Opinion
C081677
03-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RAYMOND CHAVEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F05794)
Defendant Raymond Chavez was convicted by jury of 23 sex offenses committed against the victim over a six-year period, when the victim was between the ages of 6 and 12. Nineteen of those offenses were lewd or lascivious conduct with a child under the age of 14 years, 18 of which were committed by use of duress. (Pen. Code, § 288, subds. (a), (b)(1).) The remaining four offenses were oral copulation with a child 10 years of age or younger. (§ 288.7, subd. (b).) Defendant was sentenced to serve an aggregate state prison term of 98 years plus 60 years to life.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends: (1) his 18 convictions for committing a lewd or lascivious act on the victim by use of duress must be reversed because there was insufficient evidence of duress; (2) the trial court prejudicially abused its discretion and violated his federal constitutional rights by (a) preventing the victim's mother from testifying concerning conflict between herself and defendant that the victim may have witnessed; (b) preventing the victim's mother from testifying as to the reason defendant saw a urologist in 2007, i.e., erectile dysfunction; and (c) restricting the defense expert's testimony concerning false confessions to general factors tending to produce such confessions and preventing the expert from testifying as to whether or not those factors appeared to apply to defendant; and (3) the sentence imposed by the trial court amounted to cruel and/or unusual punishment in violation of both the federal and California Constitutions.
We affirm. The evidence in this case was more than sufficient to establish duress. Assuming the trial court should have allowed the victim's mother to testify concerning conflict between herself and defendant as well as her knowledge defendant saw a urologist for erectile dysfunction, these assumed errors were harmless. The trial court neither abused its discretion nor violated defendant's constitutional rights by limiting the defense expert's testimony to the general phenomenon of false confessions and factors tending to produce such confessions. Finally, defendant's assertion his sentence amounts to cruel and/or unusual punishment is forfeited by his failure to raise the issue before the trial court. Addressing the issue under the rubric of ineffective assistance of counsel, we conclude the claim lacks merit and counsel therefore did not render constitutionally deficient assistance.
FACTS
Defendant does not challenge the sufficiency of the evidence to establish he engaged in 19 acts of lewd or lascivious conduct with the victim between 2006 and 2012, when she was between the ages of 6 and 12 years old. Nor does he challenge the sufficiency of the evidence to establish he engaged in 4 acts of oral copulation with her when she was 9 or 10 years old. We therefore dispense with a detailed summary of the victim's testimony recounting the details of these crimes.
For our purposes, it will suffice to state that defendant's acts of lewd conduct included inappropriate kissing, touching the victim's breasts and vagina, making her kiss his penis, putting his penis in her mouth, rubbing his penis against her vaginal area, and kissing her vaginal area. The victim's testimony in this regard was corroborated by prior consistent statements made during a forensic interview with a social worker. Defendant also admitted committing many of these acts during a police interview, including touching and kissing the victim's breasts and vaginal area, having her kiss his penis, and rubbing his penis against her vaginal area. During the interview, defendant agreed to write a letter to the victim and her mother, apologizing for his behavior. In this letter, defendant apologized for "crossing the lines" with the victim and said he did not know why he did so. We finally note defendant's confession during the police interview was further corroborated by statements he made to a friend, who was also a law enforcement officer, admitting he engaged in oral copulation with the victim and touched her private parts.
Defendant's challenge to the sufficiency of the evidence involves only the question of whether or not he used duress to engage in 18 of the 19 counts of lewd or lascivious conduct. We recount the evidence of duress during our discussion of this claim, to which we now turn.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends his 18 convictions for committing a lewd or lascivious act on the victim by use of duress must be reversed because there was insufficient evidence of duress. He is mistaken.
" 'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077; Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [61 L.Ed.2d 560, 572-574].) "In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Subject to an exception not applicable here, section 288, subdivision (a), provides, "any person who willfully and lewdly commits any lewd or lascivious act, including any of the acts constituting other crimes provided for in Part 1, upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony and shall be punished by imprisonment in the state prison for three, six, or eight years." Subdivision (b) then provides in relevant part: "(1) Any person who commits an act described in subdivision (a) by use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, is guilty of a felony and shall be punished by imprisonment in the state prison for 5, 8, or 10 years." (§ 288, subd. (b)(1).)
" 'Duress means the use of a direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do or submit to something that he or she would not otherwise do or submit to. When deciding whether the act was accomplished by duress, [a jury should] consider all the circumstances, including the age of the child and [his or her] relationship to the defendant.' " (People v. Soto (2011) 51 Cal.4th 229, 246, fn. 9 [directing amendment of CALCRIM No. 1111 regarding the element of duress], internal italics and brackets omitted, remaining brackets added.) "Other relevant factors include threats to harm the victim, physically controlling the victim when the victim attempts to resist, and warnings to the victim that revealing the molestation would result in jeopardizing the family." (People v. Cochran (2002) 103 Cal.App.4th 8, 14 (Cochran).)
In Cochran, our colleagues at the Fourth Appellate District held there was sufficient evidence of duress where the defendant engaged in multiple lewd acts with his daughter in their home, relying on "the age and size of the victim, her relationship to the defendant, and the implicit threat that she would break up the family if she did not comply . . . ." (Cochran, supra, 103 Cal.App. 4th at p. 16.) There, the victim was nine years old and "four feet three inches tall" while the defendant was "five feet nine inches tall and outweighed her by about 100 pounds." (Id. at p. 15.) The defendant also told the victim "not to tell anybody because he would get into trouble and would go to jail." (Id. at p. 12.) Despite the victim's testimony that she was not afraid of the defendant and he would stop when she told him he was hurting her, the court concluded: "This record paints a picture of a small, vulnerable and isolated child who engaged in sex acts only in response to her father's parental and physical authority. Her compliance was derived from intimidation and the psychological control he exercised over her and was not the result of freely given consent." (Id. at pp. 15-16.)
In so concluding, the Cochran court relied on People v. Pitmon (1985) 170 Cal.App.3d 38, in which this court held there was sufficient evidence of duress despite the victim's testimony that the defendant never threatened to harm him. (Id. at pp. 47-48.) There, the victim was eight years old, "an age at which adults are commonly viewed as authority figures," and there was also a "disparity in physical size" between the victim and the defendant, which we concluded "also contributes to a youngster's sense of his [or her] relative physical vulnerability." (Id. at p. 51.) Indeed, the defendant in Pitmon was a stranger to the victim, whereas the Cochran court explained the position of familial authority occupied by the defendant therein added to the evidence of duress: "[A]s a practical matter, when the victim is as young as this victim and is molested by her father in the family home, in all but the rarest cases duress will be present." (Cochran, supra, 103 Cal.App.4th at p. 16, fn. 6.)
Here, defendant committed numerous lewd acts on the victim, his stepdaughter, when she was between the ages of 6 and 12 years old. These acts were committed in the family home when no one else was around. There was also a tremendous physical disparity between the victim and defendant, who was about 6 feet 2 inches tall and weighed 300 pounds at the time of these crimes. Also like Cochran, supra, 103 Cal.App.4th 8, defendant told the victim she would "get taken away" if she told anyone what he was doing to her. During the victim's testimony at trial, when asked what being taken away from her family would have meant to her, the victim answered: "It would have killed me." This is not one of the rare cases alluded to in Cochran where duress is absent despite the power differential between a young victim and a victimizing father figure. The evidence was more than sufficient to establish defendant's lewd or lascivious conduct was committed by use of duress.
Fourteen of the counts were committed when defendant lived with mother and the victim in Clovis when the victim was between the ages of 6 and 10 years old. The remaining four counts were committed when the victim was 12 years old, after the family moved to Folsom.
Nevertheless, defendant argues, "[n]owhere in the record does [the victim] ever say that the reason she engaged in these acts with [defendant] was because he told her not to tell anyone, that if she did no one would believe her or that she would be taken from her family. Indeed, she indicated that these remarks by [him] 'usually' took place after the acts." While true, the victim did testify that the first time defendant told her she would be taken away from the family was "close in time" to the first time he touched her inappropriately. The first count of lewd conduct was not alleged to have been committed by use of duress, and we express no opinion as to whether or not the victim's age, the fact defendant was her stepfather, and the physical disparity between the two would alone have justified a duress finding with respect to it. But with that added threat, duress patently exists with respect to each subsequent act of lewd conduct. Nor does defendant cite any authority standing for the proposition that the victim must have specifically testified she engaged in or submitted to the acts because of defendant's threat. Indeed, both Cochran and Pitmon hold to the contrary. (Cochran, supra, 103 Cal.App.4th at pp. 15-16; Pitmon, supra, 170 Cal.App.3d at p. 51.)
We also reject defendant's reliance on People v. Hecker (1990) 219 Cal.App.3d 1238. There, prior to Cochran, the same appellate district held testimony that the defendant told the victim her disclosure of the abuse would ruin his marriage and career did not amount to "an implied threat of 'force, violence, danger, hardship or retribution' " sufficient to establish duress, explaining, "such testimony establishes merely the threat of hardship directed at 'later disclosure of the sex acts and not [the failure to perform] the sex acts themselves.' [Citation.]" (Id. at pp. 1250-1251 & fn. 7.) However, in Cochran, the court concluded, "this language in Hecker is overly broad" and explained: "The very nature of duress is psychological coercion. A threat to a child of adverse consequences, such as suggesting the child will be breaking up the family or marriage if she [or he] reports or fails to acquiesce in the molestation, may constitute a threat of retribution and may be sufficient to establish duress, particularly if the child is young and the defendant is her [or his] parent." (Cochran, supra, 103 Cal.App.4th at p. 15.) We agree with Cochran.
The evidence in this case is more than sufficient to establish duress.
II
Claims of Evidentiary Error
Defendant brings three claims of evidentiary error. We address and reject each in turn.
A.
Exclusion of Mother's Testimony Concerning Conflict Between Herself and Defendant
During defense counsel's cross-examination of the victim's mother, she testified defendant was unemployed "for at least three years." Defense counsel asked: "Did that create a conflict that [the victim] could have observed?" The trial court sustained a relevance objection and defense counsel moved on to other matters. Defendant argues this ruling amounted to a prejudicial abuse of discretion and violated his federal constitutional rights. We disagree.
As a preliminary matter, the Attorney General argues defense counsel's failure to make an offer of proof regarding the admissibility of this testimony forfeits the issue on appeal. Evidence Code section 354 provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination."
Here, the evidence was sought to be admitted during defense counsel's cross-examination of the victim's mother. However, notwithstanding subdivision (c), "[i]f the evidence the defendant seeks to elicit on cross-examination is not within the scope of the direct examination, an offer of proof is required to preserve the issue." (People v. Foss (2007) 155 Cal.App.4th 113, 127.) Defendant argues because the subject of his unemployment was brought up during the direct examination, to show he had opportunity to sexually abuse the victim, the above-quoted rule does not apply. He also argues the question itself made the substance, purpose, and relevance of the excluded evidence known to the trial court, i.e., "if conflict was created by [defendant's] unemployment that could have been observed by [the victim], it would have had direct bearing on the question of bias, and hence credibility, not only on [the victim's] part but on [mother's] as well."
We need not resolve the matter because even assuming the issue is both preserved for review and the trial court abused its discretion in excluding the evidence, Evidence Code section 354 would still preclude reversal because we are not "of the opinion that the error or errors complained of resulted in a miscarriage of justice." The evidence in this case was overwhelming. Not only was the victim's trial testimony consistent with her prior interview with the social worker, but defendant confessed to a number of the acts of sexual abuse both during his police interview and while speaking to one of his friends. Even assuming the jury was erroneously deprived of evidence of conflict between defendant and the victim's mother over defendant's unemployment, there is no reasonable probability of a more favorable outcome had the jury heard this evidence. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
Nor can we conclude this assumed error implicated defendant's federal constitutional rights, requiring application of the heightened standard of prejudice articulated in Chapman v. California (1967) 386 U.S. 18, 24. That the victim might have witnessed marital discord between defendant and her mother concerning defendant's unemployment is not sufficiently probative of bias on the part of either the victim or her mother to trigger the federal constitutional right to present a defense. (See People v. Marshall (1996) 13 Cal.4th 799, 836 [while "a criminal defendant is constitutionally entitled to present all relevant evidence of significant probative value in his [or her] favor, . . . the proffered evidence must have more than slight relevancy"].) Finally, we also reject defendant's argument exclusion of the evidence implicated his federal confrontation rights. Again, the marginal relevance of the proffered testimony is dispositive. (See Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 ["trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant," italics added].)
Any assumed error was manifestly harmless.
B.
Exclusion of Mother's Testimony Concerning the Reason Defendant Saw a Urologist
During defense counsel's cross-examination of the victim's mother, she testified that although defendant was never diagnosed with erectile dysfunction, "[t]here were times when that was a problem" and it "became worse as his diabetes became more out of control." Then, after some questioning concerning defendant's diabetes and health problems arising therefrom, defense counsel asked: "What about in 2007? Did he have -- was he treated by a urologist?" Mother answered: "I know he saw a urologist, but I can't remember when." Defense counsel followed up: "Do you recall why he saw a urologist?" The prosecutor objected on relevance grounds. Following a sidebar discussion, the trial court sustained the objection and also stated the proffered testimony was excluded "under [Evidence Code section] 352 as well." Defendant argues this ruling also amounted to a prejudicial abuse of discretion and violated his federal constitutional rights. Not so.
Again, the Attorney General argues forfeiture for failure to make an offer of proof. And again, we need not resolve the issue. Even assuming the issue is both preserved for review and the trial court abused its discretion in excluding the evidence, the overwhelming nature of the evidence against defendant in this case renders any assumed error harmless. Nor was there a federal constitutional violation. Defendant's argument to the contrary notwithstanding, evidence he saw a urologist for erectile dysfunction was only marginally relevant to the question of whether or not "he was either capable of, or committed, the many allegations to which [the victim] testified or stated earlier that [defendant] had used his penis." First, the victim's mother specifically testified defendant had erectile dysfunction problems and saw a urologist at some point during the time period in question. That he saw the urologist for erectile dysfunction adds little, if anything, to mother's testimony acknowledging defendant had difficulty achieving an erection. Second, none of the allegations against defendant would have required an erect penis. Finally, during mother's redirect examination, she testified that despite defendant's erectile difficulties, he still had an interest in having sex. Thus, the excluded evidence was, at best, only marginally relevant and therefore its exclusion did not implicate defendant's federal constitutional rights. (See People v. Marshall, supra, 13 Cal.4th at p. 836; Delaware v. Van Arsdall, supra, 475 U.S. at p. 679.)
Any assumed error was manifestly harmless.
C.
Restrictions on Defense Expert Testimony
Defendant's final assertion of evidentiary error is the trial court prejudicially erred and further violated his constitutional rights by restricting the defense expert's testimony concerning false confessions to general factors tending to produce such confessions and preventing the expert from testifying as to whether or not those factors appeared to apply to defendant. We are not persuaded.
1. Additional Background
The defense case began with defendant's testimony, during which he denied molesting the victim and claimed he did not remember admitting to having done so during his police interview, adding he "felt like [he] was hypnotized or something." The defense also called Dr. Deborah Davis, a professor in the psychology department at the University of Nevada, Reno, as an expert witness in the area of false confessions. After entertaining argument regarding the admissibility and permissible scope of Dr. Davis's testimony, the trial court allowed the testimony but limited it to "the general phenomenon of false confession and the factors tending to produce such confessions."
The testimony was so tailored. Dr. Davis testified that a person may falsely confess to a crime if the person becomes "so stressed out" by the circumstances of the interrogation he or she confesses to "get out of the situation." Such false confessions typically arise where the person is interrogated for "way too long or under difficult circumstances." A person who is sleep deprived, has not eaten in a while, is not allowed to smoke cigarettes, is suffering from a chronic illness, or is in "a severe state of emotional distress" is more susceptible to making a stress-induced false confession. A person who is less vulnerable to stress and possesses the ability to control his or her emotions is less susceptible to making such a confession. Dr. Davis also testified stress "impairs impulse control, makes it more difficult for you to control your emotions and control your impulses, so you're more likely to respond to that need to get away, as well as it makes it more difficult for you to think."
Dr. Davis testified a "second major reason people falsely confess" is a mistaken belief "it will work in their favor to falsely confess." She then described an interrogation technique used by law enforcement officers wherein the interrogator first seeks to convince the accused of the strength of the evidence of guilt in order to instill "a sense of hopelessness" with respect to the accused's prospects of not being convicted. The interrogator then seeks to establish in the accused's mind the perception there is a "flexibility of consequences" depending on how the accused handles the interrogation, with confession being the best option. Again, some people are more susceptible to such a technique than others. A factor that would make someone more susceptible to falsely confessing under these circumstances is the common belief the police are not allowed to lie to a suspect. The accused's level of intelligence and whether or not stress is impacting his or her ability to think clearly are also factors bearing on susceptibility to such a technique.
Finally, Dr. Davis testified that, while she would not be able to tell from viewing an interrogation alone whether or not a confession was true or false, there are some characteristics she would expect to find in a false confession. First, "if the person is innocent and they're confessing to things that they really didn't do, then they're not going to know everything that they should know. So their story should be inconsistent with the evidence." Second, the person's confession "may also be a little bit halting and incoherent, and a person may say I guess so or I think so or something like that." However, she went on to explain that where a person knows details of the crime from other sources, a false confession "can look very, very true which is one of the reasons why it's difficult to tell them apart."
At this point in the testimony, defense counsel asked: "[Are] there any recommended strategies for determining a false confession versus a true confession?" A relevance objection was sustained. Defense counsel then asked: "When you're talking about evaluating confessions, [are] there any other factors that you would look at?" The prosecutor objected: "Your Honor, we're not talking about evaluating confessions. I believe that was objected to by the People." The trial court sustained this objection as well.
2. Analysis
"The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 801, subd. (a).) The phenomenon of false confessions and the factors tending to produce such confessions is a subject that is beyond the experience of the average person. And, as the United States Supreme Court has observed, "a defendant's case may stand or fall on his [or her] ability to convince the jury that the manner in which the confession was obtained casts doubt on its credibility." (Crane v. Kentucky (1986) 476 U.S. 683, 689 .) Similar to the subjects of battered women's syndrome (see People v. Humphrey (1996) 13 Cal.4th 1073, 1087-1089) and eyewitness identification (see People v. McDonald (1984) 37 Cal.3d 351, 367-369 (McDonald), overruled in part on different grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914-915), in which expert testimony is recognized as helpful to disabuse the jury of certain assumptions about human behavior, expert testimony regarding false confessions can serve to refute the commonly held notion that people do not confess to crimes they did not commit. (See People v. Page (1991) 2 Cal.App.4th 161, 181-183 (Page).)
In Page, the defendant was convicted of murder based in part on a confession he gave to the police during an interrogation. As in this case, the trial court allowed a defense expert to testify concerning factors that can lead to a false confession, but "did not allow the [expert] to specifically relate these principles to [the defendant's] statements, or to give his opinion concerning the reliability of the confession." (Page, supra, 2 Cal.App.4th at p. 179.) Rejecting the defendant's challenge to these limitations on the testimony, the Court of Appeal noted the trial court relied on McDonald, supra, 37 Cal.3d 351, a case involving expert testimony regarding the accuracy of eyewitness identifications, in both allowing and limiting the testimony. The court explained that while McDonald held it was an abuse of discretion to exclude "all expert testimony on the psychological factors affecting the accuracy of eyewitness identification," that decision "did not hold that a court must permit the expert to discuss the particular evidence in the case or give his [or her] opinion on the reliability of particular eyewitness testimony." (Page, supra, at pp. 187-188.) The court continued: "Moreover, the court seemed to indicate the expert would usually be limited to discussing general factors bearing on the accuracy of eyewitness testimony in a 'typical case.' The court observed that '[t]he expert testimony in question does not seek to take over the jury's task of judging credibility: . . . it does not tell the jury that any particular witness is or is not truthful or accurate in his [or her] identification of the defendant. Rather, it informs the jury of certain factors that may affect such an identification in a typical case; and to the extent it may refer to the particular circumstances of the identification before the jury, such testimony is limited to explaining the potential effects of those circumstances on the powers of observation and recollection of a typical eyewitness.' [Citation.]" (Ibid.) The court concluded neither McDonald, supra, 37 Cal.3d 351 nor the Evidence Code required the trial court to allow the expert to discuss the evidence in the case or offer an opinion regarding the reliability of the defendant's confession. (Ibid.)
Defendant argues the Page court was "wrong" to so conclude. We disagree and adopt the reasoning of Page in its entirety. Because each of defendant's specific arguments involves an assertion Dr. Davis should have been allowed to address the evidence in the case or opine as to the reliability of defendant's confession, we reject them. We also reject defendant's conclusory assertion the limitations imposed upon Dr. Davis's testimony violated his federal constitutional right to present a defense. Indeed, in Page, the court held such restrictions on an expert's testimony do not amount to a " 'blanket exclusion' of evidence" relating to the circumstances of a confession the United States Supreme Court has held to violate a defendant's right to present a defense. (Page, supra, 2 Cal.App.4th at p. 186, quoting Crane v. Kentucky, supra, 476 U.S. at p. 689.)
The trial court neither abused its discretion nor violated defendant's constitutional rights by limiting Dr. Davis's testimony to the general phenomenon of false confessions and the factors tending to produce such confessions.
III
Cruel and/or Unusual Punishment
Defendant's final contention is the sentence imposed by the trial court, i.e., 98 years plus 60 years to life, amounts to cruel and/or unusual punishment in violation of both the federal and California Constitutions. The contention is forfeited by defendant's failure to raise it before the trial court. Anticipating forfeiture, defendant argues his trial counsel rendered constitutionally deficient assistance by failing to preserve the issue for review. We reject this assertion as well.
A.
Forfeiture and Ineffective Assistance
Because the determination of whether or not a sentence imposed in a particular case violates the constitutional proscription against cruel and/or unusual punishment is "fact specific, the issue must be raised in the trial court." (People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) The forfeiture determination turns on whether or not the following statements from defense counsel during the sentencing hearing are sufficient to preserve the issue for review: "Under the circumstances of this case [the sentence recommended by the probation department] seems extremely harsh. [¶] I would leave it to some further Court to determine whether that's cruel and unusual under the circumstances." We agree with the Attorney General the mere mentioning of the issue, and suggestion it may be raised before a different court at a later date, does not amount to raising it before the trial court. Because defendant did not ask the trial court to decide the constitutionality of the sentence, he may not ask this court to do so. The claim is forfeited.
Anticipating forfeiture, defendant argues his trial counsel rendered constitutionally deficient assistance by failing to adequately raise the issue before the trial court. We disagree.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him [or her] to 'the reasonably competent assistance of an attorney acting as his [or her] diligent conscientious advocate.' [Citations.]" (Ibid.) The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) " 'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his [or her] "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he [or she] must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ' " (In re Harris (1993) 5 Cal.4th 813, 832-833; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
Here, if it were true the sentence imposed amounted to cruel and/or unusual punishment, failing to raise the issue before the trial court would fall below the standard of reasonable competence and defendant would thereby be prejudiced by having to serve an unconstitutional sentence. (See, e.g., People v. DeJesus, supra, 38 Cal.App.4th at p. 27 [addressing merits despite forfeiture to forestall a claim of ineffective assistance of counsel].) So we address the merits of the claim, determine there are none, and conclude defendant's trial counsel did not render constitutionally deficient assistance. (See People v. Jones (1979) 96 Cal.App.3d 820, 827 [counsel is not required to advance meritless claims].)
B.
Analysis
The Eighth Amendment to the United States Constitution proscribes "cruel and unusual punishment" and "contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' [Citation.]" (Ewing v. California (2003) 538 U.S. 11, 20, italics added ; Lockyer v. Andrade (2003) 538 U.S. 63, 72 .) While this proportionality principle " 'does not require strict proportionality between crime and sentence,' " it does prohibit " 'extreme sentences that are "grossly disproportionate" to the crime.' [Citation.]" (Ewing, supra, 538 U.S. at p. 23.) Similarly, the California Constitution prohibits "cruel or unusual punishment." (Cal. Const., art. I, § 17, italics added.) A punishment may violate this provision "although not cruel or unusual in its method, [if] it 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).) Defendant's sentence does not violate either provision.
1. The California Standard
In Lynch, supra, 8 Cal.3d 410, our Supreme Court described three "techniques" the courts have used to administer the California Constitution's prohibition against cruel or unusual punishment: (1) an examination of the nature of the offense and/or the offender with particular regard to the degree of danger both present to society; (2) a comparison of the challenged penalty with the punishments prescribed for more serious offenses in the same jurisdiction, and (3) a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision. (Id. at pp. 425-427.) "A defendant has a considerable burden to overcome when he [or she] challenges a penalty as cruel or unusual. The doctrine of separation of powers is firmly entrenched in the law of California and the court should not lightly encroach on matters which are uniquely in the domain of the Legislature. We must always be aware that it is the function of the legislative branch to define crimes and prescribe punishments." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 529 (Bestelmeyer).)
In Bestelmeyer, supra, 166 Cal.App.3d 520, our colleagues at the Second Appellate District upheld against a challenge under the California Constitution's prohibition against cruel or unusual punishment a sentence of 129 years imposed upon a defendant convicted of 25 sex offenses committed against his stepdaughter. With respect to the first Lynch technique (Lynch, supra, 8 Cal.3d 410), the court explained the defendant acknowledged the "serious nature" of the crimes "present[ed] a significant danger to society," but argued such a severe sentence was nevertheless disproportionate "to the criminal" because he did not have a prior criminal record, suffered from mental impairment at the time of the crimes, and never victimized anyone other than his stepdaughter. (Bestelmeyer, supra, at pp. 529-530.) Rejecting this argument, the court explained: "We agree that these are factors that should be considered along with all of the other factors developed by application of this first technique. However, when we weigh these factors which relate to the defendant against the very serious nature of these offenses and the very real danger to the community, we cannot conclude that the sentence is so disproportionate to the crimes for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Id. at p. 530.)
Turning to the second technique, the court rejected the defendant's argument that mandatory imposition of consecutive sentences for 22 of his sex offenses under section 667.6, subdivision (d), was cruel or unusual because "multiple convictions for crimes such as mayhem, kidnapping and murder can be sentenced concurrently." (Bestelmeyer, supra, 166 Cal.App.3d at p. 530.) The court explained: "Whether a particular punishment is disproportionate to the offense is a question of degree. The choice of fitting and proper penalty 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. [Citation.] Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime. Leniency as to one charge does not transform a reasonable punishment into one that is cruel or unusual. [Citation.] When they enacted . . . section 667.6 subdivision (d) the legislature chose to treat violent sex offense and violent sex offenders differently than other types of offenses and offenders. In view of the outrageous nature of this type of offense and in view of the danger that these offenses pose to society we cannot say that the imposition of consecutive sentences for multiple sex offenses shocks the conscience and offends fundamental notions of human dignity." (Bestelmeyer at pp. 530-531.)
Because defendant does not rely on the third Lynch technique (Lynch, supra, 8 Cal.3d 410) in his briefing on appeal, we do not describe the Bestelmeyer court's handling of that issue in any detail and simply note the court concluded the defendant therein failed to demonstrate "other jurisdictions would have treated [him] more leniently than California for these multiple crimes of sexual abuse." (Bestelmeyer, supra, 166 Cal.App.3d at p. 531.) So too here. --------
Here, defendant makes a number of the same arguments rejected in Bestelmeyer, supra, 166 Cal.App.3d 520. With respect to the first Lynch technique (Lynch, supra, 8 Cal.3d 10), he concedes the "despicable" nature of the offenses presents "some degree of danger to society." We agree with defendant's characterization of the offenses, but not his minimization of the danger they present. Defendant's commission of 24 sexual offenses against his stepdaughter when she was between the ages of 6 and 12 years old, including 18 counts of lewd conduct by duress and 4 counts of oral copulation, does not present "some" danger to society. That danger is tremendous. Turning to the degree of danger presented by defendant himself, he argues he "had a clean criminal record" and notes the offenses involved in this case "were opportunistic, and limited to a member of his family," there is no evidence of "predatory tendencies towards others in the community," and his health problems (i.e., diabetes, obesity, and erectile dysfunction) make it "unlikely [for him] to reoffend if he was ever released." We are not persuaded. Defendant took advantage of his position within the family to victimize his stepdaughter, starting when she was six years old and continuing for six years. With respect to the effect defendant's health issues might have on his likelihood of reoffending, we note he was suffering from these same health issues when he committed the crimes against the victim. Nor are we persuaded the opportunistic nature of the crimes and defendant's previously clean criminal record make his sentence disproportionate. As the Bestelmeyer court explained, while "these are factors that should be considered[,] . . . when we weigh these factors which relate to the defendant against the very serious nature of these offenses and the very real danger to the community, we cannot conclude that the sentence is so disproportionate to the crimes for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (Bestelmeyer, supra, 166 Cal.App.3d at p. 530.)
With respect to the second Lynch technique (Lynch, supra, 8 Cal.3d 410), defendant argues murder, mayhem, and torture are more serious crimes that carry lesser punishments than the sentence he received. While true, defendant was not sentenced to his lengthy prison sentence because he committed one lewd act or act of oral copulation against the victim. As in Bestelmeyer, supra, 166 Cal.App.3d 520, he was sentenced to serve consecutive sentences for committing two dozen such acts. Thus, comparing the punishment he received with the punishment he would have received for committing one more serious crime is not the appropriate analysis. And while defendant does not make the logical extension of this argument, i.e., the one raised in Bestelmeyer, we agree with that court's rejection of that argument as well.
We cannot conclude defendant's punishment is "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.)
2. The Federal Standard
Under the Eighth Amendment, the question is whether or not the sentence is "grossly disproportionate" to the crimes. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 .) "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." (Rummel v. Estelle (1980) 445 U.S. 263, 272 .)
As defendant acknowledges, the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists against claims of cruel and unusual punishment. (See Lockyer v. Andrade, supra, 538 U.S. 63 [two 25-years-to-life terms for two separate thefts of videotapes]; Ewing v. California, supra, 538 U.S. 11 [25-years-to-life term for theft of three golf clubs]; Harmelin v. Michigan, supra, 501 U.S. 957 [life without parole (LWOP) sentence for possession of a large quantity of cocaine].) He distinguishes these cases by noting he is not a recidivist, and then relies on a line of cases that is even less analogous, i.e., Miller v. Alabama (2012) 567 U.S. 460 and Graham v. Florida (2010) 560 U.S. 48 , involving imposition of LWOP sentences on juvenile offenders. Defendant was in his forties when he committed the sex crimes against his stepdaughter and therefore does not have the "diminished culpability and greater prospects for reform" that make juvenile offenders "constitutionally different" and " 'less deserving of the most severe punishments.' " (Miller v. Alabama, supra, 567 U.S. at p. 471, quoting Graham v. Florida, supra, 560 U.S. at p. 68.)
For the reasons expressed above in rejecting defendant's challenge under the California Constitution, we also conclude his sentence was not "grossly disproportionate" to his crimes under the federal standard. (See People v. Crooks (1997) 55 Cal.App.4th 797, 805-806.)
Because defendant's challenge to the constitutionality of his sentence lacks merit, his trial counsel did not render constitutionally deficient assistance by failing to raise the issue before the trial court. (See People v. Jones, supra, 96 Cal.App.3d at p. 827 [counsel is not required to advance meritless claims].)
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
BUTZ, J.