Opinion
A152782
07-12-2018
THE PEOPLE, Plaintiff and Respondent, v. KENNETH LEA WITTROCK, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51500230)
This appeal comes to us from the superior court's resentencing of defendant and appellant Kenneth Lea Wittrock following our remand for resentencing in his earlier, merits appeal. Wittrock was convicted of nine counts of committing lewd acts on a child under 14 in violation of Penal Code section 288, subdivision (a), two counts of inducing a minor to perform prohibited acts in violation of section 311.4, subdivision (c) and one count of possessing sexual matter depicting a minor in violation of section 311.11, subdivision (a). The conviction on these charges resulted from multiple instances in which Wittrock sexually abused his step grand-daughters, who ranged in age from four years old to twelve or thirteen years old at the time of the abuse.
Except as otherwise indicated, statutory references are to the Penal Code.
In the earlier appeal, we held the trial court had erred in instructing the jury to reconsider a verdict that inconsistently declined to find true multiple-victim allegations relating to two of eight counts for which such a multiple-victim sentencing factor was alleged (counts one and two), while finding such allegations true as to six other counts. Following the erroneous instruction, the jury had returned a verdict finding true the two multiple-victim allegations it had previously rejected. We struck the true findings on those two counts and remanded for resentencing with that modification of the verdict.
The People failed to allege the multiple-victim circumstance for one of the nine lewd and lascivious conduct charges (count eleven), and the jury therefore was not asked to make such a finding as to that count.
Wittrock here appeals the resentencing decision on the sole ground that it is "cruel and unusual within the meaning of the Eighth Amendment." For the reasons set forth below, we affirm.
BACKGROUND
We rely in part on the statement of facts set forth in our opinion in the prior appeal, but also exercise our discretion sua sponte to take judicial notice of the record regarding sentencing in the earlier appeal, A146706, for purposes of providing factual background not described in our opinion in that appeal that is relevant to this appeal. (See Evid. Code, §§ 451, subd. (a), 452 subd. (d)(1), subd. 459(a); People v. Vizcarra (2015) 236 Cal.App.4th 422, 426, fn. 1.)
I.
Relevant Facts
The incidents leading to defendant's conviction include two separate occasions in which he touched the vagina of the oldest of his four step-grandchildren, Jane Doe 1, who was 12 or 13 years old at the time, and three or four instances in which he had one or more of the four girls, the younger three of whom were nine, seven and four years old at the time (Jane Does 2, 3 and 4, respectively), pose for photographs, nude or with their pants pulled down, exposing buttocks, anus or vagina, and sometimes touching themselves. The girls, primarily Jane Does 1 and 2, testified briefly to some of these incidents at trial. The People also presented photographs retrieved from Wittrock's cellphone depicting the girls naked or with their pants down. These included a photograph of the three younger children, Jane Does 2, 3 and 4, with pants down, bending over and spreading their buttocks; multiple photographs of then four-year-old Jane Doe 4 spreading her buttocks and one of Jane Doe 4 and Jane Doe 3 together spreading their buttocks; multiple photographs of then seven-year-old Jane Doe 3, one with her pajamas and underwear pulled down, another with her underwear down in which she was touching her vagina and another with her pants pulled down and legs opened to expose her vagina; and several photographs of Jane Doe 1, one in which she was seated, spreading her legs and exposing her vagina, and another in which she was lying naked on her back with a leg lifted, exposing her vagina and anus. Photographs retrieved from Wittrock's computer also depicted other young girls, some minors, in similar poses.
Defendant testified, admitting he took the photographs but denying he did so for sexual gratification. He testified that he photographed the girls when they were goofing around, did not tell them to pull down their pants or pose them, did not realize the photographs were inappropriate when he took them, and only understood that later. A psychologist who testified for the defense testified that Wittrock suffered a mild neurocognitive disorder resulting from substance abuse, liver disease and a liver transplant, a traumatic car accident and mild traumatic brain injury. He also testified that Wittrock had an IQ of 77, which put him in the "mildly impaired" range, and demonstrated some memory impairment. In his view, Wittrock "lacks much of an ability to think through solutions or to recognize consequences of his actions" and "may be somewhat impulsive in his behavior." "To some extent," he is able to recognize the inappropriateness of conduct "after the fact."
To the extent the defense suggested Wittrock's conditions and impairment rendered him unable to form the intent necessary to commit the crimes or to understand that his acts were wrong, there was substantial contrary evidence. Jane Doe 2 testified that Wittrock told the girls to pull down their pants so he could take pictures of them, and Jane Doe 1 testified that when Wittrock touched her vagina he told her not to tell anyone, and she and Jane Doe 2 testified that when he took photographs of them and their sisters he told them not to tell anyone because he could get in trouble. Further, defendant admitted having lied to the police by telling them there were no inappropriate photographs on his cellphone or computer. There was evidence showing he deleted from his computer the photographs depicting young girls the day after Jane Doe 1 revealed the molestation to her mother and her mother yelled at Wittrock and moved herself and the girls out of his home. On cross-examination, the defense psychologist testified that someone who molested children he had access to when no parent or other person was around, told the children not to tell, and lied to law enforcement about his acts, was engaged in goal directed actions consistent with "getting away with" the molestation. He also testified that Wittrock had been examined by a physician in September 2014 (soon after he was arrested) who found him to have logical thought processes, normal concentration and attention, and "good" impulse control, insight and judgment.
II.
Sentencing
The sentence in this case was imposed under section 667.61, known as the "One Strike" law because it imposes life imprisonment as the punishment for certain sex offenses committed under specified conditions even if the defendant has no prior convictions. (See People v. Acosta (2002) 29 Cal.4th 105, 127.) Subdivision (c) of the statute lists the covered offenses and subdivision (d) and (e) list circumstances that give rise to the punishments prescribed in other subdivisions.
As relevant here, Wittrock was convicted of multiple counts of lewd and lascivious acts on a child under the age of 14, an offense specified in subdivision (c) of the One Strike law, and with respect to most of those counts he was found to have committed an offense against more than one victim, a circumstance specified in subdivision (e)(4). Pursuant to subdivision (j)(2) of the One Strike law, a person who commits an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) "upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life."
Under the One Strike law, the court was required to and did impose a 25-years-to-life sentence on defendant for each of the lewd and lascivious conduct convictions for which the jury found true the multiple victim enhancement. Initially, prior to the first appeal, the trial court sentenced Wittrock to a determinate term of seven years and four months followed by a 50-years-to-life term. This life term consisted of two consecutive 25-years-to-life terms on two of the section 288, subdivision (a) counts (counts one and two), six concurrent terms of 25-years-to-life on the other section 288, subdivision (a) counts for which there were sustained multiple-victim allegations, a consecutive term of six years on the section 288, subdivision (a) count for which no multiple-victim allegation was charged (count eleven), a consecutive one year and four-month term on one of the section 311.4, subdivision (c) counts (count four), and terms for the remaining determinate sentence counts that would either run concurrently or be stayed under section 654.
On remand following the appeal, the trial court again imposed a determinate term of seven years and four-months to be followed by a 50-years-to-life indeterminate term. Consistent with our ruling striking the multiple-victim allegations for counts one and two, the court reduced the sentences for those two section 288, subdivision (a) counts from 25-years-to-life terms to determinate terms of six years, with the second to run concurrently with the first. It retained the year and four-month determinate term for one of the section 311.4 convictions, consecutive to the six-year term for count one. Consecutive to these determinate terms, it again imposed two 25-years-to-life consecutive indeterminate terms, but this time on counts three and five, for which there remained valid multiple victim enhancements. For the other section 288, subdivision (a) convictions that included valid multiple-victim findings (counts eight, nine, ten and twelve), it again made the 25-years-to-life terms concurrent. It made the remaining determinate term sentences concurrent with the other determinate terms. The result was that the sentence imposed on remand was, in length and practical effect, the same as the original sentence.
DISCUSSION
Wittrock argues the sentence imposed on him is cruel and unusual and violates the Eighth Amendment because, "just as a 16-year-old might be less culpable than a mature adult because one's mental functioning has not yet fully developed, so too might an elderly person be less culpable because one's mental functioning has deteriorated to the point of being far inferior to that of the typical mature adult." His appellate counsel posits that "the offenses themselves were to some extent the product of neuropsychological decline by a previously law-abiding citizen with a low risk of re-offending." Relatedly, counsel argues that given Wittrock's age, serious health conditions and consequent inability to work in the prison, low life expectancy and apparent depression, the extremely long sentence imposes too great a burden on this "already psychologically-fragile man." He contends that because the sentence far exceeds Wittrock's life expectancy, "it serves no legitimate penological purpose."
Wittrock raised these issues in the sentencing proceedings on remand, and the trial court considered and rejected them.
The People point out in response that the case law interpreting the Eighth Amendment and article I, section 6 of the California Constitution impose a "high bar" that is rarely met. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [" ' "[o]utside the context of capital punishment, successful challenges to the proportionality of particularly sentences [are] exceedingly rare" ' "]; People v. Boyce (2014) 59 Cal.4th 672, 721 (Boyce) [our approach to a cruel and unusual punishment claim is to determine "whether the penalty is 'so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity' "].)
In a recent decision, the Fourth Appellate District outlined the standards governing cruel and unusual punishment claims under the state and federal constitutions. (People v. Baker (2018) 20 Cal.App.5th 711.) It began by observing, "A punishment is cruel or unusual in violation of the California Constitution 'if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.' (In re Lynch (1972) 8 Cal.3d 410, 425 (Lynch ).) Because it is the Legislature's function to define crimes and prescribe punishments, the judiciary should not interfere 'unless a statute prescribes a penalty "out of all proportion to the offense." ' " (Baker, at p. 723.)
The method for determining whether the penalty is "out of all proportion to the offense," the Baker court observed, is set forth in Lynch, supra, 8 Cal.3d 410, which "describes three 'techniques.' " (Baker, supra, 20 Cal.App.5th at p. 723.) "We first consider 'the nature of the offense and/or offender, with particular regard to the degree of danger both present to society.' [Citation.] Next, we compare the sentence to 'punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious.' [Citation.] Finally, we compare the sentence 'with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision.' [Citation.] The weight afforded to each prong may vary by case." (Baker, at p. 723, quoting Lynch, at pp. 425-427.) " 'Disproportionality need not be established in all three areas.' " (Baker, at p. 723, citing People v. Norman (2003) 109 Cal.App.4th 221, 230.) As to the federal Constitution, the court observed there is some debate about the extent to which the Eighth Amendment " 'prohibits the imposition of punishment that is "excessive" or "disproportionate" in relation to the offense or offenses for which the punishment is imposed,' " but, based on the latest United States Supreme Court decision on the subject, concludes that it encompasses proportionality in a narrow way to " ' "forbid[] only extreme sentences that are 'grossly disproportionate' to the crime." ' " (Baker, at p. 732.) The court observed that the federal and state approaches to such claims largely "overlap" and both have " 'gross disproportionality' " as their " 'touchstone.' " (Id. at p. 733.)
Wittrock engages in no comparative analysis, which we take as a concession that his sentence withstands constitutional scrutiny under the second and third parts of the Lynch test. (People v. Crooks (1997) 55 Cal.App.4th 797, 808 [defendant bears burden of establishing disproportionality].) His argument focuses solely on the first aspect of the Lynch test, "the nature of the offense and/or offender, with particular regard to the degree of danger both present to society." (Lynch, supra, 8 Cal.3d at p. 425.) The factors to be considered in applying this part of the test include "the seriousness of the offense and the presence of violence, victims, or aggravating circumstances." (Baker, supra, 20 Cal.App.5th at p. 724.) "We consider not only the offense in the abstract but also the facts of the crime in question—'i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.' " (Ibid.) We also "examine the defendant 'in the concrete rather than the abstract . . . focus[ing] on the particular person before the court, [to ask] whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.' " (Ibid.)
Wittrock was convicted of nine counts of committing lewd acts on a child under 14 (§ 288, subd. (a)), two counts of inducing a minor to perform prohibited acts (§ 311.4, subd. (c)) and one count of possessing sexual matter depicting a minor (§ 311.11, subd. (a)). He molested four-, seven-, nine- and thirteen-year-old children. These children were especially accessible and vulnerable, both because they (along with their mother and great-grandmother) were living with him and because he was married to their great-grandmother. They referred to him as "Grandpa," suggesting they thought of him as a relative, which allowed him to prey on the trust children impose in such persons.
Wittrock touched Jane Doe 1 on the vagina, after telling her to pull down her shorts and lay on the bed. She described his fingers as "moving" "everywhere." Wittrock's acts of touching Jane Doe 1 took place on three separate occasions, two at the home they shared in San Pablo, and one at a hotel in Oregon where he took Jane Doe 1 and two of her sisters. As we have already described, he also took multiple photographs of Jane Doe 1 in overtly sexual poses, exposing the most intimate parts of her body, and multiple photographs of Jane Doe 1's four-, seven- and nine-year-old sisters, naked or with their pants down, exposing themselves and touching themselves in sexualized ways. These events, too, occurred multiple times on different occasions, some at the home Wittrock and his wife shared with the girls and their mother, apparently when their mother and great-grandmother were not at home, and others at a hotel in Oregon during a trip he took alone with three of the girls. Jane Doe 1 was young and afraid to resist Wittrock, and she was embarrassed and humiliated by his acts. Her sisters, whom Wittrock also molested by causing them to pose and touch themselves, were even younger and more vulnerable, and Jane Doe 1 testified she felt it was her fault and that she was responsible for Wittrock's molestation of them. She believed her sisters hated her for letting him photograph them in the manner he did.
The many acts of child molestation in which Wittrock engaged, while not violent, were nonetheless heinous. "Above and beyond the protection afforded to all victims of sexual assault, the Legislature has determined that children are uniquely susceptible to 'outrage' and exploitation. Hence, special laws on the subject of sex with children have been enacted. They expand the kinds of acts which may be deemed criminal sexual misconduct, and they generally operate without regard to force, fear, or consent. . . . [¶] Section 288 is a key weapon in this statutory arsenal." (People v. Scott (1994) 9 Cal.4th 331, 341-342.)
Any sex offense against a child is a grave offense because of the vulnerable nature of, and the risk of psychological harm to, the victim, regardless of any associated physical injury. "[P]ersons convicted of sex crimes against multiple victims within the meaning of section 667.61, subdivision (e)(5) 'are among the most dangerous' from a legislative standpoint." (People v. Wutzke (2002) 28 Cal.4th 923, 930-931 (Wutzke).) "The One-Strike scheme therefore contemplates a separate life term for each victim attacked on each separate occasion." (Id. at p. 931.)
As the Supreme Court noted it Wutzke, "[s]ection 667.61's intolerance toward child sexual abuse was foreshadowed by section 1203.066, which requires prison and otherwise limits probation in such cases. Section 1203.066 was enacted in 1981, along with numerous other reforms in the definition and punishment of such crimes." (Wutzke, supra, 28 Cal.4th at p. 931; see also People v. Zandrino (2002) 100 Cal.App.4th 74, 78-81 [discussing history of 1990s legislation extending statute of limitations for sex crimes committed against children].)
Wittrock's repeated acts of molestation, including repeated instances of sexual touching and taking sexual photographs, of four young children who lived with him and viewed him as a grandfather, violated their trust and the trust of their mother. The children were young and alone with him when he acted, and he took advantage of their extreme vulnerability. His acts demeaned and debased these children and undoubtedly caused them psychological harm.
The Legislature, exercising its prerogative, chose to impose lengthy prison sentences on child molesters under the circumstances specified in Penal Code section 667.61. It required the trial court to impose sentences of 25-years-to life for six of the twelve crimes of which Wittrock was convicted, and gave the court discretion to decide whether to impose any or all those sentences concurrently or consecutively. (People v. Valdez (2011) 193 Cal.App.4th 1515, 1524; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263; § 669(a); Cal. Rules of Court, rule 4.425.) The trial court here decided to impose two consecutive life sentences and made the other life sentences concurrent.
The resulting sentence imposed by the trial court was undoubtedly long; we agree with Wittrock that given his age it is, as a practical matter, equivalent to a sentence of life without parole. Even so, under the circumstances of this case, we cannot say the penalty imposed by the trial court under section 667.61, subdivision (j) "shocks the conscience and offends fundamental notions of human dignity." (Lynch, supra, 8 Cal.3d at p. 424; see People v. Sullivan (2007) 151 Cal.App.4th 524, 572 [fact that sentence of 210 years to life meant defendant would spend rest of his life in prison did not render it cruel and unusual].)
To the extent Wittrock's argument can be understood as urging us to apply Eighth Amendment precedents regarding youthful offenders, for whom the death penalty may not be imposed and life without parole is not permitted in non-homicide cases (see Miller v. Alabama (2012) 567 U.S. 460, 471 [discussing Roper v. Simmons (2005) 543 U.S. 551 and Graham v. Florida (2010) 560 U.S. 48]), to "elderly" offenders who have suffered some mental decline, we decline to do so. Rather, a defendant's age and mental condition are to be considered under the generally applicable rule under our state Constitution's cruel or unusual punishment clause "that an inmate sentenced to an indeterminate term cannot be held for a period grossly disproportionate to his or her individual culpability." (In re Butler (2018) 4 Cal.5th 728, 744.)
The California Supreme Court made this clear in a recent capital punishment case. In Boyce, supra, 59 Cal.4th 672, the defendant, who was 26 at the time of the crimes (id. at p. 719), challenged his death sentence as cruel and unusual "in light of his individual characteristics, including his asserted organic brain damage, borderline intelligence, and mental illness." (Id. at p. 718.) The court noted its prior holdings rejecting "claims that a defendant's low IQ, brain damage, and/or mental illness render his capital sentence grossly disproportionate to his crime." (Id. at p. 719.) The court rejected Boyce's argument that it should "determine whether his brain damage, mental illness, and intellectual impairment 'place him in a category of offenders for whom capital punishment cannot be imposed,' regardless of the circumstances of the crime." (Id. at p. 721.) The court rejected this categorical approach as contrary its precedent, "which considers whether the penalty is 'so disproportionate to the crime for which it is inflicted that it shocks the conscience' " considering the circumstances of the crime and the defendant's personal characteristics, such as age, prior criminality and mental capabilities. (Ibid.) It distinguished the rule of Atkins v. Virginia (2002) 536 U.S. 304 "that executing persons with intellectual disabilities violates the Eighth Amendment's prohibition against cruel and unusual punishment." (Boyce, at p. 717, fn. omitted.) Unlike mental disabilities of the kind formerly referred to as "mental retardation," the court stated, there is no national consensus "against executing persons with intellectual impairments short of intellectual disability or insanity" and it is for the " 'Legislature, if it chooses, to determine exactly the type and level of mental impairment that must be shown to warrant a categorical exemption from the death penalty.' " (Id. at p. 722.)
Boyce had not shown he met the statutory standard for intellectual disability that our Legislature defined after Atkins. (Boyce, supra, 59 Cal.4th at p. 718, fn. 25.) Nor has Wittrock done so here. --------
The court also rejected the Boyce's claim that considering his mental condition and limitations as part of the totality of the circumstances, the death penalty was disproportionate, noting that, "[a]lthough defendant offered evidence of his schizotypal disorder and subaverage intelligence, there was no evidence that either condition played any role in the killing." (Boyce, supra, 59 Cal.4th at p. 720.) Indeed, defendant's own experts conceded he could tell right from wrong and understand cause and effect, and his mitigation evidence showed he could understand and conform to social norms. (Ibid.) Further, the jury and trial court had "considered all of this evidence and determined that death was the appropriate punishment." (Id. at p. 721.)
In this case, defense counsel presented considerable evidence in mitigation to the trial court, both at the initial sentencing and on remand for resentencing. This included Wittrock's 20-year career as a correctional officer at San Quentin, his lack of a prior criminal history, advanced age, significant medical problems, including a liver transplant, late stage chronic kidney disease, diabetes, skin cancer, blood clots, and related neuropsychological decline, low IQ (he was described as "Borderline/Mildly Impaired") and test results showing he presented a low risk of reoffending. However, as in Boyce, there was no evidence that his medical or mental conditions played any role in the molestations. As in Boyce, the trial court had all the evidence before it and considered it during the sentencing proceedings. And also similar to Boyce, the trial court concluded, and we agree, that the evidence, including the repetition of his conduct, his doing it when he was alone with the girls, and his admonishments that they should not tell anyone about it, showed Wittrock understood very well the reprehensible nature of his conduct.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.