Opinion
B319351
05-11-2023
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER BADIO, Defendant and Appellant.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. LA086982 Martin L. Herscovitz, Judge. Affirmed.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
STRATTON, P. J.
Defendant and appellant Alexander Badio was convicted of multiple crimes after sexually assaulting two women. On his first appeal, we affirmed his convictions but remanded for resentencing. In this appeal, Badio contends his indeterminate sentence of 30 years to life constitutes cruel and unusual punishment in violation of the California Constitution and the Eighth Amendment to the United States Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On two separate occasions in early 2017, Badio approached a vulnerable woman and offered her assistance, then sexually assaulted her. With respect to M.A., Badio was convicted of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)) (count 1); rape of an unconscious person (§ 261, subd. (a)(4)) (count 2); and assault with intent to commit a felony (§ 220, subd. (a)(1)) (count 3). As to D.O., Badio was convicted of sexual penetration by a foreign object (Pen. Code, § 289, subd. (a)(1) (count 5); sexual battery with restraint (§ 243.4, subd. (a)) (count 6); false imprisonment by violence (§ 236) (count 7); rape (§ 261, subd. (a)(2)) (count 8); and dissuading a witness (§ 136.1, subd. (b)(1)) (count 10). Additionally, the jury found true the special allegation that counts 1, 5, and 8 were committed against more than one victim.
Undesignated statutory references are to the Penal Code.
Because the constitutional claim Badio raises requires consideration of the nature and circumstances of his crimes, we adopt the statement of facts from our first appeal in this matter. (People v. Badio (Aug. 26, 2020, B298367) [nonpub. opn.].)
I. Prosecution's Case-in-Chief
A. D.O.
D.O. testified that in February 2017, she was an 18-year-old student staying in Los Angeles without family or close friends nearby. Badio approached her while she was waiting for her bus near the North Hollywood train station. He said he was a personal trainer and promised to give her a membership to his gym so that she could work out with him.
D.O. and Badio scheduled a workout for February 24, 2017. That night, he picked her up at a convenience store. She believed they were going to go to a gym. He drove around for approximately one hour, then parked the car and told her that he would give her a massage before their workout. D.O. did not agree to a massage. Badio pulled out massage oil or lotion and began touching D.O.'s breasts and vagina underneath her clothing. He kissed her, but she did not kiss him back. Badio inserted his fingers into her vagina, causing her pain. D.O. told him to stop several times before he stopped. She tried to get out of the car, but the doors were locked and Badio told her it was not safe outside.
Badio drove for another 30 minutes. More than once D.O. tried to get out of the car when they stopped at a red light, but Badio grabbed her arm and prevented her from leaving. It was late at night when Badio parked the car and angrily told her to get out of the car. D.O. was afraid, but she did not try to run because she was unfamiliar with the area.
Badio took D.O. into a house. She thought they were going to pass through the house and then go to the gym. Badio brought her into a bedroom, took her phone, dragged her onto a bed, and began touching her. He held her down on the bed with one arm and inserted the fingers of his other hand into her vagina. D.O. was crying and telling him no, but he did not stop.
Badio undressed D.O. and himself. He yelled at her and called her obscene names. He touched her all over her body, including her breasts, buttocks, and vagina. He placed his erect penis in D.O.'s vagina and thrust his body against hers while holding her down with his legs and hands. Badio unsuccessfully attempted to insert his penis into her anus, and then he reinserted it in her vagina. D.O. continued to cry and to tell him to stop, but he did not stop.
Badio instructed D.O. to fellate him, pulled her face toward his penis, and pulled her hair. D.O. turned her head away, but he pulled her back. Badio tried twice more to place his penis in her mouth but was unsuccessful. He inserted his fingers into D.O.'s vagina a third time, then placed his penis inside her vagina again. He held her down and painfully pushed his body against hers. Next, Badio removed his penis from D.O.'s vagina and briefly forced her to put her mouth on it. He inserted his penis in D.O.'s vagina a fourth time, and he slapped her, hard, on her back.
Badio forced D.O. to lie on the bed while he touched her. He would not allow her to dress and claimed not to know where her phone and purse were. D.O. told him she wanted to leave, but Badio told her it was too late at night and held her tightly so she could not leave the bed.
At some point, D.O. dressed and tried to leave. Badio blocked the door at first, but she was able to leave when he stepped away from the door to prevent her from finding her purse and phone. Badio followed D.O., called her names, told her not to call the police, and threatened he would find her if she reported him to the police. D.O. feared Badio would harm her.
D.O. eventually reported the incident to the police and underwent a limited sexual assault examination. The forensic nurse examiner who examined her testified that D.O. had redness, bruising, and abrasions in the genital area consistent with repeated nonconsensual digital and penile penetration. D.O. complained of tenderness, and the pelvic examination was so painful for her that the examiner could not insert a speculum to perform an internal examination.
B. M.A.
M.A. testified that as of early 2017 she was a college student without stable housing: she showered at a gym and slept on the Red Line train, at a North Hollywood fast food restaurant, or in the gym. She did her homework at the school library until it closed for the night, at which time she studied at a coffee shop. She had no money, and she carried her possessions in a rolling suitcase.
In February 2017 M.A. met Badio while she was on her way to the coffee shop after the library closed. She accepted his offer of a ride because she was encumbered by her suitcase. Badio also offered to buy M.A. a meal. M.A. thought Badio was "okay at first." He bought her coffee and told her about himself. M.A. thought, "[T]his is okay. This is safe enough." M.A. never told anyone that she was homeless, but she told Badio that she was "in between places" to live.
Badio offered to let M.A. sleep in his car, and he drove them to a park. She awoke around 4:00 a.m. to the feeling of Badio touching her back. M.A. angrily demanded he drive her to the coffee shop. Angered by M.A.'s reaction, Badio called her a profane name. He drove her to the train station.
A few weeks later, Badio saw M.A. on the train and invited her to come home with him; she declined the offer.
On the night of March 12, 2017, M.A. had a lot of homework. She was headed to the coffee shop when Badio approached her and suggested that she come to his house, "no strings attached." The offer appealed to M.A., because, she explained, "I needed to do my homework. I needed a place to sleep. I was hungry, and . . . I didn't have the expectation he was violent. Maybe rude, but not violent." They collected M.A.'s belongings, purchased food, and walked to Badio's home. There, M.A. did her homework on Badio's bed while he cooked.
Later that night, after they ate, M.A. dozed off while doing her homework. She awoke to find her clothing unfastened and Badio over her, trying to push her legs open. M.A. testified that he was "easing into my, you know, pelvis area. My legs were open, and he didn't have . . . really any clothes on. Him trying to, like, push his self on me." Badio tried to put his erect penis into her vagina. M.A. testified, "[H]e pushed my legs open and I could not close them." Her movement was restricted when Badio held her legs open.
M.A. testified that she recalled telling the police on the night of the incident that Badio had digitally penetrated her, but by the time of trial she could not "see it in [her] mind." She had a clear visual memory of Badio pushing her legs open and trying to enter her vagina, and she remembered that Badio "tried to touch [her] vagina with his hand." M.A. could not remember if Badio put his hand on her vagina before or after he attempted to insert his penis, and she struggled to remember exactly what he did with his hand: "I-I somewhat remember him trying to-grazing at my-his hand against my thigh and my vagina and-but I don't completely remember. I have to be honest. Maybe because I'm nervous, but I really don't-."
M.A. demanded that Badio stop, and he complied after approximately two minutes. Badio told M.A. in an aggressive tone to stop playing; he dressed and left the room. M.A. resumed her homework.
Later, Badio and his roommate came into the bedroom to go to sleep. M.A. kept her clothes on and positioned her body so that her head was near Badio's feet to discourage him from any further sexual advances. Badio became angry and instructed her to lie in the other direction. M.A. felt uncomfortable but did not leave because she did not want to be outside in the middle of the night. She told Badio repeatedly that she did not want to have sex with him. Each time, he responded that she should stop playing.
M.A. fell asleep. When she awoke, her dress was pulled up and Badio's penis was inside her vagina. M.A. pulled away, dislodging his penis. Badio became aggressive, called her a "bitch," told her a number of times to "stop playing," and pulled her hair. He balled up his fist and moved toward her as though he was going to hit her. Badio's roommate intervened and told Badio not to force M.A. to have sex.
Badio tossed his two cell phones on his bed, then carried M.A.'s suitcase outside and left it at the side of the road. M.A. took Badio's phones so she could call the police and to prevent Badio from calling someone to help him or hurt her. She left the home and retrieved her suitcase.
After he noticed his phones were missing, Badio chased M.A. down the street. She tossed the phone she believed to be more functional over a fence and returned the other phone to him. M.A. asked people on the street to call the police. Badio told them not to call the police and accused her of taking his phone.
M.A. reported the incident to the police and underwent a sexual assault examination. The sexual assault nurse who examined M.A., Sandra Wilkinson, testified at trial that during the examination, M.A. said she had met a man on the street who offered her a meal and a place to do homework. M.A. reported to Wilkinson that the man touched her vagina, penetrated her vagina with his hand, and placed his penis inside her vagina. M.A. had no physical injuries and reported no pain. On crossexamination, Wilkinson testified she had made a notation in her report that M.A. said the second time she was digitally penetrated, she said, "No, stop," and then "Okay. Whatever." Wilkinson did not interpret this remark as consent but as wanting "it over with."
Spouses Evelin and Ernesto Palomar testified at trial. In the early morning on March 13, 2017, Evelin was sitting in her minivan, waiting for her husband, when she saw Badio chase a screaming M.A. down the street and put his hands on her shoulders. Evelin called 911 when M.A. approached and said she needed help. M.A. backed away from the car and onto the sidewalk, looking frightened, when Badio approached. Evelin could see Badio was agitated; as he came closer, he was peering into the windows of parked cars and trying to open the doors. Evelin became concerned for her own safety, afraid Badio might try to open her minivan's door.
As the Palomars share a surname, we refer to them by their first names for clarity.
Ernesto testified he returned to the minivan from parking another of his vehicles while M.A. was asking Evelin to call the police. M.A. was wearing a coat and shoes; Badio was clad in shorts and wearing no shoes or socks. It seemed to Ernesto that Badio and M.A. had been in a confrontation. Badio was enraged and Ernesto did not feel safe.
M.A. told Ernesto Badio had "molested" her. Badio accused her of stealing his phone and insisted that Ernesto not call the police; Ernesto called the police anyway. Badio left. He returned wearing pants and shoes.
Los Angeles Police Department (LAPD) officer Neil Reyes testified he and his partner were the first officers to arrive at the scene. Reyes spoke with Badio's roommate, Jason Wrighten. Wrighten told Reyes that earlier that night, while he was sitting outside the bedroom he shared with Badio, he heard M.A. repeatedly saying "no" for an hour and a half. When Wrighten later entered the bedroom, he saw Badio rubbing M.A.'s vaginal area with his hand and heard M.A. say to Badio, "Stop. I'm not fucking you."
According to Reyes, Wrighten reported Badio accused M.A. of being a "tease" and told her, "I'm going to take that pussy, bitch." Badio turned off the bedroom lights, and Wrighten heard M.A. again tell Badio to stop. "I was already inside you," Badio said to M.A. M.A. replied, "Yeah, but I don't want you inside me, so stop."
Sergeant Maricela Vargas testified she interviewed Wrighten a few days after the incident. Wrighten told her he and Badio had only been roommates for about a week when he brought M.A. home. Badio asked Wrighten to leave him alone with M.A. While Wrighten waited outside the bedroom, he sent text messages to a friend in which he described the sounds he heard coming from inside. At 10:59 p.m., Wrighten texted, "She's saying nothing but 'stop.'" In a 11:13 p.m. text, he wrote that he could hear Badio and M.A. arguing. At 11:18 p.m., Wrighten sent a message saying, "Bitch is damn near yelling 'Stop. Don't touch me.'" After midnight, at 12:25 a.m., Wrighten sent a text message that Badio was "getting crazy back there. He continues to touch on the girl."
Wrighten told Vargas that M.A. was not the first woman Badio had brought home during the short time they had roomed together. Earlier in the week, a woman who looked young, homeless, and hungry came to the house. Wrighten heard the woman say to Badio, "You promised me food," and Badio said, "It'll come in time." It appeared to Wrighten that the woman realized she was not going be fed until she had sex with Badio. The two had sex and then Badio gave her food.
Wrighten testified at trial unwillingly. He denied being concerned about his safety but admitted "people on the street" had discussed the case and the charges with him. Wrighten no longer recalled much of what he had told Vargas. He testified on the night of the incident he heard "a man trying to do his thing, which is-it wasn't anything out of character," and a woman saying "no" a number of times. Wrighten said the woman was not screaming and did not sound terrified. He said he had been "clowning" when he sent the text messages describing what he had heard, and he exaggerated when he spoke with the police. Wrighten testified M.A. had told him Badio put his penis inside her and she had not wanted him to, but Wrighten thought M.A. was just angry Badio placed her suitcase outside. Wrighten had used crystal methamphetamine in the days before the incident.
II. Defense Evidence
Badio testified in his own defense. He acknowledged he knew D.O., M.A., and the unnamed woman mentioned by Wrighten; all three had come to his room in a sober living house. Badio testified he was not a violent person, and although he did get angry from time to time, he did not strike out physically. He respected and appreciated women.
According to Badio, D.O. approached him at the bus stop; when he said he was a personal trainer, she asked him to train her. Training D.O. was "a favor." Their relationship, he testified, "really wasn't a professional relationship because she wasn't really paying me." D.O. sent him a photograph of herself. Badio thought this was flirtatious and told D.O. so; but "[a]t another point, I realized that because she had . . . said she wanted . . . a tune up [through personal training], I realized she was sending me a picture to show me how she looked, so I could see how she looked."
After D.O. twice failed to meet him for scheduled sessions, Badio told her he would not be able to train her. Several days later, D.O. telephoned him late at night. She was frantic, screamed that she was having problems with her mother, and begged Badio to pick her up. He took a taxi to the place D.O. wanted him to meet her, but she never appeared.
Two days later an agitated and screaming D.O. called Badio and again asked him to pick her up. He initially refused but relented when she begged. When Badio met up with D.O., she suggested they go to Badio's house. Despite the rules against female overnight guests, Badio took D.O. home because she had no friends to help her. It was a five- or 10-minute drive, and he did not stop anywhere on the way. They had a flirtatious conversation in the car; both were laughing. The windows of the car were rolled down, and the doors were not locked.
D.O. accompanied Badio inside voluntarily and exhibited no fear or apprehension. D.O. wanted water but would not drink tap water, so he decided to go the store to buy mineral water for her. D.O. told Badio to purchase condoms as well.
When Badio returned, he found D.O. had taken a shower and was sitting on his bed wearing only her underpants. To Badio, "[s]he looked like she was ready to have sex." They kissed and "romantically touched each other['s] private parts." D.O. told him she was going to remove her underwear and he should put on a condom.
Badio testified their sexual encounter lasted 45 minutes to an hour; his penis was inside her vagina for approximately 30 minutes. At first, they were side by side; he later moved on top of her. He never pinned her down, held her down, or restrained her movement. He did not have sex with her against her will. Badio denied attempting to have anal sex with D.O., digitally penetrating her, or placing his penis in her mouth. According to Badio, D.O. enjoyed their sexual activity; she never said no, resisted, or acted upset.
D.O. spent the night with Badio and left with him in the morning. He dropped her off at the train station and never saw her again.
M.A. also approached Badio at the train station and flirted with him. She accepted his offer of a ride, and they stopped for coffee. He asked if she was homeless and she said she was between homes. He refused M.A.'s request to go to his house to do her homework but told her she could do her homework in his car. Badio drove them to a park, and M.A. did her homework while he dozed in his seat. They never touched each other or spoke in a romantic manner.
The next time Badio saw M.A., she greeted him at the bus stop and asked for money for coffee. Badio gave her money and offered that she could do her homework at his house in exchange for a massage and sex. M.A. agreed.
Badio paid Wrighten to leave so he and M.A. could have privacy. Wrighten left the house for an hour or two, perhaps less.
M.A. did her homework in Badio's bedroom while Badio cooked. They ate together in the bedroom, and when they finished, he asked, "So, what's up with the deal?" M.A. wanted Badio to massage her. At first, Badio massaged her back, buttocks, and legs; then she stopped him, rolled over, and directed him to massage her leg. Badio began massaging her leg, and she told him several times to move his hands higher. Eventually at her request he was massaging her near her groin. M.A. placed Badio's left hand on her vagina, and he massaged, caressed, and digitally penetrated her. M.A. did not say no. At no time did he place his finger in M.A.'s vagina without her consent.
Badio had an erection and was about to remove his shorts when M.A. told him not to because she did not want to have sex. Badio reminded her of their agreement, but she refused to have sex with him. Badio was irritated but stopped. According to Badio, "When I stopped, I put my pants on and I put my shorts on and I kept asking her, 'Why [are] you not complying with the deal?'" M.A. did not respond, and he became "really upset" because they "had a deal and she wasn't living up to the deal." Badio repeatedly asked her to leave, but she refused.
After about 45 minutes of telling M.A. to leave, Badio told Wrighten he could enter the bedroom and go to sleep because "the deal wasn't going to go down." Badio said he had asked M.A. to leave, but Wrighten thought he should keep her there so both he and Badio could have sex with her.
M.A. only left the house when Badio took her suitcase outside to the street. Badio soon noticed his phone was missing, and he ran after M.A. to get it back. They argued for 15 to 20 minutes, during which time M.A. gave him the older of his two phones and denied having the other.
At some point, Badio noticed Ernesto watching them and tried to explain to Ernesto what was happening. Ernesto said he was going to call the police, but Badio told him not to call the police until he recovered his phone. Badio did not want the police summoned because he did not want to call attention to himself. Ernesto called the police.
Badio was cold, so while waiting for the police he went back to his house and put on sweat pants and shoes. He waved down the police when they arrived so that he could tell them his phone had been taken. He tried to explain the situation to the police, but he was arrested.
Cari Caruso, a certified sexual assault examiner who had reviewed the reports of the examinations of M.A. and D.O., testified as an expert witness that Wilkinson, the examiner who examined M.A., was incorrect when she testified that the light used during an examination would only fluoresce when shining upon bodily fluids; in fact it detects a wide variety of substances. Caruso also testified that quotations in a report, such as the "Okay, whatever," in Wilkinson's report, reflect statements of the patient and typically relate to the history related by the patient. With respect to D.O.'s sexual assault exam, Caruso testified redness and bruising, such as that found around D.O.'s hymen, can result from sexual acts or non-sexual causes. The report did not note any bruises on D.O.'s wrists or thighs, or any physical signs that she had been restrained by force. Findings consistent with a patient's history, Caruso stated, may also be consistent with something other than the given history.
Badio's younger brother testified Badio was a peaceful, nonviolent person who had no problems in his relationships with women.
III. Resentencing
At resentencing, under the One Strike law, the court imposed indeterminate sentences of 15 years to life on counts 1, 5, and 8. The court ordered the two sentences for sexual penetration by a foreign object (counts 1 and 5) to run concurrently and the rape sentence (count 8) to run consecutively. Additionally, the court imposed determinate sentences on counts 2, 3, 6, and 10, but ordered them to run concurrently with the indeterminate term. The court imposed but stayed a two-year sentence on count 7 under section 654. Badio's total sentence was 30 years to life in state prison.
Badio appeals.
DISCUSSION
Badio's sole argument on appeal is that his indeterminate 15-years-to-life sentences imposed under the One Strike Law constitute cruel and unusual punishment. Badio forfeited this claim by failing to raise it in the trial court. An analysis of whether a sentence constitutes cruel and unusual punishment "requires a 'fact specific' inquiry [citation], and those facts and their import to the analysis must be developed in the trial court. (People v. Russell (2010) 187 Cal.App.4th 981, 993 [the claim involves the type of issue that should be raised in [the] trial court because [the] trial judge, after hearing evidence, is in a better position to evaluate mitigating circumstances and determine their impact on constitutionality of sentence].)" (People v. Brewer (2021) 65 Cal.App.5th 199, 212.) The failure to do so forfeits the claim. (Ibid.)
To avoid a subsequent ineffective assistance of counsel claim, we exercise our discretion (see In re Sheena K. (2007) 40 Cal.4th 875, 887) and review this otherwise forfeited claim. We conclude it fails on the merits. Under Article I, section 17 of the California Constitution, courts have typically looked to the following factors: (1) the degree of danger the offender and the offense pose to society; (2) how the punishment compares with punishments for more serious crimes in the same jurisdiction; and (3) how the punishment compares with punishments for the same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch); People v. Dillon (1983) 34 Cal.3d 441, 479482.) The Eighth Amendment to the United States Constitution also contains a" 'narrow proportionality principle,'" (Ewing v. California (2003) 538 U.S. 11, 20) but application of that principle is reserved for" 'extreme sentences that [were] "grossly disproportionate" to the crime.'" (Id. at p. 23.)
Badio argues only the first two prongs of the Lynch analysis. First, he lists crimes punished by sentences of 15 years to life and offenses that carry life sentences without a 15-year minimum parole eligibility. He asserts his punishment "is plainly excessive as measured against the markedly lesser penalties for the extremely serious sex offenses against children," specifically the sentence for the rape of a child under 14 (§ 264.1, subd. (b)(1)). But Badio's sentence of 30 years to life was based upon his commission of not one offense but upon multiple sex crimes against multiple victims. "The penalties for single offenses . . . cannot properly be compared to those for multiple offenses ...." (People v. Crooks (1997) 55 Cal.App.4th 797, 807.) Moreover, "persons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)[(4)] 'are among the most dangerous' from a legislative standpoint. [Citation.] The One Strike scheme therefore contemplates a separate life term for each victim attacked on each separate occasion." (People v. Wutzke (2002) 28 Cal.4th 923, 930-931.) "[A]ppellate courts have held that lengthy sentences for multiple sex crimes do not constitute cruel or unusual punishment." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531.) Badio has not shown his punishment is excessive when compared with punishments for more serious crimes in California.
Next, Badio argues his sentence is grossly disproportionate based on the nature of his offenses and the danger he poses to society. Badio points out his offenses did not involve children, and he "did not use a weapon, threats, or any force beyond holding onto [D.O.] during commission of the acts." He asserts there was no evidence D.O. suffered physical injury beyond what could occur from consensual sex, M.A. denied pain and had no injuries, and there was no evidence that either victim sought or required psychological counseling. According to Badio, he merely "met and befriended the women, took them home with him, and had sexual relations with them."
We are not remotely persuaded. The offenses may not have involved children, but they involved college students, one of whom was only 18 years old. Both women were vulnerable: D.O. lacked family and close friends nearby, and M.A. was homeless. It is simply not true that Badio used no force beyond holding onto D.O. while he sexually assaulted her. Badio held D.O. inside his locked car for more than an hour and a half, during which time he caused her pain by inserting his fingers in her vagina. He grabbed her when she tried to escape. Badio took D.O. into his house, dragged her to a bed, held her down, digitally penetrated her again, and refused to stop when she cried and told him no. He removed D.O.'s clothes, yelled at her and called her obscene names, touched her all over her body, inserted his penis into her vagina multiple times, digitally penetrated her again, forced her to place her mouth on his penis, and slapped her. He would not allow her to dress, held her tightly to prevent her from getting out of bed, and, when she finally dressed and attempted to leave, he blocked the door, attempted to prevent her from finding her purse and phone, followed her, and threatened her if she called the police. As for D.O.'s physical injury, she had redness, bruising, and abrasions in her genital area that were consistent with nonconsensual penetration, and she was in so much discomfort that an internal examination could not be performed.
Badio knew M.A. was homeless, and he invited M.A. to his home, "no strings attached." M.A. agreed because she was hungry and needed a place to do her homework and sleep. M.A. awoke from falling asleep to find Badio had unfastened her clothes and opened her legs, and he was attempting to put his penis in her vagina. Badio held open her legs and digitally penetrated her. Although M.A. repeatedly told Badio she did not want to have sex with him, he placed his penis inside her vagina when she later fell asleep. When M.A. pulled away, he became aggressive, pulled her hair, called her a profane name, and balled up his fist as if to hit her. Badio's roommate heard M.A. tell Badio "no" for an hour and a half. She told him she would not have sex with him, and he told her he would "take that pussy." The roommate texted a friend that Badio was "getting crazy."
Badio's calculated, predatory, violent conduct goes far beyond his description of innocuously befriending women and having sex with them. Under the circumstances, his sentence is neither shocking nor inhumane when the nature of the offenses and offender are considered. Badio has not demonstrated his sentence was cruel and unusual under either the California or United States Constitution.
DISPOSITION
The judgment is affirmed.
WE CONCUR: GRIMES, J., WILEY, J.