Opinion
F073994
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. SANTIAGO ESPINO CASONTOS, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1444461)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Stanislaus County. Marie Sovey Silveira, Judge. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Meehan, J. and Ellison,† J.
-ooOoo-
INTRODUCTION
In 2012, defendant Santiago Espino Casontos was arrested and charged with two counts of engaging in sexual intercourse or sodomy with a child 10 years of age or younger. (Pen. Code, § 288.7, subd. (a)). In 2015, a jury found defendant mentally competent to stand trial, and in 2016, he was convicted by jury of the charged crimes. The trial court sentenced defendant to two consecutive terms of 25 years to life, for a total indeterminate term of 50 years to life in prison. (§ 288.7, subd. (a).)
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims the trial court erred in instructing the jury pursuant to CALCRIM No. 331, which relates to witnesses with developmental disabilities. He also claims his sentence constitutes cruel and/or unusual punishment under the federal and state Constitutions. The People dispute defendant's entitlement to any relief. We agree with the People and affirm the judgment.
FACTUAL SUMMARY
The victim in this case, John Doe, was seven years old at time of the crimes. He lived with his mother, grandmother, younger brother, and defendant, who was his mother's boyfriend. Although it was not detailed at trial, Doe has a developmental disorder, and he testified he attended a "special class" and rode a "special bus."
Defendant was authorized to pick up Doe, and in April 2012, defendant was waiting for Doe when the bus arrived. Defendant brought Doe home, placed him on a bed facedown, got on top of him, and inserted his penis in Doe's rectum. No one else was home at the time. The next day, defendant again picked up Doe from the bus, took him home and sodomized him. The following day or two, Doe tearfully told his grandmother what defendant did to him. He also told his grandmother defendant kissed him.
Within the next few days, Doe's grandmother reported the offenses to the police, and Doe's mother and grandmother took him to the hospital, where he underwent a sexual assault examination. The registered nurse who conducted the examination testified Doe had an abrasion extending from his anus outward and the injury was consistent with the reported offenses. Due to the victim's age and level of distress, the examination was limited to a visual inspection and use of swabs.
There were some inconsistencies in testimony regarding whether Doe's grandmother reported the crimes the same day Doe told her about them or waited a few days. As disposition of defendant's claims on appeal does not turn on these inconsistencies, we do not detail them.
A county social worker spoke with Doe at the hospital and later with defendant at the jail. Defendant admitted the acts occurred but stated Doe initiated them when defendant was sleeping.
DISCUSSION
I. Instructional Error: Testimony of Person with Developmental Disability
A. Forfeiture
Defendant claims the trial court erred in instructing the jury pursuant to CALCRIM No. 331 but concedes there is no indication in the record he objected to the instruction. As he points out, however, an objection is not required to challenge an instruction on the ground that it affects substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 15; People v. Townsel (2016) 63 Cal.4th 25, 59-60.) We do not decide whether the forfeiture doctrines applies in this case because, as we shall explain, any error was harmless. (People v. Johnson (2016) 62 Cal.4th 600, 639.)
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; see People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
C. No Error and No Prejudice
Pursuant to CALCRIM No. 331, the trial court instructed the jury as follows:
"In evaluating the testimony of a person with a developmental disability, consider all of the factors surrounding that person's testimony, including his or her level of cognitive development. Even though a person with a developmental disability may perform differently as a witness because of his or her level of cognitive development, that does not mean he or she is any more or less credible than any other witness. You should not discount or distrust the testimony of a person with a developmental disability solely because he or she has such a disability."
Defendant takes issue with only the second sentence of the instruction, claiming it "tells jurors they must not allow their consideration of a witness's mental impairment to impact their assessments of his credibility in his performance as a witness, i.e., in his testimony." Defendant argues the erroneous instruction lowered the prosecution's burden of proof by boosting Doe's credibility, violated his right to present a defense and confront witnesses against him, and impaired his ability to impeach Doe's credibility.
The language in CALCRIM No. 331 is taken from section 1127g, which was added to the Penal Code in 2004 and requires that the jury be instructed as such at the request of a party. (People v. Catley (2007) 148 Cal.App.4th 500, 508 (Catley).) The arguments advanced here by defendant have been considered and rejected both in the context of CALCRIM No. 331, which applies to witnesses with developmental, cognitive, or mental disabilities (ibid.), and in the context of CALCRIM No. 330/CALJIC No. 2.20.1, which applies to witnesses 10 years of age or younger and tracks the language of section 1127f (People v. Fernandez (2013) 216 Cal.App.4th 540, 558-560; People v. McCoy (2005) 133 Cal.App.4th 974, 979-980; People v. Gilbert (1992) 5 Cal.App.4th 1372, 1392-1394).
Section 1127g provides: "In any criminal trial or proceeding in which a person with a developmental disability, or cognitive, mental, or communication impairment testifies as a witness, upon the request of a party, the court shall instruct the jury, as follows:
"In evaluating the testimony of a person with a developmental disability, or cognitive, mental, or communication impairment, you should consider all of the factors surrounding the person's testimony, including their level of cognitive development. Although, because of his or her level of cognitive development, a person with a developmental disability, or cognitive, mental, or communication impairment may perform differently as a witness, that does not mean that a person with a developmental disability, or cognitive, mental, or communication impairment is any more or less credible a witness than another witness. You should not discount or distrust the testimony of a person with a developmental disability, or cognitive, mental, or communication impairment solely because he or she is a person with a developmental disability, or cognitive, mental, or communication impairment."
Section 1127f provides: "In any criminal trial or proceeding in which a child 10 years of age or younger testifies as a witness, upon the request of a party, the court shall instruct the jury, as follows:
"In evaluating the testimony of a child you should consider all of the factors surrounding the child's testimony, including the age of the child and any evidence regarding the child's level of cognitive development. Although, because of age and level of cognitive development, a child may perform differently as a witness from an adult, that does not mean that a child is any more or less credible a witness than an adult. You should not discount or distrust the testimony of a child solely because he or she is a child."
In Catley, the Court of Appeal recognized that section 1127g echoes the language of section 1127f, an earlier section added to the Penal Code pertaining to child witnesses which has been upheld in the face of challenges on due process grounds. (Catley, supra, 148 Cal.App.4th at pp. 507-508.) The court concluded,
"CALCRIM No. 331 tracks the language of section 1127g, and is consistent with section 1127f and the cases interpreting it. CALCRIM No. 331 informs the jury it should not decide whether an individual with a developmental disability or cognitive impairment is a credible witness based solely on the disability or impairment. Rather, the instruction advises the jury the level of the witness's developmental disability or cognitive impairment is one factor it must consider. Like CALJIC No. 2.20.1, CALCRIM No. 331 'provides sound and rational guidance to the jury in
assessing the credibility of a class of witnesses as to whom '"traditional assumptions"' may previously have biased the factfinding process.'" (Id. at p. 508.)
Defendant acknowledges the decision in Catley and the decisions in People v. McCoy, supra, 133 Cal.App.4th at pages 979-980 (rejecting constitutional challenge to CALJIC No. 2.20.1 on evaluating child witnesses, mandated by § 1127f), People v. Gilbert, supra, 5 Cal.App.4th at pages 1392-1393 (same), and People v. Harlan (1990) 222 Cal.App.3d 439, 454-457 (same), but argues they were wrongly decided. He cites to no authority supporting his position, however, and offers no persuasive basis for departing from established authority on this point. Accordingly, we reject his claim that the trial court erred in instructing the jury pursuant to CALCRIM No. 331.
Moreover, even if we assume error for the sake of argument, it was harmless. Defendant contends the instruction "gave the jury permission to ignore or excuse the problems with Doe's credibility," and "[t]hose problems went to the heart of the case because there was no other eyewitness, and Doe was equivocal at trial in his identification of [defendant]." We disagree.
Assuming without deciding that the federal standard of review under Chapman v. California (1967) 386 U.S. 18 (Chapman) applies, as defendant argues, courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16; People v. Gonzalez (2012) 54 Cal.4th 643, 663.) "In order to conclude that an instructional error '"did not contribute to the verdict"' within the meaning of Chapman [citation] [courts] must '"find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record."'" (People v. Brooks (2017) 3 Cal.5th 1, 69.)
Often there are no witnesses to crimes such as this other than the victim and the perpetrator (People v. Villatoro (2012) 54 Cal.4th 1152, 1174-1175 [recognizing secretive nature of sex crimes]), but this is not a case where the two were unknown to one another, and identity was not an issue at trial. While Doe did not recognize defendant in the courtroom and was unable to identify him during testimony four years after the crimes, this did not translate into an uncertainty over who raped him, as defendant suggests. Doe testified without equivocation that the perpetrator was Santiago, who lived with him and his family at the time. Doe's mother and grandmother also testified that, within days of the crime, Doe told them defendant—Santiago—did something to him. Additionally, Doe sustained an injury to his anus consistent with the crimes reported, and defendant admitted the crimes to the social worker. Under these circumstances, any arguable error in the second sentence of the instruction was harmless beyond a reasonable doubt.
II. Sentence Constitutes Cruel and/or Unusual Punishment
A. Forfeiture
Defendant concedes he did not object to his sentence in the trial court on the ground it violated the Eighth Amendment and as the People contend, "[a] claim that a sentence is cruel or unusual requires a 'fact specific' inquiry and is [generally] forfeited if not raised below." (People v. Baker (2018) 20 Cal.App.5th 711, 720 (Baker); accord, People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248.) Nevertheless, as defendant points out, there are exceptions to this general rule (e.g., People v. Gutierrez (2014) 58 Cal.4th 1354, 1368), and we need not determine in this case whether defendant forfeited his claim because it fails on the merits in any event.
Defendant appears to have inadvertently omitted the word "not" from a sentence in his opening brief, which states, "While appellant did make the argument below that the sentence imposed violates the prohibition on cruel and unusual punishment, it is not barred on appeal." As the record makes clear and defendant's brief subsequently reflects, he did not object to the sentence in the trial court on the ground of cruel and unusual punishment.
B. Sentence Imposed Is Not Cruel and/or Unusual Punishment
1. Background
Section 288.7, subdivision (a) mandates a sentence of 25 years to life for the crime of child rape and defendant was convicted of two counts under the statute. As such, the sentencing issue before the trial court was whether to impose concurrent or consecutive sentences. (§ 669; Cal. Rules of Court, rule 4.425.) The court considered the aggravating and mitigating circumstances, the latter of which included defendant's very minor criminal record and his intellectual and educational limitations. However, the aggravating circumstances included the victim's age, disabilities, the nature of the crime, and the fact that defendant took advantage of a vulnerable victim with whom he lived and with whose care he had been entrusted. The court concluded "the crime of sodomy is a crime that is particularly heinous, and that's why the law allows for these consecutive sentences of 25 years to life, and that's what I'm prepared to impose."
Section 288.7, subdivision (a) provides: "Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life."
Defendant's criminal record consisted of one misdemeanor conviction for driving under the influence. (Veh. Code, § 23152, subd. (a).)
2. Legal Standard
"'"The cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty that is disproportionate to the defendant's 'personal responsibility and moral guilt.' [Citations.] Article I, section 17 of the California Constitution separately and independently lays down the same prohibition."' [Citations.] To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is 'grossly disproportionate to the defendant's individual culpability' [citation], so that the punishment '"'shocks the conscience and offends fundamental notions of human dignity'"' [citation], the court must invalidate the sentence as unconstitutional." (People v. Lucero (2000) 23 Cal.4th 692, 739-740; accord, People v. Boyce (2014) 59 Cal.4th 672, 718-719.)
"Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" (People v. Palafox (2014) 231 Cal.App.4th 68, 82-83; see People v. Abundio (2013) 221 Cal.App.4th 1211, 1217.)
3. Analysis
At the outset, as defendant recognizes, there has been a sea change in the law regarding sentences deemed to inflict cruel and unusual punishment under the Eighth Amendment. (Miller v. Alabama (2012) 567 U.S. 460, 479-480 [for juvenile offenders, Eighth Amend. forbids mandatory sentences of life without possibility of parole]; Graham v. Florida (2010) 560 U.S. 48, 82 [juveniles may not be sentenced to life without the possibility of parole in nonhomicide cases].) This change, however, is limited to juvenile offenders, as it results from the recognition that "children are constitutionally different from adults for purposes of sentencing. Because juveniles have diminished culpability and greater prospects for reform, ... 'they are less deserving of the most severe punishments.'" (Miller v. Alabama, supra, at p. 471, quoting Graham v. Florida, supra, at p. 68.) Defendant is an adult offender; he was 51 years old at the time of the crimes and his sentence was dictated by the statute under which he was prosecuted. Accordingly, we are unpersuaded by his reference to this line of authority. (See People v. Perez (2016) 3 Cal.App.5th 612, 617 [rejecting extension of Graham-Miller juvenile offender cases to 20-year-old offender]; People v. Argeta (2012) 210 Cal.App.4th 1478, 1482 [same as to 18-year-old offender].)
Turning to defendant's remaining argument,
"'Section 288.7 was enacted as part of the Sex Offender Punishment, Control, and Containment Act of 2006 (the Act). [Citation.] ... The primary purpose of the Act was to prevent "future victimization" of the community by sex offenders. [Citation.] Among the provisions of the Act was the creation of several new criminal offenses involving child victims'—including a 'new offense imposing an indeterminate life sentence for sexual intercourse, sodomy, oral copulation or sexual penetration of "a child 10 years of age or younger" in section 288.7.'" (Baker, supra, 20 Cal.App.5th at p. 722, quoting People v. Cornett (2012) 53 Cal.4th 1261, 1267.)
The court in Baker considered an Eighth Amendment challenge to a sentence imposed under subdivision (b) of section 288.7. (Baker, supra, 20 Cal.App.5th at pp. 715-716.) In contrast to our case, the trial judge in Baker viewed the sentence of 15 years to life as grossly disproportionate to the offense of one count of oral copulation of a minor and encouraged the defendant to seek review on Eighth Amendment grounds. (Baker, at pp. 715-716.) The appellate court disagreed and held the sentence was not grossly disproportionate as a matter of law. (Id. at p. 716.) Other courts have also rejected challenges to lengthy sentences for sex offenses. (People v. Reyes (2016) 246 Cal.App.4th 62, 82-90 [challenge to sentence of life without the possibility of parole for committing two forcible sex offenses against a minor]; People v. Perez (2013) 214 Cal.App.4th 49, 60 [challenge to sentence of 30 years to life for committing two forcible lewd acts against a child under the age of 14].)
Subdivision (b) of section 288.7 provides: "Any person 18 years of age or older who engages in oral copulation or sexual penetration, as defined in Section 289, with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life."
Defendant does not dispute there is authority supporting the imposition of lengthy sentences for crimes such as his but he maintains "that evolving standards of decency should require otherwise." The focus of his argument is Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, which he relies on for the proposition that a lengthy sentence impossible for a human being to serve constitutes cruel and/or unusual punishment under the federal and state Constitutions. Defendant argues his sentence is "gratuitously extreme," "makes no measurable contribution to acceptable goals of punishment," and "can serve no rational legislative purpose."
We do not agree. As an initial matter, a concurring opinion is not binding (Duran v. U.S. Bank National Assn. (2018) 19 Cal.App.5th 630, 643-644, fn. 9; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383), nor has Justice Mosk's viewpoint been subsequently adopted. Defendant cites to no controlling authority supporting his position that the federal and state Constitutions are offended by the imposition of a sentence an adult offender convicted of child rape will almost certainly be unable to serve in his natural lifetime.
Moreover, "'[t]he 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.' [Citation.] Reducing a sentence as otherwise cruel or unusual 'is a solemn power to be exercised sparingly only when, as a matter of law, the Constitution forbids what the sentencing law compels.' [Citation.] 'Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.'" (Baker, supra, 20 Cal.App.5th at p. 724.)
Children have long been the subject of protective legislation because they "'all too frequently are helpless victims of sexual offenses.'" (People v. Monroe (1985) 168 Cal.App.3d 1205, 1214, quoting In re Wells (1975) 46 Cal.App.3d 592, 599; accord, Baker, supra, 20 Cal.App.5th at p. 729.) As the court in Baker explained, the Legislature added section 288.7 to the Penal Code "to make it easier to sentence a defendant to a life term for particularly heinous sexual contact with a young child." (Baker, supra, at p. 729.) We therefore reject defendant's contention that his lengthy sentence, imposed pursuant to a statutory scheme intended to address reprehensible crimes such as those committed against Doe in this case, serves no valid legislative purpose.
DISPOSITION
The judgment is affirmed.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.