Opinion
G055886
09-11-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD VILLAREAL ARRIOLA, Defendant and Appellant.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NF0558) OPINION Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed. Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
When he was in his early 80's, Richard Villareal Arriola forcibly sexually assaulted a 10-year-old girl left in his care. Then he did it again a year later. She was scared by what Arriola had done and of the potential consequences of her telling anyone, and she felt guilty for letting it happen a second time. So, instead of revealing the abuse, for some time she engaged in self-harm and thought about committing suicide. When Arriola was finally confronted, he did not deny the accusations, but he claimed it was the victim who had initiated the sexual contact.
Arriola was convicted of both sexual assaults by a jury. He was then sentenced to a term of 15 years to life for the first assault, and a concurrent six year term for the second. He now argues that a sentence of 15 years to life is so disproportionate to the nature and gravity of his crimes that it amounts to cruel and unusual punishment. We disagree and affirm the judgment. Arriola laments that his sentence of 15 years to life is a "de facto" life without parole sentence for an 88-year-old man. That may indeed be true. Essentially any prison sentence imposed on an 88-year-old man is a potential life sentence. Ultimately, Arriola's argument focuses on his age at the time he was sentenced. We can do nothing to negate the march of Father Time. We therefore affirm.
FACTS
Arriola became acquainted with his victim, A.U., through her stepmother, Sophia. Arriola was an old friend of Sophia's father, and he was Sophia's godfather. Arriola was good to Sophia during her own tumultuous childhood. Although Sophia lost touch with Arriola for many years, she contacted him after her father died and invited him to stay with her family during the holidays. Arriola was then about 82 years old. A.U. was ten.
While Arriola was staying with the family, he would sometimes babysit A.U. and her brother and sister. One day, A.U. was alone at the house with Arriola watching a Christmas show. Arriola sat next to her and put his hand on her thigh, which made A.U. uncomfortable. When Arriola began to move his hand up her thigh, A.U. got up to get a glass of water and then moved to another seat.
Arriola was not deterred. He again moved next to A.U. and began to pull down her pants; A.U. unsuccessfully attempted to push him away. After Arriola pulled down A.U.'s pants, he put his finger in her vagina and rubbed her vagina with his hand. He also tried to kiss her with his tongue, but she moved her head away. When A.U. heard the garage door open, she pushed Arriola away and went outside to meet her father and Sophia, who were returning with food. She did not tell them what happened because she was scared and did not know how her dad would react.
The following year, when A.U. was eleven, Arriola returned to the house for another visit; he again stayed in the guest room. During this visit, A.U. was in her own room, doing her homework, when Arriola called her into his room because the television was not working.
While A.U. was in the room trying to fix the television, Arriola closed the door, locked it, and began touching her thigh and rubbing his hand up and down her leg. He then pushed her down, pulled down her pants and underwear, and put his hand on her vagina with his finger inside. A.U. told Arriola to stop, to get off her, and to leave her alone; he persisted. It was only after A.U.'s sister knocked on the door—for what A.U. estimated was "the 7th time"—that A.U. told Arriola she needed to help her sister, and she "got up and ran out of the room."
Again, A.U. did not tell anyone what Arriola had done to her because she was afraid—even more so than the first time because she "let it happen . . . again." She thought her dad would get upset if he knew; she was also worried about her stepmother's reaction.
Arriola's sexual abuse of A.U. came to light when A.U.'s mother read a poem A.U. had written on her phone. The words of the poem were, "Everyone hates me. Nobody wants me alive. I was raped, beaten, and cut all the time. And I was neglected in school. Nobody wanted me and I wanted to kill myself every day."
A.U. explained that she wrote the poem after Arriola's attacks as a coping mechanism, and what it expressed was the truth. At that time, A.U. wanted to kill herself. She clarified that she had used the word "raped" to express what Arriola had done to her because she did not know how to spell the word "molest."
When A.U.'s mother reacted to the poem with confusion and concern, A.U. decided to tell her what had happened.
After A.U.'s mother told her father what Arriola had done, A.U.'s father called Arriola to question him about it. Arriola did not deny what had happened. Instead he claimed that A.U. had initiated the sexual contact and "that she wanted him to do that." Sophia also called Arriola and asked him, "what did you do to my daughter? Did you touch my daughter?" In response, Arriola neither admitted nor denied anything; he largely stammered and repeated Sophia's questions.
Arriola was charged with one count of oral copulation or sexual penetration with a child 10 years or younger (Penal Code § 288.7, subd. (b)), and one count of committing a lewd act upon a child under the age of 14 (§ 288, subd. (a).) The jury convicted him on both counts. The court then sentenced Arriola to a term of 15 years to life on the sexual penetration count, and a concurrent term of six years on the lewd act count.
All further statutory references are to the Penal Code unless otherwise indicated.
Arriola was also charged with a second count of violating section 288, subdivision (a), involving A.U.'s sister, but he was acquitted on that count.
DISCUSSION
Arriola, who was 88 years old at the time of sentencing, raises only one contention on appeal. He claims that sentencing an 88-year-old man to a term of 15 years to life is a "de facto LWOP [life without parole] sentence," which amounts to cruel and/or unusual punishment for the offenses he committed. The trial court rejected this argument. We do as well.
1. Governing Law and Standard of Review
The Eighth Amendment to the United States Constitution, which applies to the states (People v. Caballero (2012) 55 Cal.4th 262, 265, fn. 1), prohibits the infliction of "cruel and unusual" punishment. (U.S. Const., 8th Amend., italics added.) Article I, section 17 of the California Constitution prohibits the infliction of "[c]ruel or unusual" punishment. (Italics added.) Although the distinction in wording between the two constitutional provisions is "purposeful and substantive rather than merely semantic" (People v. Carmony (2005) 127 Cal.App.4th 1066, 1085), it has little practical effect on our analysis. Both clauses "prohibit punishment that is 'grossly disproportionate' to the crime or the individual culpability of the defendant." (People v. Mendez (2010) 188 Cal.App.4th 47, 64; People v. Palafox, (2014) 231 Cal.App.4th 68, 82 ["touchstone in each is gross disproportionality"].)
Under California law, "'"[a] tripartite test has been established to determine whether a penalty offends the prohibition against cruel . . . [or] unusual punishment. First, courts examine the nature of the offense and the offender, 'with particular regard to the degree of danger both present to society.' Second, a comparison is made of the challenged penalty with those imposed in the same jurisdiction for more serious crimes. Third, the challenged penalty is compared with those imposed for the same offense in other jurisdictions. [Citations.] In undertaking this three-part analysis, we consider the 'totality of the circumstances' surrounding the commission of the offense. [Citations.]" [Citation.]'" (People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) "The weight afforded to each consideration may vary by case," and "'[d]isproportionality need not be established in all three areas'" to demonstrate that a sentence is cruel or unusual. (People v. Baker (2018) 20 Cal.App.5th 711, 723 (Baker).)
Since a determination of the appropriate sentence for any particular crime falls squarely within the discretion of the Legislature, we generally defer to the Legislature's broad authority in this area. "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." (People v. Wingo (1975) 14 Cal.3d 169, 174.) Consequently, a defendant arguing that his penalty is cruel and unusual must overcome a "considerable burden." (Ibid.) "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.)
Whether the sentence imposed constitutes cruel and/or unusual punishment presents a question of law, which we review independently, "but underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Palafox, supra, 231 Cal.App.4th at p. 82.)
2. Nature and Dangerousness of Offense and Offender
In arguing the 15 years to life punishment imposed on him is cruel and/or unusual, Arriola relies largely on the first factor of the proportionality test, requiring us to examine "'"the nature of the offense and the offender, 'with particular regard to the degree of danger both present to society.'"" (People v. Sullivan, supra, 151 Cal.App.4th at p. 569.) He argues that his offense, the sexual penetration of a child 10 years or younger, does not warrant the sentence imposed by the trial court because it "does not involve violence, threats of violence, or the intentional infliction of serious bodily injury."
In support of that proposition, Arriola cites In re Rodriguez (1975) 14 Cal.3d. 639 (Rodriguez), which points out that while the commission of a lewd and lascivious act under former section 288 was "by no means 'trivial,'" it "involved no violence and caused no physical harm to the victim," and it "lasted only a few minutes." (Rodriguez, supra, at pp. 654-655.) While we might agree with the proposition implied in Rodriguez that there are more serious crimes proscribed in the Penal Code, we disagree with any suggestion that this crime is anything less than horrific, or that it would not be profoundly damaging to its victim.
Rodriguez, in which the Supreme Court ordered the petitioner freed from prison after 22 years, might best be described as the product of its time. The petitioner in Rodriguez was 26 years old when he committed the act of child molestation for which he was sentenced to an indeterminate life term. He had previously been charged with attempted statutory rape at 19, and had been arrested for molesting a child at 21. He had also been diagnosed as a '"sexual psychopath'" and committed to a state mental hospital from which he then escaped in the company of "a 23-year-old 'defective' whom he married shortly thereafter." (Rodriguez, supra, 14 Cal.3d. at p. 644, fn. 6.) Two years later, he committed the child molestation which resulted in his conviction.
In 1975, the Supreme Court seemingly viewed that history as relatively benign, concluding the defendant's "personal history reflected none of the characteristics associated with vicious criminality." (Rodriguez, supra, 14 Cal.3d at p. 644.) The court then concluded Rodriguez represented little danger to others, noting his most recent act of child molestation "was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems," also emphasizing he "has no history of criminal activity apart from problems associated with his sexual maladjustment" (Id. at p. 655.) Based on that assessment, the court ordered Rodriguez released from prison.
As reflected by the enactment of the Sexually Violent Predator Act (Stats. 1995, ch. 763, § 3, p. 5922 (the SVP Act)), the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337, § 1 (the Sex Offender Act)), and the voters' passage of Proposition 83, '"The Sexual Predator Punishment and Control Act: Jessica's Law"' in 2006 (see People v. McKee (2010) 47 Cal.4th 1172, 1186), California's collective thinking on this issue has evolved in the years since Rodriguez. Both the Sex Offender Act and Jessica's Law mandate substantially longer sentences for many sex offenses, while the SVP Act recognizes that offenders such as the petitioner in Rodriguez, who have an established history of committing sexual offenses and have also been diagnosed with a mental disorder that makes it likely they will reoffend, are no longer viewed in the same light.
To the contrary, the SVP Act recognizes that a repeat sex offender such as Rodriguez, who had been diagnosed as a sexual psychopath, and who apparently engaged in child sex abuse as a coping mechanism, would likely present an unacceptably high risk of reoffending. It consequently provides for indeterminate post-imprisonment civil commitment to address that danger. (Welf. and Inst. Code, § 6604.)
We include these observations not to generate debate on this issue, but rather to provide context and perspective related to our "cruel and/or unusual punishment" analysis.
As noted in People v. Christensen (2014) 229 Cal.App.4th 781, 806, subjecting a child to a lewd act "may have lifelong consequences to the well-being of the child." That recognition is part of the reason our state has a policy of imposing greater punishment on persons who commit sexual offenses on children under the age of 14. (People v. Olsen (1984) 36 Cal.3d 638, 647-648.)
Application of that policy is well-warranted here. Arriola's young victim, A.U., testified at trial to the harsh emotional consequences of his crimes. She described her fear, the shame she felt for allowing Arriola to victimize her, and the fact that she had wanted to kill herself because of his crimes. Based upon that evidence, we reject Arriola's assertion that his crimes were anything less than heinous because he did not inflict "physical harm" on A.U. We also reject the implication that the effects of Arriola's crimes were transitory and quickly dissipated. This record demonstrates they were not, and they did not.
Arriola also claims Rodriguez categorically holds "that an indeterminate term of one year to life for lewd and lascivious acts under former section 288 violated the Constitution." It does not. In Rodriguez, the Supreme Court refused to condemn the life term in the abstract, noting the potential of child molestation can lead to grave injury or death. (See People v. Dillon (1983) 34 Cal.3d. 441, 480 [explaining that refusal].)
Nor did Rodriguez hold that the imposition of that indeterminate term was necessarily unconstitutional. The Court concluded only that the 22 years already served by the petitioner—21 years longer than the minimum required by his indeterminate term—was excessive and disproportionate given the circumstances of the crime he had committed, which involved a single instance of externally fondling a young girl's genital area.
Arriola also suggests that his individual characteristics, including the fact he had no prior convictions and was 88 years old at sentencing, rendered his sentence cruel and/or unusual as to him personally. Again we are not persuaded. Indeed, Arriola's advanced age actually works against him in two ways. First, the cases in which a perpetrator's age was considered a mitigating factor are those where the perpetrator was so young and immature that it could be argued he either did not fully appreciate the effect of his acts or had an impaired ability to control his conduct. (See, e.g., People v. Dillon, supra, 34 Cal.3d at p. 488 ["at the time of the events herein defendant was an unusually immature youth [who] because of his immaturity . . . neither foresaw the risk he was creating nor was able to extricate himself without panicking when that risk seemed to eventuate"].) Arriola falls at the opposite end of that maturity spectrum, and there is no evidence suggesting how his advanced age might have excused his conduct.
Second, we note that the probable consequence of Arriola's advanced age is that he is unlikely to serve even the initial 15 years of his indeterminate term. As he points out, he will likely die in prison. But that might well be true even if Arriola were sentenced to a shorter term, e.g., three or five years. Stated plainly, it is because Arriola chose to commit his heinous crimes very late in life that he will likely die in prison. That simple cause and effect relationship cannot be spun into a constitutional issue related to his punishment.
Finally, the fact that Arriola had no prior convictions and was evaluated as having a low risk of reoffending does not alter our analysis. In Baker, supra, 20 Cal.App.5th 711, a recent case that also involved a challenge to the mandatory life term for violations of section 288.7, our colleagues in Division One of this Court rejected a similar contention: "Although Baker's insignificant criminal record and low recidivism score point in his favor, his three separate sexual offenses against A.D. and abuse of trust against a vulnerable victim do not." (Id. at p. 733.)
While it is true that Arriola committed only one offense in the incident for which he received the indeterminate life term, he did attempt more (including kissing A.U. with his tongue, one of the three separate offenses identified in Baker), and there was no indication he would have ceased his efforts to sexually assault A.U. if her parents had not arrived home at that moment. Moreover, as a practical matter, Arriola's life sentence also took into account his second sexual assault on A.U., committed a year later, as he received a concurrent sentence for the second offense.
When we consider the fact that Arriola's sexual assaults against A.U. were committed on two occasions, separated by at least nine months, his conduct is arguably more egregious than that of the defendant in Baker. In Baker, the defendant's multiple offenses were all committed during a single incident. (Baker, supra, 20 Cal.App.5th at p. 725.) By contrast, Arriola had significant time to reflect on what he had done to A.U. before returning to her home and assaulting her again months later. In light of this evidence, the trial court would have been well within its discretion in disregarding Arriola's theoretically low risk of recidivism. The fact of the matter is Arriola did reoffend after having sufficient time to reflect on the propriety of his first assault on A.U.
3. Comparison of the Penalty with Others Imposed in California and Other Jurisdictions
Arriola also contends that when compared to the punishment meted out for other offenses in California, and to the punishments for similar crimes in other states, the indeterminate life term mandated by section 288.7, subdivision (b), is so extreme that it cannot be lawfully imposed.
In Baker, the court examined the same contentions in detail before rejecting them. We find its analysis persuasive. In its comparison of section 288.7, subdivision (b), the Baker court acknowledged there were some abstractly more egregious child sex offenses that did not subject the perpetrator to an indeterminate term (e.g., forcible rape of a child under 14 (§§ 261, subd. (a)(2), 264, subd. (c)(1)); rape of a child under 14 in concert with another person (§ 264.1, subd. (b)(1)); pimping or pandering of a child under 16 (§§ 266h, subd. (b)(2), 266i, subds. (a)(2) & (b)(2)); and continuous sexual abuse of a child under 14 (§§ 288.5, subd. (a), 1203.066, subd. (b)). (Baker, supra, 20 Cal.App.5th at pp. 727-728.) But the Baker court distinguished those offenses by pointing out that they all involved older children. The court concluded it is reasonable for the Legislature to create a "graduated scheme" of penalties for child sex offenses, saving the harshest ones for those who choose to victimize the youngest children. (Id. at p. 728.)
Moreover, as the Baker court observed, there are other sex offenses involving children that are punished with indeterminate terms, including section 269, which addresses forcible oral copulation or sexual penetration of a child who is under the age of 14 and also seven or more years younger than the defendant. (Baker, supra, 20 Cal.App.5th at p. 728.) Given the significant deference we must accord to the Legislature (and sometimes the voters) in setting appropriate punishment, we agree with Baker that "[a] comparison of the mandatory 15-year-to-life sentence under section 288.7, subdivision (b) to the punishments for similar and more serious sex offenses in California does not suggest this is that 'rarest of cases' in which 'the length of a sentence mandated by the Legislature is unconstitutionally excessive.'" (Id. at p. 730.)
In support of his claim that section 288.7, subdivision (a), is cruel and unusual as compared to other states, Arriola cites the laws of two other states—New York and Oregon. He claims those states would sentence him to a term of either 5 to 25 years or a term of up to 20 years, respectively; he emphasizes that "in neither case is the defendant imprisoned for life." Arriola ignores the fact that for a person of his age, either of those terms would be tantamount to imprisonment for life. We are also struck by the fact that the sentence range in both of those states extends beyond the 15 year minimum term that Arriola would be required to serve before becoming eligible for parole. Thus, a person sentenced under either the New York law, or the Oregon law, might spend more time in prison than would a person sentenced in California under section 288.7, subdivision (b). That does not suggest a degree of disproportionality sufficient to declare the statute void.
The Baker court found "ten similar statutes in other states," and noted "[m]any of these statutes were passed in the wake of a prominent sex offense case in Florida and modeled after that state's Jessica Lunsford Act (Jessica's Law). In California, voters approved Jessica's Law by ballot initiative (Prop. 83) just months after the Legislature enacted section 288.7 as part of the Sex Offender Punishment, Control, and Containment Act of 2006." (Baker, supra, 20 Cal.App.5th at p. 731.) In light of the information revealed in its extensive research, the Baker court concluded that "[a]lthough California's punishment for [violating section 288.7, subdivision (b)] is no doubt severe, it is not so disproportionate to the punishment imposed in other states to render Baker's sentence constitutionally suspect." (Ibid.) We agree.
Arriola also suggests his sentence is "even more cruel and unusual because it is mandatory," calling that "another compelling reason for declaring the provision void." But our sentencing statutes include many provisions imposing mandatory terms, and Arriola cites no authority for the proposition that their mandatory nature is inherently so cruel as to render them voidable. Baker rejected a similar conclusory assertion, noting "'[t]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is "mandatory."'" (Baker, supra, 20 Cal.App.5th at p. 731.)
For all the foregoing reasons, we reject Arriola's claim that his sentence of 15 years to life for sexually assaulting 10-year-old A.U. amounts to cruel and/or unusual punishment.
DISPOSITION
The judgment is affirmed.
GOETHALS, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.