Opinion
A152964
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. HECTOR ALONZO HERNANDEZ-HERNANDEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51706340)
A jury found defendant Hector Alonzo Hernandez-Hernandez guilty of 34 counts of sexual offenses involving his two daughters and a niece. The jury also found true multiple-victim and kidnapping allegations under the "One Strike" law. The trial court sentenced defendant to a total term of 675 years to life.
"[Penal Code] [s]ection 667.61, which provides indeterminate sentences for felony sex crimes committed under particular circumstances, is sometimes called the 'One Strike' law." (People v. Anderson (2009) 47 Cal.4th 92, 99.) Unless otherwise specified, subsequent statutory references are to the Penal Code.
Defendant now argues: (1) insufficient evidence of victim Jane Doe 2's age supported the section 288.7 counts involving her; (2) insufficient evidence supported the jury's true finding on the One Strike kidnapping allegation; (3) the trial court erroneously instructed the jury regarding the One Strike kidnapping allegation; (4) the court erred in instructing on unanimity with CALCRIM No. 3501; (5) the prosecutor should have charged him under section 288.5; (6) the One Strike multiple-victim enhancement was wrongly imposed on eight counts; (7) the sentence is cruel and unusual; and (8) the record contains an error. We conclude the One Strike kidnapping allegation must be stricken as insufficiently supported, and we accept the People's concession the record contains a minute order transcription error requiring correction. We otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with 25 counts of lewd acts on a child under 14 (§ 288, subd. (a) ("§ 288(a)")): nine involving his daughter, Jane Doe 1 (counts 1 through 9); nine involving his other daughter, Jane Doe 2 (counts 11, 13, 15, and 17 through 22); and seven involving his niece, Jane Doe 3 (counts 24, 26, 28, 30, and 32 through 34). A One Strike multiple-victim allegation was alleged as to all but four of the section 288(a) counts involving Jane Doe 2, and all but four involving Jane Doe 3. (§ 667.61, subds. (b), (e).) Count 24, a section 288(a) count involving Jane Doe 3, carried both multiple-victim and kidnapping allegations under the One Strike law. (§ 667.61, subds. (e), (j)(2).)
Defendant was also charged with four counts of sexual intercourse or sodomy of a child under 10 (§ 288.7, subd. (a) ("§ 288.7(a)")): two involving Jane Doe 2 (counts 10 and 12); and two involving Jane Doe 3 (counts 29 and 31). Finally, he was charged with five counts of oral copulation or sexual penetration of a child under 10 (§ 288.7, subd. (b) ("288.7(b)")): two involving Jane Doe 2 (counts 14 and 16); and three involving Jane Doe 3 (counts 23, 25, and 27).
A jury convicted defendant of all 34 counts and found all enhancements true. The trial court sentenced him to 25 to life terms for each of the section 288(a) counts pursuant to section 667.61, subdivision (j)(2). The court sentenced him to 25 to life terms for the section 288.7(a) counts, and 15 to life terms for the section 288.7(b) counts. With the exception of five counts for which it imposed concurrent sentences, the court imposed consecutive sentences.
The following is a summary of the trial evidence.
A. Prosecution Case
Jane Doe 1
Jane Doe 1 testified. She recalled defendant first touching her when she was 10 years old. He touched her vaginal area about five times when she was 10, using his hands twice, and put his penis inside her vagina twice. When Jane Doe 1 was 11 or 12, he touched her breasts. Defendant last touched her she was 13, using his hands on her vaginal area, breasts, and buttocks.
Jane Doe 1's pre-trial interview, taken when she was 13, was also admitted into evidence. During the interview she disclosed that starting when she was 10, defendant kissed her with his tongue four or five times. Defendant also sometimes grabbed her buttocks when they hugged. Jane Doe 1 described numerous incidents that occurred when she was 12. First, defendant put his hand inside her underwear and rubbed the body part that she urinates with, then "pulled [her] pants" and was "getting [her] butt." Second, while she was sitting on his lap watching a movie, he stuck his tongue in her mouth and touched her breasts. Third, defendant tried "to do sex" when they were at a hotel on a trip. Fourth, he put her hand on his penis. On another unspecified occasion, defendant put his penis "in [her] pants" and did something that made her feel like she had to use the bathroom.
Jane Doe 2
Jane Doe 2 testified. When asked about the first time defendant touched her, she described him digitally penetrating her anus when she was about 10 or 11 years old. She said he did this more than once, but did not know how often it occurred. She also testified that, when she was 11 and they were on a trip to Los Angeles, he took a shower with her and put his "boy private part" inside her "front private part." During this incident, she felt afraid and felt pain in her belly. He did this more than once in Los Angeles, and he also did it at home. She testified he never asked her to touch him.
Jane Doe 2's pre-trial interview, taken when she was 11, was also admitted into evidence. During the interview, she disclosed that on a trip to Los Angeles when she was 11, defendant pulled down his and her underwear and "[did] sex" with her. Jane Doe 2 said this made her stomach hurt. When asked what body parts "sex" involved, she said defendant's penis and marked the vaginal area on a drawing of a female body, which she called a "cola" but which we shall refer to as the vaginal area.
During the interview Jane Doe 2 also disclosed that when she was 10 years old and while her mother was at the hospital with her sick brother, defendant told her to sleep in his bed and then he "[did] sex" with her. She was clothed, and defendant was in his underwear only. Defendant kissed her with his tongue, put her hand on his penis and moved her hand "like circles," and put his penis in the middle of her vaginal area, causing her stomach to hurt. When asked where defendant's arms and hands were during this episode, Jane Doe 2 said defendant pulled her underwear down to "get [her] butt." She described him digitally touching her anus, causing pain. To show where he touched her, she marked a diagram of a body, drawing a line from the center and bottom of the anus upwards. After describing this whole incident, Jane Doe 2 said, "He was doing it all-every day . . . . [¶] . . . [¶] . . . [I]t was the same," and she said it first happened when she was 10 years old. When asked where else it happened, she stated it happened on another trip to Los Angeles just days before the interview. During that recent trip, she said he was "doing sex" and her underwear was down and wet; she thought the "wet" came from defendant's penis.
Later in the interview, when asked if this was before or after her eleventh birthday, Jane Doe 2 said, "I think after."
The police collected the pajamas Jane Doe 2 wore during this particular incident, as well as a pair of underwear wadded up in one of the pajama pant legs. But they did not find the specific underwear she described wearing at the time of this incident. Testing of the collected clothing for DNA yielded negative results.
Jane Doe 2 told the interviewer that defendant did "sex" by "getting" her buttocks about 10 times, and that eight or nine times occurred when she was 10 years old. When asked how many times acts involving defendant's penis and her vaginal area (like that which occurred when her mother was at the hospital), Jane Doe 2 said seven or eight times, and three or four of those times occurred when she was 10 years old. She said he made her touch his penis twice.
Jane Doe 3
Jane Doe 3 is the cousin of Jane Doe 1 and Jane Doe 2. The first specific incident she testified about occurred on a trip to Los Angeles when she was nine years old. She testified defendant touched her breasts and buttocks with his hands, put his penis inside her "front private," and poked the inside of her buttocks with his fingers.
Jane Doe 3 also testified that defendant touched her at his home, including once when her aunt was out taking the children to school then grocery shopping, and no one else was home except for defendant's three-year-old child. Jane Doe 3 had been asleep in the bedroom shared by Jane Doe 1 and Jane Doe 2 when defendant told her to go to his room. When she said she did not want to go, defendant picked her up and carried her there, and she felt afraid because she knew he was "going to do it." Once they were in his room, defendant took off her clothes, touched her breasts and buttocks with his hands, put his fingers inside her "front private," and put his penis inside her anus. She testified defendant's three-year-old child, who had been asleep in the room, woke up and watched.
Jane Doe 3's pre-trial interview, taken when she was 10, was admitted into evidence. Although she initially hesitated to discuss what, if anything, defendant had done to her, she eventually disclosed various incidents of molestation. The first incident occurred when her aunt (the mother of Jane Doe 1 and Jane Doe 2) went to a casino or a store and everyone else was at school. Defendant took her to his room, where the only other person there was his youngest child. He closed the door, pulled her pants and underwear down, then digitally penetrated her vagina. Jane Doe 3 asserted this occurred when she was nine years old, but she also said she was unsure if it happened after her tenth birthday. Jane Doe 3 told the interviewer this started when she was nine years old, and that it happened "all the time" and about five times at the house defendant lived in previously.
Jane Doe 3 also disclosed that, once when she was 10 years old and sitting on the couch, defendant grabbed her and put her on top of him. They were clothed but he moved his body and "mov[ed] his private . . . to put [it] inside [her]." She said she felt pressure on her "private" during this incident.
When Jane Doe 3 was 10 years old and at a hotel in Los Angeles with defendant and Jane Doe 2, he grabbed Jane Doe 3 by the buttocks and her private. On the way home, in the car, he grabbed her private part with his hand and "squished" it. After they returned to defendant's home, and while Jane Doe 3 was showering, defendant got into the shower in his underwear, hugged her, and touched her breasts.
Other witnesses
Detective Thompson testified as to various details of the investigation. The prosecution also presented an expert regarding child sex abuse and sex assault exams, Dr. Carpenter. Dr. Carpenter testified that children normally do not report sexual abuse, and that those who do commonly reveal only parts of what occurred. Concerning penetration, Dr. Carpenter asserted there can be penetration between the labia majora, the most external part of the vagina, even with clothes on. This "dry or labial intercourse" usually occurs when the perpetrator does not want to cause "penetration injury" on a small child. Further, if an adult man is rubbing his penis against a child's vagina hard enough to cause pain, he is most likely going past the labia majora. Dr. Carpenter testified that one is unlikely to find any sign of injury or penetration on a child during a "non-acute" sex assault exam, meaning an exam undertaken three to five days beyond the alleged incident. Here, each of the victims had non-acute sex assault exams. In examining Jane Doe 2, he found no confirmatory evidence of prior sexual contact. His colleague examined Jane Doe 1 and Jane Doe 3. The colleague made no diagnostic findings of prior sexual trauma for Jane Doe 1, and her exam of Jane Doe 3 could not confirm or negate the reported sexual abuse or contact.
B. Defense Case
Defendant's statements in a pre-trial interview with Detective Thompson and another officer who assisted with translation were introduced into evidence. In sum, defendant said he has a good relationship with his wife, with whom he has been for about 15 years. When asked if he knew why he was there, he said he heard his in-laws say he raped his daughters. He denied doing so and suggested his wife's family made it up because they are "problematic" and because his sister-in-law is envious of their family. Detective Thompson employed a ruse, falsely stating that defendant's DNA was found in Jane Doe 2's underwear from their recent Los Angeles trip. Defendant responded by stating it was possible his sperm transferred to her underwear, because he sleeps in his underwear and hugs Jane Doe 2 when they sleep, and he gets "hot" or "wet" or ejaculates quickly merely with hugging. When the detective then falsely stated that defendant's sperm was found inside Jane Doe 2's vagina and asked how that could have happened, he responded his sperm must have transferred through their clothing and Jane Doe 2 had pulled her pajamas down a little bit. When asked if his penis touched Jane Doe 2's vagina, defendant replied "maybe" but with underwear on. He acknowledged this hugging-ejaculation type of incident also occurred at home with Jane Doe 2, and also with Jane Doe 1 when she was around 12 years old. With regard to both Jane Doe 1 and Jane Doe 2, defendant said his penis may have gone inside or "to the side of [their] underwear," but he denied any vaginal penetration. As for Jane Doe 3, he stated the same type of hugging-ejaculation first happened with her when she was 10, and his penis rubbed against her vagina but he did not penetrate her.
During the interview, defendant admitted he gets "excited" and aroused when his daughters wrestle and jump on him, and he gets "wet" fast. He indicated he rubbed his penis against their vaginas, but insisted he never penetrated them. He also denied making his daughters touch his penis, though he indicated they each brushed against it once. Toward the end of the interview, defendant said he knew he made a mistake and what he did was wrong.
At trial, defendant testified he was completely innocent of the charges and denied ever touching the victims with sexual intent. He claimed he was scared when talking to Detective Thompson. He also said he did not understand her questions very well, but acknowledged an officer was present who helped him with interpretation, and asserted he would not answer a question he did not understand. Defendant explained that during the interview he was trying to convey that he would prematurely ejaculate when playing with or being affectionate with the victims. In denying he was sexually aroused by young girls, he stated he ejaculated without an erection and disagreed that "getting wet" required him to be sexually aroused. To him, "penetration" meant the penis entering the vagina, and he denied that ever occurred. Defendant did not recall telling Detective Thompson he rubbed his penis against the victims' vaginas, explaining that when he told her his penis rubbed against the victims' vaginas, he meant this occurred while they were playing.
Defendant further testified that Jane Doe 3's mother has a number of children, and that she has never been married but always brings men around her house. According to defendant, Jane Doe 3 tells many lies, and she is close with his daughters. He admitted he wrote a letter to a friend, asking that friend or his friend's wife talk to defendant's wife to tell his daughters to come to court and say they lied about everything, which he testified was the truth. Defendant testified that he and his wife argued about her striking their children prior to his arrest, and because of that argument his sister-in-law and his friend's wife conspired to have the victims lie in order to jail him.
The defense called two character witnesses: defendant's employer and his female cousin. Neither had ever seen defendant act inappropriately. And while neither witness believed he committed the crimes, both would change their opinions if he acknowledged things like rubbing his penis against the victims' vaginas.
DISCUSSION
A. Sufficiency of the Evidence Supporting the Section 288.7 Convictions Involving Jane Doe 2 (Counts 10, 12, 14, 16)
Defendant challenges his section 288.7(a) convictions (counts 10 and 12) and section 288.7(b) convictions (counts 14 and 16) involving Jane Doe 2. Specifically, he contends there was insufficient evidence that Jane Doe 2 was 10 years old or younger at the time of the offenses.
Section 288.7 makes it a felony, punishable by an indeterminate life term, for an adult to engage in sexual intercourse, sodomy, oral copulation, or sexual penetration with a child who is 10 years old or younger. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In child molestation cases, so-called "generic" testimony is sufficient to support a conviction on one or more counts as long as the testimony satisfies three criteria: (1) the victim "must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy)"; (2) "the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., 'twice a month' or 'every time we went camping')"; and (3) "the victim must be able to describe the general time period in which these acts occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after he came to live with us'), to assure the acts were committed within the applicable limitation period." (Jones, supra, 51 Cal.3d at p. 316.)
Testimony that is "generic" refers to testimony where a child victim is unable "to give specific details regarding the time, place and circumstances of various alleged assaults." (People v. Jones (1990) 51 Cal.3d 294, 299-300 (Jones).)
Here, the evidence in the record adequately supported the age elements of the challenged counts. In her pre-trial interview statements, which were admitted at trial, Jane Doe 2 described defendant engaging in sexual intercourse with her and digitally penetrating her anus. After describing an incident that occurred at home when she was 10 or 11 years old, during which she described defendant engaging in intercourse with her and touching her anus causing her pain, Jane Doe 2 told the interviewer, "He was doing it all-every day . . . . [¶] . . . [¶] . . . [I]t was the same," and the first time it happened she was 10 years old. She asserted defendant did "sex" by "getting" her "butt" about 10 times, and eight or nine of those times occurred when she was 10 years old. When asked how often the described acts involving defendant's penis and her vaginal area occurred, she said seven or eight times, and three or four of those times occurred when she was 10 years old. This constituted substantial evidence supporting the age element of the section 288.7 convictions involving Jane Doe 2.
Starting from the premise that evidence is insufficient unless a jury can reasonably reject all that undermines confidence in a defendant's guilt, defendant contends such confidence is undermined here as to the age element because of Jane Doe 2's testimony that she was 11 years old the first time defendant improperly touched her, that she appeared uncertain of her age at the time of the incident that occurred at home, and that she claimed other incidents occurred when she was 11. We are unpersuaded. First of all, the record clearly establishes that Jane Doe 2 testified she was "about 10 or 11" at the time of the first incident. Moreover, defendant points to nothing in the record reflecting that Jane Doe 2 ever retreated from her interview statements that defendant engaged in intercourse and digitally penetrated her multiple times when she was 10 years old. Indeed, in court, she testified she told the truth during her interview.
As discussed, Jones, supra, 51 Cal.3d 294, held that generic testimony of improper sex acts, such as the testimony and statements provided here by Jane Doe 2, can properly furnish the substantial evidence necessary to sustain a conviction. In seeking to distinguish Jones, defendant contends for the first time in his reply brief that the Jones rule "cannot be construed to allow substituting generic testimony for the age element in this case, without reading out of section 288.7 the age element it specifically includes." Defendant seems to be arguing that Jones's holding should not apply where a crime has a statutory age element. Not only has this argument been waived because it is undeveloped (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie)), but it fails to persuade because Jones applied its holding in the context of a crime that in fact has an age element, i.e., section 288(a). (Jones, at pp. 300-301.)
In sum, we conclude substantial evidence supports the section 288.7 convictions involving Jane Doe 2.
B. Sufficiency of the Evidence Supporting the One Strike Finding that Defendant Kidnapped Jane Doe 3 During the Commission of a Lewd or Lascivious Act
Defendant was charged in count 24 with committing a lewd act on Jane Doe 3 in violation of section 288(a). The charge was accompanied by a One Strike allegation that defendant kidnapped the victim in violation of section 207. (§ 667.61, subds. (e), (j)(2).) The basis for the count and the accompanying kidnapping allegation was Jane Doe 3's testimony that on one occasion, while she was asleep in Jane Doe 1's and Jane Doe 2's bedroom, and when no one but defendant and his three-year old child were at home, defendant told her to go to his room. When she refused, he picked her up and carried her there, then touched her breasts and buttocks with his hands, put his fingers inside her "front private," and put his penis inside her buttocks.
Defendant contends the evidence was insufficient to establish that he moved Jane Doe 3 a substantial distance, as required for simple kidnapping in violation of section 207. This contention has merit.
Section 667.61, subdivision (j)(2), provides that if a defendant is convicted of a lewd act on a child under 14 years of age in violation of section 288(a) under the circumstance that the defendant kidnapped the victim in violation of section 207, then the punishment for the crime is 25 years to life imprisonment. (§ 667.61, subds. (c)(8), (e)(1), (j)(2).) To establish a kidnapping, there must be proof of asportation, i.e., proof that the defendant moved the victim a "substantial distance." (§ 207, subd. (e); CALCRIM No. 1201.) Asportation is not determined solely based on actual distance (People v. Martinez (1999) 20 Cal.4th 225, 236-237 & fn. 6 (Martinez)); rather, the jury must consider the totality of the circumstances when assessing whether the distance a defendant moved a victim was "substantial" (id. at p. 237). These circumstances include "whether that movement increased the risk of harm above that which existed prior to the asportation, decreased the likelihood of detection, and increased both the danger inherent in a victim's foreseeable attempts to escape and the attacker's enhanced opportunity to commit additional crimes." (Ibid.) Furthermore, where, as here, a case involves an associated crime, "the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement's substantiality." (Ibid.) As before, we review the record for substantial evidence supporting the kidnapping allegation.
We conclude the evidence of kidnapping was lacking in this case. None of the contextual factors set out in Martinez, nor any other that we can discern, reasonably supports a conclusion that the movement here was substantial. During the crime at issue, the victim was moved from one bedroom to another within a six-bedroom home. There was no evidence that the measured distance of the movement was great or that the movement increased the risk of harm to the victim "above that which existed prior to the asportation." (Martinez, supra, 20 Cal.4th at p. 237.) Contrary to the People's suggestion otherwise, the record contains no indication that the movement increased the fear Jane Doe 3 felt, or the psychological harm she would suffer, beyond what she would have felt or suffered had defendant simply committed the crimes where he found her. Moreover, whether defendant moved her or not, it is unlikely she would or could have resisted him; he was her uncle and an adult man much larger than herself.
Defendant asserts in his appellate briefs that all of the bedrooms were on the second floor of the home but cites only to a portion of the record showing the prosecutor talking to the trial judge about this detail. We decline to consider this as evidence. (Evid. Code, §§ 140, 710.)
Nor was there evidence that defendant's movement of the victim decreased the likelihood of detection. No one else was home other than defendant's three-year-old son. Nor was there evidence that the location or condition of defendant's room somehow made it easier for him to abuse Jane Doe 3 without getting caught. (See People v. Perkins (2016) 5 Cal.App.5th 454, 470 (Perkins).)
There was also no evidence the movement to defendant's room increased the danger in the victim's foreseeable attempts to escape. Given defendant's size, it was very unlikely Jane Doe 3 could have escaped defendant from either her cousins' bedroom or defendant's bedroom. Finally, there was no evidence the movement enhanced defendant's opportunity to commit additional crimes. Defendant had the opportunity to commit whatever crime he wanted in either room (Perkins, supra, 5 Cal.App.5th at p. 470), and there was nothing to suggest he could not have committed the molestation in his daughters' bedroom.
Perkins, supra, 5 Cal.App.5th 454, is instructive. In Perkins, the defendant was convicted of sex crimes against his 11-year-old stepdaughter. (Perkins, at pp. 459-462.) The victim's mother had asked the defendant to help her move into a one-bedroom apartment, and when the victim's mother was not home and the victim and her sister were asleep in the living room, the defendant woke the victim up and told her to go into the bathroom. (Id. at pp. 459-460.) After sodomizing her there, he told her to go into the bedroom. (Id. at p. 460.) She did not want to because she thought the defendant would molest her more, but she went because she was afraid. (Ibid.) In the bedroom, where the defendant's baby slept on the bed, he again sodomized and also raped the victim. (Ibid.) As relevant here, for the crimes in the bedroom, the defendant was convicted of a forcible lewd act on a child (§ 288, subd. (b)) and forcible sodomy on a child (§ 286, subd. (c)(2)(B)), and the jury found true One Strike aggravated kidnapping and kidnapping enhancements as to these charges. (Perkins, at pp. 462-463.)
The Perkins court reversed the One Strike enhancements. Observing that "[t]he movement was for a short distance inside a small private residence from one room to another," the court concluded there was no evidence the movement increased the risk of harm to the victim or decreased the likelihood of detection. (Perkins, supra, 5 Cal.App.5th at p. 470.) The court also concluded there was no evidence the movement increased the danger in the victim's foreseeable attempts to escape, or enhanced the defendant's opportunity to commit more crimes. (Ibid.) On these points, the court reasoned the defendant's size made it unlikely the victim would have escaped either the bathroom or the bedroom, and the defendant had the opportunity to commit whatever crimes he wanted in either room. (Ibid.)
This case is strikingly similar to Perkins. Its discussion regarding the inapplicability of the Martinez factors to its facts is equally applicable to the facts in the case before us and supports our conclusion that defendant's movement of Jane Doe 3 was not substantial for purposes of the kidnapping enhancement, but instead merely incidental to his commission of the charged sex offenses.
Relying principally on two aggravated kidnapping cases, People v. Salazar (1995) 33 Cal.App.4th 341 and People v. Shadden (2001) 93 Cal.App.4th 164, the People contend that because defendant could have engaged in his lewd acts without moving Jane Doe 3, the movement was therefore unnecessary and not merely incidental to the lewd acts.
This contention is unavailing. Reliance on necessity alone ignores precedent prescribing a more complex analysis for determining whether a movement is merely incidental to an associated crime, at least in aggravated kidnapping cases. As the Supreme Court has explained, "[w]hether a forced movement of a rape victim (or intended rape victim) was merely incidental to the rape, and whether the movement substantially increased the risk of harm to the victim, is difficult to capture in a simple verbal formulation that would apply to all cases." (People v. Dominguez (2006) 39 Cal.4th 1141, 1151.) In this regard, the jury, and hence the reviewing court, must " 'consider[] the "scope and nature" of the movement,' as well as 'the context of the environment in which the movement occurred.' [Citations.] This standard suggests a multifaceted, qualitative evaluation rather than a simple quantitative assessment. Moreover, whether the victim's forced movement was merely incidental to the rape is necessarily connected to whether it substantially increased the risk to the victim. 'These two aspects are not mutually exclusive, but interrelated.' " (Id. at pp. 1151-1152.) On the record before us, we are persuaded that "movement from one room to another inside a [home], without a substantial increase in the risk of harm or other characteristic showing the movement to be a separate crime, does not constitute a movement 'into another part of the same county' that is not merely incidental to the underlying sex crime." (Perkins, supra, 5 Cal.App.5th at p. 470.)
For the reasons stated, we cannot conclude that substantial evidence supported the One Strike kidnapping enhancement. We therefore strike the enhancement. Given this conclusion, we need not and do not address defendant's argument that the trial court erred by not instructing the jury to consider whether the movement was merely incidental to the commission of the lewd act.
That said, we note that defendant does not challenge the sentence on the count or ask for resentencing. Even if he did, we observe that the jury also found true a One Strike multiple-victim enhancement as to count 24, making the appropriate sentence for the count a term of 25 years to life regardless of the unsupported finding on the One Strike kidnapping allegation. (§ 667.61, subds. (c)(8), (e)(4), (j)(2).)
C. Unanimity Instruction and the Applicability of Jones
Defense counsel below asked the trial court to instruct on unanimity with CALCRIM No. 3500, the standard unanimity instruction, rather than CALCRIM No. 3501, a modified unanimity instruction. Defense counsel explained he was requesting CALCRIM No. 3500 because he felt CALCRIM No. 3501 "somehow lowers the burden on the [p]rosecution." The court declined the defense's request and explained it would instruct with CALCRIM No. 3501 because even though the prosecutor discussed specific acts that could support each count, the prosecutor also relied on testimony about other crimes (i.e., the victims' "generic" testimony) to support the counts.
CALCRIM No. 3500 provides, in relevant part: "The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
CALCRIM No. 3501 provides: "The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged]."
Defendant now contends the trial court erred by failing to instruct with CALCRIM No. 3500 because the jurors might have disagreed about the particular acts defendant committed. In his view, the failure to so instruct resulted in nonunanimous verdicts on the 34 counts. This contention is lacking in merit.
" 'In a criminal case, a jury verdict must be unanimous. [Citations.]' [Citation.] 'Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.' " (People v. Fernandez (2013) 216 Cal.App.4th 540, 555 (Fernandez).)
In Jones, supra, 51 Cal.3d 294, the Supreme Court addressed unanimity instructions in child molestation cases involving generic testimony. (Jones, at pp. 321-322.) The Jones court held: "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction [(CALCRIM No. 3500)] should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction [(e.g., CALCRIM No. 3501)] which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Jones, supra, 51 Cal.3d at pp. 321-322; see Bench Notes to CALCRIM No. 3501.) The court further stated that "because credibility is usually the 'true issue' in these cases, 'the jury either will believe the child's testimony that the consistent, repetitive pattern of acts occurred or disbelieve it. In either event, a defendant will have his unanimous jury verdict [citation] and the prosecution will have proven beyond a reasonable doubt that the defendant committed a specific act, for if the jury believes the defendant committed all the acts it necessarily believes he committed each specific act [citations].' " (Jones, at p. 322.) We review the failure to give the proper unanimity instruction de novo. (People v. Hernandez (2013) 217 Cal.App.4th 559, 568.)
The definition of generic testimony is discussed in footnote 4, ante.
We conclude that instruction with CALCRIM No. 3501 in this case was proper under the rule set out in Jones. There was no indication the jurors might disagree as to any particular act defendant committed. Defendant offered no evidence raising a doubt about whether any specific alleged act occurred apart from any other alleged act. Instead, defendant denied committing any of the alleged sex offenses. As such, the true issue in this case was the credibility of the victims and defendant. (See Fernandez, supra, 216 Cal.App.4th at pp. 557-558.)
Relatedly, defendant contends that Jones is "inapplicable" because each of the victims was able to testify about specific instances of molestation. Regarding Jones's applicability, he alleges it was unnecessary for the prosecutor to rely on the victims' generic testimony and to use CALCRIM No. 3501. These claims are unaccompanied by citations to supporting authority other than Jones itself. Nothing in Jones, however, suggests its principles are limited to cases where only generic testimony of child molestation is presented. (See Fernandez, supra, 216 Cal.App.4th at p. 557 [CALCRIM No. 3501 properly given where the victim testified about both specific and generic instances of sexual molestation].)
Defendant asks that we reconsider Jones if we find it applicable. We decline the request. Jones is not ours to reconsider, and we are bound by our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For the same reason, we reject defendant's argument that instructing with CALCRIM No. 3501, as permitted by Jones, violated his due process rights and right to a unanimous verdict.
We reject the claim of instructional error.
D. Charging Discretion
Defendant next contends that he should have been prosecuted under section 288.5 instead of section 288, subdivision (a) with enhancements under the One Strike Law, and section 288.7. This is meritless. Whether and how to charge a set of crimes are decisions largely within the province of the executive branch. (See Manduley v. Superior Court (2002) 27 Cal.4th 537, 552, 556.) Defendant cites no authority holding or suggesting that the prosecutor here was obligated to proceed under section 288.5 to afford him a more lenient punishment.
Contrary to defendant's contention, Jones, supra, 51 Cal.3d 294, did not purport to limit the executive branch's charging authority. At most it commented that "prosecutors should exercise discretion in limiting the number of separate counts charged. No valid purpose would be served by charging hundreds or thousands of separate counts of molestation, when even one count may result in a substantial punishment." (Jones, supra, 51 Cal.3d at p. 314.) As obiter dictum, this language in Jones does not suffice to establish prosecutorial or other error as to the offenses charged.
In sum, we reject these claims.
E. Pleading the Multiple-Victim Enhancement (§ 667.61 , subd. (e)(4))
The One Strike law codified at section 667.61 has various pleading requirements. Subdivision (f) states in relevant part that the circumstances specified in subdivision (e) must be "pled and proved" in order to impose an enhanced punishment under the statute. Subdivision (o) provides the enhanced penalties "apply only if the existence of any circumstance specified in subdivision . . . (e) is alleged in the accusatory pleading pursuant to this section."
The operative third amended information charged defendant with 17 section 288(a) counts specifically accompanied by a One Strike multiple-victim allegation pursuant to section 667.61, subdivision (e)(4). The eight remaining section 288(a) counts, however, were not specifically accompanied by a multiple-victim allegation (counts 11, 13, 15, 17, 26, 28, 30, and 32). The trial court sentenced defendant to enhanced sentence terms (25 years to life) for each of his section 288(a) convictions pursuant to section 667.61, subdivisions (e)(4) and (j)(2), including the foregoing eight counts.
Defendant now contends the imposition of enhanced sentences for those eight section 288(a) counts was unauthorized because it violated section 667.61's pleading requirement and his due process right to notice. He further argues the fact that the multiple-victim enhancement was alleged as to some counts and not others indicates the prosecutor made a discretionary charging decision.
The People argue that defendant forfeited these claims, and that they lack merit in any event. After due consideration of this specific record, we agree that defendant forfeited the claims.
When a defendant has notice of the sentence he or she is facing and has sufficient opportunity to object on grounds that an allegation was not included in an accusatory pleading, then his or her failure to object to the pleading deficiency forfeits the claim on appeal. (People v. Houston (2012) 54 Cal.4th 1186, 1228 (Houston).) In Houston, for example, the defendant received life sentences on 10 attempted murder counts after the jury found true allegations that the attempted murders were willful, deliberate, and premeditated. (Id. at pp. 1225-1226.) On appeal, the defendant argued he was improperly sentenced because the indictment failed to allege that the attempted murders were willful, deliberate, and premeditated in contravention of a statutory pleading requirement in section 664. (Id. at p. 1225.) The Supreme Court found the argument forfeited because the record showed that the trial court told the defendant life imprisonment was the prospective sentence, asked the parties if they had a problem with the proposed jury instructions and verdict forms instructing the jury to determine if the attempted murders were willful, deliberate, and premeditated, and provided space for this determination in the verdict form. (Id. at pp. 1227-1229.) The Supreme Court explained: "A timely objection to the adequacy of the indictment would have provided an opportunity to craft an appropriate remedy. Because defendant had notice of the sentence he faced and did not raise an objection in the trial court, he has forfeited this claim on appeal." (Id. at p. 1228.)
Here, even though the multiple-victim enhancement was not alleged in writing as to eight of the section 288(a) counts, it was alleged in writing as to the other 17 section 288(a) counts in the operative information. Thus, defendant had notice from the outset that he was facing significant sentencing exposure under the One Strike Law due to the multiple-victim circumstance, and he had every reason to know to prepare a defense to the allegation. Furthermore, the record reflects defendant had actual notice that the multiple-victim enhancement would apply to all of the section 288(a) counts in light of the following conversation between defense counsel, the prosecutor, and the trial court which took place after the close of evidence:
"[THE COURT]: The DA has also added on all of their 288(a) counts the enhancement under 667.61 . . .
"[PROSECUTOR]: (e).
"THE COURT: (e)
"[Defense counsel]: Four.
"[Prosecutor]: (e)(4).
"THE COURT: Yes, (e)(4), yes, which is the multiple victim . . . issue, so we've agreed that we're going to be giving the jury a verdict form that tells it to find true or not true whether or not there's multiple victims, and that will be applicable to this entire case for sentencing . . . ."
Acknowledging this conversation, defendant asserts "the court erroneously believed the information had been amended [to] include a One Strike allegation on the eight lewd conduct counts at issue." Defendant seems to suggest a formally filed amended information was necessary to amend the charges, but he does not develop the argument or cite authority. As will be discussed post, an information can be amended impliedly by a defendant's conduct without a formal written amendment.
The trial transcript does not show defense counsel objected to the stated addition of the multiple-victim circumstance allegations to the remaining section 288(a) counts. Nor did he ask to reopen evidence because of it.
And beyond this conversation, defense counsel also did not object, and even said he thought there was no error, after the trial court instructed the jury that it would be deciding the multiple-victim allegation as to all of the section 288(a) counts, including the eight at issue here, which the court explicitly enumerated. Moreover, defense counsel lodged no objection in his sentencing brief or when the court actually imposed the enhanced sentences. Indeed, it does not appear that defendant raised any objection to the sentence for the eight section 288(a) counts prior to this appeal, aside from an Eighth Amendment challenge which we address below. Given these specific circumstances, we conclude defendant's omissions in the trial court forfeited review of his present contentions. (Houston, supra, 54 Cal.4th at pp. 1225-1229.)
Defendant suggests in his reply brief that the jury never found the multiple-victim allegation true as to the eight counts at issue, but that suggestion is belied by the record. The above-quoted conversation between the trial court and the parties reflected everyone's agreement that one verdict form regarding the multiple-victim allegation would be given as to all of the section 288(a) counts. The court specifically told the jury the multiple-victim allegation applied to the eight section 288(a) counts presently at issue, and the jury found the multiple-victim allegation true.
Relying on People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), defendant contends his claims are not subject to forfeiture because the sentences on the eight section 288(a) counts at issue were unauthorized. Mancebo, however, is clearly distinguishable.
In Mancebo, the defendant was charged with multiple sex offenses. Firearm enhancements (§ 12022.5, subd. (a)) were alleged as to all counts, One Strike kidnapping allegations and One Strike gun-use allegations were made as to counts 3 through 8, and One Strike gun-use allegations and One Strike " 'tying or binding' " allegations were made as to counts 9 and 10. (Mancebo, supra, 27 Cal.4th at p. 740.) The defendant was convicted of all counts, and all enhancement allegations were found true. (Ibid.) The trial court needed two or more One Strike circumstances to support imposition of an enhanced punishment under the One Strike Law. (Id. at pp. 740-742 & fn. 4.) When sentencing on counts 3 and 9, the trial court relied on an unpleaded multiple-victim circumstance to take the place of the expressly pleaded gun-use allegations to satisfy the requisite number of circumstances for One Strike sentencing. (Ibid.) This substitution ostensibly freed up the gun use as a basis for imposing section 12022.5, subdivision (a), firearm enhancements in addition to the enhanced One Strike sentences. (Ibid.) On appeal, the Mancebo court addressed the "narrow question" of whether the gun use was available to support the two section 12022.5, subdivision (a), firearm enhancements despite its having been properly pled and proved as a basis for invoking One Strike sentencing. (Id. at p. 738.)
The Mancebo court concluded the answer to that narrow question was no, determining that the trial court's use of the unpleaded multiple-victim circumstance violated the pleading provisions of section 667.61, implicated defendant's due process right to notice, and resulted in an unauthorized sentence. (Mancebo, supra, 27 Cal.4th at pp. 743-745, 749, fn. 7.) In rejecting the People's argument that the multiple-victim circumstance was effectively pleaded because counts 3 and 9 involved different victims, Mancebo explained: "the pleading was inadequate because it failed to put defendant on notice that the People, for the first time at sentencing, would seek to use the multiple victim circumstance to secure indeterminate One Strike terms under section 667.61, subdivision (a) and use the circumstance of gun use to secure additional enhancements under section 12022.5(a)." (Id. at p. 745, some italics added.) Notably, Mancebo refused to find that the defendant waived the alleged sentencing error by not objecting at sentencing, relying on the following language of section 667.61, subdivision (f): "if only the minimum number of qualifying circumstances required for One Strike sentencing treatment have been pled and proved, they must be used as the basis for imposing the One Strike term rather than to impose lesser enhancements or punishment under any other law." (Id., at pp. 742, 749, fn. 7.) Because section 667.61, subdivision (f), "mandated that the properly pled and proved gun-use circumstances be used to support the One Strike terms," the trial court was precluded from striking those circumstances and imposing them as independent enhancements. (Id. at p. 749, fn. 7.) Consequently, Mancebo held, the court's violation of section 667.61, subdivision (f), rendered the sentence unauthorized. (Ibid.)
Unlike the situation in Mancebo, this is not a case where the trial court swapped out circumstances that were pled and proved in order to support One Strike terms, or where the multiple-victim enhancement was completely unpled, or where the defendant was put on notice for the first time at sentencing that an enhancement would apply to his convictions. Instead, the record here establishes that the multiple-victim enhancement was pled initially as to 17 of the section 288(a) counts and that defendant was given notice of its application to all of the section 288(a) counts well before sentencing. Not only did defendant repeatedly fail to object, but he appeared to acquiesce to the added allegations. In light of these factual differences, we cannot read Mancebo as compelling the conclusion that the sentence here was unauthorized such that forfeiture does not apply.
Indeed, the circumstances here support not only forfeiture, but also application of the informal amendment doctrine. As case law recognizes, "California law does not attach any talismanic significance to the existence of a written information. Under [the informal amendment] doctrine, a defendant's conduct may effect an informal amendment of an information without the People having formally filed a written amendment to the information." (People v. Sandoval (2006) 140 Cal.App.4th 111, 133, italics added; see, e.g., People v. Whitmer (2014) 230 Cal.App.4th 906, 919-920 [relying on the doctrine in upholding a conviction on a count not written in the information where the defendant did not object to instructions on that count].) Of course, the informal amendment doctrine "applies only when a defendant had reasonable notice of a sentence enhancement allegation despite an incomplete pleading." (People v. Sawyers (2017) 15 Cal.App.5th 713, 723.) Again, based on the above-quoted in-court conversation, the instructions, and the verdict forms, we conclude defendant had reasonable and ample notice he was facing One Strike multiple-victim enhancements on the eight section 288(a) counts presently at issue.
Finally, defendant argues that if we conclude he forfeited this challenge, then his trial attorney's failure to object constituted ineffective assistance of counsel. This claim fails because the record does not disclose counsel's reasons for his failure to object, and conceivable reasons for that omission are apparent. (People v. Earp (1999) 20 Cal.4th 826, 896.) For instance, it may be that counsel understood the pleading as having been amended informally. It may also be that he reasonably believed an objection would be futile given that (1) defendant was charged with the multiple-victim allegation as to 17 counts thereby alleviating concerns about the due process right to notice, (2) section 1009 permits amendment of an information at any time (as long as the charges are supported by the preliminary hearing evidence), and (3) the evidence at the preliminary hearing and the trial evidence supported the multiple-victim allegation as to all section 288(a) counts. "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387; People v. Winters (1990) 221 Cal.App.3d 997, 1005 ["a trial court correctly exercises its discretion [under section 1009] by allowing an amendment of an information to properly state the offense at the conclusion of the trial"].)
For the reasons stated, we reject defendant's challenge to the sentences imposed on the eight identified section 288(a) counts.
F. Cruel and Unusual Punishment
Defendant argues his sentence of 675 years to life in prison constitutes cruel and/or unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution. He argues his sentence is excessive and unconstitutional because it serves no public purpose, and because it is disproportionate to the severity of his crimes. He asserts he was 34 years old at the time of trial, had no prior criminal record, was self-employed and supported his family, used no force or violence during the crimes, and scored in the "low risk" category on the Static-99R risk assessment test. We recognize that defendant's sentence is effectively one for life imprisonment without the possibility of parole, but we reject his constitutional challenges.
It appears the total term may be 695 years to life, not 675. But the People do not dispute defendant's lower figure, and utilizing the higher figure does not change our analysis.
Initially, we are not persuaded by defendant's claim that his sentence serves no public purpose. Not only is the claim undeveloped and unsupported by authority (Badie, supra, 67 Cal.App.4th at pp. 784-785), we simply disagree with it. "[T]he purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice." (§ 1170, subd. (a).) Despite defendant's Static-99R risk assessment score, "California has recognized, and reasonably so, that sex offenders present a serious danger to society because of their tendency to repeat their sexual offenses." (People v. Meeks (2004) 123 Cal.App.4th 695, 709.)
We also reject defendant's claim that his sentence is grossly disproportionate to his crimes. The Eighth Amendment contains a "narrow" proportionality principle: " 'it forbids only extreme sentences that are "grossly disproportionate" to the crime.' " (Ewing v. California (2003) 538 U.S. 11, 20, 23.) Successful proportionality challenges are " 'exceedingly rare.' " (Id. at p. 21; see, e.g., id. at pp. 28-31 [Three-Strikes sentence of 25-to-life for present offense of felony grand theft for stealing three golf clubs worth $1,200 not grossly disproportionate].) In determining whether a particular punishment is cruel and unusual, courts "must begin by comparing the gravity of the offense and the severity of the sentence. [Citation.] '[I]n the rare case in which [this] threshold comparison . . . leads to an inference of gross disproportionality' the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis 'validate[s] an initial judgment that [the] sentence is grossly disproportionate,' the sentence is cruel and unusual." (Graham v. Florida (2010) 560 U.S. 48, 60.)
Article I, section 17, of the California Constitution similarly proscribes "[c]ruel or unusual punishment." A sentence violates this proscription 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.) Courts employ three "techniques" to determine if a punishment is cruel or unusual: first, courts examine "the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society"; second, courts compare the punishment with the punishments prescribed for more serious crimes in the jurisdiction; and third, courts compare the punishment with punishments for the same offense in other jurisdictions. (Id. at pp. 425-427.) The defendant must overcome a "considerable burden" to show the sentence is disproportionate. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
Applying the foregoing federal and state constitutional principles, we cannot conclude that the penalty faced by defendant is grossly disproportionate in relation to the gravity of his offenses, or that it shocks the conscience. Viewed cumulatively, the offenses were grave. (See People v. Christensen (2014) 229 Cal.App.4th 781, 806.) Defendant sexually abused his young daughters and niece repeatedly, though he had been entrusted with these children as a parent and an uncle. The crimes will almost undoubtedly have a lifelong impact on the victims. (See Kennedy v. Louisiana (2008) 554 U.S. 407, 435 ["[t]he attack was not just on her but on her childhood"; "[r]ape has a permanent psychological, emotional, and sometimes physical impact on the child. [Citation.] We cannot dismiss the years of long anguish that must be endured by the victim of child rape"]; People v. Meeks, supra, 123 Cal.App.4th at p. 709 ["Sexual offenses not only invade the deepest privacies of a human being, and thereby may cause permanent emotional scarring, but they frequently result in serious physical harm to, or death of, the victim"].) In this regard, we note the trial judge discussed some of her sentencing choices and said, "I felt it clear . . . by the [victims'] demeanor, the impact was a horrible impact on these children . . . ."
Significantly, "courts have held that lengthy sentences for multiple sex crimes do not constitute cruel or unusual punishment." (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531; see, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1230-1231 [135 years for multiple sex offense convictions involving multiple victims]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1130, 1134-1136 [indeterminate term of 375 years to life plus 53 year determinate term for 19 felony convictions arising from sexual assaults of three women]; People v. Wallace (1993) 14 Cal.App.4th 651, 657, 666-667 [283 years and 8 months for 46 felony offenses arising out of sexual assaults against seven victims]; People v. Bestelmeyer, supra, at pp. 522, 531-532 [129 year sentence for 25 sex offense convictions against one victim].)
In reaching this conclusion, we disagree with defendant's suggestion that his non-use of force or violence in these crimes lessened their gravity. For one thing, on at least one occasion, he did carry Jane Doe 3 to his room to molest her after she refused to go. More to the point, the victims here were children whom defendant—occupying a position of power and trust—isolated in order to abuse. Little to no physical force or violence was necessary to perpetrate these crimes.
We also reject defendant's contention that his sentence is disproportionate because his maximum term of imprisonment could have been 48 years if he were charged under section 288.5. As we have discussed, the prosecutor was under no obligation whatsoever to charge defendant under any specific statute to provide him a more lenient sentence. In any event, defendant fails to acknowledge that continuous sexual abuse of a child in violation of section 288.5 is also a crime eligible for One Strike sentencing. (§ 667.61, subd. (c)(9).)
Defendant fares no better under the second and third techniques set out in Lynch. In this regard, defendant compares his crimes to several crimes punishable in California by life without parole sentences. But his commission of many crimes against multiple victims renders his comparisons to penalties for single offenses inapposite. (People v. Crooks (1997) 55 Cal.App.4th 797, 807 ["The penalties for single offenses, such as those defendant cites, cannot properly be compared to those for multiple offenses"].) Defendant also argues his sentence is grossly disproportionate when compared to sentences in other jurisdictions for more severe crimes, but none of his authorities involves the quantity of offenses that took place here or attendant sentencing enhancements. Indeed, as the People point out, several of defendant's cases indicate that his aggregate sentence for 34 sexual offense convictions is not disproportionate. (See People v. Nichols (Ill. App. Ct. 2012) 964 N.E.2d 1190, 1194, 1211-1215 [affirming 32-year sentence for two counts of aggravated sexual assault]; State v. Dykes (La.Ct.App. 2004) 867 So.2d 908, 909-914 [upholding 20-year sentence at hard labor for three counts of sexual battery imposed on a 63-year-old defendant who fondled a child while she sat on his lap]; State v. Weise (2010) 238 Or.App. 426, 428-430 [affirming 300-month sentence for three counts of sex offenses].)
In sum, defendant's sentence does not violate the Eighth Amendment or article I, section 17, of the California Constitution.
G. Record Correction
The parties agree that the clerk's transcript must be corrected because the minutes for the hearing on August 30, 2017 erroneously state that defendant objected to CALCRIM No. 3501 not being given, when in fact his objection referred to CALCRIM No. 3500. We shall order the record corrected as requested. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The One Strike kidnapping enhancement found true as to count 24 is stricken. On remand, the trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward the amended abstract of judgment to the Department of Corrections and Rehabilitation. We also order the trial court to correct page 224 of the clerk's transcript to reflect in the minutes for the August 30, 2017 hearing that defendant objected to CALCRIM No. 3500 not being given. The judgment is otherwise affirmed.
/s/_________
Fujisaki, Acting P. J. WE CONCUR: /s/_________
Petrou, J. /s/_________
Jackson, J.