Opinion
F070564
01-05-2017
THE PEOPLE, Plaintiff and Respondent, v. JEREMIAH CHARLIE BREWER, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12904169)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge. J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
At the conclusion of a bench trial on September 2, 2014, defendant Jeremiah Charlie Brewer was convicted of sexual penetration by force (Pen. Code, § 289, subd. (a)(1)(A); count 1), assault with intent to commit rape or forcible sexual penetration during the commission of first degree burglary (§ 220, subd. (b); count 2), and kidnapping to commit rape or forcible sexual penetration (§ 209, subd. (b)(1); count 3). The court found true allegations in count 1 that defendant substantially increased the risk of harm to the victim inherent in the offense by kidnapping her (§ 667.61, subd. (d)(2)), committed the offense during the commission of first degree burglary with the intent of committing sexual penetration by force (§ 667.61, subd. (d)(4)), and defendant kidnapped the victim to accomplish the offense (§ 667.61, subd. (e)(1)).
Unless otherwise indicated, all statutory references are to the Penal Code.
On October 29, 2014, The court sentenced defendant on count 1 to a term of 25 years to life. Defendant was sentenced on counts 2 and 3 to terms of life with the possibility of parole; both sentences were stayed pursuant to section 654.
On appeal, defendant contends there was insufficient evidence he substantially increased the risk to the victim within the meaning of sections 209, subdivision (b)(1), and 667.61, subdivision (d)(2) by moving her within her own apartment. Defendant also argues the finding he violated section 667.61, subdivisions (b) and (e)(1) must be reversed because subdivision (d)(2) of section 667.61 was also found true. Defendant argues his sentence was cruel and unusual punishment under the Eighth Amendment to the United State Constitution, and his trial attorney was ineffective for failing to object to the trial court's sentence. We find no error and affirm the judgment.
FACTS
On February 10, 2012, Elizabeth F. was in her apartment near Fresno State. Elizabeth had a roommate, but was alone in the apartment washing dishes at 4:00 p.m. when she looked up through the window behind the sink and saw a male passing by outside. As the male walked by, he took a couple of steps back, looked through the window blinds, and kept going. The blinds to the window behind the sink were open. The blinds to the living room window door and the sliding door were also open. The kitchen adjoined the living room. The apartment building was two stories. Elizabeth lived on the first floor. There was a public walkway outside the windows.
Elizabeth had never seen the male before. She saw him a couple of minutes later on the side by other windows near the living room. Standing on the walkway outside of Elizabeth's apartment, one could look into the apartment through the windows. The male who had walked by twice stopped the second time he was passing by, looked back and forth a couple of times, and knocked on Elizabeth's door. At first, Elizabeth thought it was the maintenance man whom she had called about an hour earlier. When Elizabeth answered the door, defendant was standing there. Defendant was the same person who had walked by twice earlier.
Defendant asked Elizabeth if her husband was at home. She replied she was not married and asked if he was lost. Defendant said he was looking for his cousin and asked to use Elizabeth's phone. Elizabeth let defendant use her cell phone. Defendant stayed outside the doorway to Elizabeth's apartment when he initially made the phone call but before he finished the call, he signaled that he wanted to enter. Elizabeth stepped back and defendant entered her apartment.
Inside Elizabeth's apartment, defendant handed back her cell phone. She asked defendant to walk out. Defendant turned away as though he was leaving, but slammed the apartment door shut. Defendant immediately grabbed Elizabeth's shoulders. They were standing face to face. Defendant pushed Elizabeth up against the wall, moving her 10 to 12 feet. Elizabeth asked defendant what he was doing and why. Defendant did not respond to Elizabeth's questions.
Elizabeth tried to fight defendant off. Defendant looked toward the window because the blinds were open. A picture depicting the living room and the entry door was admitted as exhibit No. 9. Defendant turned and saw Elizabeth's bedroom. As she struggled with him by pushing and tugging, defendant forced Elizabeth to her bedroom by grabbing her shoulders with his arms. A picture depicting Elizabeth's hallway and bedroom was admitted as exhibit No. 8 and a picture of her bedroom was admitted as exhibit No. 6.
Although Elizabeth tried to fight off defendant and once tried to yell, defendant covered her mouth. Defendant pushed Elizabeth onto the bed in her bedroom. Elizabeth kept telling defendant to stop and asked him why he was doing this. She also yelled for help. The windows and blinds in Elizabeth's bedroom were closed. Also, Elizabeth's bedroom was farther away from the walkway and entrance into her apartment. The sliding door and windows in the living room area were open because Elizabeth had been mopping and wanted to air out her apartment. The only thing separating the apartment from the outside was a screen door.
Defendant pulled off Elizabeth's basketball shorts and underwear. Elizabeth became more frightened and tried yelling "Fire," but she could not say that so she yelled for defendant to stop. Defendant began fidgeting trying to take off the belt to his pants, placed his hands on Elizabeth, and then penetrated her vagina with his first two fingers past the second knuckle of the fingers for 15 to 20 seconds.
To get defendant to stop, Elizabeth told him a couple of times that her father was a cop. Then Elizabeth noticed the sound of the dishwasher and running water. She told defendant her boyfriend was in the shower. Elizabeth repeated this multiple times and told defendant her boyfriend was going to kill him. Defendant stopped, got up, and left out the front door. Elizabeth ran into her bathroom, locked the door, and called the 911 operator. At the time of the attack, Elizabeth was a college student.
An investigating police officer wrote down the number defendant had called from Elizabeth's cell phone. Elizabeth was taken to the Family Healing Center where nurse Debbie Neal performed a sexual assault examination. Elizabeth suffered bruises from the assault. Photographs of Elizabeth were taken the day of the assault and admitted into evidence. Elizabeth was shown a photographic lineup by Detective Christine Gray. From the lineup, Elizabeth identified defendant as the assailant.
Fresno police officer Michael Hansen was dispatched to Elizabeth's apartment immediately after the assault. Hansen took a statement from Elizabeth and described her emotional state as being "extremely upset." Elizabeth was crying the entire time. Hansen retrieved a phone number from Elizabeth's phone with an area code of 405, the Oklahoma City area. When Hansen called the number, he talked to a live female. Surveillance cameras around the apartment complex had not captured images of defendant.
Detective Gray, assigned to the sexual assault unit, called the number from Elizabeth's cell phone and left a message. On March 6, 2012, Gray spoke to a woman named Malasia G. who said she lived in Oklahoma City. Malasia said she knew someone on Facebook who lived in Fresno named Jeremiah Brewer. Gray determined defendant lived in an apartment complex not far from Elizabeth. Gray made contact with defendant and took a digital picture of him and collected a saliva sample. After preparing a photographic lineup, Gray took it to Elizabeth, who identified defendant with 100 percent certainty.
Gray arrested defendant and brought him back to police headquarters for interrogation. A transcript of the interrogation was submitted at trial as exhibit No. 2. Defendant was advised of and waived his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. After initially denying he was involved in the assault, defendant admitted he came into Elizabeth's apartment and used her cell phone. Defendant said Elizabeth let him into the apartment. Defendant denied touching Elizabeth first. Defendant said Elizabeth "came on" to him, led him to the bedroom, and they lay on the bed together. Defendant denied forcible conduct or rape and said he touched her leg "and stuff like that." He also denied grabbing Elizabeth and dragging her into the bedroom.
Defendant initially denied that things got out of hand. Defendant admitted Elizabeth apparently changed her mind and pushed him away. Defendant again denied raping Elizabeth and said he did not remember putting his fingers into her vagina. When he was asked if things changed after defendant placed his finger inside Elizabeth's vagina, defendant replied, "Yeah." Defendant admitted things got out of hand but continued to deny he raped Elizabeth and said he guessed she did not want him to place his fingers inside her vagina. Defendant wrote a letter apologizing to Elizabeth.
DISCUSSION
1. SUFFICIENCY OF EVIDENCE OF KIDNAPPING TO COMMIT SEX OFFENSE
Introduction
Defendant contends there was insufficient evidence: (1) to support his conviction for kidnapping to commit forcible sexual penetration (§ 209, subd. (b)(1)), (2) to support the trial court's true findings in count 1 that in committing sexual penetration by force he kidnapped the victim (§§ 289, subd. (a)(1)(A), 667.61, subd. (e)(1)), and (3) he kidnapped the victim by employing movement that substantially increased the risk of harm to the victim (§ 667.61, subd. (d)(2)). Defendant argues any movement was only incidental to the commission of the underlying sexual offense and did not substantially increase the risk to the victim. We disagree.
Legal Principles
When a defendant challenges the sufficiency of the evidence, appellate courts must review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. This standard of appellate review is the same in cases in which the People primarily rely on circumstantial evidence. Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury, not the reviewing court, that weighs the evidence, resolves conflicting inferences, and determines whether the People have met the burden of establishing guilt beyond a reasonable doubt. If the trier of fact's findings are reasonably justified under the circumstances, the opinion of the reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Casares (2016) 62 Cal.4th 808, 823-824.) After reviewing the evidence in the light most favorable to the prosecution, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Rangel (2016) 62 Cal.4th 1192, 1212-1213.)
Unless the testimony of a single witness is physically impossible or inherently improbable, it is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181.) An appellate court must accept logical inferences that the jury might have drawn from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before setting aside the judgment of the trial court for insufficiency of the evidence, it must clearly appear that there was no hypothesis whatever upon which there was substantial evidence to support the verdict. (People v. Conners (2008) 168 Cal.App.4th 443, 453; People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Section 209, subdivision (b)(1) does not require an aggravated kidnapping to substantially increase the risk of harm to the victim but does require that the movement not be merely incidental to the intended offense. (People v. Robertson (2012) 208 Cal.App.4th 965, 970-982; see People v. Vines (2011) 51 Cal.4th 830, 869-871.) Prior to a revision of the statute in 1997 by the Legislature, however, such movement of the victim by the defendant had to be substantial under the statute. (People v. Vines, supra, at p. 869, fn. 20.) The sentencing provisions of section 667.61, subdivision (e)(1) incorporated by reference section 209, also required movement of the victim not be merely incidental to the intended offense.
An aggravated kidnapping under this section is governed by subdivision (b)(2) of section 209, which states: "This subdivision shall only apply if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense."
The sentencing provisions of subdivision (b) of section 667.61 apply to offenses described in subdivisions (c) and (e)(1) of section 667.61. Section 667.61, subdivision (e)(1) provides: "Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." --------
A violation of section 667.61, subdivision (d)(2) occurs when "[t]he defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c)." A violation of section 667.61, subdivision (d)(2) requires a substantial increase of risk of harm from the defendant's asportation of the victim beyond that necessarily present in the underlying sexual offense. Any substantial asportation involving forcible control of the victim satisfies the risk of harm test. (People v. Jones (1997) 58 Cal.App.4th 693, 713.) We note that several of the authorities we review analyze aggravated kidnapping pursuant to the statute prior to the 1997 revision. As these authorities review the meaning of "substantially increas[ing] the risk of harm to the victim," we find them persuasive in analyzing the one strike law.
A seminal case from our Supreme Court relied on by defendant is People v. Daniels (1969) 71 Cal.2d 1119, 1139, which held: (1) aggravated kidnapping for robbery requires a movement of the victim that is not merely incidental to the commission of robbery, and (2) the movement substantially increases the risk of harm over and above what is present in the crime of robbery itself. In Daniels, though there was a movement of some distance, it was inside a building and the court found the movement incidental. (Ibid.)
The Supreme Court reviewed its holding in Daniels in People v. Rayford (1994) 9 Cal.4th 1, 12-14 (Rayford), noting that in determining whether the movement was merely incidental to the crime—the first prong of the Daniels analysis—the trier of fact must consider the scope and nature of the movement. This includes the actual distance the victim is moved; however, there is no minimum number of feet a defendant must move a victim to satisfy the first prong. (People v. Rayford, supra, at p. 12; People v. Daniels, supra, 71 Cal.2d at p. 1128.) The court noted that in Daniels, the movement involved was merely incidental where three victims of a robbery and sexual assault in their own homes were moved distances of 18 feet, 5 or 6 feet, and 30 feet. (People v. Rayford, supra, at p. 12.)
Rayford explained the second prong of Daniels refers to whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in the underlying offense. This includes factors such as the decreased likelihood of detection, the danger inherent in the victim's foreseeable attempts to escape, and the assailant's enhanced opportunity to commit additional crimes. It also includes both the victim's desperate attempts to extricate himself or herself as well as unforeseen intervention by third parties. The fact that these dangers do not in fact materialize does not mean the risk of harm was not increased. (People v. Rayford, supra, 9 Cal.4th at pp. 13-14.) Rayford noted the Supreme Court has resisted setting a specific number of feet as the required minimum distance, requiring the movement be substantial in character. (Id. at p. 14.)
The sexual assault victim in Rayford had been moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot. The victim was forced to sit against the wall beside a small tree that was 34 feet from the street. The wall blocked the view of any passersby from the parking lot side. The tree and bushes at the end of the wall limited detection of the victim from the street. An area beyond the wall bordered a two-lane street, but was undeveloped. There was light enough for the victim to observe the defendant's actions and for the defendant to see blood on the victim's underwear. There was no evidence as to whether the two were detectable from the street. The Rayford court held this constituted sufficient evidence of asportation from which the jury could reasonably conclude the victim's forcible movement under these circumstances was not merely incidental to the commission of attempted rape and substantially increased the victim's risk of harm. (People v. Rayford, supra, 9 Cal.4th at p. 23.)
Several cases decided after Rayford have found an increased risk of harm to the victim of a sexual assault who was moved a short distance to a more secluded location within a building or to a space further from public view. In People v. Shadden (2001) 93 Cal.App.4th 164, 167-170, the defendant moved the owner of a video store nine feet from a space behind the store counter to a back room where the defendant was able to close the door and keep the victim out of public view. In People v. Diaz (2000) 78 Cal.App.4th 243, 248-249, the defendant moved the victim from a well-lighted area on the sidewalk to the back of a recreation center, a location still outdoors but more secluded from public view. In People v. Jones (1999) 75 Cal.App.4th 616, 628-630, the victim was moved by the defendant across a parking lot and pushed into her car where, although the car alarm was sounding, the victim was no longer in public view. In People v. Smith (1995) 33 Cal.App.4th 1586, 1594, the defendant moved the victim 40 to 50 feet from a driveway open to a view from the street and into a camper. In People v. Salazar (1995) 33 Cal.App.4th 341, 348, the victim was moved 29 feet from an outside walkway to the bathroom of a motel room where the defendant closed the door. In each of these cases, the defendant's conduct was held to have caused increased risk of harm to the victim because of how and where the defendant moved the victim to commit a sexual assault.
"[E]ach case must be considered in the context of the totality of its circumstances." (People v. Dominguez (2006) 39 Cal.4th 1141, 1152.) Moving the victim from the side of a road and 25 feet away down a steep hill within an orchard that obscured the view of the victim has been found to substantially increase the risk to the victim and constituted sufficient evidence of asportation to commit a sexual assault. (Id. at p. 1153-1155.)
Elizabeth's apartment was on the first floor of her apartment building where she saw defendant pass by her kitchen window more than once while she was cleaning. Elizabeth testified she was cleaning the common areas of her apartment with the window shades open over the sink. The shades for the sliding glass doors were also open. From these windows and doors, anyone walking by Elizabeth's apartment could look in and view the kitchen and living room area. After entering the apartment, defendant turned away as though he was leaving, but then slammed the apartment door shut. Defendant immediately grabbed Elizabeth's shoulders. They were standing face to face. Once defendant grabbed Elizabeth, he forced her, against her struggles, about 10 feet to the wall.
Defendant looked toward the window because the blinds were open. Defendant turned and saw Elizabeth's bedroom. As she struggled with him by pushing and tugging, defendant forced Elizabeth to her bedroom by grabbing her shoulders with his arms.
Although Elizabeth tried to fight off defendant and once tried to yell, defendant covered her mouth. Defendant pushed Elizabeth onto the bed in her bedroom. Elizabeth kept telling defendant to stop and asking him why he was doing this. She also yelled for help. The windows and blinds in Elizabeth's bedroom were closed. Also, Elizabeth's bedroom was farther away from the walkway and entrance into her apartment. The sliding door and windows in the living room area were open because Elizabeth had been mopping and wanted to air out her apartment. The only thing separating the apartment from the outside was a screen door.
The facts in the instant action unequivocally demonstrate defendant moved Elizabeth twice, the second movement leading her into a secluded room not visible from outside the apartment. This was more movement than necessary to effectuate the offense of digital penetration. The movement also significantly increased the risk of harm to Elizabeth. It reduced not only the possibility a passerby would see defendant's assault, but could hear Elizabeth's cries for help. The facts of this case showing a significant risk of harm to Elizabeth's movement by defendant are at least as strong, if not stronger, than the facts showing a risk of harm to the victims in Rayford, Shadden, Diaz, Jones, Smith, Salazar, and Dominguez cases. We reject defendant's contention his movement of Elizabeth was only incidental to his sexual assault and it did not pose a significantly greater risk of harm to her.
2. TRUE FINDINGS OF MULTIPLE SUBDIVISIONS OF SECTION 667.61
Defendant contends he cannot be convicted of violating both subdivision (e)(1) of section 667.61 and subdivision (d)(2) of section 667.61. According to defendant, subdivision (e)(1) of section 667.61 expressly excludes a conviction for a violation of subdivision (d)(2) of section 667.61. Defendant argues the true finding under section 667.61, subdivision (d)(1) precludes a true finding pursuant to subdivision (e)(1) of the same statute. The People respond the language of section 667.61, subdivision (e)(1) is definitional and does not preclude an additional finding under subdivision (d)(2) of the statute. We agree with the People that defendant reads subdivision (e)(1) too narrowly.
Subdivision (e)(1) of section 667.61 provides, "Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5." Defendant argues the express language of this subdivision "explicitly provides an exception where the kidnapping circumstance does not apply, that is, where the circumstance of subdivision (d)(2) applies." According to defendant, the true finding under subdivision (d)(2) of section 667.61 precludes a true finding pursuant to section (e)(1) of the same statute.
Subdivision (a) of section 667.61 provides that if a defendant violates one or more of the provisions of subdivision (d) of section 667.61, or two of the provisions of subdivision (e) of section 667.61, he or she is subject to a sentence of 25 years to life. Subdivision (b) of section 667.61 provides for a sentence of 15 years to life if the defendant violates one provision of subdivision (e) of the statute. Section 667.61 is not a sentence enhancement, it is an alternative and harsher sentencing scheme for the underlying specified sex crimes themselves. (People v. Acosta (2002) 29 Cal.4th 105, 118.)
The People respond the operative phrase of subdivision (e)(1) of section 667.61, "Except as provided in paragraph (2) of subdivision (d)," is definitional language. The People point out this statutory language simply covers offenses where the defendant kidnaps the victim in violation of section 207, 209, or 209.5, but does not substantially increase the risk of harm to the victim over and above the level of risk inherent in the underlying offense. It does not mean a true finding pursuant to section 667.61, subdivision (d)(2) is precluded by subdivision (e)(1) or that a subdivision (e)(1) finding must be stricken where there is also a true finding under subdivision (d)(2). As the People accurately point out, subdivision (g) of section 667.61 states: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or (e) for any person who is subject to punishment under this section."
Where allegations are found true under both subdivisions (d)(2) and (e)(1) of section 667.61, section 667.61, subdivision (b) provides: "Except as provided in subdivision (a), ... any person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." Where a true finding of a section 667.61, subdivisions (d)(2) and (e)(1) circumstance are made under the statute, subdivision (b) of section 667.61 precludes a sentence under its provisions, and the defendant is sentenced pursuant to subdivision (a) of section 667.61. The trial court sentenced defendant on count 1 pursuant to subdivision (a) of section 667.61. The court properly followed the statutory sentencing scheme of section 667.61, the sentence was authorized, and a true finding pursuant to subdivision (e)(1) of the statute was not precluded as argued by defendant.
3. CRUEL AND UNUSUAL PUNISHMENT
Defendant contends his sentence was cruel and unusual under the California and United States Constitutions because he was only 16 years old when he committed the offense and he had no prior criminal record. Defendant further asserts his trial counsel was ineffective for failing to challenge his sentence as cruel and unusual punishment. We reject these arguments.
Defendant's Eighth Amendment challenge does not fall within the narrow proportionality principle in the Eighth Amendment reserved for extreme sentences that are grossly disproportionate to the offenses committed by the defendant. (Ewing v. California (2003) 538 U.S. 11, 20.) Article 1, section 17 of the California Constitution sets forth three factors for courts to consider when analyzing whether a sentence is cruel or unusual: (1) the degree of danger the offender and the offense pose to society; (2) how the punishment compares with punishments for more serious crimes; and (3) how the punishment compares for the same offense in other jurisdictions. (People v. Dillon (1983) 34 Cal.3d 441, 479-482; In re Lynch (1972) 8 Cal.3d 410, 425-427 (Lynch); People v. Andrade (2015) 238 Cal.App.4th 1274, 1310.) The court in Andrade did not find a sentence of 195 years disproportionate, shocking, or inhumane for a violent sex offender who lacked a criminal history but who, nevertheless, committed his crimes on young, vulnerable women, threatened his victims, and claimed an affiliation with law enforcement to avoid detection. (Andrade, supra, at p. 1310.)
The first factor applied to the Lynch analysis of whether a sentence is cruel or unusual is the degree of danger the offender and the offense, or offenses, pose to society. A life term is not cruel and unusual punishment under the California or United States Constitution. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1474-1476; People v. Barrera (1993) 14 Cal.App.4th 1555, 1566-1570.) Residential burglary is a serious offense, especially when it is perpetrated with the goal of committing a sexual assault. (People v. Estrada (1997) 57 Cal.App.4th 1270, 1280-1282.)
The second Lynch factor involves a comparison of the defendant's sentence to other offenses with indeterminate life sentences. We observe that lengthy noncapital sentences have been upheld in a variety of sentencing scenarios. A defendant convicted of violating the three strikes law for being an ex-felon in possession of a handgun has not received a sentence of 25 years to life in violation of the state or federal Constitution. (People v. Cooper (1996) 43 Cal.App.4th 815, 819-831.) The one strike law for sex offenses under section 667.61 mandating an automatic minimum sentence of 25 years to life has been upheld against constitutional challenges. (People v. Crooks (1997) 55 Cal.App.4th 797, 803-812; People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1232 [upholding sentence of 135 years pursuant to one strike law].) A sentence of over 283 years for multiple sex offenses not charged under the one strike law has overcome a challenge based on cruel and unusual punishment. (People v. Wallace (1993) 14 Cal.App.4th 651, 666-667.) We conclude the second factor for determining whether a sentence is cruel or unusual—how other offenses are punished in California—does not demonstrate defendant's sentence was cruel or unusual.
The third factor in constitutional analysis employed by California courts—how the punishment compares for the same offense in other jurisdictions—need not be reviewed under the facts of this case. (See People v. Dillon, supra, 34 Cal.3d at p. 487, fn. 38; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 846.) We note, however, that punishments for sex offenses in sister state jurisdictions include similar or harsher sentences. (See People v. Estrada, supra, 57 Cal.App.4th at p. 1282 [comparing sentences in Washington state and Louisiana].)
Miller v. Alabama (2012) 567 U.S. ___ found an Eighth Amendment violation where a juvenile was subject to a mandatory sentence of life without the possibility of parole. The California Supreme Court reached a similar conclusion where a juvenile received a sentence of over 100 years for a noncapital offense, a span beyond the natural life expectancy of the offender. (People v. Caballero (2012) 55 Cal.4th 262, 266-269.) In People v. Palafox (2014) 231 Cal.App.4th 68, 73-92, this court held a juvenile who committed homicide could be sentenced to life without the possibility of parole where the term imposed was not mandatory and the sentencing court properly evaluated all relevant sentencing criteria, including mitigating factors.
Defendant was 16 years old when he committed the instant offense, he was 18 years old when he was tried, and 19 years old when he was sentenced. We agree he was a minor when he committed this offense. Defendant, however, unlike the defendants in Miller and Palafox, did not receive a mandatory sentence of life without the possibility of parole. He received a sentence of 25 years to life and will be eligible for parole well within his natural life expectancy. The trial court did not abuse its sentencing discretion when it imposed an indeterminate sentence of 25 years to life on count 1.
Because defendant's sentence is not cruel or unusual, he cannot demonstrate that his trial counsel's representation was ineffective for falling below professional standards of practice and, defendant cannot demonstrate prejudice from counsel's failure to raise this issue. (People v. Maury, supra, 30 Cal.4th at p. 389.)
DISPOSITION
The judgment is affirmed.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.