 Cal.App.4th 126, 161-162.) The instruction is a correct statement of law, and defendant fails to persuade us the jury would have misinterpreted the intent required for a conviction. In addition, the court gave CALCRIM No. 252, which told the jury sexual penetration of a minor is a specific intent crime. Together, these instructions are complete, correct and unambiguous.
On a related point, defendant also asserts the court erred by failing to give attempted sexual penetration and sexual battery instructions as lesser included offenses of sexual penetration of a child. The Attorney General concedes attempted sexual penetration is a lesser included offense of sexual penetration, but disputes whether sexual battery holds the same status. In any event, the Attorney General asserts no evidence supported giving either instruction, and we agree.
A trial court must instruct on all lesser included offenses supported by substantial evidence. (People v. Birks (1998) 19 Cal.4th 108, 118.) Substantial evidence in this sense means "evidence from which a reasonable jury could conclude the defendant committed the lesser, but not the greater, offense." (People v. Schockley (2013) 58 Cal.4th 400, 403-404; People v. Cole (2004) 33 Cal.4th 1158, 1215.)
While defendant argues A.S. gave "ambiguous evidence of actual anal penetration," that is simply not the case. A.S. told Lopez defendant put his finger in her butt. She told the CAST social worker defendant put his pee-pee in her butt many times. And, A.S. testified defendant put his penis "all the way in." Meanwhile, there is absolutely no evidence defendant tried and failed to sexually penetrate A.S., or that he intended to merely batter her. Thus, no substantial evidence supported giving instructions on attempted sexual penetration or battery as lesser included offenses of sexual penetration.
c. Propensity Evidence - CALCRIM No. 1191
The prosecution argued the charged crimes demonstrated defendant's propensity to commit sexual acts with children. The prosecutor requested the court give an instruction based on CALCRIM No. 1191. (People v. Villatoro (2012) 54 Cal.4th 1152, 1167-1168 (Villatoro).) The instruction stated:
"The People presented evidence that the defendant committed the charged offenses. The offenses are defined for you elsewhere in these instructions. The People must prove each of the charged offenses beyond a reasonable doubt.
"If you decide that the defendant committed any one or more of the charged offenses beyond a reasonable doubt, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses and based on that decision, also conclude that the defendant was likely to commit and did commit any of the other charged offenses.
"If you conclude that the defendant committed any one or more of the charged offenses beyond a reasonable doubt, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of any of the other charged offenses. The People must still prove each charge beyond a reasonable doubt." (Italics added.)
Defendant argues the instruction's preamble "[t]he People presented evidence that the defendant committed the charged crimes" impermissibly lowered the prosecution's burden of proof by suggesting the prosecution had already proven the charged crimes.
But, as is readily apparent from the italicized portions of CALCRIM No. 1191, the jury received four reminders of the People's burden to prove the charged offenses beyond a reasonable doubt. These reminders were in addition to CALCRIM No. 220, which defined reasonable doubt and applied that burden of proof to all elements of the charged offenses.
In our view, the challenged instruction presented no risk of confusing the jury about the proper consideration of propensity evidence. As given, the instruction clearly indicated the People's burden to prove the charged crimes beyond a reasonable doubt, and further explained the proper consideration of the charged crimes as propensity evidence once that burden had been met. (Villatoro, supra, 54 Cal.4th at p. 1168.)
d. Counts 4 and 5 - CALCRIM No. 1110
Defendant next challenges the jury instruction for counts 4 and 5, lewd acts on a child. (§ 288, subd. (a).) As given, CALCRIM No. 1110 told the jury the People had the burden to prove, "Number one, the defendant willfully touched any part of the -- of a child's body, either on the bare skin or through clothing. [¶] Two, the defendant committed the act with the intent of arousing, appealing to or gratifying the lust, passions or sexual desires of himself or the child. [¶] And, three, the child was under the age of 14 years at the time of the act. [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. Actually arousing or appealing to or gratifying the lust, passions or sexual desires of the perpetrator or the child is not required." (Italics added.)
Section 288, subdivision (a) provides: "[A]ny person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years."
The italicized language is a bracketed option for CALCRIM No. 1110. Defendant asserts this sentence improperly "emphasizes for the jury certain facts that the prosecution is not required to prove." Thus, in defendant's assessment, the italicized sentence is argumentative, favors the prosecution, duplicates other instructions, and diminishes the prosecution's burden of proof. We disagree.
The focus of the crime of lewd acts on a child is the perpetrator's intent, not the physical act of touching. "[T]he courts have long indicated that section 288 prohibits all forms of sexually motivated contact with an underage child. Indeed, the 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.] '[T]he purpose of the perpetrator in touching the child is the controlling factor and each case is to be examined in the light of the intent with which the act was done. . . . If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . .' [Citation.]" (People v. Martinez (1995) 11 Cal.4th 434, 444.)
The court had a duty to fully instruct the jury on the applicable law. (People v. Daya (1994) 29 Cal.App.4th 697, 712.) The challenged sentence correctly stated the law and clarified the elements of the crime. (People v. McCurdy (1923) 60 Cal.App. 499, 502 ["Whether the acts actually, or in point of fact, have the effect of arousing the passions or sexual desires of the person upon whom they are committed, is immaterial. If the acts are of a lascivious nature and the intent is to arouse the passions or sexual desires of the party upon whom they are committed, then the crime is consummated"]; People v. Corday (1963) 221 Cal.App.2d 589, 593.)
Moreover, clarifying instructions of this nature are not unusual. (See CALCRIM No. 3400 [defendant asserting alibi defense does not need to prove he or she was elsewhere at the time of the crime].) There was no error. 3. Prosecutorial Misconduct
During closing argument, defense counsel focused on A.S.'s credibility and the lack of corroborating physical evidence. He commented on A.S.'s demeanor. He said she "never cried. She never looked to me uncomfortable, like she was afraid to talk about what happened." He also questioned the reason A.S. waited several months to say anything about defendant's abuse. With D.B., defense counsel maintained defendant hugged her to "make her feel more comfortable," not for the purpose of sexual arousal. In fact, counsel asserted the police were trying "to get somebody" when they conducted the investigation, and D.B. just "freaked out."
Defense counsel also said Lopez "got emotional, listening to him talk to A.S. And that's not uncommon. But it explains a lot. He gets there. He gets on the scene. He talks to A.S. And he automatically assumes one thing. What do you think he assumes? She was victimized. Without doing a thing, the first—she was victimized. And it's painful to him. He is probably thinking of his own family, his own kid. No one wants to think about [] that, right. [¶] Do you think that clouds his investigation?" Defense counsel asserted Lopez merely "assume[d]" defendant was guilty.
The prosecutor responded to defense counsel's statements by saying, "You do set your emotions aside in this. Absolutely. But you don't set aside the emotion of the other people. Officer Lopez broke down because he believed her that day. He saw what happened. He saw the interview. And he relived that here in front of you, believing her. This wasn't some targeted investigation against this guy. He admitted it right then and there. What do you think we're going to do, stop then and say okay, all right, Mr. Zapata, go on your merry way? Hope everything works out for everybody else? Of course not. He admitted it."
Although defendant failed to object at trial, he now asserts the above-quoted portion of the prosecutor's rebuttal argument improperly vouched for A.S.'s credibility and referenced evidence outside the record. We are not persuaded.
The prosecutor's comment about Lopez did not impliedly vouch for A.S.'s credibility. To the contrary, the prosecutor sought to rebut defense counsel's assertion Lopez lost objectivity during his investigation. Nor do the comments appear to reference matters outside the record. Lopez merely responded in court to something that happened out of court. In this situation, the prosecutor's comments fall into a permissible type of "'assurance[] regarding the apparent honesty or reliability of' a witness 'based on the "facts of [the] record and the inferences reasonably drawn therefrom."' [Citation.]" (People v. Turner (2004) 34 Cal.4th 406, 432-433.) 4. Cruel and Unusual Punishment
Defendant contends a sentence of 40 years to life violates both state and federal constitutional provisions prohibiting the imposition of cruel and unusual punishment. Again we disagree.
First, section 288.7 subdivisions (a) and (b) applied to counts 1, 2, and 3, and the One Strike Law (§ 667.61, subds. (b), (e)) applied to counts 4 and 5. These statutes mandate indeterminate terms for all counts. Generally, setting 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.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Section 288.7, subdivision (a) states, "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life." Subdivision (b) of section 288.7 provides, "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." --------
Nevertheless, the standard for determining whether a particular sentence violates the Eighth Amendment is gross disproportionality. "The 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 challenges are "'exceedingly rare'" and appear only in an "'extreme'" case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
"[I]n California a punishment may violate article I, section 6, of the Constitution if, although not cruel or unusual in its method, 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.)
Under Lynch we examine (1) 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. (In re Lynch, supra, 8 Cal.3d at p. 424, fn. omitted.) A determination of cruel and unusual punishment may be based solely on the first prong (see People v. Weddle (1991) 1 Cal.App.4th 1190, 1198-1200), but not solely on the second (see People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 530-531).
Defendant argues his case is the extraordinary instance because this was his first offense, and he committed "non-violent" sexual offenses. However, sections 288.7 and 288 are two offenses considered to be "violent felonies" under section 667.5, subdivision (c)(6), and we see no reason for clemency just because defendant once had a clean criminal record. Defendant exploited a position of trust to engage in serial child abuse against multiple victims. So a sentence 40 years to life does not shock the science or offend fundamental notions of human dignity, nor is it grossly disproportionate to the crime or criminal. (See People v. Dillion (1983) 34 Cal.3d 441, 477-478.)
Defendant also argues his sentence is unconstitutional disproportionality by comparing it to the sentence received by someone convicted of first or second degree murder. That is not a persuasive comparison. A "single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 826.) 5. Restitution Fine
In 2011 and 2012, when defendant committed his crimes, restitution fines (§ 1202.4, subd. (b)) and parole revocation fines (§ 1202.45) ranged from $200 to $10,000. (Stats. 2011, ch. 45, § 1.) In 2014, when defendant was sentenced, the minimum fine amounts were increased to $300. (§ 1202.4, subd. (b)(1); Stats. 2014, ch. 358, § 1.) Although the probation department recommended the imposition of $1,000 restitution and parole revocation fines, the court decided to impose $300 fines for both.
Defendant argues the court imposed the new statutory minimum in violation of ex post factor principles. The Attorney General argues defendant failed to object to the court's sentence below, which forfeits defendant's right to complain on appeal. (People v. Gibson (1994) 27 Cal.App.4th 1466, 1469.) Assuming otherwise, the Attorney General asserts the court acted within its sentencing discretion by imposing $300 fines.
We need not address the forfeiture argument. The court did not violate ex post facto principles, nor abuse its discretion. Under the pre-2014 version of sections 1202.4, subdivision (b) and 1202.45, the court had the discretion to impose fines of between $200 and $10,000, and the court imposed $300 fines. There was no error. 6. Ineffective Assistance of Counsel
Defendant argues his attorney's failure to object to instances of prosecutorial misconduct, instructional error, and sentencing error equates to ineffective assistance of counsel. We have considered defendant's arguments. There was no prosecutorial misconduct, instructional error, or sentencing error. Therefore, defendant has not shown any deficient performance.
Moreover, assuming deficient performance, defendant must also establish prejudice as a result of counsel's performance. Under Strickland v. Washington (1984) 466 U.S. 668, the defendant must show a reasonable probability of a more favorable result absent the error. (Id. at p. 694.) The test "must necessarily be based upon reasonable probabilities rather than upon mere possibilities; otherwise the entire purpose of the constitutional provision would be defeated." (People v. Watson (1956) 46 Cal.2d 818, 837.)
Here, A.S. and D.B. testified to sufficient facts to sustain the convictions. Defendant's admissions confirmed their testimony. Defense counsel pointed out the weakness in the prosecution's case by arguing there was no corroborative physical evidence, and that Lopez made a rush to judgment. The jury rejected these arguments, and in our view, there is no reasonable probability of a more favorable result absent defendant's asserted errors. (Watson, supra, 46 Cal.2d at p. 837.)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.