Summary
In People v. McQueen (2008) 160 Cal.App.4th 27 (McQueen), the defendant was eligible for sentencing under section 667.61, subdivision (a) and under another sentence enhancement statute, section 667.71, subdivision (b).
Summary of this case from People v. LaurelOpinion
No. A114767.
February 15, 2008. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts A. and B. and D. of the Discussion.
Appeal from the Superior Court of Napa County, No. CR112167, Rodney G. Stone, Judge.
Maribeth Halloran, under appointment by the Court of appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Defendant and appellant James Byrd McQueen appeals his jury trial convictions and the sentence imposed for multiple sexual offenses against two minors. Defendant contends that (1) the trial court abused its discretion under Evidence Code section 352 by admitting photographic evidence of the crimes; (2) the court failed to instruct sua sponte on duplicate counts; (3) the trial court erred by staying rather than dismissing sentence under the habitual sexual offender law (Pen. Code, § 667.71); and (4) the sentence imposed of 800 years to life is grossly excessive and violates both the Eighth Amendment of the United States Constitution and article I, section 17 of the California Constitution. Notwithstanding the length of defendant's sentence, we affirm.
Further statutory references are to the Penal Code unless otherwise noted.
FACTS PROCEDURAL BACKGROUND
The information filed on December 8, 2005, charged defendant as follows: counts 1 through 9 — lewd acts upon John Doe No. 1, a child under the age of 14 years, committed between January 1, 1999, and April 23, 2001 (§ 288, subd. (a)); count 10 — distribution or exhibition of lewd material to a minor (§ 288.2); count 11 — indecent exposure with a prior such conviction (§ 314); count 12 — lewd act upon John Doe No. 2, a child under the age of 14 (§ 288, subd. (a)). The information also alleged: (a) Defendant is a habitual sexual offender (§ 667.71) based on a prior conviction on seven counts of lewd acts upon a child in 1988; (b) as to counts 1, 2, 3, 4, 5, 6, 7, 8, 9, and 12, on account of his prior 1988 convictions for lewd acts upon a child, defendant is subject to section 667.61, subdivisions (a) and (d), which specifies a sentence of 25 years to life (one strike law); (c) as to counts 1, 2, 3, 4, 5, 6, 7, 8, 9, and 12, on account of the fact defendant committed the crimes in this case against more than one victim, defendant is subject to section 667.61, subdivision (b), which specifies a sentence of 15 years to life; (d) as to all 12 counts, on account of his prior 1988 conviction on seven counts of lewd acts upon a child (§ 288, subd. (a)), defendant is subject to the three strikes provisions of section 667, subdivisions (b) through (i) (three strikes law).On June 28, 2006, jury selection was completed and the prosecution began its case. The following evidence was adduced at trial from the testimony of the victims: Paul Doe (Doe No. 1 in the information) testified he met defendant at his father's place of work in 2000, when he was about 11 years old. Defendant was a good friend of the family and became "a very close friend" to Paul. After a time, Paul started going to defendant's house because defendant was training him to build computers. Paul went to defendant's house "close to 30" times, and sometimes he spent overnights there on the weekend. On one occasion, when he was about 11 years old and in sixth or seventh grade, Paul was staying at defendant's house and defendant turned on a pornographic Web site on his computer, proceeded to massage Paul's shoulders, and worked "his way slowly down and grabbed my penis and continued to masturbate me." The pornographic video playing on the computer showed a male and female engaged in sex. Paul felt confused, scared and did not want to say anything. Defendant then performed oral sex on Paul. Next, defendant asked Paul to move to the bed and lie down, where defendant continued to perform oral sex on him before Paul asked him to stop. On this occasion, Paul did not ejaculate.
Further factual and procedural background is provided below where pertinent to the issue under discussion.
Paul recalled another occasion about a year later when he went to the hot springs at Calistoga with defendant. Before they left defendant's house for the hot springs, defendant performed oral sex on Paul while masturbating himself to ejaculation. Then they went to the hot springs, spent some time in a Jacuzzi and then returned to defendant's house. When they got back to the house, defendant did "the same thing that happened before we left" — performed oral sex on Paul while masturbating himself.
The last incident of this sort that Paul described took place at a hotel somewhere between Petaluma and Rohnert Park during the summer before his freshman year of high school when he was between 13 and 14 years old. Paul and defendant shared a room at the hotel because he was to help defendant set up his travel trailer the next day. Paul and defendant smoked marijuana together in the hotel room. Defendant set up his laptop computer and installed a pornographic DVD which they watched. After they watched the DVD, defendant masturbated himself while performing oral sex on Paul. Defendant masturbated twice in front of Paul in the hotel room, once when Paul was sitting on the chair and once when Paul was next to him on the bed.
This motel incident was effectively uncharged conduct, because the People did not base any of the counts of lewd conduct on this incident, see post.
Paul stated this sort of sexual conduct with defendant happened "about every time that I went over there [to defendant's house]," approximately 25 to 30 times, he estimated. Besides the one time in the hotel, everything took place at defendant's home. Paul described how defendant followed a routine in this sexual conduct — defendant would put on a pornographic video, then perform oral sex on Paul while masturbating himself in the process. Occasionally, Paul put his mouth on defendant's penis. Paul never told anyone about this because he was embarrassed, scared, confused and "it didn't seem right to say anything." Defendant told Paul the only reason the sexual acts he perpetrated on Paul were considered bad was because "society wouldn't accept it." Defendant took numerous photographs of himself and Paul engaging in the above described sexual activity.
These photographs were found on a CD (compact disc) seized during a search of defendant's property in Arkansas, following his arrest in Missouri for distributing a controlled substance to a minor. On March 31, 2003, defendant was sentenced to eight years on that offense. The CD seized contained over 300 photographs, many of them sexual in content, depicting defendant with Paul, as well as with his younger brother Matthew. Defendant was brought from Missouri for trial in Napa County, California, under the Interstate Agreement on Detainers Act (18 U.S.C. Appen. § 1).
Paul's younger brother Matthew was 16 years old at the time of trial. Matthew also met defendant at his father's workplace when he was about 11 or 12 years old. Matthew went to defendant's home in Napa to "learn stuff about computers." Defendant taught Matthew about computers and also gave him a number of gifts, like a PalmPilot and a hand-held TV. Matthew went to defendant's house about four or five times. On one of those occasions, when Matthew was about 11 or 12, they were in the living room of defendant's home and defendant asked him if he wanted a massage. Matthew thought it would be a normal massage. Matthew was lying on his front on the living room floor as defendant massaged him and removed his clothes. The massage lasted about an hour. During the massage defendant instructed Matthew to roll over onto his back and defendant masturbated him to ejaculation. Matthew felt confused and guilty after this incident. Defendant told Matthew he could tell his brother about it, but he never did. On another occasion, Matthew stayed with defendant in a tent trailer at a KOA campground. They smoked marijuana which defendant provided. At one point, defendant put his mouth on Matthew's penis. Matthew also testified that defendant showed him pornography on the computer while he was at defendant's house.
Defendant vacated his house and left Napa in April 2001 because he was moving back to the Midwest.
Additionally, the People presented evidence of other sexual offenses committed by defendant via the testimony of Burl and Timothy. Burl testified he and his family moved to Napa in fourth grade and he met defendant when he was between 11 and 13 years old. Defendant gave him rides on his motorbike and took him shooting. When they were not able to do those things, they mostly hung out in defendant's apartment. Defendant played pornographic videos, which Burl thought was "a really fun, cool thing, something that my mom and dad wouldn't let me do" and then "it kind of escalated from there." Burl stated that as they watched the pornographic videos, defendant would masturbate him or perform oral sex on him. Defendant also masturbated himself. Defendant took photographs of Burl naked. These sorts of events went on over a period of about a year. Burl never reported these incidents during this time. Later, he disclosed these events when contacted by a police officer when he was about 13 years old. On cross-examination, Burl stated he went to defendant's house about 100 times, and something sexual happened about 75 times.
Out of respect for their privacy, we omit the surnames of these witnesses and refer to them subsequently by their first names only.
Timothy was 29 years old at the time of trial. He stated he met defendant when he was nine or 10 and spent a lot of time with him, much of which revolved around guns. Defendant went to all Timothy's baseball games and volunteered to be the team photographer. Timothy told how defendant started massaging him while shooting because he found it hard to keep the guns stable. Then defendant started showing him pornography and "ventured into touching and having us take our clothes off and those kinds of things." Timothy stated that defendant engaged him in sexual activities such as masturbation and oral copulation on "countless" occasions, and took photographs of him naked.
The jury was instructed on the morning of June 30, 2006, and delivered its verdicts that same afternoon. The jury found defendant guilty on all counts and also found all the special allegations true. On July 28, 2006, the trial court denied defendant's motion, filed pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [ 53 Cal.Rptr.2d 789, 917 P.2d 628], to strike his priors and proceeded to sentencing. As to counts 1 through 9, the trial court found they involved the same victim on separate occasions, and additionally that count 12 involved a different victim on a separate occasion. On counts 1 through 9 and count 12, therefore, the trial court sentenced defendant to consecutive sentences of 25 years to life, pursuant to section 667.61, subdivision (a) (sex offenders — circumstances affecting sentence [the one strike law]), tripled to 75 years to life, pursuant to section 667, subdivision (e)(2)(i) (three strikes law). On each of those counts, the court also sentenced defendant to 25 years to life, pursuant to section 667.71, subdivision (b) (habitual sex offender law), tripled to 75 years to life pursuant to section 667, subdivision (e)(2)(i) (three strikes law). The trial court stayed the sentences imposed under section 667.71, subdivision (b) (habitual sex offender law), pursuant to section 654. On counts 10 and 11, the trial court sentenced defendant to consecutive sentences of 25 years to life, pursuant to section 667 (three strikes law). The total sentence thus imposed was 800 years to life. Defendant timely filed his notice of appeal on July 28, 2006.
DISCUSSION
A. Photographic Evidence
(1)
As noted, defendant took photographs of Paul during the sexual activities described above. All the photographs show Paul when he was between 11 and 13 years of age and all were taken at defendant's house. Before trial, Detective Frey asked Paul to sort the photos into groups depicting separate occasions at defendant's house and Paul did so based on such factors as his weight, clothes he was wearing, his hair style, the necklace he was wearing, and the type and sequencing of the photographs. At a pre-trial hearing on in limine motions, the court declared that "the photographs will be admissible upon the showing of a proper foundation. They should be restricted to a reasonable number of photographs. I don't know if you've had an opportunity to meet and confer and talk about the number of photographs that would be admitted. [¶] Have you had an opportunity to do that, Mr. Gero [prosecutor]?" The following colloquy then ensued: " Prosecutor: We met on Friday afternoon. The Court: Have you agreed upon a number that you intend to introduce? Defense counsel: We haven't agreed on it. I think Mr. Gero is anticipating or wanting to introduce maybe over 100 pictures. I think that most of them are not relevant, and I think the volume is unnecessary. I think to actually go over them we have to look at them and discuss them. Prosecutor: The reason they were put together that way is, so the Court understands, the pictures were taken apparently one after another in sequence, so each group of pictures tells a story of what's going on. If you just had one or two pictures, you wouldn't be able to differentiate between the groups and you might not be able to tell exactly who's in the pictures, but they sort of make sense if you view them one after another. It's up to the Court. If the Court wants me to sit down with counsel and pull some out, I could pull some more out. I don't know how helpful that would be to their side. I'd be willing to do that if you want to do that. Defense counsel: I'm not sure that we could come to an agreement as to which ones should be admitted. I'm objecting to all of them. I think it's just something that the Court would have to decide. I do think that the number that he's asking for . . . is just far too high. There are many, many, photographs of Paul Doe nude where there are no sexual acts going on perpetrated by [defendant]. They're just totally unnecessary. They're not relevant. The Court: Mr. Gero, and you feel that these photographs somehow tell a story? Prosecutor: Yes. I mean, I think the way they are put together [in groups] is the most accurate representation. Counsel says there's approximately 100. I think we got about 300, so we've taken? about a third of them. . . . Because counsel is not going to sit down and agree with me, we can take these out and leave these in, so I'm looking for direction from the Court. I think they're fine this way, but if the Court wants me to try to pick through it, I can try to pick through it. The Court: How many different incidents are you attempting to prove by way of these photographs? Prosecutor: Well, . . . each group shows a different time. During each time different acts occurred. But essentially, it's masturbation of the victim, oral copulation of the victim. . . . So that's essentially the conduct that's depicted. And we had the victim go through the photographs with the investigating officer, and based on the groupings, or the photographs the way they're grouped, he said these are six different occasions based on hair cuts and necklaces and what people are wearing and location and things like that. [¶] . . . [¶] The Court: All right. Well, I think that I'm not going to go through the photographs and make a determination as to which ones should come in and which ones should not come in if the People are not able to do so. I think you've pared them down sufficiently where if you feel that the photographs are important to prove your case, then that's something you'll need to introduce with a proper foundation, so I'm going to admit the photographs? assuming that a proper foundation can be laid." At trial, the groupings were integral to the prosecution's presentation of the case because each group actually formed the basis for the separate counts in which Paul was the victim. Thus, as to counts one through three, the verdict forms were designated "First time at defendant's house (Paul)," "At defendant's house before going to hot springs (Paul)," and "At defendant's house after returning from hot springs (Paul)," respectively. Counts four through nine, however were not defined temporally in the same manner. Rather, those counts were designated in the verdict forms "As depicted in Group One (Paul) [of the photographs]," "As depicted in Group Two (Paul)," and so on through Group Six. The photographs were introduced into evidence in groups during Paul's testimony: Group One (People's Ex. 12) contained seven photos, which Paul distinguished by his hair style and testified that at least one of the photos showed defendant touching him in a sexual way; Group Two contained 30 photos (People's Ex. 13), which Paul distinguished by his clothing and the sequence of the photos and which he said depicted him and defendant "being sexual"; Group Three contained nineteen photos (People's Ex. 14), which Paul distinguished by his shirt, haircut and a particular type of Pooka-shell necklace he was wearing, and which he said depicted defendant touching him in a sexual way; Group Four contained 25 photos (People's Ex. 15), which Paul distinguished by his hair style and clothing and which he said depicted him getting slowly undressed and defendant performing oral sex on him; Group Five contained eleven photos (People's Ex. 16), which Paul distinguished by the metal necklace he was wearing on that occasion and which he said depicted defendant giving him oral sex; Group Six contained 41 photos (People's Ex. 17), which Paul distinguished by the fact they were "time lapsed" (taken in rapid sequence) and he was wearing a red shirt and metal necklace, and which he stated depicted defendant giving him oral sex while masturbating himself; Group Seven contained three photos (People's Ex. 18), which Paul distinguished by the fact he was wearing a Hawaiian shirt, and which he stated showed him wearing that shirt with his pants down and another of him naked just as he got out of the shower. The total number of photos admitted in Groups One through Seven via People's Exhibits 12 through 18 was 136. Before each exhibit was admitted, defense counsel objected to the exhibit as a whole (as opposed to individual photos in the exhibit) on the basis of "352, relevancy and lack of foundation." The trial court overruled each objection in turn.(2)
Defendant contends the trial court erred in admitting the photographs pursuant to Evidence Code section 352 because they "lacked probative value but were highly prejudicial," and were cumulative, repetitive, and unnecessary. We disagree. "`The rules pertaining to the admissibility of photographic evidence are well-settled. Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. (Citations.) Relevant evidence is defined in Evidence Code section 210 as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." The test of relevance is whether the evidence tends "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive. [Citations.]' [Citation.] The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence. [Citations.] [Citation.]" ( People v. Heard (2003) 31 Cal.4th 946, 972-973 ( Heard).) The photographs defendant took of Paul at his house were directly relevant to the issue of whether defendant committed the crimes of which he was charged. Moreover, they were highly probative of appellant's lewd intent with respect to his young victim. Paul testified that he was the victim of defendant's lewd conduct between 25 to 30 times at defendant's house over a period of approximately 16 months. The photographs in effect provided a documentary record of defendant's course of conduct during that period; some of the photographs depict him actually engaging in lewd conduct, while others show Paul naked or in various stages of undress — all are highly probative on the issue of defendant's lewd intent and highly corroborative of the victim's testimony. Indeed, we can think of no evidence more relevant to charges arising from a defendant's lewd course of conduct towards a minor than photographs which depict the defendant engaging in such lewd conduct with the minor. Defendant, however, asserts that the photographs lacked probative value because many were unnecessary and irrelevant. Defendant suggests that the People should have limited the number of photographs to one per count, and that any more were unnecessary because "the prosecution proved six acts supporting counts four through nine through the live testimony of Paul" and testimony regarding his prior 1988 sexual offense. But as noted above, the photographs demonstrated more than just individual acts of lewd conduct — they documented an ongoing course of conduct over a period of 16 months. Additionally, each group of photographs provided the means for the People to distinguish between different instances of lewd conduct, because the groups of photographs were organized by the victim according to his weight, hair style, necklaces and clothes. A single photograph per count would not have served this evidentiary purpose so effectively. In any case, the photographs were no less relevant merely because the People could have relied more on victim testimony to establish the crime. Heard, a death case, is illustrative on this point. In Heard, the defendant claimed error based on the trial court's admission of 14 photos of the crime scene, 11 photos depicting the victim's "face and head as discovered wrapped in a bloody garment and unwrapped to reveal her wounds"; and 11 photos of [the victim's] head and chest injuries." ( Heard, supra, 31 Cal.4th at p. 972.) The court stated: "Although it is true that the prosecution could have relied upon other evidence to establish the matter at issue, `it is immaterial for purposes of determining the relevance of evidence that other evidence may establish the same point.' ( People v. Scheid, supra, 16 Cal.4th 1, 16, 65; see also People v. Anderson, supra, 25 Cal.4th 543, 592 ["[p]hotos are not cumulative simply because they illustrate evidence presented by other means"]; In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843, [ 40 Cal.Rptr.2d 85] ["Evidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352"].) . . . Moreover, `the jury was entitled to see the physical details of the crime scene and the injuries defendant inflicted on his victim?.' ( People v. Weaver (2001) 26 Cal.4th 876, 933 [ 111 Cal.Rptr.2d 2, 29 P.3d 103]; see also People v. Crittenden, supra, 9 Cal.4th 83, 133; People v. Pride, supra, 3 Cal.4th 195, 243.)" ( Heard, supra, 31 Cal.4th at p. 975.) Similarly here, the jury was entitled to see the photographic record of defendant's lewd conduct and the People were not restricted to presenting only one photograph per count of lewd conduct. Furthermore, defendant's assertion that the prejudicial effect of the photographs is clearly outweighed by their probative value is entirely without merit. As noted, the photographs provide direct photographic evidence of defendant engaging in lewd conduct with his young victim. They also served to corroborate the victim's testimony that defendant's course of lewd conduct took place over an extended period of approximately 16 months, and they provided a means by which the prosecution could distinguish individual instances of lewd conduct from Paul's testimony that such conduct occurred 25 to 30 times over the relevant period. Regarding any unduly prejudicial effect of such damning evidence, our Supreme Court has explained, "`[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." [Citation.]' ( People v. Karis (1988) 46 Cal.3d 612, 638)" ( People v. Gionis (1995) 9 Cal.4th 1196, 1214.) Such is the case here — the photographs were certainly "damaging" but they were not "prejudicial" as that term is understood under Evidence Code section 352. Thus, in the context of murder cases, the Supreme Court has observed that "victim photographs and other graphic items of evidence in murder cases always are disturbing? (citations)," but the fact that photographs portraying "the results of defendant's violent conduct . . . are graphic and unpleasant to consider does not render the introduction of those images unduly prejudicial. (See People v. Navarette (2003) 30 Cal.4th 458, 496 [ 133 Cal.Rptr.2d 89, 66 P.3d 1182] [rejecting the defendant's contention that the `sexually suggestive nature' of photographs taken of the victim rendered them unduly prejudicial, and holding that `[w]hen the victim of a murder has been stabbed directly between the breasts and left with her pants and underwear around her ankles, the defendant cannot complain that the jury is exposed to images of her nudity']; see also People v. Riel (2000) 22 Cal.4th 1153, 1194 [ 96 Cal.Rptr.2d 1, 998 P.2d 969] [`The fact that the exhibits involved blood was due to the crime, not the court's rulings'].)" ( Heard, supra, 31 Cal.4th at p. 976.) Similarly, photographs depicting defendant engaging in lewd conduct with a minor while masturbating would undoubtedly have been unpleasant and distasteful for members of the jury to view, but that does not render them unduly prejudicial. ( Heard, supra, 31 Cal.4th at p. 976.) Moreover, defendant cannot have it both ways on this issue. On the one hand, because he knows he cannot realistically argue that none of the photographs are admissible, defendant concedes that admission of the most graphic of the photographs was justified — "6 photographs to show six counts of lewd conduct," that is, defendant either masturbating or orally copulating his young victim; 2 photographs showing . . . pornography; [and] 1 photograph showing [defendant] masturbating." Yet he claims the jury would be "repulsed" by the other, far less graphic, photographs. If the jury was repulsed by any of the photographs, it would surely be those depicting the very crimes with which defendant was charged, and which even he concedes could not be withheld from the jury. In sum, the photographs were not prejudicial in the sense of Evidence Code section 352 because they were damaging to defendant only in that they were highly probative on the issues of identity of him as the perpetrator, his lewd intent, distinct instances of defendant's lewd conduct and the victim's credibility. Therefore, the trial court properly allowed them into evidence. B. Sua Sponte Instruction [fn*]
Defendant never argued in trial that only one photograph per count should be admitted. Before trial, as noted above, defense counsel declined to discuss the issue of the number of photographs with the prosecutor and entered a blanket objection to all of the photos. Similarly, when the photographic exhibits were admitted at trial, defense counsel entered a blanket objection to all the photos in each exhibit.
Accordingly, defendant's contention that admission of the photographic evidence rendered his trial "fundamentally unfair," in violation of his Fourteenth Amendment right to due process, necessarily fails. ( People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 [federal due process claim based on exclusion of expert testimony fails where there was no error under state law in excluding the testimony].) Also, defendant's contention — that some of the photographs amounted to uncharged conduct because only one charge arose from each group of photographs — was not the basis of his objection to the photographs below and is therefore not cognizable on appeal. ( People v. Partida (2005) 37 Cal.4th 428, 438 ["to the extent defendant asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable"].)
(1)
With respect to the hot springs incident (which formed the basis of the lewd conduct in counts 2 and 3), Paul testified that before he and defendant left defendant's house for the hot springs, defendant performed oral sex on Paul while masturbating himself (count 2). Defendant did the same after they returned to defendant's house from the hot springs (count 3). During Paul's testimony, the prosecutor asked: "Did he take any photographs of you the day that you went to the hot springs," and Paul answered, "Not that I can recall, but probably." Next, the prosecutor asked, "And do you remember him taking photographs on that day?" Paul answered: "I don't remember." On cross-examination, the following colloquy took place: "Q.: And do any of the photograph groups show what happened before or after the hot springs trip? A.: Not that I can recall. Q.: Are you sure that they don't show what happened before or after? A.: I am not sure." Subsequently, during closing argument, defense counsel alluded to this exchange, arguing: "What Paul said on the stand was that he couldn't be sure whether or not the photos were photographs of what happened before the hot springs or after the hot springs. If the photographs repeat what happened, then you should not find [defendant] guilty as to counts two and three. They are repetitive." The prosecutor interjected with, "Objection, that is not the law," but the court overruled the objection, stating, "This is argument, counsel." Later, defense counsel made a similar argument with respect to counts four and five: "I wanted you to compare . . . counts four and five, which concern photograph group one and two and I want you to specifically look at photographs that show the background. Look at what is in the background. . . . They are not two separate allegations. [¶] . . . Certainly, if you believe that they are repetitive, then you would have to reject one of those counts." At this, the prosecutor voiced the same objection, and the court again overruled it. Responding to defense counsel in rebuttal, the prosecutor stated: "What else? The photographs are bad and essentially repetitive. They may have been altered and then duplicative. [¶] You will get the photographs. You interpret them how you want to interpret them. The law, as you are instructed by the Court, says nothing about repetition. That if you think the hot springs' day was also in a photograph, that you don't find him guilty. The law doesn't say that, but you will look through the jury instructions — — —" Defense counsel objected that this misstated the law, a bench conference was held, and the prosecutor continued with his rebuttal argument.
(2)
On these facts, defendant first contends that the trial court had a sua sponte duty to instruct the jury that a defendant cannot be convicted of duplicate counts of lewd and lascivious conduct based on the same single act. He asserts that "the trial court's failure to instruct sua sponte on this principle, which constituted a defense, violated state law and [his] federal constitutional right to the protection of the double jeopardy bar." This contention lacks merit. "`"It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.]"'" ( People v. Breverman (1998) 19 Cal.4th 142, 154.) A trial court has a duty to instruct, sua sponte, on an affirmative defense "only if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendant's theory of the case. [Citations.]" ( People v. Michaels (2002) 28 Cal.4th 486, 529.) However, "`the court is required to instruct sua sponte only on general principles which are necessary for the jury's understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such an instruction.' [Citations.]" ( People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) Moreover, when the instructions given are correct and adequate, the court has no sua sponte duty to provide amplification or explanation. ( People v. Mayfield (1997) 14 Cal.4th 668, 778; People v. Estrada (1995) 11 Cal.4th 568, 574.) Whether the trial court has correctly and adequately instructed the jury is not to be determined from a consideration of parts of an instruction or from a particular instruction, but from the entire charge of the jury. ( People v. Holt (1997) 15 Cal.4th 619, 677; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Turning to the jury instructions in this case, we note that the trial court gave the CALCRIM 3500 unanimity instruction, as follows: "The defendant is charged with Penal Code Section 288(a) in Counts 1, 2, 3, 4, 5, 6, 7, 8 and 9 sometime during the period of January 1, 1999 to April 23, 2001. [¶] . . . [¶] 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 committed." Additionally, the trial court gave CALCRIM 3515, regarding "Multiple Counts: Separate Offenses (Pen. Code, §§ 954), as follows: "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." These instructions in combination adequately protect against the jury returning duplicative verdicts, because they inform the jury that each count is a separate crime, and as to each count the jury must agree on which act defendant committed. Accordingly, because these instructions are correct and adequate, the court had no sua sponte duty to provide amplification or explanation. ( People v. Mayfield, supra, 14 Cal.4th at p. 778.) Furthermore, a trial court's duty to instruct sua sponte on a "true affirmative defense" only arises "if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendant's theory of the case. [Citations.]" ( People v. Michaels, supra, 28 Cal.4th at p. 529.) In her closing argument, defense counsel did not invoke a "true affirmative defense" of duplicative counts. Rather, over the objection of the prosecutor, defense counsel argued the sufficiency of the evidence for counts two and three (the hot springs incident) by trying to cast reasonable doubt on whether they were actually separate incidents from those depicted in the series of grouped photographs based on Paul's testimony that he could not remember whether or not defendant took photographs on the day of the hot springs incident. Similarly, defense counsel argued the sufficiency of the evidence for counts four and five by trying to cast reasonable doubt on whether they were actually separate incidents based on the similarity of the backgrounds in the two sets of photographs depicting those counts. The jury heard this argument and rejected it after considering all the evidence submitted to it, including the six groups of photographs. In sum, the unanimity and multiple counts instructions provided to the jury were adequate under these circumstances and therefore the trial court was under no sua sponte duty to provide further "clarifying or amplifying" instructions absent a specific request from defendant. ( People v. Estrada, supra, 11 Cal.4th at p. 574.) Accordingly, if defendant thought the instructions somehow required further elaboration on the issue of duplicate counts, he could have requested a pinpoint instruction, and his failure to do so forfeits the issue on appeal. ( People v. Dennis (1998) 17 Cal.4th 468, 514 ["If defendant believed the instructions were incomplete or needed elaboration, it was his obligation to request additional or clarifying instructions. (Citation.) His failure to do so waives the claim in this court"]; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1189-1190, and People v. Lewis (2001) 26 Cal.4th 334, 380.)
An assertion that certain counts are duplicative is not a true affirmative defense: rather it is an attack upon the certainty of the accusatory pleading amounting to a "defect of form." ( People v. Polowicz (1992) 5 Cal.App.4th 1082, 1094; §§ 1004, subd. (3).)
(3)
Defendant, however, further contends that trial counsel was constitutionally ineffective for failing to assert a double jeopardy defense based on duplicative counts. A defendant claiming ineffective assistance of counsel must prove that counsel's performance was deficient under an objective standard of professional conduct and there is a reasonable probability that but for counsel's errors the defendant would have achieved a more favorable result at trial. ( Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Holt, supra, 15 Cal.4th at p. 703.) Also, courts must "accord great deference to trial counsel's tactical decisions" in addressing claims of ineffective assistance. ( People v. Lewis (2001) 25 Cal.4th 610, 661.) And importantly for present purposes, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]" ( People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.) Here, the record is silent as to why counsel failed to specifically assert a double jeopardy defense or request a pinpoint instruction regarding duplicative counts. However there is at least one perfectly satisfactory explanation why she did not do so. The reason is that the trial court overruled the prosecutor's objections to defense counsel's argument that the jury could acquit defendant on those counts which they found to be "repetitive" based on the state of the evidence. Given the state of the evidence, trial counsel may have made the tactical decision that her closing argument, attacking the sufficiency of the evidence and trying to raise a reasonable doubt that certain of the counts could be repetitive, was the best means by which to allege duplicative counts. Thus, we must reject defendant's ineffective assistance of counsel claim on appeal. ( People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)
(4)
In the alternative to his contention regarding duplicative counts, defendant contends that the trial court should have given a preclusive instruction sua sponte to correct an allegedly erroneous legal theory advanced by the prosecutor during closing argument. According to defendant, the prosecution argued the erroneous theory that "the jury could return guilty verdicts on duplicate counts of section 288(a) based on the same single act." Relying on People v. Green (1980) 27 Cal.3d 1 ( Green), overruled on different grounds by People v. Martinez (1999) 20 Cal.4th 225, defendant asserts that the trial court "ratified the prosecutor's error" by failing to "preclusively instruct" the jury that the prosecution's theory was erroneous. In Green, supra, the jury found defendant guilty of the first degree murder and kidnapping of his wife Karen, and also found true a kidnapping special circumstance. ( Green, supra, 27 Cal.3d at p. 12.) Addressing the legal propriety of the kidnapping special circumstance, the Supreme Court noted that asportation of the victim was in three segments, and that the prosecutor "asked the jury to find defendant guilty of the crime of kidnapping . . . on the basis of any or all segments of Karen's asportation." ( Id. at p. 63.) After concluding that that two of the three segments of asportation were actually legally insufficient, ( id. at pp. 63-67), the court stated that "[w]e do not know . . . if the jury based its . . . verdict . . . on either of the foregoing legally insufficient segments of Karen's asportation. . . ." as opposed to the remaining segment. ( Id. at p. 67.) In such circumstances, the court stated, the following rule applies: "[W]hen the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." ( Green, supra, 27 Cal.3d at p. 69.) "In the case at bar," the court observed, "the record . . . contains evidence that could have led the jury to predicate its kidnapping verdict on the legally sufficient portion of Karen's asportation. But it also contains evidence that could have led the jury to rely instead on either of the legally insufficient portions of that movement. The instructions permitted the jury to take the latter course; and the district attorney expressly urged such a verdict in his argument. . . . We simply cannot tell from this record which theory the jury in fact adopted. Indeed, we cannot even be sure that all the jurors agreed on the same theory: following the district attorney's advice, some jurors may have found that one segment of the asportation constituted the kidnapping, while others may have rested their verdict on a different — and legally insufficient — portion of the movement." ( Id. at p. 71, italics added.) Thus, the court reversed the judgment "insofar as it convicts defendant of kidnapping[,]" vacated the kidnapping special circumstance, and set aside the punishment of death. ( Id. at p. 74.) Subsequent to Green, the Supreme Court decided People v. Guiton (1993) 4 Cal.4th 1116 ( Guiton). In Guiton, the jury was allowed to convict defendant if it found he either sold or transported cocaine, and it returned a guilty verdict even though there was insufficient evidence to support a finding he sold cocaine. ( Guiton, supra, 4 Cal.4th at p. 1119.) The Court of Appeal concluded this deficiency warranted reversal, but the Supreme Court disagreed. Rather, the Supreme Court explained that the Green rule mandating reversal applies only to cases where the jury was presented with alternate theories of conviction and may have rested its verdict on one which was legally inadequate or insufficient. ( Guiton, supra, 4 Cal.4th at p. 1128.) However, as to cases where the jury is presented with alternate theories of conviction, and one or more is factually rather than legally insufficient, the Court adopted the Griffin rule. ( Id. at p. 1128.) Under the Griffin rule, "[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." ( Guiton, supra, 4 Cal.4th at p. 1129.) The court stated that "the Griffin rule generally requiring affirmance" applied because it was "a purely factual question" whether there was "insufficient evidence to support a finding that defendant sold cocaine." ( Id. at p. 1131.) It noted that "[t]he jury was as well equipped as any court to analyze the evidence and to reach a rational conclusion" on this question. Accordingly, because the record did not "affirmatively demonstrate a reasonable probability that the jury found the defendant guilty solely on the sale theory," the Court concluded that the conviction should not have been reversed. ( Ibid.) As the Supreme Court concluded in People v. Morales (2001) 25 Cal.4th 34 ( Morales), however, we think this case is unlike either Green or Guiton, supra. In Morales, appellant contended his conviction for possession of PCP should be reversed under Green and Guiton because the prosecutor misleadingly told the jury in closing argument that they could find him guilty of possession solely on the grounds that he was under the influence of the drug when arrested. ( Morales, supra, 25 Cal.4th at pp. 42, 45-46.) The Court's response to this contention was as follows: " Guiton and Green are unlike this case in that in each of them, the court presented the state's case to the jury on an erroneous legal theory or theories. In Green, the instructions were deficient, either because their language was legally unsupported (the first movement), or because (regarding the third movement) there was insufficient evidence to proceed. The evidence regarding the third movement did not describe a crime. When the court did nothing to "disabuse? the jury of [the] notion" ( Green, supra, 27 Cal.3d at p. 68) that it did (a defect it could have cured with a preclusive instruction [that neither a fraudulent asportation nor a 90-foot movement would constitute kidnapping]), it ratified the prosecutor's error . . . [¶] In Guiton, too, a theory unsupported by evidence was presented to the jury in the very trying of the case — he was charged with selling cocaine despite a lack of evidence that he engaged in this conduct. Again, the trial court should have modified the instructions in light of this fact. We said, in language equally applicable to Green: `Trial courts have the duty to screen out invalid theories of conviction, either by appropriate instruction or by not presenting them to the jury in the first place. Although the presenting of alternate theories to the jury here does not require reversal, we stress that it was error nonetheless.' ( Guiton, supra, 4 Cal.4th at p. 1131.) [¶] In this case, by contrast, the court did not present to the jury a case that was premised on a legally incorrect theory. The prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct (see People v. Osband (1996) 13 Cal.4th 622, 696) during argument, rather than trial and resolution of the case on an improper legal basis." ( Morales, supra, 25 Cal.4th at p. 43.) Similarly, the jury in this case was not asked to decide between alternate theories about how defendant committed the crime, one or more of which was legally inadequate as in Green, or factually inadequate, as in Guiton. Rather, the jury instructions on the charged offenses were legally correct and not deficient in any respect. As in Morales, defendant's contention boils down to an assertion that the prosecutor arguably misstated the law in his closing remarks, which "merely amount[s] to prosecutorial misconduct . . . rather than trial and resolution of the case on an improper legal basis." ( Morales, supra, 25 Cal.4th at p. 43.) And as the court in Morales observed, "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. (Citation.)." ( Id. at pp. 43-44.) Defendant made no objection that the prosecutor's remarks amounted to misconduct and thus he has waived any such claim. Moreover, even if the claim of prosecutorial misconduct had not been waived, it would lack merit. "The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (Citation.)" ( Morales, supra, 25 Cal.4th at p. 44.) The prosecutor's remarks complained of here do not amount to a deceptive or reprehensible attempt to persuade the jury. They certainly were not, as characterized by defendant, a naked attempt to persuade the jury it "could return guilty verdicts on duplicate counts of section 288[, subdivision](a) based on the same single act." Rather, the prosecutor's remarks were offered in rebuttal to defense counsel's argument there was not proof beyond a reasonable doubt on certain counts because two sets of the photographs had similar backgrounds and because the victim could not recall if defendant took photographs on the day of the hot springs incident. Accordingly, we see no "reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" ( Morales, supra, 25 Cal.4th at p. 44.)
Griffin v. United States (1991) 502 U.S. 46 ( Griffin).
C. Sentencing Under the Habitual Sex Offender Law
(1)
On 10 counts (1-9 and 12) of the conviction, the trial court sentenced defendant to consecutive sentences of 25 years to life, pursuant to section 667.61, subdivision (a) (one strike law), tripled to 75 years to life, pursuant to section 667, subdivision (e)(2)(i) (three strikes law). On those same counts, the court also sentenced defendant under the habitual sex offender law (§ 667.71, subd. (b)) to 25 years to life, similarly tripled to 75 years to life pursuant to the three strikes law. However, pursuant to section 654, the trial court stayed the sentences imposed under the habitual sex offender law on those 10 counts. Defendant contends that the trial court erred by staying the sentences imposed under the habitual sex offender law pursuant to section 654. According to defendant, the trial court should have struck or dismissed the habitual sex offender sentence.The Courts of Appeal have split on the proper procedure to be adopted when a defendant is open to sentencing under both the one strike law and the habitual sexual offender law. On the one hand, People v. Snow (2003) 105 Cal.App.4th 271 [ 129 Cal.Rptr.2d 314] ( Snow), held that "[t]he sentencing court in its reasonable discretion, with reasons stated on the record, must choose which of the section 667.61 or section 667.71 sentencing schemes is to be imposed . . . [and] [t]he sentencing scheme not imposed is to be dismissed." ( Snow, supra, 105 Cal.App.4th at p. 283.) Defendant urges us to follow Snow. On the other hand, People v. Lopez (2004) 119 Cal.App.4th 355 [ 14 Cal.Rptr.3d 202] ( Lopez), rejected the reasoning of Snow, and held that a defendant was not entitled to the striking of his sentence under the one strike law where he had been sentenced to a higher sentence under the habitual sexual offender law. ( Lopez, supra, 119 Cal.App.4th at pp. 358, 361-364.) Respondent urges us to follow Lopez. As explained below, we conclude Lopez is the better reasoned case and will be guided by it.
(2)
In Snow, the defendant was convicted after a jury trial on one count of violating section 288, subdivision (a). In a bench trial, the court found true that the defendant had suffered a prior conviction of a lewd act bringing him within the one strike law; that he had suffered two prior serious felonies bring him within the three strikes law; and that he was a habitual sexual offender. ( Snow, supra, 105 Cal.App.4th at p. 274.) As pertinent here, the trial court sentenced him to 25 years to life under the one strike law, and tripled that to 75 years under the three strikes law. ( Ibid.) Pursuant to section 654, however, the court stayed execution of sentence on the finding the defendant was a habitual sexual offender. ( 105 Cal.App.4th at p. 274.) On appeal, the defendant raises various sentencing issues, including "whether the [trial] court is required (or permitted) to sentence [defendant] under all three laws" the one strike, the three strikes and the habitual sex offender laws. In answer to that question, the Snow court concluded that a trial court is "precluded from sentencing [a defendant] under both the one strike and habitual sex offender laws." ( Id. at p. 281.)
The Snow court noted when the one strike law was enacted in 1994, the habitual sex offender law was amended to provide that prosecutor could elect sentencing under the one strike law, if applicable, in lieu of sentencing under the habitual sex offender law. ( Snow, supra, 105 Cal.App.4th at p. 281.) Accordingly, the court reasoned that until the "in lieu" language was deleted from the habitual sex offender law by amendment in 1998, "it appears that the [two] sentencing schemes . . . were alternate sentencing schemes." ( Id. at pp. 281-282.) The court reasoned further that the 1998 amendment deleting the "in lieu" language did not reflect a legislative decision to change the sentencing schemes from alternate to cumulative. ( Id. at p. 282.) The court reached that conclusion for two reasons: First, the legislative history of the 1998 amendment expressed a concern that the discretion accorded the prosecutor by the "in lieu" clause was subject to challenge as a violation of the separation of powers doctrine. ( Ibid.) "Second, the change from alternative to cumulative sentencing schemes would be a significant change in the law, a change of sufficient significance that, if intended, would have been included in the legislation as well as in the legislative history materials." ( Ibid.)
Having concluded the one strike and the habitual sex offender laws are two alternate sentencing schemes, the Snow court next considered the sentencing impact of that conclusion. The court noted that when "a single act is punishable under multiple statutes, the appropriate procedure is to sentence the defendant under each of the alternative statutes and then stay execution of sentence on all but one of those statutes" pursuant to section 654. ( Snow, supra, 105 Cal.App.4th at p. 283.) However, because "section 654 does not apply to alternative sentencing schemes [citations] . . .," the trial court must, in the exercise of its discretion, "choose one of the sentencing schemes and then must strike or dismiss, rather than stay, the sentence under the other." ( Ibid.) Thus, the Snow court concluded as follows: "Here the sentence under the one strike law and habitual sex offender law is the same. Because the trial court stayed execution of the sentence under the habitual sex offender law, we presume on a remand it would dismiss that true finding. To avoid needless further judicial proceedings, we vacate the habitual sex offender true finding." ( Id. at pp. 283-284.) If Snow controlled here, then we would have to do more than defendant requests: Defendant asks that under Snow we dismiss or strike the habitual sex offender sentence, but Snow did more than that — it actually struck the true finding that defendant was a habitual sex offender.
In Lopez, a jury found the defendant guilty on two counts of lewd conduct in violation of section 288, subdivision (a), among other crimes. In addition, the defendant's admissions brought him within the scope of the one strike law, the habitual sex offender law and the three strikes law. ( Lopez, supra, 119 Cal.App.4th at p. 358.) As pertinent here, the trial court sentenced Lopez on the section 288 counts to 25 years to life under the habitual sexual offender law, doubled to 50 years under the three strikes law, and stayed one of the 50 year sentences pursuant to section 654. On appeal, the defendant, relying on Snow, contended that after it sentenced him under the habitual sexual offender law, the trial court erred by failing to dismiss or strike the true finding on the one strike special allegation. ( Lopez, supra, 119 Cal.App.4th at pp. 358-359.)
The appellate court noted: "Both the one strike law and the habitual sexual offender law are alternative sentencing schemes for specified sexual offenses, including — as here — nonforcible lewd conduct with a child under 14. (Pen. Code, §§ 667.61, subd. (c)(7), 667.71, subd. (c)(4).) The habitual sexual offender law provides for a sentence of 25 years to life when the defendant has previously been convicted of a specified sexual offense." ( Lopez, supra, 119 Cal.App.4th at p. 360.) As the court noted, the one strike law, by contrast, takes a somewhat different approach by providing for sentences of 15 years to life or 25 years to life, depending on the special circumstances present. ( Ibid.) However, the court noted two pertinent provisions within the one strike law: First, the special circumstances used to invoke the one strike law must be used to impose the term provided for under its provisions "unless another law provides for a greater penalty." ( Id. at p. 361, citing § 667.61, subd. (f), italics added.) Second, the one strike law specifically mandates: "`Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).' (Pen. Code, § 667.61, subd. (f).)" ( Id. at p. 361.) The court reasoned that the habitual sexual offender law provided for a greater penalty in this case: "Thus, the trial court could and did sentence defendant pursuant to the habitual sexual offender law; the true finding under the one strike law did not require it to do otherwise. There is no reason to strike this finding." ( Id. at p. 362.) Indeed, the court noted that "[s]triking the multiple-victim special circumstance would violate th[e] express prohibition" against striking special circumstances set forth in section 667.61, subdivision (f). ( Lopez, supra, 119 Cal.App.4th at p. 361.)
Furthermore, the Lopez court agreed with Snow that the two alternative sentencing schemes "are analogous to two alternative enhancements" but disagreed that the correct procedure is to strike the unused alternative. ( Lopez, supra, 119 Cal.App.4th at p. 366.) Rather, the correct procedure is to "impose a sentence on the barred enhancement, but then stay execution of that sentence" under the authority of California Rules of Court, rule 4.447 (rule 4.447) ( 119 Cal.App.4th at p. 364). Although a court has no authority to stay an enhancement under its "discretionary sense of justice" — it must either impose it or strike it in furtherance of justice under section 1385 — "rule 4.447 has nothing to do with a discretionary stay of an enhancement . . .," the court stated. ( Lopez, supra, 119 Cal.App.4th at pp. 364-365.) Rather, "[i]t is limited to the situation in which an enhancement that otherwise would have to be either imposed or stricken is barred by an overriding statutory prohibition. In that situation — and that situation only — the trial court can and should stay the enhancement." ( Id. at p. 365.) The court added: "A stay under rule 4.447 is not issued under Penal Code section 654. Nevertheless, it is analogous. In both situations, the stay has no express statutory basis. It is implied, so that a defendant who is subject to one of two alternative punishments will not be wrongly subjected to the other; if, however, one of the two punishments is invalidated, the defendant will still be subject to the remaining one." ( Ibid.) The Lopez court criticized Snow, on this point, noting that "by holding that the unused finding must be stricken," it did not "deal with the risk that the used finding may be invalidated." ( Ibid.)
This rule states: "No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant's service of the portion of the sentence not stayed." (Cal. Rules of Court, rule 4.447.)
Moreover, the court noted that "our Supreme Court has repeatedly indicated that — at least in the context of Penal Code section 654 — it is the possibility that the actual sentence may be invalidated that requires the trial court to stay, rather than dismiss, the prohibited portion of the sentence. [Citations.] The Judicial Council relied on the same reasoning in adopting rule 4.447." ( Lopez, supra, 119 Cal.App.4th at p. 365.) Staying rather than striking the sentence under the alternate sentencing scheme would also add clarity to the overall sentence, the court further opined: "We believe . . . a stay makes the trial court's intention clear — it is staying part of the sentence only because it thinks it must. If, on the other hand, the trial court were to strike or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising its discretionary power under Penal Code section 1385. There is something to be said for clarity, particularly when there is always the possibility that the actual sentence may be struck down many years after the fact, by a different state or federal judge. There is also something to be said for having one clear rule for the trial court to follow whenever part of a sentence is barred." ( Id. at pp. 365-366.)
Whereas we agree with Snow that the one strike law and the habitual sex offender law are alternate sentencing schemes ( Snow, supra, 105 Cal.App.4th at p. 282), we disagree with its conclusion that if a sentence is imposed under one, then the true finding(s) under the other must be stricken or dismissed. Rather, we are persuaded by the reasoning in Lopez that the correct procedure when the two alternate schemes are implicated is to impose a sentence under both, but stay one of the sentences pursuant to rule 4.447, rather than dismissing or striking the true findings attendant to the stayed sentence. Indeed, the Lopez court noted that the trial court, rather than merely sentencing under only the habitual sex offender law, could have (as the trial court did here), "imposed a `fallback' sentence under the one strike law, then stayed it, with the stay to become permanent upon defendant's service of his actual sentence under the habitual sexual offender law." ( Lopez, supra, 119 Cal.App.4th at p. 366.) This we think is the more rational approach because, as the Lopez court persuasively detailed, it preserves the integrity of both sentencing schemes; promotes clarity in sentencing; and avoids confusion with respect to the trial court's exercise of discretion under section 1385; avoids the risk that "the used finding may be invalidated" ( Lopez, supra, 119 Cal.App.4th at p. 365) at some future time; and avoids any violation of the one strike law's prohibition on striking special circumstances (§ 667.61, subd. (f)). In sum, we conclude the trial court correctly stayed the sentence imposed under the habitual sex offender law.
The trial court stayed the habitual sex offender sentence pursuant to section 654. As defendant points out, the Supreme Court in People v. Murphy (2001) 25 Cal.4th 136 [ 105 Cal.Rptr.2d 387, 19 P.3d 1129] ( Murphy), held that section 654 did not prevent the accumulation of the defendant's sentence under both the three strikes law and the habitual sexual offender law because section 654 is concerned with the appropriate punishment for an act or omission that is punishable in different ways, whereas the three strikes law and the habitual sex offender law are concerned with "the fact of defendant's recidivism, not to an act or omission within the meaning of section 654." ( Murphy, supra, 25 Cal.4th at p. 155.) The issue in this case is different. Unlike Murphy, where the defendant sought to invoke section 654 as a barrier to his single cumulated sentence, here defendant has been sentenced to two cumulated sentences under two parallel or alternate sentencing schemes, and the issue is whether the second must be stayed or stricken. Thus, we reject defendant's argument that under Murphy his second cumulated sentence cannot be stayed, because Murphy did not address that issue. (See People v. Alvarez (2002) 27 Cal.4th 1161, 1176 [ 119 Cal.Rptr.2d 903, 46 P.3d 372] ["cases are not authority for propositions not considered . . ."].) Thus, we need not decide whether the trial court properly invoked section 654 to stay defendant's habitual sex offender sentence, because, as noted above, it was authorized to do so pursuant to rule 4.447.
D. Cruel and Unusual Punishment Defendant contends that his sentence of 800 years to life violates the prohibition against cruel and unusual punishments under both the Eighth Amendment and Article I, section 17 of the California Constitution. Although an 800-years to life sentence obviously cannot be served during defendant's lifetime, it is not unconstitutional. In People v. Dillon (1983) 34 Cal.3d 441, the California Supreme Court held that a prison sentence can be unconstitutionally cruel and unusual punishment if the sentence is grossly disproportionate to the offender's culpability. ( Id. at pp. 477-478.) However, "[s]uccessful challenges based on proportionality are extremely rare. [Citation.] The defendant must show the sentence is `"out of all proportion to the offense"' and that it offends `fundamental notions of human dignity.'" ( People v. Kelley (1997) 52 Cal.App.4th 568, 583.) Moreover, in construing the Eighth Amendment to the federal Constitution, the high court has recognized the role of recidivism in deciding whether punishment is cruel or unusual. ( Ewing v. California (2003) 538 U.S. 11, 20 (plur. opn. of O'Connor, J.).) In Ewing, supra, the high court upheld a California three strikes sentence of 25 years to life for shoplifting three golf clubs. ( Id. at pp. 14-20.) In doing so, the court recognized that "legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety." ( Id. at p. 24.) Accordingly, the Court stated that in evaluating whether defendant's punishment was unconstitutionally disproportionate to the offense, "we must place on the scales not only his current felony, but also his long history of felony recidivism." ( Id. at p. 29.) Defendant here was convicted of multiple counts of lewd acts upon a child under the age of 14 years involving multiple victims. Defendant gained the friendship of his young victims, Paul and Mathew, by offering to teach them about computers and giving them money and presents for doing chores. The boys' father also testified at trial, stating, "[Defendant] had a very trusting aura and he was very genuine and we worked together for a long time and the trust took time as friendships build and it wasn't overnight. We knew [defendant] for a long time before I actually felt comfortable enough to let the boys actually do work with him." Defendant cultivated those friendships and trust and betrayed them in order to exploit Paul and Matthew for his own sexual gratification. Moreover, the testimony of defendant's other child victims, Burl and Timothy, showed this to be his mode of operation — gain the trust of young boys and their families and then draw the boys into engaging in sexual activities with him. Nor was defendant deterred by his sentence of 12 years and eight months in prison for his 1988 conviction for child molestation and oral copulation of a minor. Those crimes involved sexual offenses against eight different young boys between the ages of nine and fourteen years old. Indeed, defendant remained unreformed and undeterred after he moved from California to Missouri, where he masturbated in front of three young boys (ages 14, 15 and 15) after furnishing them with marijuana and alcohol. Defendant's prison sentence is severe, because he will spend the rest of his life in prison, but we cannot say that it is unearned or unconstitutional under the legal standards discussed above. Defendant has demonstrated a pattern of befriending young boys, earning their trust and the trust of their families, while grooming the boys for use as his sexual playthings. The consequence of that is that he must be "isolated from society in order to protect the public safety." ( Ewing v. California, supra, 538 U.S. at p. 24.) Appellant takes note of Justice Stanley Mosk's denunciation, as cruel and unusual, of sentences incapable of being fully served (there, 100 years to life plus 11 years). (See People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn.)). However, Justice Mosk's view has not been further adopted. Moreover, as appellant concedes, California courts have repeatedly upheld sentences far exceeding a person's expected lifespan, rejecting arguments that they constituted cruel or unusual punishment under either the state or federal Constitutions. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years 8 months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531 [upholding sentence of 129 years]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 ( Byrd) [upholding a determinate sentence of 115 years and an indeterminate sentence of 444 years to life, and disagreeing with Justice Mosk's concurring opinion in People v. Deloza, supra, 18 Cal.4th 585.].) Indeed, the court in Byrd stated: "[I]t is immaterial that defendant cannot serve his sentence during his lifetime. In practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole: he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution [citation]." ( Byrd, supra, 89 Cal.App.4th at p. 1383.) Here, the number of offenses committed and joined, their type, the number of victims, and defendant's incorrigible recidivism, combine to make what is essentially a sentence of life without possibility of parole not disproportionate. Accordingly, appellant's claim of cruel and unusual punishment fails.
See footnote, ante, page 27.
DISPOSITION
The judgment is affirmed.McGuiness, P. J., and Siggins, J., concurred.
A petition for a rehearing was denied March 6, 2008, and appellant's petition for review by the Supreme Court was denied May 21, 2008, S162109.