Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR458973
NEEDHAM, J.
Carl Albert Skidmore (Skidmore) appeals from a judgment of conviction and sentence imposed after a jury found him guilty of multiple counts of felony sexual abuse on his preteen stepdaughters. He contends: (1) the court erred in imposing a full midterm consecutive sentence on one of the counts; (2) his sentence constitutes cruel and unusual punishment; and (3) the abstract of judgment should be modified to prohibit him from visitation with his minor victims rather than prohibiting him from all contact with them. We conclude that the sentence as to count eight should be a consecutive four-year term rather than a 12-year term, and the abstract of judgment should be so modified. The judgment will be affirmed in all other respects.
I. FACTS AND PROCEDURAL HISTORY
A. Charges In This Case
An amended information charged Skidmore with 10 felony sex offenses against his stepdaughters, J.D. and A.D., who were under the age of 14.
With respect to victim J.D., Skidmore was charged with: three counts of aggravated sexual assault of a child involving rape (Pen. Code, § 269, subd. (a)(1)); counts one-three); forcible rape (§ 261, subd. (a)(2); count four); continuous sexual abuse of a child (§ 288.5, subd. (a); count five); forcible sexual penetration of a child (§ 289, subd. (a)(1); count six); and committing a lewd act on a child (§ 288, subd. (b)(1)); count seven).
All statutory references are to the Penal Code.
As to victim A.D., the amended information charged Skidmore with continuous sexual abuse of a child (§ 288.5, subd. (a); count eight) and two counts of perpetrating a lewd act on a child (§ 288, subd. (a); counts nine and 10).
In regard to all counts, the amended information alleged that Skidmore had a prior serious felony child molestation conviction (§ 288, subd. (a)) for purposes of the Three Strikes Law. (§ 1170.12.) As to counts four through nine, it was further alleged that Skidmore committed the charged sexual offenses against multiple victims, and had a prior child molestation conviction under section 288, subdivision (a), for purposes of the One Strike Law. (§ 667.61, subds. (b) and (e)(5), (a) and (d)(1).)
B. Case No. SCR-471023
While these charges were pending, Skidmore was convicted in case number SCR-471023 on a felony charge of soliciting another to commit an assault by means likely to produce great bodily injury. (§ 653f, subd. (a).) This charge arose when Skidmore, while in jail on the sexual offense charges, arranged for his relatives to pay a former jail inmate to kill the molestation victims’ mother, assault their older brother, and bribe the victims to withdraw their allegations. Sentencing was deferred pending the completion of trial on the current charges.
C. Trial in This Case (SCR-458973)
Jury trial commenced in January 2008.
1. Skidmore’s Prior Sexual Abuse of a Stepdaughter
Skidmore’s former stepdaughter, T.B., testified that Skidmore sexually molested her periodically from the time she was about seven or eight years old, to the time she was about 12 or 13 years old. T.B.’s mother was an alcoholic, and Skidmore molested T.B. while the mother was asleep. Specifically, Skidmore went to T.B.’s bed, fondled her, and inserted his fingers in her vagina. He convinced T.B. not to tell her mother because, if she did, her mother would leave her.
At one point before T.B. turned 11 years old, Skidmore also tried to have sexual intercourse with her. When she told him to stop because of the pain, he became frustrated and told her that “men didn’t like prick teases.”
Certified documents established that Skidmore pled guilty to one count of child molestation (§ 288, subd. (a)) in July 1985.
After T.B.’s mother learned that Skidmore was engaged to Patricia H. (the mother of the child victims in this case), she informed Patricia that Skidmore was a registered sex offender. Patricia nonetheless married Skidmore in 2002.
2. Skidmore’s New Victims
Patricia’s two daughters from a prior marriage – J.D. born in August 1990, and A.D. born in July 1993 –lived with Patricia and Skidmore. Patricia’s son Jey and his girlfriend Antoinette sometimes lived with them also.
Like T.B.’s mother, Patricia was an alcoholic, and she got drunk every night after work. She never told J.D. or A.D. that Skidmore was a registered sex offender. As he had done to T.B., Skidmore molested J.D. and A.D. while their mother was asleep.
3. Sexual Abuse of J.D. (Counts 1-7)
One night when J.D. was 12 years old on a family vacation, Skidmore rubbed her leg, put his hand inside her shorts, rubbed her vagina, and inserted his finger into her vagina. He told her to “be quiet” and that she would “like it.”
About two weeks after the family returned home, Skidmore resumed his molestation of J.D. About 5:30 or 6:00 a.m., he entered her bedroom, rubbed her leg and vagina, and inserted his fingers into her vagina. e told her it was “what [they were] supposed to be doing” and it was “a special thing.” Frightened, J.D. pushed Skidmore’s hand away and told him to stop, but he continued anyway.
For nearly a year, Skidmore molested J.D. in the same manner two to three times a week, for about a half hour each time, while her mother was sleeping. He also touched her breasts and once asked her to kiss his exposed penis.
J.D. testified that, when she was 13 in January 2004, Skidmore “started raping me.” After inserting his fingers into her vagina, he took off his pants and told her, “we’re going to try something new.” She told him “no” and said she was scared, but he continued. He got on top of her, rubbed his penis against her vagina, and then inserted his penis in her vagina. She cried from the pain.
About a week later, Skidmore had intercourse with J.D. in her bedroom again. From then on until February 2005, he had intercourse with J.D. about two or three times a week. They had intercourse over 20 times.
While Skidmore was molesting her, he would tell J.D. that they could go shopping when they finished. Skidmore bought J.D. “everything [she] wanted.” He also bought her sexy underwear, including a lace bra and matching thong, which he had J.D. pose in.
Skidmore told J.D. that if she told anyone what he was doing to her, it would break her mother’s heart, break up the family, and cause him to go to jail. She did not report the abuse because she believed she was protecting her little sister A.D., her family had been poor before they met Skidmore, and Skidmore “could hurt [her].” When she did confide in her mother once, Skidmore accused her of lying, and her mother proceeded to drink even more and cried constantly. Seeing her family adversely affected, J.D. recanted. About a week or two later, Skidmore resumed raping her two or three times a week.
The last time they had intercourse was in late February 2005, a few days before Skidmore was arrested. On that occasion, J.D. used a pink towel to wipe off her vagina. J.D. gave the towel to the police after Skidmore was arrested.
4. Sexual Abuse of A.D. (Counts 8-10)
Skidmore started molesting A.D. when she was 11 years old, beginning sometime between the start of school and Christmas 2004. The first time he entered her bedroom in the morning while everyone else was asleep, and rubbed her back and her breasts. Beginning about a month later, he would rub her vagina as well. He did this every day, once in the morning and once again in the afternoon, for several months.
In February 2005, Skidmore’s molestation of A.D. escalated. In addition to rubbing her breasts and vagina, he removed her clothing and put his mouth on her vagina. This continued twice a day throughout the month. At one point, Skidmore had A.D. wear a lacy pink thong for him.
A.D. did not report Skidmore’s abuse because she was scared and wanted “to save [her] sister.” In addition, Skidmore had warned her that if she told anyone, he would never buy anything for her again. A.D. also thought no one would believe her, because when she previously told her mother that she had seen Skidmore and J.D. kissing and naked together in J.D.’s bedroom, they denied it.
On the last day of February 2005, Skidmore went to A.D.’s bedroom around 6:00 a.m. He rubbed her breasts and buttocks, pulled down her pants, and orally copulated her as usual. This time, however, he also rubbed his penis against her vagina and tried to make her touch it. He told A.D., “I’ll see you once I get home from work,” and “[o]nce we do it, I’ll give you a big prize.” A.D. testified: “I was afraid he was going to rape me the next day.”
5. Additional Evidence
Meanwhile, Jey’s girlfriend Antoinette (Nettie) became concerned about J.D. and A.D.. She noticed that J.D., who usually did very well in school, no longer wanted to do her homework and was not as outgoing as before. A.D. was displaying similar behavioral problems as well. Nettie also observed that Skidmore was buying J.D. “inappropriate clothing,” such as thong underwear, low-cut shirts, and “unbelievably short skirts.”
J.D.’s older cousin, Monique, testified that she once saw Skidmore’s hand on J.D.’s thigh in a sexual manner. Further, she testified, Skidmore “always wanted to touch” J.D.
Late at night on March 1, 2005, while Skidmore was at work and Patricia was asleep, Jey, Nettie, and Monique confronted J.D. with their suspicions that Skidmore was molesting A.D. and perhaps J.D. J.D. initially denied she was being molested but said she believed Skidmore was molesting A.D. J.D. then started to cry and admitted that for two years Skidmore had been molesting her as well. As they confronted Patricia, A.D. emerged from her room, crying. She explained: “I’m crying because I’m happy because I know it’s over.” A.D. thought Skidmore was going to rape her the next morning.
After the police were called, they had J.D. make a pretext telephone call to Skidmore. Skidmore told J.D. to lie and deny that there was ever any sexual contact between them, because otherwise he would go to jail. The tape of the telephone call was admitted into evidence and played for the jury.
The police interviewed J.D. and A.D., and audiotapes of their interviews were admitted into evidence and played for the jury. The sisters underwent sexual assault examinations and were swabbed for DNA evidence. Expert witnesses testified at trial that J.D.’s pink towel contained seminal fluid, and swabs of J.D.’s and A.D.’s breasts contained male DNA, all of which included Skidmore as a statistically likely source.
Dr. Anthony Urquiza, an expert in Child Sexual Assault Accommodation Syndrome, testified about the reasons child victims of sexual abuse may not immediately report molestations and often recant.
6. Defense Case
Skidmore did not call any witnesses of his own. He rested his case on the state of the evidence.
B. Jury Verdict and Sentence
The jury returned guilty verdicts on counts one, two, three, four, six, seven, nine, and 10, and on the lesser included offense of lewd act on a child (§ 288, subd. (a)) on count eight. Skidmore was acquitted on count five. The jury found the One Strike allegations true. The court found the Three Strikes allegations true.
The court sentenced Skidmore to a determinate term of 25 years four months, plus an indeterminate term of 290 years to life in state prison. The determinate term consisted of consecutive 12-year terms on counts eight and 10, calculated by doubling the full six-year midterm under the Three Strikes Law, and a consecutive 16-month term in the consolidated case, SCR-471023, calculated by doubling one-third of the two-year midterm under the Three Strikes law. The indeterminate term consisted of consecutive 30-year to life terms on counts one, two, and three, calculated at 15 years to life doubled under the Three Strikes law, and consecutive 50-year to life terms on counts four, six, seven, and nine, calculated at 25 years to life under the One Strike law, doubled under the Three Strikes law.
This appeal followed.
II. DISCUSSION
Skidmore contends: the court erred in imposing a consecutive full mid-term sentence on count eight; his sentence constitutes cruel and unusual punishment; and the abstract of judgment should be modified to preclude only visitation with his child victims rather than contact. We discuss each contention in turn.
A. Sentence on Count Eight
Although charged in count eight with a violation of section 288.5, Skidmore was convicted of the lesser offense of lewd act on a child under the age of 14 (§ 288, subd. (a)). The sentencing range for a conviction under section 288, subdivision (a), is three, six, or eight years.
In sentencing Skidmore, the court determined count eight to be subordinate to count 10. It then imposed the full six-year midterm on count eight, and doubled it to 12 years under the Three Strikes law. The court imposed the 12-year term on count eight as a consecutive term.
Skidmore contends his term on count eight, as a subordinate term, should have been calculated at one-third the six-year midterm (and then doubled pursuant to the Three Strikes Law), rather than at the full six-year midterm (doubled pursuant to the Three Strikes law). Respondent agrees, as do we.
The Three Strikes law requires the court to designate principal and subordinate terms under section 1170.1, calculate the subordinate terms as one-third of the middle term, and then double those terms. (People v. Miller (2006) 145 Cal.App.4th 206, 214.) The sentence as to count eight must therefore be reduced to one-third the six-year midterm (two years), doubled pursuant to the Three Strikes law, for a term on count eight of four years, rather than 12 years.
Skidmore also seems to suggest that the term on count eight (or at least the full midterm on count eight) should not have been imposed consecutive to the terms on other counts. He argues that section 667.6, subdivision (e) of the One Strike Law does not list section 288, subdivision (a) as a violent sex crime mandating consecutive terms. However, the consecutive terms were not imposed on the basis of the One Strike Law. Instead, the consecutive terms are required by the Three Strikes law, the application of which was pled and proved. (§ 1170.12, subd. (a)(6) and (7).)
B. Cruel and Unusual Punishment
Skidmore claims that his sentence is cruel and unusual because it totals 315 years four months, to life. We disagree.
1. Eighth Amendment
A sentence may violate the Eighth Amendment if it is grossly disproportionate to the defendant’s crimes. In a noncapital case, however, a violation based on disproportionality is rarely found and the circumstances must be extreme. (See Lockyer v. Andrade (2003) 538 U.S. 63, 73; Rummel v. Estelle (1980) 445 U.S. 263, 271-272.)
Considerations in determining whether a sentence is impermissibly disproportionate under the Eighth Amendment are: “[(1)] the gravity of the offense and the harshness of the penalty; [(2)] the sentences imposed on other criminals in the same jurisdiction; and [(3)] the sentences imposed for commission of the same crime in other jurisdictions.” (Solem v. Helm (1983) 463 U.S. 277, 292 (Solem); accord, Harmelin v. Michigan (1991) 501 U.S. 957, 965.)
2. California Constitution
Under the California Constitution, a sentence constitutes cruel and unusual punishment 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.’” (People v. Dillon (1983) 34 Cal.3d 441, 478 (Dillon), quoting In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) As under the Eighth Amendment, successful challenges based on disproportionality under California law are an “exquisite rarity.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
To determine the proportionality of a sentence under California law, the courts have suggested three “techniques” similar to the factors considered under the Eighth Amendment: (1) comparing the nature of the offense and offender, including the danger they present to society, to the harshness of the sentence; (2) comparing the challenged punishment to punishments for more serious crimes in the same jurisdiction; and (3) comparing the challenged punishment to punishments for the same offense in other jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425-427; see Dillon, supra, 34 Cal.3d at p. 479.)
3. Application
As to the nature of the offense and offender, Skidmore was convicted of nine felony sexual offenses perpetrated on his own stepdaughters, who were under the age of 14. For years he repeatedly and continuously molested and raped them, despite their pleas for him to stop, while their drunken mother was asleep. He convinced them not to tell anyone for fear they would break up their family. While the charges on this sexual abuse were pending, Skidmore was convicted of soliciting a former inmate to kill their mother, assault their brother, and bribe the young victims to recant.
The gravity of Skidmore’s crimes must be assessed in light of his past criminal history and recidivism. (See Solem, supra, 463 U.S. at p. 296 [state is justified in punishing a recidivist more severely than it punishes a first offender]; People v. Cooper (1996) 43 Cal.App.4th 815, 820-825.) Skidmore had a prior molestation conviction for sexually assaulting his preteen stepdaughter in another relationship. Despite the prior conviction, he failed to reform. The nature of his offenses, as well as his recidivism, make him a danger to society.
Skidmore does not attempt to compare his sentence with more serious offenses in California or with punishments in other states for the same offenses. We may take this as “a concession that his sentence withstands a constitutional challenge on either basis.” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan).)
In any event, we conclude his sentence is not disproportionate to his crimes and recidivism. Because we do not find an inference of disproportionality, there is no need to compare his sentence to other sentences in California or in other jurisdictions.
Skidmore relies on the concurring opinion of Justice Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600, to assert that his sentence is cruel and unusual because it is “ridiculously long” and “[n]o human being could possibly hope to complete even half this term.” Because Justice Mosk’s concurring opinion has no precedential value, there is no support for Skidmore’s argument. (Retanan, supra, 154 Cal.App.4th at p. 1231 [upholding sentence of 135 years, over the same objection, for multiple sex offenses]; People v. Wallace (1993) 14 Cal.App.4th 651, 666 [upholding sentence of 283 years eight months for multiple sex offenses].)
Skidmore has failed to establish that his sentence constitutes cruel and unusual punishment.
C. Abstract of Judgment
Skidmore contends the abstract of judgment should be modified to reflect that he is prohibited from visitation with the victims but not prohibited from contact with them.
1. Record Below
The probation report described Skidmore as a resident child molester who “routinely sexually assaulted” his minor stepdaughters “over an extended period of time,” using “threats of familial destruction and the offer of a prize.” While in jail for these crimes, he plotted to “assault, bribe, intimidate and murder reporting parties and witnesses.” According to the report, even after his conviction Skidmore “fail[ed] to take any type of responsibility for his actions or express remorse for his conduct and the effects said conduct has had upon others.” In addition to the emotional impact of the rapes and other sexual abuse, the victims were “undoubtedly cause[d] a level of fear” in being “targeted for assault” for reporting his “repugnant” and “heinous” crimes, for which he displays no remorse. The report recommended that the court prohibit “all visitation between [Skidmore] and [J.D. and A.D.], pursuant to Section 1202.05 PC.”
At the sentencing hearing on April 14, 2008, the court “prohibit[ed] all visitation between any child victims in this case and Jane Doe 1 [J.D.] or Jane Doe 2 [A.D.], under 1202.05.” (The court apparently was referring to visitation between Skidmore and the child victims, J.D. and A.D.)
A court form dated April 14, 2008, sets forth Skidmore’s sentence. On the form – signed by the judge – a box was encircled selecting the following preprinted language as part of the sentencing order: “Defendant to... [h]ave no contact with minor victim per 1202.05 PC.” (Italics added.)
The abstract of judgment, dated April 21, 2008, was signed by the court clerk. Under the heading of “Other orders,” the abstract of judgment reads: “Defendant to have no contact with minor victim per 1202.05 PC.”
2. The Challenge to the Abstract of Judgment
Skidmore contends that the abstract of judgment’s prohibition of “contact” with J.D. and A.D. should be modified because the court at the sentencing hearing referred only to “visitation” under section 1202.05, and section 1202.05 authorizes orders precluding only visitation, not contact. The statute provides in part: “Whenever a person is sentenced to the state prison... for violating Section 261... [or] 288... and the victim... is a child under the age of 18 years, the court shall prohibit all visitation between the defendant and the child victim.” (§ 1202.05, subd. (a).)
The cases on which Skidmore relies – People v. Zackery (2007) 147 Cal.App.4th 380, 387-388, and People v. Rowland (1988) 206 Cal.App.3d 119, 123-124 – are distinguishable from the matter at hand. They do stand for the proposition that a discrepancy between the court’s oral pronouncement of judgment and the minute order or abstract of judgment must be resolved in favor of the court’s pronouncement. (E.g., Zackery, at p. 385.) In those cases, however, a clerk’s minutes and abstract differed from what the court had ordered. Here, by contrast, the court’s April 14 sentencing memorandum – signed by the judge – ordered no contact. Unlike Zackery and Rowland, the abstract of judgment dutifully recorded the order issued by the court.
The question, therefore, is whether the court had authority to preclude Skidmore from all contact with J.D. and A.D. Although the court’s April 14 written order purports to preclude contact under section 1202.05, the express terms of section 1202.05 refer only to orders prohibiting “visitation.” It is therefore unclear why the Sonoma County Superior Court’s preprinted form refers to “no contact... per 1202.05 PC.” (Italics added.) As respondent points out and Skidmore implies, a no-contact order is broader than a no-visitation order.
Furthermore, there is no indication in the record that Skidmore had the opportunity to contest the prohibition of all contact – as opposed to visitation – before the order was imposed. The recommendation of the probation department referred only to “visitation,” section 1202.05 refers only to “visitation,” and the court at the sentencing hearing mentioned only “visitation.” While there may be instances in which such an order could be imposed on an emergency basis without advance notice, there is no indication of such necessity here. Furthermore, as a general rule, a sentence in a felony case may be imposed only in the presence of the accused. (In re Levi (1952) 39 Cal.2d 41, 45.) We therefore conclude that the April 14 order must be modified to reflect that Skidmore shall have no “visitation,” as opposed to “contact,” with the minor victims pursuant to section 1202.05. The abstract of judgment must be modified accordingly.
To make sure our ruling is clear, however, by no means are we ruling that an order prohibiting Skidmore from all contact with J.D. and A.D. would be impermissible as a matter of law. As respondent points out, not only was Skidmore convicted of molesting and raping his stepdaughters, he hired a former inmate to bribe them and to assault or kill their family members. Whether or not an order prohibiting contact (as well as visitation) is authorized by section 1202.05, a court under appropriate circumstances may be within its discretion in prohibiting a child molester from contacting his minor victims in order to mete out an appropriate sentence and protect the interests of the children. (See generally Cal. Rules of Court, rule 4.410, subd. (a) [objectives of sentencing include protecting society, punishing the defendant, and preventing the defendant from committing new crimes].) Nothing in this opinion precludes the District Attorney from seeking a no-contact order.
III. DISPOSITION
The term of sentence as to count eight (§ 288, subd. (a)) is reduced to four years (one-third the middle term, doubled pursuant to the Three Strikes law). The reference to no “contact” with the minor children in the sentencing order of April 14, 2008, shall be replaced with a reference to no “visitation” with the minor children. The clerk of the superior court is directed to correct the abstract of judgment accordingly. The judgment is affirmed in all other respects.
We concur. JONES, P. J., BRUINIERS, J.