Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE331081) APPEAL from a judgment of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
This is the second appeal by Grey David Woods, who a jury convicted of 16 counts of sexual misconduct involving his girlfriend's underage daughter. (People v. Woods (2015) 241 Cal.App.4th 461, 465 (Woods).) These convictions included six counts of forcible rape (Pen. Code, § 261, subd. (a)(2); counts 1, 2, 7, 9, 12, 14), eight counts of forcible oral copulation of a minor aged 14 or older (§ 288a, subd. (c)(2)(A), (C); counts 3-6, 8, 10, 13, 15), one count of forcible oral copulation of a minor aged 14 or older in concert with another (§ 288a, subd. (d)(1), (3); count 11), and one count of felony child abuse (§ 273a, subd. (a); count 16). The jury found true allegations "Woods was subject to the 'One Strike' law in that he committed multiple offenses on separate occasions against the same victim, who was a minor 14 years or older, pursuant to section 667.61, subdivisions (l) and (m)," and "Woods inflicted great bodily injury on the victim, by causing her to become pregnant, pursuant to sections 12022.7, subdivision (a), 667.61, subdivision (l)" in connection with counts 1 and 16. Woods pleaded guilty to one count of possession of child pornography (§ 311.11, subd. (a); count 17). (Woods, supra, 241 Cal.App.4th at pp. 470-471.)
All further statutory references are to the Penal Code unless otherwise indicated.
In the prior appeal, we reversed Woods's convictions for forcible oral copulation of a minor and forcible oral copulation of a minor in concert having concluded the trial court prejudicially erred in failing to instruct the jury on the lesser included offense of nonforcible oral copulation of a minor. (Woods, supra, 241 Cal.App.4th at p. 476.) We affirmed the convictions for the remaining counts. (Id. at p. 490.)
On remand, the People declined to retry Woods on the reversed counts and accepted our modification to reflect convictions on those counts for nonforcible oral copulation of a minor (§ 288a, subd. (b)(1); counts 3-6, 8, 10, 11, 13, 15). (Woods, supra, 241 Cal.App.4th at p. 490.) The court resentenced Woods to a total term of life without the possibility of parole plus 51 years and eight months.
The total term is based upon a term of life without the possibility of parole for the first forcible rape conviction (count 1), plus consecutive terms of nine years each for the remaining forcible rape convictions (counts 2, 7, 9, 12, 14), plus consecutive terms of 8 months each for the nonforcible oral copulation convictions (counts 3-6, 8, 10, 11, 13, 15) and the possession of child pornography conviction (count 17), plus a four-year term for the felony child abuse conviction (count 16) to be served concurrently with the indeterminate term imposed for count 1. The court imposed, but stayed, a three-year term for the enhancement under section 12022.7, subdivision (a). The original sentence prior to the first appeal was for a total prison term of life without the possibility of parole plus 53 years. (Woods, supra, 241 Cal.App.4th at p. 470.)
In this appeal, Woods contends his sentence should be reversed because, as applied to him, the life sentence without the possibility of parole constitutes cruel and unusual punishment under the United States Constitution (U.S. Const., 8th & 14th Amends) and the California Constitution (Cal. Const., art. I, § 17). We disagree and affirm the judgment.
"A.C. met Woods in 2007 while playing ... an online 'fantasy role-playing game.' A.C. was living in Rhode Island with her husband and their three young boys, as well as A.C.'s then 12-year-old daughter from a previous relationship, C.C. A.C. spent many hours each night playing the game. C.C. also played for many hours each night.
"A.C.'s marriage eventually failed, and she and C.C. left the family home and moved in with A.C.'s parents. The marriage ended in large part because A.C.'s husband was unhappy that A.C. was spending so much time online, to the detriment of the family.
"In June 2008, then 31-year-old A.C. decided to pursue a romantic relationship with Woods, who was 19 years old at the time. A.C. invited Woods to come to Rhode Island. Woods drove to Rhode Island from California and stayed in a hotel. A.C. brought 12-year-old C.C. with her to meet Woods at the hotel. The three of them shared a bed that night, with C.C. in the middle. Sometime during the night, Woods touched C.C.'s vagina and breasts, and asked her to touch his penis. C.C. felt 'not good' about what Woods had done. At a later point that night, Woods again touched C.C.'s vagina. She told him to stop, and he did. The next morning C.C. told her mother 'that [she] didn't want to do that.' A.C. 'ignored' C.C., which made C.C. feel 'sad.'
"After this visit with Woods, A.C. decided that she was in love with Woods. In July 2008, Woods came to Rhode Island and moved into A.C.'s parents' home, with A.C. and C.C. A.C. and Woods shared a room in the basement of the home, and C.C. had a room upstairs. Within two months of arriving in Rhode Island, Woods became physically abusive toward A.C.
"During this time, Woods continued to sexually abuse C.C. The first time Woods sexually abused C.C. after he had moved to Rhode Island was at C.C.'s grandparents' house. Woods entered C.C.'s room, locked the door behind him, and touched her vagina under her clothes. C.C. complained to her mother, who responded, 'deal with it.' Woods then began to expect C.C. to perform oral sex on him '[d]aily.' She did not want to do it, but she 'couldn't say no.' When C.C. told her mother about what Woods was doing to her, A.C. got 'mad' at C.C. '[b]ecause she was jealous that [C.C.] got more attention than her.' While in her grandparents' house, C.C. did not feel that she had a choice to stop performing oral sex on Woods.
"At some point, Woods, A.C. and C.C. moved into an apartment together, where they lived for a year and a half. Woods began having intercourse with C.C. every day, and she continued to perform oral sex on him. C.C. did not want to have sex with Woods, but he told her 'it's something [she] ha[d] to do,' and she did not feel she had a choice. C.C. told A.C. that Woods was demanding sex from her, but A.C. did nothing to try to stop the abuse. C.C. witnessed Woods being physically abusive toward A.C. C.C. believed that if she did not comply with Woods's demands for sex, Woods would hurt her or her mother.
"In July 2010, Woods, A.C. and C.C. moved to San Diego where they lived with Woods's father, stepmother and grandmother. C.C. was 14 years old at the time of the move. By this point in time, A.C. and C.C. were financially dependent on Woods.
"While in San Diego, Woods had 'daily' intercourse and 'almost daily' oral sex with C.C., and he sometimes, though rarely, would engage in anal sex with her.
"A.C. would occasionally participate in the sexual encounters between C.C. and Woods, but C.C. did not 'want that to happen.' She felt 'gross' when it happened. C.C. was afraid to say no and feared that Woods would hurt her or A.C. if C.C. did not '[do] what [Woods] demanded.' Woods was, in fact, physically abusing A.C. during this time, on approximately a monthly basis, according to C.C. On one occasion, he knocked A.C. unconscious. Woods put his hands on C.C.'s shoulders and 'kind of push[ed] [her], not so much that it would hurt [her], but more to scare [her].'
"At some point, Woods began taking pornographic photographs and videos of himself, C.C., and A.C. engaged in various sex acts.
"In the fall of 2010, C.C., who was 15 years old, learned that she was pregnant. Woods and A.C. told her to get an abortion. In mid-January 2011, A.C. drove C.C. to a Planned Parenthood facility to undergo an abortion procedure. A.C. told the staff at Planned Parenthood that an unnamed boy had gotten C.C. pregnant. C.C. did not tell the truth about what had happened because she was concerned that she would get in trouble, and/or that her mother would get in trouble. Less than two weeks after C.C. had the abortion, Woods resumed having sex with her.
"Because C.C. was in her second trimester, a two-day procedure was required."
"Woods insisted that A.C. homeschool C.C. He insisted that C.C. and A.C. call him 'daddy,' and he introduced C.C. to his coworkers as his daughter. A.C. would not let C.C. talk to her brothers, stepfather, or father on the telephone, even though they tried to call to speak with her.
"C.C. testified that at some point in time, as early as when the three were living in Rhode Island, she developed romantic feelings for Woods and began to regard him as her boyfriend. She started to act 'like a girlfriend.' C.C. testified that she believed she 'should make [herself] like him and it will make it easier.' She also testified that once she began regarding Woods as her boyfriend, she and Woods went out on dates, and she occasionally initiated sex with him. C.C. told Woods that she loved him on a daily basis, and made plans for a future with Woods.
"In March 2011, the three moved to Ramona to live with Woods's grandmother and her husband. Although C.C. had her own bedroom at the house, A.C. and Woods told her to sleep with them in their room and share their bed. Woods continued to have intercourse and oral sex with C.C. while they were living at the Ramona residence.
"In November 2011, Woods, A.C. and C.C. moved into their own home. At the new house, C.C. slept in the bedroom with Woods, and A.C. slept in a different room[.] C.C. would hear Woods engaging in violence against A.C. during this period. In early January 2012, A.C. called the police after Woods was violent toward her and C.C. Woods had pushed A.C. down to the floor and had thrown C.C. onto the bed so hard that the bed broke. After A.C. and C.C. left the house, Woods sent A.C. threatening text messages. In the first, he said, 'I'm going to find you and kill anyone you're with.' Another said, 'I'm killing myself and all the animals with me. Fuck you guys.' A.C. was concerned that he would follow through on his threats.
"The law enforcement officer who investigated the incident noted that Woods was six feet tall, and weighed 245 pounds. C.C. was 'much smaller.' C.C. did not mention the sexual abuse to the officer because her mother had told her not to say anything about it, and she feared she would 'get taken away' from her mother. [¶] . . . [¶]
"In early March 2012, Woods met Brittany M. online and they began a romantic relationship. Later that month, Brittany moved in with Woods at his father's home in Ramona. On August 9, 2012, Brittany called the sheriff's department to report that Woods possessed child pornography. Woods had given Brittany two computer memory sticks and asked her to destroy them. Brittany eventually discovered that the memory sticks and Woods's computer contained explicit pornographic images and videos involving C.C., whom Brittany knew was the daughter of Woods's ex-girlfriend and a minor.
"A few weeks after Brittany contacted the authorities, police executed a search warrant and seized Woods's computer, cellular telephones and a computer tower. A forensic examiner found 'thousands' of pornographic pictures and videos depicting C.C., Woods, and A.C. on these devices.
"Woods and A.C. were arrested. A.C. cooperated with police and eventually pled guilty to committing lewd acts with a minor, felony child abuse, and felony accessory after the fact. A.C. testified for the prosecution at Woods's trial." (Woods, supra, 241 Cal.App.4th at pp. 466-469.)
Woods concedes the court was required to sentence Woods to state prison for life without the possibility of parole based upon the true finding on the allegation of great bodily injury in connection with forcible rape of a victim who was 14 years of age or older. (§ 667.61, subd. (l); People v. Reyes (2016) 246 Cal.App.4th 62, 82 (Reyes).) Nevertheless, Woods contends the sentence, as applied to him under the facts of this case, is disproportionate to his crime and is cruel and unusual under the state and federal constitutions. We disagree.
Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment. [Citations.]" [Citation.] Cruel and unusual punishment is prohibited by the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution. Punishment is cruel and unusual if it is so disproportionate to the crime committed that it shocks the conscience and offends fundamental notions of human dignity.' " (People v. Abundio (2013) 221 Cal.App.4th 1211, 1217-1218.) A defendant must overcome a "considerable burden" when challenging a penalty as cruel or unusual. (People v. Wingo (1975) 14 Cal.3d 169, 174.)
" '[T]he Eighth Amendment contains a "narrow proportionality principle," that "does not require strict proportionality between crime and sentence" but rather "forbids only extreme sentences that are 'grossly disproportionate' to the crime." ' " (In re Coley (2012) 55 Cal.4th 524, 542 (Coley), quoting Graham v. Florida (2010) 560 U.S. 48, 59- 60.) To evaluate a claim of cruel and unusual punishment " '[a] court must begin by comparing the gravity of the offense and severity of the sentence. [Citation.] "[I]n the rare case in which [this] threshold comparison ... leads to an inference of gross disproportionality" the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. [Citation.] If this comparative analysis "validate[s] an initial judgment that [the] sentence is grossly disproportionate," the sentence is cruel and unusual.' " (Coley, supra, 55 Cal.4th at p. 542.) Successful grossly disproportionate challenges are " 'exceedingly rare' " and appear only in an " 'extreme' " case. (Lockyer v. Andrade (2003) 538 U.S. 63, 73.)
The California standard is similar. " 'To determine whether a sentence is cruel or unusual under the California Constitution as applied to a particular defendant, a reviewing court must examine the circumstances of the offense, including motive, the extent of the defendant's involvement in the crime, the manner in which the crime was committed, and the consequences of the defendant's acts. The court must also consider the personal characteristics of the defendant, including his or her age, prior criminality, and mental capabilities. [Citation.] If the penalty imposed is "grossly disproportionate to the defendant's individual culpability" [citation], so that the punishment " ' "shocks the conscience and offends fundamental notions of human dignity" ' " [citation], the court must invalidate the sentence as unconstitutional.' " (People v. Gonzales (2012) 54 Cal.4th 1234, 1300.) " 'The doctrine of separation of powers is firmly entrenched in the law of California, and a court should not lightly encroach on matters which are uniquely in the domain of the Legislature. Perhaps foremost among these are the definition of crime and the determination of punishment.' [Citation.] Thus, ' "[o]nly in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive." ' " (Reyes, supra, 246 Cal.App.4th at p. 86.)
"The 'One Strike' law, section 667.61, is an alternative sentencing scheme that applies to specified felony sex offenses. [Citations.] 'The purpose of the One Strike law is "to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction," "where the nature or method of the sex offense 'place[d] the victim in a position of elevated vulnerability.' " ' " (Reyes, supra, 246 Cal.App.4th at p. 79.)
Subdivision (l) of section 667.61 provides in pertinent part: "Any person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole."
In Reyes, supra, 246 Cal.App.4th 62, this court rejected an argument that a mandatory sentence of life without the possibility of parole under section 667.61, subdivision (l) for forcible rape and oral copulation of a minor in connection with a burglary (a special circumstances specified in subd. (d)) constituted cruel and unusual punishment under either the federal or state constitutions. (Reyes, at pp. 85-86.) In that case, the defendant forced his way into the victim's home and pushed the minor victim onto a couch "where he tried to kiss her, removed her shorts and underwear, orally copulated her while holding her arms down, and had intercourse with her." (Id. at p. 70.)
"[T]he One Strike law 'is precisely tailored to fit crimes bearing certain clearly defined characteristics.' [Citation.] That is true as to subdivision (l) of section 667.61 ..., where to impose the life without parole term, the crime must be one of sexual violence and committed under circumstances increasing the risk of injury or death to the victim and committed against a minor 14 years or older." (Reyes, supra, 246 Cal.App.4th at p. 89.) Although recognizing the sentence was very severe, we concluded the sentence was not grossly disproportionate to the offenses the defendant committed against a minor, "society's most vulnerable victim." (Id. at p. 85.) " '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.' " (Ibid., quoting People v. Scott (1994) 9 Cal.4th 331, 341-342.) Under the circumstances of that case, we determined the Legislature's decision to impose a sentence of life without the possibility of parole was "not so disproportionate as to shock the conscious and offend fundamental notions of human dignity, and thus not constitutionally infirm." (Reyes, at p. 89.)
Similarly here, we conclude the mandatory sentence of life without parole was not grossly disproportionate to the crime of forcible rape, which Woods inflicted on the minor victim causing her to suffer great bodily injury. (§ 667.61, subds. (d)(6), (l) & (n).) In undertaking this analysis, we do not consider the nature of the offense for which the sentence was imposed in the abstract, but "take into consideration all of the relevant specific circumstances under which the offense actually was committed." (Coley, supra, 55 Cal.4th at p. 553.)
Unlike in Reyes, supra, 246 Cal.App.4th at page 70, the conduct here was not limited to a single event. Woods engaged in unrelenting and nearly daily sexual abuse of the minor victim over a period of four years. The victim testified she was afraid Woods would hurt her or her mother if the victim did not do what Woods demanded. This ongoing conduct resulted in a pregnancy in 2015, which the minor terminated at the direction of Woods by enduring a two-day abortion procedure. (Woods, supra, 241, Cal.App.4th at pp. 467-468, & fn. 3; People v. Cross (2008) 45 Cal.4th 58, 66 [pregnancy resulting from unlawful sexual conduct may constitute great bodily injury under section 12022.7].)
Contrary to Woods's contention, we did not conclude in the prior appeal the minor victim consented to the sexual acts. We stated we would have readily reached the conclusion substantial evidence supported Woods's conviction for forcible oral copulation of a minor and forcible oral copulation in concert, had that been the question before us. (Woods, supra, 241 Cal.App.4th at p. 475.) However, viewing the evidence in the light most favorable to Woods, as we were compelled to do under the applicable standard of review, we concluded there was some evidence to support an instruction on the lesser included offense of nonforcible oral copulation for at least some of the oral copulation charges. (Id. at pp. 475-476.)
The trial court considered and rejected Woods's constitutional challenge to the mandatory sentence of life without parole both at the original sentencing hearing and again at the resentencing hearing. "[I]t is appropriate to rely upon ... a trial court['s] factual finding in deciding whether a sentence that has been imposed in a particular case constitutes cruel and unusual punishment." (Coley, supra, 55 Cal.4th at p. 556.)
The court considered "the relative ages of the parties at the inception of this tragic and heinously criminal union of a 30-year-old woman, a 19-year-old man, and that woman's 12-year-old daughter[;] [t]he absence of any criminal record of the defendant[;] the blatant disregard by the mother for the physical and psychological well-being of her daughter, who she served up on a platter for this defendant, and continued to do so for ... years."
Although Woods was a relatively young man at the time he began his campaign of sexual abuse of the minor, he was an adult at the times the crimes were committed. The trial court commented upon the "devastatingly complex psychological interaction between these three individuals" and stated a "comprehensible analysis ... can never fully rectify ... a man, no matter what his age, taking advantage of a child in such a vulnerable position, as done by this defendant, who was clearly a fledgling sexual predator, who fell upon a perfect opportunity to both physically and sexually abuse this ... mother and do the same to this innocent child." The trial court found Woods created a "culture of compliance" so compelling "that neither [the mother] nor the child ever availed themselves of numerous opportunities to escape."
The court found the minor victim "will be burdened with this pregnancy and the termination thereof for the remainder of her life." The court said it was "truly shocking ... to watch this victim testify. [¶] This young woman is clearly broken, and in this court's opinion will never be repaired. Whether intended or not, the consequence of the defendant's acts have sentenced this young woman to a life of doubt, mistrust, and self-loathing, all of which were evident to me. The immaturity and vulnerability of a child, both physically and psychologically, adds a devastating dimension to the crime of rape. Any rape victim suffers great bodily injury, but some victims, and certainly child victims, are so grievously injur[ed] both physically and psychologically so as to be beyond repair."
Woods's suggestion his young age should be factored into his culpability is undermined by indications his judgment and deviant sexual appetite did not improve after the relationship with the minor and her mother ended. Woods met and began living with another woman he met online. (Woods, supra, 241 Cal.App.4th at p. 469.) Woods engaged in controlling, degrading, and violent behavior with this girlfriend. Woods demanded the girlfriend change her appearance to look like the minor victim by changing her hair, her makeup and obtain piercings. He forced the girlfriend to orally copulate a minor male as Woods watched. Woods became more obsessed with pornography and expressed his interest in having the girlfriend engage in sexual acts with animals. Although Woods was not charged with crimes related to the subsequent girlfriend, the probation officer reported his pattern of controlling and sexually degrading behavior "makes him a danger to society."
Woods's apparent pattern of meeting and living with women he meets online started as early as 16 years old when he moved to Arkansas to live with a female he met online. He lived with the female and her family. --------
There is no evidence of diminished mental capabilities to mitigate Woods conduct. By his own report, Woods is an intelligent person who held management positions in jobs he held as an adult.
Woods only other criminal conviction was for the misdemeanors to which he pled guilty as a result of the January 2012 domestic violence incident involving A.C. that finally led A.C. and the minor to leave Woods. However, the probation report indicated this non-sexually violent incident would nevertheless raise Woods's risk of sexual offense recidivism along with factors such as deviant sexual interests, emotional identification with children, and self-regulation problems, which are not measured on the standard Static-99R Risk Assessment evaluation. The probation officer stated Woods "is the type of criminal for which severe punishments for violent sexual offenses were enacted. He should spend the rest of his life in prison or it is likely other women and children could fall victim to this dangerous predator."
We agree with the trial court's conclusion a sentence of life without the possibility of parole, as mandated by the legislature, under the circumstances of this case is not "disproportionate to the crime for which it is to be inflicted so as to shock the conscience and offend fundamental notions of human dignity."
"Having reached this conclusion, we do not reach the other prongs of the analysis under the Eighth Amendment." (Reyes, supra, 246 Cal.App.4th at p. 86.) Neither do we need to engage in the other techniques for determining proportionality set forth in In re Lynch (1972) 8 Cal.3d 410, such as a comparison with crimes either in California or other jurisdictions. "The sole test remains ... whether the punishment 'shocks the conscience and offends fundamental notions of human dignity.' " (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38.) In this case, it does not.
The judgment is affirmed.
MCCONNELL, P. J. WE CONCUR: BENKE, J. NARES, J.