Opinion
H041971
01-09-2017
THE PEOPLE, Plaintiff and Respondent, v. LUKE JAMES CARRERO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1350895)
Defendant Luke James Carrero appeals from a judgment of conviction entered after a jury found him guilty of one count of oral copulation with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b) - count 1), three counts of aggravated sexual assault of a child under the age of 14 by oral copulation (§ 269 - counts 2, 4, 10), one count of aggravated sexual assault of a child under the age of 14 by sodomy (§ 269 - counts 6), one count of aggravated sexual assault of a child under the age of 14 by rape (§ 269 - count 8), and six counts of lewd or lascivious acts by force or fear (§ 288, subd. (b)(1) - counts 3, 5, 7, 9, 11, 12). The trial court sentenced defendant to an indeterminate term of 90 years to life in prison consecutive to a determinate term of eight years. Defendant contends: (1) he was deprived of his constitutional right to trial by an impartial jury; and (2) his sentence constitutes cruel and unusual punishment in violation of the state and federal constitutions. The judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise stated.
I. Statement of Facts
In March 2010, A. Doe was 10 years old. She lived with her father, defendant, her mother, Melissa, and her younger siblings on Adrien Drive in Campbell. One day, she had a conversation with defendant regarding sex. While defendant told her how children were born, he pulled out his penis and used it to demonstrate. He then grabbed her hand and put it on his penis. She removed her hand. At some point in the conversation, defendant described a "blow job." A. "didn't quite understand what he was saying," so she asked, "Can I try to do it?" Defendant did not stop her when she placed her mouth around his penis. After defendant ejaculated in her mouth, he told her not to tell anyone. She did not tell her mother, because she had been taught to obey her parents. When she disobeyed defendant, he violently beat her.
A. estimated that she put her mouth on defendant's penis more than 10 times. It was not her idea most of the time. However, two or three times, she indicated to defendant that she was willing to do it, because she wanted something in exchange. For example, when she was 11 years old around the time of Halloween, she asked for some candy that she was not allowed to have. He told her, "I'll trade you the candy for a blow job." She agreed. They went into defendant's bedroom where she placed her mouth on his penis and he ejaculated into her mouth. He later told A. that he would never be attracted to her sister K. because she looked like his mother, but she looked like her mother.
Shortly after the first incident of oral copulation and while the family lived on Adrien Drive, defendant and A. were wrestling in her bedroom. Defendant told her to come with him into the bathroom. Defendant took off his pants and masturbated to ejaculation over the toilet.
On another occasion, defendant put his hands under A.'s shirt and touched her breasts. He also sucked on her breasts. She did not try to pull away from him, because she was afraid that he would hurt her.
In March 2011, A., her parents, and her siblings moved into a home on La Salle Way in San Jose. On one of the occasions in the La Salle Way home when defendant made A. orally copulate him, he held her head and pushed it "forwards and backwards" on his penis. Defendant also orally copulated A. The first time occurred in the bedroom. Defendant, who was not wearing pants or underwear, removed her clothes. As A. lay on the bed, defendant placed his mouth on her vagina and his hands on her breasts. She thought, "[I]f I can get through this, then my sister and brother won't have to." She believed that he orally copulated her twice more. Sometimes when she was engaged in an act with defendant, someone banged on the locked door. She wanted to ask for help, but she "didn't want to get them in trouble."
In 2012, when A. was 12 years old, defendant entered her bedroom with a lubricant and told her that he "wanted to try anal sex." She "was afraid of saying no because of punishment." He removed her clothes and his pants and underwear. As she remained standing, defendant leaned her over onto a bed and penetrated her anus with his penis. It hurt a lot, so she pulled away and told him to stop or she "would tell." The "fear of pain overcame [her] fear of punishment."
On another occasion at the La Salle Way home, A. was in her brothers' bedroom when defendant entered, closed and locked the door, and removed her clothes. Defendant also removed his clothes. While A. was lying on her back on the floor, defendant pushed her legs apart and got on top of her. Defendant pushed his erect penis inside her vagina "just a bit." She told him to stop, because it hurt and she did not want to lose her virginity to someone that she did not love. She also pushed him away and he stopped.
Defendant put his fingers inside A.'s vagina about five times. The pain was "tolerable."
On February 1, 2013, Darin Angelinovich and his girlfriend Erin Graves moved into the La Salle Way house with A. and her family. Angelinovich and defendant had been best friends for 22 years. After Angelinovich moved in, defendant immediately stopped sexually abusing A.
On the evening of February 24, 2013, Angelinovich and defendant were having a discussion about religion. Angelinovich brought up the topic of child molestation "as an example of something that happens, that . . . God doesn't do anything about." Defendant "felt that, no, that's not necessarily justice, but there was an idea that once you go to heaven, further justice could be issued by God." After the conversation ended late that night, Angelinovich and defendant went to their bedrooms.
Melissa had been sleeping and was awakened when she heard defendant crying. She asked him what was wrong. He told her that there was child pornography on his computer and talked about "doing stuff with" A. Melissa began crying, did not want to hear what defendant was saying, and went to find Angelinovich. She told Angelinovich that defendant had said that he had touched A. Angelinovich sat there for a few minutes in disbelief and tried to console her.
Angelinovich spoke to defendant, who seemed very distraught. Defendant told him that he had convinced A. "to give him blow jobs" and he "went down on her a few times" over a period of about one year. Defendant also told him that there were about 10 incidents.
After talking with Melissa, Angelinovich called the police. The police arrived within 15 to 20 minutes. Angelinovich and a police officer entered A.'s room. The officer asked her if her father had ever touched her in a sexual way. A. answered yes, but did not give details. She thought that she was "finally free."
When Melissa returned to her bedroom, she found a letter from defendant on the bed. It read: "You are it all. Without you I am nothing. What little I have is yours. Please forgive me. I was stupid, so stupid. Give me one last chance. Let me be true to you. Let me save what's left. I've come to realize you are my everything, such is why I would confess, break your heart. Because didn't deserve any less. I know nothing excuses what I've done, but I do hope that you'll forgive me. Hope for your forgiveness. All I have left. Let me be your moon and stars again because I know you are mine. Over the years I've learned you are what's important. You are my world. Every day I wake . . . I cry a little because you're not awake with me. Love, Luke." Melissa gave the letter to the police.
After A. had revealed to the police what had happened, her behavior became worse. She did not do her chores, was not nice to her siblings, did not always tell the truth, treated her friends "terribly," and did not listen to her teachers. She started acting out, because her mother "made it all about her" and "ignored and neglected" her. A. "wanted somebody to notice that [she] was in pain and needed help." She was in therapy, but it did not help. She was placed in a group home for a short period. She eventually moved to Texas where she currently lives with her aunt, Christine W., her uncle, and K.
Dr. Anthony Urquiza testified as an expert in the Child Sexual Abuse Accommodation Syndrome (CSAAS). Dr. Urquiza stated that CSAAS is not a diagnostic tool and he did not know the facts of the present case. He explained that the purpose of CSAAS is to educate therapists and jurors about the common characteristics of child sexual abuse and dispel misperceptions that they may have. According to Dr. Urquiza, most children are sexually abused by someone that they know. He listed and described the five categories of CSAAS, which are: secrecy; helplessness; entrapment and accommodation; delayed and unconvincing disclosure; and retraction or recantation.
II. Discussion
A. Right to Impartial Jury
Defendant contends that the trial court erred when it denied his challenges for cause to prospective Juror No. 1565015, Juror No. 1611107, and prospective Juror No. 1734245. Defendant exercised peremptory challenges to prospective Juror Nos. 1565015 and 1734245. However, since defendant had exhausted his peremptory challenges, Juror No. 1611107 remained on the jury. Thus, he contends that he was deprived of his constitutional right to trial by an impartial jury. We conclude that the trial court did not err when it denied defendant's for-cause challenge to Juror No. 1611107, and thus he is not entitled to reversal of the judgment.
1. Background
On the third day of jury selection, Juror No. 1611107 was called. Shortly thereafter, outside the presence of the venire, the trial court considered whether to order an additional jury panel. The prosecutor stated: "I know, just reading, we're going to lose two that are in that six right now who are just going to say they cannot be fair. There's just no rehabilitating (1384849) and (1611107)."
After a recess, the trial court asked questions of the prospective jurors, including whether they could decide the case based on the facts and evidence, and not allow "bias, sympathy, prejudice, or public opinion influence" their decision. Juror No. 1611107 responded, "I think if you put the kid up there and whatever she says, I'm going to go with it because she's the one it happened to allegedly." The following exchange occurred: "THE COURT: Okay. Well, so you make a good point in adding the 'allegedly' at the end there. You haven't heard the testimony in this case. You've heard the charges, and it's not -- the witnesses are not the one who bring the charges. It's the state, right? It's the district attorney's office that brings charges. [¶] So witnesses are going to come up, and they're going to talk about whatever they're going to testify about. At the end of that testimony, after you've heard both sides have an opportunity to present testimony, the defense if they so choose -- because they don't have to present any testimony, but they'll have an opportunity to cross-examine witnesses. Your job really is to say, okay, now I'm going to go back with 11 other people, talk about this case, and go count by count and determine factually did this happen and applying those facts to the law as I give it to you. [¶] So you also have not heard yet the factors or the elements of the crimes in this case. So for every crime there's certain elements the district attorney has to prove. Your job's going to be to apply the facts to the charges and say, okay, beyond a reasonable doubt or not. Do you think you can do that? I mean, setting aside -- I know you might have some feelings or just hearing the charges, but getting to a point where you can say I'm going to discuss this and say fact by fact did they prove this charge? Okay. Let's move onto the next one. Did they prove this charge? Can you do that and really have a process of deliberation? [¶] PROSPECTIVE JUROR: Yeah, I think I could and I understand the process. For me, it's a little different when it's a kid. [¶] THE COURT: And I think that's probably a normal feeling for most people. It's just a question of whether or not you're going to want to sit here and listen to it. It's a different question than can I participate in this process. Am I up to the task of really listening to what's being said on both sides, on direct -- on direct examination, all witnesses together, take all of that evidence and try to determine what factually happened. [¶] PROSPECTIVE JUROR: Yeah. I just -- personally don't think I would be fair in my decision. [¶] THE COURT: Okay. So you don't think you could do that? [¶] (The juror shakes head from side to side.)"
Juror No. 1611107 was a single real estate agent who lived with his mother and stepfather. A close family member had been sexually abused 34 years earlier by "someone close like a family member." Juror No. 1611107 had "feelings" about "the consequences of what happened to that person," but he stated that he could separate out what he heard in that case and "give a fair trial in this case."
Defense counsel questioned Juror No. 1611107. "[DEFENSE COUNSEL]: Good afternoon. A long day. Mr. (1611107), I want to follow up on a couple things that you've talked about this afternoon. Specifically, your statement that you felt that you couldn't be fair. You've said a lot since then, and so I want to reconcile what you've said since then with your statement that you couldn't be fair. [¶] Let me ask you first just as a bottom line because you've had time to think about it. Do you think now, as you sit here, if you're selected as a juror you could be fair to both sides? [¶] PROSPECTIVE JUROR: Yeah. [¶] [DEFENSE COUNSEL]: Okay. And what has changed since you originally said that you couldn't be fair? [¶] PROSPECTIVE JUROR: I'm a pretty logical person, I like to think. The part that makes it difficult is my mother was a victim of sexual crime. [¶] [DEFENSE COUNSEL]: Mmm-hmm. [¶] PROSPECTIVE JUROR: So -- but I can listen to both sides. [¶] [DEFENSE COUNSEL]: Okay. And you can hear about allegations and participate in deliberations? [¶] PROSPECTIVE JUROR: Mmm-hmm. [DEFENSE COUNSEL]: Okay. And you also said that if a child testified, that whatever she says you're just going to go with it. Do you recall - did I get that correctly? [¶] PROSPECTIVE JUROR: Mmm-hmm. [¶] [DEFENSE COUNSEL]: Okay. Is that how you feel? [¶] PROSPECTIVE JUROR: I mean, yeah. I realize it's inconsistent with being fair, but I agree with the gentleman who had to leave that children generally are not -- they're not liars. [¶] [DEFENSE COUNSEL]: Okay. And so you just said that that's inconsistent -- inconsistent with being fair. Can you tell me more about that? [¶] PROSPECTIVE JUROR: You know, I find this whole process very interesting, the trial process, and I'd like to be part of it. I'm just not so sure this is the best case for me to be on. [¶] [DEFENSE COUNSEL]: Okay. And as the Court has said, that's understandable. But what this specific part of the process is about is talking to you about biases and whether you can put those aside and follow the law that the Court will give to you. [¶] One of the things you'll have to do is judge the witnesses testimony equally. Can you follow the law, or will you favor a child's testimony over any other testimony that you hear? [¶] PROSPECTIVE JUROR: I would probably go more with the child, so I'd give more weight to the child's testimony. [¶] [DEFENSE COUNSEL]: Okay. And so you could not follow the law if it told you to do something other than that? [¶] PROSPECTIVE JUROR: If that's what that means, then yes. [¶] [DEFENSE COUNSEL]: Okay. Is it fair to say, kind of given this particular point, that the prosecution has an edge over the defense? [¶] PROSPECTIVE JUROR: Yeah. [¶] [DEFENSE COUNSEL]: Okay. And so their burden is a little bit less than it might be in a different case in your opinion. [¶] PROSPECTIVE JUROR: Yeah. I would feel like it would be flip-flopped. [¶] [DEFENSE COUNSEL]: Okay. [¶] PROSPECTIVE JUROR: But I know that's not how our system works. [¶] [DEFENSE COUNSEL]: That's okay. As you've heard, we're looking for just honest answers. I don't want you to feel judged or otherwise because you're being honest. [¶] Let me follow up when you said flip-flopped. Do you mean that the burden would rest with the Defense to prove innocence? And is that what you mean? [¶] PROSPECTIVE JUROR: Mmm-hmm. [¶] [DEFENSE COUNSEL]: Okay. Thank you for your candor, Mr. (1611107)."
The prosecutor subsequently had the following exchange with Juror Nos. 1611107 and 1734245: "[PROSECUTOR]: . . . So Mr. (1611107) and Mr. (1734245), I'm going to take an unusual step now and argue the Defense position. [¶] You indicated that you're logical. So as you've been instructed by the judge, when you come in here everyone's got to have a playing field that's level. You've both indicated that you're partial to children. Everybody's partial to children. We've got a lot of parents. We've got people who are around kids. We're not asking you not to care about kids. [¶] What we're asking you to do is listen to that child when she gets on the stand and clinically and objectively say did this happen or did this not happen? Sometimes children do lie. Sometimes children are going through a custody battle, and they may say something happened that dad or uncle or mom did something because they want to go and live with the other parent. Sometimes a child might have mental issues, mental disability, and they may have imagined what happened to them. It would be your job to sit and listen and then say, okay, did this child have a motive to lie? Is this child perhaps going through a custody battle? We're not asking you not to care; okay? We're just saying that the brain has to rule the heart. [¶] Given that, do you think you'd be up to the task of doing that, and could you separate out how you feel right now and say, okay, I'm being asked to suspend my beliefs right now and put them aside so I can do this job? I'm going to start with Mr. (1611107). Do you think you could do that? [¶] PROSPECTIVE JUROR: Yeah. [¶] [PROSECUTOR]: Is that a yes? [¶] PROSPECTIVE JUROR: Yeah. [¶] [PROSECUTOR]: Okay. So the judge -- as I told you, the burden is on me. The burden is squarely on my shoulders, no one else's. Now that I've explained that to you, are you comfortable with that, that the burden's on me and it's not over at that table? [¶] PROSPECTIVE JUROR: I understand. [¶] [PROSECUTOR]: Okay. Can you follow that law? [¶] (Juror nods head up and down.)"
Defense counsel challenged both Juror Nos. 1611107 and 1734245 for cause: "[DEFENSE COUNSEL]: Okay. Well, Mr. (1734245) wholly adopted the comments of Mr. (1611107), who's seated at 14, which is that the prosecution would have no burden, that Defense would have the burden of proving innocence. They both used the words 'flip-flopped.' The burden would be flip-flopped. They both said that they would do whatever or they would go with whatever a child witness says. They both said they would favor the prosecution as a result. They both said they could be fair. [¶] Mr. (1734245) said that he would be unable to put aside his personal beliefs and follow the law, even if he knew that the law was different than his personal belief specifically as to the burden is the line, that I asked him about that. So I would challenge Mr. (1734245) on that basis. And because the comments are so similar, I would also challenge Mr. (1611107) seated in number 14 as well for the same reasons."
The prosecutor responded: "Judge, I think upon the questioning and answers of my voir dire, both Mr. (1734245) and Mr. (1611107) were able to set aside their previous positions and examine the other side of the coin, so to speak. The examples were given. They agreed with them. [¶] I then tested them and asked if they could agree the burden's on my shoulders and not on the Defense, and there was in fact a presumption of innocence. Both men did not waver in their answers and indicated that, yes, they could be fair, and given further explanation, could be fair if seated as a juror on this trial. So I think they both were rehabilitated."
The trial court ruled as follows: "All right. The Court will note some things that would not be clear on the record in terms of what people said, but I will note both Mr. (1734245) and Mr. (1611107), when being questioned by [the prosecutor], seemed to have the light go on a little bit for the first time being challenged in their thinking in terms of are there reasons someone would lie. [¶] There are challenges that can be made to testimony. I think as we often find, people may be formulating in their mind, imagining what the testimony will be. I do think they were rehabilitated. Indicated that recognizing there are motives to lie, that they would be able to apply those standards, that they will be fair on this case, that they would hold the People to their burden, and I'm going to deny those challenges."
Defense counsel used his final peremptory challenge to excuse prospective Juror No. 1734245, who was replaced on the panel by Juror No. 1611107. Defense counsel's request for additional peremptory challenges was denied.
2. Legal Analysis
A defendant, who has been accused of a crime, has a federal and state constitutional right to a trial by an impartial jury. (U.S. Const., 6th and 14th Amends; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110.) In People v. Black (2014) 58 Cal.4th 912 (Black), the California Supreme Court set forth the principles regarding for-cause and peremptory challenges to prospective jurors as a means of ensuring this right under the federal and state constitutions. "In California, criminal defendants are allowed an unlimited number of challenges to prospective jurors for cause, which the defendants must use before exercising any peremptory challenges. ([Code Civ. Proc.,] § 226.) [¶] Our statutes set forth the requirements for successful challenges to jurors for cause. [Code of Civil Procedure] [s]ection 225, subdivision (b)(1) allows challenges for cause for 'one of the following reasons: [¶] (A) General disqualification—that the juror is disqualified from serving in the action on trial. [¶] (B) Implied bias—as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror,' or '(C) Actual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.' As relevant here, [Code of Civil Procedure] section 229, subdivision (f) states that a challenge for cause for a prospective juror's bias addresses '[t]he existence of a state of mind in the juror evincing enmity against, or bias towards, either party.' [Citation.] [¶] Although challenges for cause are constitutionally guaranteed, the right to peremptory challenges is statutory. (Ross [v. Oklahoma (1988)] 487 U.S. [81,] 89.) Ross held that 'the fact that the defendant had to use a peremptory challenge to [cure the court's error in failing to remove a juror for cause] does not mean the Sixth Amendment was violated.' (Id. at p. 88.) '[P]eremptory challenges are not of constitutional dimension,' but are merely 'a means to achieve the end of an impartial jury.' (Ibid.) Mere loss of a peremptory challenge does not automatically constitute a violation of the federal constitutional right to a fair trial and impartial jury. (Ibid.) If no biased or legally incompetent juror served on defendant's jury, the judgment against him does not suffer from a federal constitutional infirmity, even if he had to exercise one or more peremptory challenges to excuse prospective jurors whom the court should have excused for cause. (Id. at pp. 88-91.)" (Black, at pp. 916-917.)
The Black court also stated that the state statutory right to peremptory challenges is " 'subject to the requirement that the defendant exercise those challenges to cure erroneous refusals to excuse prospective jurors for cause.' [Citation.]" (Black, supra, 58 Cal.4th at p. 917.) Thus, "an erroneous denial of a challenge for cause to one juror is not reversible error when it deprives a defendant only of a peremptory challenge to another juror. [Citations.]" (Ibid.) The Black court concluded: "A defendant must show that the error affected his right to a fair trial and impartial jury. When a defendant uses peremptory challenges to excuse prospective jurors who should have been removed for cause, a defendant's right to an impartial jury is affected only when he exhausts his peremptory challenges and an incompetent juror, meaning a juror who should have been removed for cause, sits on the jury that decides the case. [Citation.]" (Id. at p. 920.)
Under both federal and state law, if the trial court properly denied defendant's for-cause challenge to Juror No. 1611107, then it is irrelevant whether the trial court erred in denying his for-cause challenges to prospective Juror Nos. 1565015 and 1734245. Thus, this court must determine whether the trial court erred in denying defendant's for-cause challenge to Juror No. 1611107.
"A trial court should sustain a challenge for cause when a juror's views would 'prevent or substantially impair' the performance of the juror's duties in accordance with the court's instructions and the juror's oath. [Citations.] On appeal, we will uphold a trial court's ruling on a challenge for cause by either party 'if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous.' [Citations.]" (People v. McDermott (2002) 28 Cal.4th 946, 981-982.)
Here, Juror No. 1611107 made several statements during voir dire indicating that he would be unable to be impartial. This juror stated: "I think if you put the kid up there and whatever she says, I'm going to go with it because she's the one it happened to allegedly." The trial court focused on his use of the word "allegedly" and discussed the jurors' role in resolving factual issues and determining whether the prosecution had proven the elements of the charges. After the trial court asked whether he could fulfill that role, the juror stated that he could. However, he then added, "For me, it's a little different when it's a kid" and that a close family member had been sexually abused. He also stated, "I personally don't think I would be fair in my decision." However, he stated that he could separate out what he knew about that case and "give a fair trial in this case." In response to defense counsel's questioning, he explained that "the part that makes it difficult is my mother was the victim of a sexual crime." He also stated that he "realize[d] it's inconsistent with being fair," but he believed that "children generally are . . . not liars." He was unsure whether this was "the best case for [him] to be on." He asserted that he would "give more weight to the child's testimony." He agreed that the prosecution had an edge over the defense in this type of case and the burden of proof would be "flip-flopped" even though he knew "that's not how our system works." However, Juror No. 1611107 made statements indicating that he could be impartial. After the prosecutor discussed how people are sympathetic to children and the jurors' role in determining the credibility of children as witnesses, she gave examples of situations in which a child might lie about events. The prosecutor then asked Juror No. 1611107 whether he could set aside his feelings about children and determine the credibility of witnesses and give both sides a level playing field. The juror stated that he could do so. In response to further questioning, he also stated that he understood that the prosecution had the burden of proof and he could follow that law.
In the present case, Juror No. 1611107 made conflicting statements about his ability to be impartial. However, as the trial court noted in its ruling, "when being questioned by [the prosecutor], [Juror No. 1611107] seemed to have the light go on a little bit for the first time being challenged in [his] thinking in terms of are there reasons someone would lie." The trial court further found that the juror recognized that there were motives to lie, he would be able to apply the requisite standards, would be fair, and would hold the prosecution to its burden. The record supports these findings. Since the trial court properly denied defendant's for-cause challenge to Juror No. 1611107, defendant has failed to show that he was deprived of his federal and state constitutional rights to an impartial jury.
An appellate court reviews the propriety of a ruling based on the record before the trial court when it ruled (see generally People v. Soper (2009) 45 Cal.4th 759, 774). Here, after the trial court denied defendant's for-cause challenge to Juror No. 1611107, the following exchange between the trial court and Juror No. 1611107: "THE COURT: Mr. (1611107), nothing to be alarmed about I didn't want to put you on the spot, but I recognize when I was checking back over my notes, you had indicated you wanted to talk in private. I assume it was about the issue that you raised later about your mother being a victim. But I wanted to give you the opportunity just because I had told you I would. So let me ask you first about that. How did you find out about that, that your mother was a victim? [¶] PROSPECTIVE JUROR: Two ways. One through my dad and the other from her. [¶] THE COURT: Okay. And when did you learn about that, how old were you? [¶] PROSPECTIVE JUROR: It's hard to remember. It was a while ago. [¶] THE COURT: As an adult child -- I mean as an adult? [¶] PROSPECTIVE JUROR: Yeah. Probably like a late teen. [¶] THE COURT: Okay. [¶] PROSPECTIVE JUROR: And it was earlier from my dad and later from my mom. [¶] THE COURT: And her situation -- was it a family member or someone she knew? [¶] PROSPECTIVE JUROR: It was her father. [¶] THE COURT: And did she ever report that to anyone? [¶] PROSPECTIVE JUROR: Her siblings. [¶] THE COURT: Do you know whether there was ever any action taken, like legal action, ever reported to the authorities? [¶] PROSPECTIVE JUROR: No. [¶] THE COURT: Okay. I know we've been back and forth with you, and I do understand your feelings. And we really do have to kind of take that into account also. We're not looking for an answer on that, but, I mean, do you truly think given the charges in this case that you can listen to -- listen to it, now having heard some examples of where a child might lie or situation might be different than you thought, and really evaluate the testimony and make sure that you are fully putting the burden . . . beyond a reasonable doubt on the shoulders of the People and assure us you can give the defendant a fair trial in this case? [¶] PROSPECTIVE JUROR: Yes." This exchange between the trial court and Juror No. 1611107 also supports the trial court's finding that this juror would be impartial.
Defendant's reliance on United States v. Gonzalez (9th Cir. 2000) 214 F.3d 1109 is misplaced. In Gonzalez, the defendant was convicted of conspiracy, cocaine distribution, and money laundering. (Id. at p. 1110.) During jury selection, one of the prospective jurors stated that her ex-husband, the father of her young daughter, had used and been involved in cocaine trafficking. (Ibid.) His criminal conduct was one of the reasons for their divorce about four years earlier and she stated that this experience was painful. (Id. at pp. 1110-1111.) The trial court asked her three times whether she could set aside her personal experience and serve impartially. (Id. at p. 1111.) The prospective juror responded each time that she would try. (Ibid.) The Gonzalez court held that the trial court's error in denying the defendant's for-cause challenge to this juror required reversal. (Id. at p. 1114.) In contrast to Gonzalez, here, Juror No. 161107 stated that he could separate out what he heard about his mother's case and "give a fair trial in this case." He also answered affirmatively that he could set aside his personal feelings and follow the law.
B. Cruel and Unusual Punishment
Defendant contends that his sentence of 90 years to life consecutive to an eight-year term violates state and federal constitutional bans against cruel and/or unusual punishment.
Here, the trial court sentenced defendant to serve: 15 years to life on the conviction for oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b) - count 1); consecutive to 15 years to life on the convictions for aggravated sexual assault of a child under the age of 14 by oral copulation (§ 269 - counts 2, 4, 10); consecutive to 15 years to life on the conviction for aggravated sexual assault of a child under the age of 14 by sodomy (§ 269 - count 6); and consecutive to 15 years to life on the conviction for aggravated sexual assault of a child under the age of 14 by rape (§ 269 - count 8). The trial court also imposed a consecutive determinate eight-year term on the conviction for lewd or lascivious acts by force or fear (§ 288, subd. (b)(1) - count 12). The trial court stayed the determinate terms it imposed on the remaining convictions for lewd and lascivious acts by force or fear (§ 288, subd. (b)(1) - counts 3, 5, 7, 9, 11). Defendant did not object to his sentence on the ground that it constituted cruel and unusual punishment.
1. The California Constitution
Article I, section 17 of the California Constitution states that "[c]ruel or unusual punishment may not be inflicted or excessive fines imposed." This constitutional proscription is violated when a penalty 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 (Lynch).) "Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty 'out of all proportion to the offense' [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment." (Id. at pp. 423-424.) "Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Martinez (1999) 76 Cal.App.4th 489, 496.)
Lynch, supra, 8 Cal.3d 410 was superseded by statute on another ground as stated in People v. West (1999) 70 Cal.App.4th 248, 256.)
The California Supreme Court has devised a three-prong test for assessing whether punishment is cruel or unusual. (Lynch, supra, 8 Cal.3d at pp. 425-427.) Courts should consider "the nature of the offense and/or the offender" (id. at p. 425), compare the punishment to other punishments imposed by the same jurisdiction for more serious offenses (id. at p. 426), and compare the punishment to other punishments imposed by other jurisdictions for the same offense. (Id. at p. 427.) The defendant need not establish the requisite disproportionality in all three respects. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38 (Dillon).) A defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572 (King).)
Dillon, supra, 34 Cal.3d 441 was abrogated by statute on a different point as explained in People v. Chun (2009) 45 Cal.4th 1172, 1186.)
We first consider the nature of the offense and the offender. Regarding the offense, we evaluate "the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts." (Dillon, supra, 34 Cal.3d at p. 479.)
Here, defendant repeatedly sexually assaulted his daughter, who was between the ages of 10 and 12, for almost three years. In addition to touching her breasts, defendant forced her to orally copulate him multiple times, orally copulated her on at least three occasions, digitally penetrated her several times, masturbated in front of her, sodomized her, and raped her. Arianna also told the probation officer that she believed that she had "forgotten over 75 percent of the times [defendant] sexually assaulted her." Defendant did not use physical violence against his daughter beyond the violence inherent in the offenses. However, A. feared that he would beat her if she did not comply with his demands or if she told anyone about the sexual assaults. Defendant also took advantage of his position as her father by committing the offenses when they were alone together in the family home.
The consequences of defendant's acts were devastating to his daughter. Rather than protecting her from harm, he inflicted severe and ongoing emotional trauma. In a letter to the court, A. wrote: "When I see myself in the mirror, I can no longer say I look beautiful. Because of the defendant, I have a hard time believing that I am beautiful. Also, I now have severe self-esteem issues and no longer wish to be honest. I am afraid if I tell people who I really am, then they might hurt me just as bad or worse than the defendant has hurt me. [¶] It has become more difficult for me to sleep at night. I have severe night terrors and cannot bring myself to get up some mornings. [¶] I have also been diagnosed with complex PTSD because of the defendant. I have been having difficulty with suicidal thoughts and attempts to harm myself. For the last few months I have been able to resist that urge, but it is a struggle I face that I am not able to handle on my own."
Christine W., with whom A. was living, submitted a letter to the court on behalf of A. and K. She described A.'s posttraumatic stress disorder, including her nightmares, anxiety, and hypervigilance. She noted that A. is afraid at night, feels "broken" and "worthless," and sees a therapist weekly. Ms. W. also described the effect of defendant's misconduct on K.: ". . . K. has had a difficult time. She grew up in a household with someone that viewed child pornography and was sexually abusive. Although it was not her that suffered the abuse, she has still suffered. She lost her father. She is conflicted. . . . How could someone she loves do something so horrible? She is still trying to answer this question."
We next focus on defendant's "individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (Dillon, supra, 34 Cal.3d at p. 479.) Here, defendant's prior criminality involved a single misdemeanor conviction for trespassing on government property. However, other factors do not support defendant's position. When defendant committed the charged offenses, he was in his early 30's. He had been married since 1999 and was the father of five children. He had attended college and had been employed as an engineer. Thus, defendant was old enough to know and understand that he was committing very serious offenses and that he was inflicting severe emotional damage on his daughter. As the probation officer observed, "defendant demonstrated a callous disregard for the victim as he sexually abused her for his own sexual gratification."
Based on the extensive period during which defendant committed several aggravated sexual assaults on his young daughter, the extremely damaging effect of his sexual misconduct on her and her sister, and his culpability, defendant's sentence is not "so disproportionate to the crime[s] for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424.)
Defendant relies on the discussion of the first Lynch technique in In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez). Rodriguez is readily distinguishable from the present case. In that case, the defendant, who had been sentenced to an indeterminate term of one year to life for a single conviction of lewd acts (§ 288) and had served 22 years of his sentence, challenged his sentence as cruel and/or unusual punishment. (Rodriguez, at p. 642.) The Rodriguez court stated that "the method of its commission involved no violence and caused no physical harm to the victim. The episode lasted only a few minutes. No weapon was involved and petitioner attempted none of the dangerous offenses sometimes associated with violations of section 288." (Id. at pp. 654-655.) The court also stated that the defendant was 26 years old when the offense was committed, had limited intelligence, was functionally illiterate (id. at p. 655), and had been previously arrested for two sex crimes. (Id. at p. 644, fn. 6.) In contrast to Rodriguez, here, defendant was older, well-educated, and had committed several more serious sexual offenses, including oral copulation, rape, and sodomy, in addition to several lewd acts over a period of almost three years.
Rodriguez, supra, 14 Cal.3d 639 has been superseded by statute on another point as stated in People v. Jefferson (1999) 21 Cal.4th 86, 95.
Since defendant has not attempted to compare his sentence for several sexual offenses with sentences for more serious offenses in California or with punishment for the same offenses in other jurisdictions, he has failed to carry his burden of establishing disproportionality as to the second and third prongs of the Lynch test. (King, supra, 16 Cal.App.4th at p. 572.)
Noting that he will not be eligible for parole in his lifetime, defendant urges this court to consider People v. Deloza (1998) 18 Cal.4th 585. In Deloza, the defendant received a prison sentence of more than 100 years to life. (Id. at p. 589.) The case was remanded for resentencing, because the trial court had misunderstood the scope of its discretion to impose concurrent terms. (Id. at p. 600.) The majority opinion did not consider whether the defendant's sentence constituted cruel and/or unusual punishment. However, Justice Mosk concurred separately and opined that a sentence "impossible for a human being to serve" was cruel and/or unusual punishment. (Id. at pp. 600-601.) Justice Mosk's comments have no precedential value. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) We agree with those courts which have rejected the contention that a sentence which could not be served within the defendant's lifetime violates the constitutional bans against cruel and/or unusual punishment. (People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.)
2. The Federal Constitution
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." A punishment is cruel and unusual under the Eighth Amendment if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173; Ewing v. California (2003) 538 U.S. 11, 20-21.) The federal constitution "affords no greater protection than the state Constitution . . . ." (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) Since we have concluded that defendant's sentence does not violate the California Constitution, defendant's federal claim also fails.
Having rejected defendant's argument that his sentence constituted cruel and/or unusual punishment, we need not consider defendant's alternative argument that trial counsel's failure to raise this issue constituted ineffective assistance of counsel. --------
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.