People v. GutierrezPeople v. Gutierrez
Nancy J. King and Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Alana Butler and Meredith S. White, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
Defendant appealed, arguing (1) his counsel was ineffective for failing to object to the use of an Arizona conviction for impeachment purposes because it was not a crime of moral turpitude, and (2) the court violated his Sixth Amendment right to a jury trial when it determined that this child molestation conviction constituted a serious felony and strike prior under California law because the court had made factual findings regarding the underlying offense. As set forth in People v. Gutierrez (May 22, 2017, DO69706 [nonpub. opn.] (Gutierrez I)), we rejected defendant‘s first argument, but agreed with his second, finding a lack of substantial evidence to support the court‘s finding that his Arizona conviction constituted a serious felony or strike prior under California law. We remanded the case for resentencing, and affirmed the judgment in all other respects.
At resentencing, the court imposed on defendant a revised term of 35 years plus 100 years to life in prison, as explained post.
As we explain, we conclude defendant forfeited this claim by his failure to raise it either in connection with Gutierrez I or in the trial court following remand. However, to forestall a claim of ineffective assistance of counsel with respect to this specific issue, we further conclude defendant‘s sentence does not violate either the federal or state constitutional prohibition on cruel and/or unusual punishment.
Defendant in an April 8, 2019 petition for rehearing (petition) alleged that remand was necessary to allow the court to exercise its discretion and determine whether to dismiss one or more of the five-year enhancements imposed under
As we explain, we remand solely for the court to exercise its discretion and determine whether to impose one or more of the five-year enhancements under
FACTUAL AND PROCEDURAL BACKGROUND
Defendant‘s Sexual Abuse of his Granddaughter
Defendant‘s daughter, Paula H., had a daughter, victim Raquel G., born in 1993. Raquel testified that when she was young she spent very little time with her own father, as her parents had separated when she “was really little.” In fact, Raquel could not even remember a time when her parents were together. As a result, Raquel was close to her mother and older brother, and to defendant, whom she described as a “father figure.”
Raquel testified that growing up, she and her family spent a great deal of time with her grandparents, including defendant and her grandmother Gloria, as they were “always at their house,” which also was located in San Diego. Raquel recalled being cared for by defendant when her mother Paula was at work. When she was about eight years old and in third grade, Raquel recalled defendant sometimes would come in the morning to their family home, stay with them after Paula left for work, and then either walk or drive her and her brother to school, which was located a few blocks away. Defendant also sometimes picked Raquel up from school. It was around this time period that defendant started doing “inappropriate” things to Raquel.
Raquel testified during this incident she shook her head “no” as defendant grabbed her hand and placed it on his penis. Defendant then “manipulated” her hand while it was on his penis and made her “jack him off.” When Raquel tried to remove her hand from his penis, defendant made her “put it back on there.” Raquel was “pretty sure” defendant ejaculated during this first incident. At the time, Raquel did not know what it meant to ejaculate, nor did she understand “what was happening” at the time or whether it was “right or wrong.” After this incident, and all others, defendant made her go to the bathroom and “clean” herself. Once inside the bathroom, Raquel looked in the mirror and “started crying.” Defendant also instructed Raquel not to tell anybody about the incident.
Raquel recalled the next incident with defendant “got a little worse” than the first. She testified, “He [i.e., defendant] did the same things that he did the first time, but then the second time he asked me if I would be okay if he put his fingers in me, and I said no.
During this second incident, Raquel was naked. As before, defendant “made [her] masturbate him.” Also as before, defendant “put his mouth on [her] vagina.” When Raquel pulled her hand away from defendant‘s penis, “he finished” by masturbating himself, ejaculated, then instructed Raquel to clean herself in the bathroom.
Raquel recalled another incident that took place around the time of defendant‘s birthday. There was a party for defendant with much of the family in attendance. During the party, defendant claimed he needed to take care of “some business at the tuxedo shop.” Defendant asked Raquel to accompany him to the shop. Raquel refused, as she “had a feeling” defendant again would sexually abuse her. Defendant insisted, and Raquel reluctantly went with him.
During this incident, defendant took off Raquel‘s clothes. Raquel recalled there was a “church service going on next door,” “so it was pretty loud, and he—he was playing—he was, like, touching [her] vagina. And he had me, like, reaching over to masturbate him. And then he stopped and he said what if I try to—he said, ‘What if I try this time,’ and he like, pulled out his penis and tried to stick the tip of it in.” Raquel testified that this incident took place on the floor; that when he tried to put his penis in her vagina, she said “no really loud“; that his penis touched, but did not penetrate, her vagina; that he in response put his hand over her mouth and told her, “I need it to be quiet
Like the two other incidents, defendant ejaculated, this time on Raquel‘s stomach. Also as before, defendant instructed Raquel to clean herself and not to tell anyone what he had done.
In addition to these three incidents, Raquel recalled defendant sexually abused her on other occasions as well. With respect to these other incidents, she testified, “I remember them, but it‘s just like he—he did the same things every time. I don‘t really remember how far they were apart when he did it or what . . . .” Raquel recalled that all of these incidents took place “over a long period of time, like, months” or perhaps over a year.
Raquel further testified that she was “sure” that there were at least four incidents of sexual abuse by defendant, but there “were probably more than that“; and that with respect to all four incidents, there were at least two occasions when he: (1) used his fingers and touched her vagina; (2) placed his mouth on her vagina; (3) forced her hand to touch his penis; (4) and ejaculated on her stomach. Also during the four incidents, defendant at least one time tried to put his penis inside Raquel‘s vagina.
When asked if there were any incidents of abuse away from the tuxedo shop, Raquel recalled an incident when defendant came to their home to watch her and her brother and take them to school. After Paula left for work and as her brother slept, defendant asked Raquel “to touch him.” She refused, and “nothing ever happened.”
Raquel told Paula about the abuse by defendant a “couple years later,” after her mother made plans to have defendant watch the children so that she and a friend could travel to Colorado for a wedding. Raquel testified that she then “begged” her mother not to leave them in defendant‘s care; that her mother became concerned and suspicious because she had “never seen [Raquel] . . . that scared before, and panicky“; and that because her mother kept asking what was wrong, Raquel finally disclosed she had been sexually abused by defendant.2
Once she disclosed the abuse, Raquel testified that “things” changed, as her grandmother moved north and Raquel‘s family “stopped talking to that side of the family a little bit“; and that it was a “hard transition” for her because it “felt like everyone was just kind of leaving [her], like it was [her] fault.”
Raquel further testified she was interviewed multiple times by a child welfare agency when she was young, before defendant abused her, and twice after the abuse occurred. She was interviewed on October 16, 2002, when she was nine years old. On that occasion, the agency was investigating a report of physical abuse by Raquel‘s father against her brother. Raquel denied any inappropriate touching by defendant or anyone else during this interview, and during another interview on April 22, 2004, when she was 10 years old, despite the fact defendant had sexually abused her. Although Raquel did not tell the agency social workers about the abuse, she did tell a friend. The family subsequently moved to Temecula after Raquel finished seventh grade.
While in ninth grade, Paula insisted her daughter see a counselor, as Raquel was not doing well in school or at home. Raquel testified she then “wanted to kill [herself]” because “of what [defendant] did to [her].” During a counseling session, Raquel opened up and disclosed the abuse by defendant.
After the move, Raquel and her mother in 2013 contacted the Riverside and/or San Diego Police Departments to follow up on the status of the investigation of defendant. Raquel recalled speaking with an officer on the telephone. When asked why she wanted to make that call, Raquel stated, “I wanted to have justice for myself.” At some point, law enforcement had Raquel attempt to contact defendant by telephone, with the hope he would confess to sexually abusing Raquel. Defendant, however, did not answer or return her calls. When asked how she felt about testifying against her own grandfather, Raquel stated she no longer considered defendant to be her grandfather because “people who love you wouldn‘t do that to you, what he did to me.”
Paula testified after having two children, including Raquel, she went back to work. She estimated she began working when Raquel was in the first grade. Paula typically worked four days a week, all day long. After about three years, Paula changed jobs, which sometimes required her to go to work at 6:30 a.m. Being a single mother, Paula had to rely on various family members to help with childcare. At one point, Paula‘s mother Gloria suggested defendant could help with the children. Paula testified she
Paula testified that defendant left Gloria in about 2002 and that she and the children moved to Temecula in about 2005, when Raquel was in 8th grade. Paula recalled she and her boyfriend (now husband) were going to a wedding in early September 2004. Paula had asked her mother to watch the children while they were away. Gloria agreed, but was going to be a day “late” arriving to San Diego. Gloria suggested defendant as an alternative. Paula told Raquel that her grandfather was going to watch her and her brother for a day. Raquel in response stated she “wasn‘t comfortable” with that arrangement. Based on “motherly instinct,” Paula began questioning Raquel.
Initially, Raquel refused to tell her mother about the abuse. As Paula prodded, Raquel finally disclosed the sexual abuse by defendant. Raquel did not give her mother many details, other than disclosing the abuse had been “years before.” Paula testified she immediately set up a conference call involving Gloria, Paula‘s aunt, who was defendant‘s sister, and defendant, to make sure they were “all on the same page.”
During this call, Paula disclosed what Raquel had just told her, and instructed defendant to “stay the heck away from [her] daughter and not to come around [her family].” Paula testified that during this call, defendant (in Spanish) said, “I‘m sorry, mija, I‘m sorry, mija,” noting that “mija” in Spanish meant daughter. Paula refused to accept defendant‘s apology, telling him at one point, “How dare you.” Paula ended up
Paula did not contact law enforcement after Raquel‘s disclosure. Paula testified, “When I was a child and these type of instances would happen, such as when I was molested, it was usually resolved in the family, so when I mentioned it to my mom, my mom spoke with the same sister that I had called when it happened to Raquel, and at that time when—so that‘s basically how it was—that is basically the way it was resolved when I was a child, is you talked to the family, they talk to the person, the person stops; so I believed that I would speak to my family, let them know, that they would—that they would deal with the situation the same way.”
After moving to Temecula, Paula noticed “something was bothering” Raquel. After Raquel repeatedly said, “Mom, you don‘t understand,” Paula urged her daughter to see a counselor because if Raquel was not going to speak with her mother, or her stepdad, she needed to talk to someone. Raquel finally agreed, and met with a counselor when she was in the 10th grade. The day after Raquel started counseling, law enforcement from Riverside became involved. During an interview with law enforcement, Paula also disclosed that defendant had molested her when she was a child.
Defendant‘s Past Acts of Sexual Abuse, Including of Paula
Paula testified that while she was growing up, defendant—her biological father—sexually abused her. Defendant was never charged in connection with this abuse. Paula estimated the abuse started when she was about six, and ended when she was about nine years old. Paula recalled the abuse typically occurred in her parents’ bedroom. Defendant would make Paula take off her clothes and touch his “weaner” while he too was naked. Defendant would then force her to “stroke” his penis to the “point of
Paula estimated that defendant abused her in this way about 20 times; that he tried to “make it fun and games” so she would not be afraid; and that he also touched her labia, after demanding she “[o]pen [her] legs.” Paula described for the jury the sounds defendant would make as she stroked his penis, including when he ejaculated.
Although Paula could not remember the “first” time defendant abused her, she could remember the last time. As was the case with Raquel (and others, as discussed post), defendant instructed Paula not to tell anyone about the abuse. At some point, however, Paula began to feel “ashamed” and knew “there was something wrong.” Paula testified Gloria saw a change in her, and asked Paula if she was okay. It was then Paula disclosed to her own mother that “dad had touched [her].”
As a result of this disclosure, defendant was prohibited from picking up Paula after school. Paula also noticed the disclosure “took a lot out of her [mother].” After the disclosure, Paula testified her relationship with defendant was “a little standoffish,” but got better as she became a teenager, then abruptly ended when she was about 15 years old.
The record shows defendant stipulated that on February 24, 1988, he pleaded guilty to a violation of ”
Victoria and neighbor Tina often went on weekdays to defendant‘s home to swim. Usually they were alone with defendant, as Paula was rarely at home. Victoria described for the jury the “many times” defendant was “completely naked” and “touched himself” in front of the two girls. Victoria recalled one instance inside defendant‘s home when he masturbated in front of the girls, and his semen went “onto the floor.” Defendant also showed the girls “nude magazines” and praised them for resembling the individuals pictured in the magazines. Defendant also had a “sex toy” and “there was touching of both [her] and Tina.”
Regarding the touching, Victoria testified defendant used his hand to touch her vagina, both outside and inside—skin to skin—of her bathing suit. Victoria also saw defendant touch her friend Tina in the same manner. Defendant also told both girls to close their eyes and then he separately grabbed their hands and placed them on his penis. Victoria saw Tina touch defendant‘s penis, and Victoria also touched his penis, even after she had told him “no, no, no.” Defendant sometimes offered the girls “a dollar or a soda or a candy bar” as an enticement to touch his penis. Defendant also told both girls that they were to tell nobody about the touching, as it was “strictly” between them.
In 1979, defendant was arrested after he exposed himself and masturbated in the presence of two five-year-old girls who lived in his neighborhood. Defendant pleaded nolo contendre to one count of annoying or molesting a child (former
Resentencing
As noted, defendant in Gutierrez I was convicted of nine counts of lewd and lascivious acts upon a child under 14 years of age. Counts 1 and 2 involved defendant touching Raquel‘s vagina with his finger with the intent of arousing, appealing to, and gratifying his lust, passions and sexual desires; counts 3 and 4 involved defendant putting his mouth on Raquel‘s vagina; counts 5 and 6 involved defendant forcing Raquel to use her hand to touch his penis; count 7 involved defendant touching his penis to Raquel‘s vagina; and counts 8 and 9 involved defendant ejaculating on Raquel. As summarized
At resentencing, the court carefully summarized the breakdown of defendant‘s sentence as follows: “Count 1,
“Count 2, which is
“Sentencing under
“Count 4,
“In addition to that, the Court is selecting one-third the mid-term, which is 12 years consecutive, doubled, for a total term of four years. That four years will be consecutive to the 16 years under Count 3.
“Count 8,
”
“So the total determinant sentence will be 25 years. The total exposure therefore is 35 years, plus 100 years to life.”
DISCUSSION
I
Cruel and/or Unusual Punishment
The People assert, and we agree, that defendant forfeited any challenge to his sentence based on a cruel and/or unusual punishment claim by not raising that issue either in Gutierrez I (see People v. Senior (1995) 33 Cal.App.4th 531, 538 (Senior) [noting that when a “criminal defendant could have raised an issue in a prior appeal, the appellate
Although we conclude defendant has forfeited this claim of error on appeal (Senior, supra, 33 Cal.App.4th at p. 538; Russell, supra, 187 Cal.App.4th at pp. 992–993), we nonetheless reach the merits to “prevent the inevitable ineffectiveness-of-counsel claim” with respect to this specific issue. (People v. Norman (2003) 109 Cal.App.4th 221, 229–230; Russell, at p. 993.)
A. Federal Constitution
The
Here, comparing the gravity of his offenses against the severity of his sentence, we conclude defendant has not met the initial threshold showing of “gross disproportionality” under the
Indeed, the trial court found that count 7 involved a “high degree of callousness” when defendant “tried to insert his penis into the victim‘s vagina.” (See
” ‘There exists a strong public policy to protect children of tender years.’ (People v. Olsen (1984) 36 Cal.3d 638, 646.) Along a spectrum ranging from murder, mayhem and torture on one end to petty theft on the other, ‘lewd conduct on a child may not be the most grave of all offenses, but its seriousness is considerable.’ (People v. Christensen (2014) 229 Cal.App.4th 781, 806; see Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244 [‘sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people‘].)” (People v. Baker (2018) 20 Cal.App.5th 711, 724-725 (Baker).) As such, the One Strike law (
In cases not involving violence or sexual offenses, the United States Supreme Court has upheld sentences not unlike defendant‘s. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957, 994–995 [life without the possibility of parole for nonviolent possession of large quantity of cocaine]; Ewing v. California (2003) 538 U.S. 11, 18, 20, 30–31 (Ewing) [25 years to life in prison under Three Strikes law for felony petty theft]; Lockyer v. Andrade (2003) 538 U.S. 63, 68, 77 (Lockyer) [two consecutive terms of 25 years to life in prison under Three Strikes law for two counts of petty theft].)
Moreover, it is not cruel and unusual punishment to enhance the penalty for a crime because a defendant is a recidivist (People v. Jameson (1986) 177 Cal.App.3d 658, 661-662, citing Rummell v. Estelle (1980) 445 U.S. 263, 265), so long as the ultimate punishment, all facts considered, is not disproportionate to the crime. (Solem v. Helm (1983) 463 U.S. 277, 284–288; Harmelin, supra, 501 U.S. at p. 997 (conc. opn. of Kennedy J.).)
Based on the United States Supreme Court decisions of Harmelin, Ewing, and Lockyer, which found that lengthy prison sentences were not “grossly disproportionate” to the nonviolent and/or petty theft crimes of recidivists in those cases, and our Legislature‘s determination that forcible sex crimes by a recidivist shall be harshly punished (Mancebo, supra, 27 Cal.4th at p. 738), we conclude the sentence of 35 years plus 100 years to life imposed on defendant is not grossly disproportionate under the Eighth Amendment.6
That defendant likely will spend the rest of his life in prison as a result of his age does not persuade us his sentence is grossly disproportionate to his offenses, particularly when viewed in light of his prior sexual misconduct spanning many decades. We thus reject his claim that his sentence constitutes cruel and unusual punishment under the Eighth Amendment.
Lynch analyzed three factors in determining whether a sentence is cruel or unusual under the California Constitution: (1) the nature of the particular offense and offender, with particular regard to the degree of danger which both present to society; (2) a comparison of the challenged penalty with the punishment prescribed in the same jurisdiction for other more serious offenses; and (3) a comparison of the challenged penalty with the punishment prescribed for the same offense in other jurisdictions. (Lynch, at pp. 425–427.) When determining the nature of the offender, courts consider “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.” (Dillon, supra, 34 Cal.3d at p. 479.)
Applying the first Lynch factor here, as noted ante the record shows defendant‘s offenses in the instant case involved serious sexual misconduct occurring on at least four different occasions with an eight- or nine-year-old victim, who saw defendant—her grandfather—as a “father figure.” The misconduct included at least two acts of defendant touching Raquel‘s vagina with his hand (counts 1 and 2); him putting his mouth on
As also noted ante, the record shows that defendant by design took Raquel to the tuxedo shop because he knew they would be alone; that after each incident of sexual abuse, he made Raquel go to the bathroom and clean herself, after he had ejaculated on her; that also after each incident, he specifically instructed Raquel not to tell anybody about the abuse; and that in many if not all of the incidents, he overcame Raquel‘s will and forced her to participate in the inappropriate touching, even after she had said no and/or had removed her hand from his penis.
In addition, the record shows since 1974, defendant has engaged in sexual misconduct with multiple young victims. The 1974 conviction involved three grammar school girls, one of whom was nine years old. As noted, in that instance, defendant masturbated in front of the girls, touched one of them over their pants, and then ejaculated, using a “newspaper” to clean himself. In the 1979 incident, defendant entered a plea of nolo contendre for annoying/molesting a child under the age of 18, after he “exposed himself and masturbated in the presence of two five-year-old girls who were his neighbors.”
And of course, in the incident that led to his prior serious felony conviction under former
Moreover, the record shows Raquel suffered significant emotional trauma as a result of being victimized by defendant. Specifically, the record shows Raquel in or about the 9th grade was not doing well in school or at home. Raquel testified that she then wanted to “kill herself” as a result of the abuse by defendant; that she also felt abandoned after her disclosure, including when her grandmother moved away; and that she felt guilty and ashamed, despite the fact she was the victim of such abuse.
Raquel and Paula both testified to the strain placed on the family because of the sexual abuse by defendant and Raquel‘s subsequent disclosure. Whereas, before her family often participated in family gatherings and parties, after the disclosure Raquel‘s family understandably avoided events if defendant was in attendance, and ultimately, stopped going to them altogether because it was just too uncomfortable. Ultimately, Raquel and her family moved away from San Diego, in part to distance themselves from defendant and his side of the family.
Defendant nonetheless contends his punishment is cruel or unusual because he allegedly is not a “threat” to society. We note, however, the court at resentencing found otherwise, noting the offenses at issue were of “increasing seriousness” as compared to his earlier offenses, a finding we conclude is supported by ample record evidence. (See People v. Powell (2018) 5 Cal.5th 921, 944 [noting that in ” ‘considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
Relying in part on In re Nunez (2009) 173 Cal.App.4th 709 (Nunez), defendant also contends his sentence is allegedly disproportionate because he had “no history of violence and no criminal history at all for more than 10 years before his arrest in the instant case.”
First, this contention is belied by defendant‘s 1988 conviction under former
Second, Nunez is inapposite, as that case involved a 14-year-old defendant who suffered from a posttraumatic stress disorder and was sentenced to life in prison without the possibility of parole (LWOP) for kidnapping for ransom under former section 209, which has since been amended. The court in Nunez concluded that the defendant‘s severe sentence was “so freakishly rare” (Nunez, supra, 173 Cal.App.4th at p. 715), inasmuch as he was the “only known offender under age 15 across the country and around the world subjected to an LWOP sentence for a nonhomicide, no-injury offense” (ibid.), as to
Third, the fact Raquel was abused in or about 2001 or 2002, but did not disclose that abuse until about 2008, and the fact that the investigation of law enforcement into the abuse was delayed for years thereafter as a result of a problem or miscommunication in the transfer of the investigation from the San Diego Police Department to the sheriff‘s department, in no way excuses or mitigates defendant‘s misconduct. As noted ante, defendant instructed Raquel after each incident of sexual abuse not to tell anyone. As also noted ante, expert testimony showed children in the majority of sexual abuse cases often wait to disclose, or never disclose, such abuse, particularly if the abuser is a parent, or “parent figure,” which is how Raquel viewed defendant before he molested her. We thus conclude defendant‘s sentence falls far short of being one which is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity,” as set forth under the first Lynch factor. (See Lynch, supra, 8 Cal.3d at p. 425.)
A determination of whether a punishment is cruel or unusual may be resolved solely under the first Lynch factor. (See, e.g., Graham v. Florida (2010) 560 U.S. 48, 60; Dillon, supra, 34 Cal.3d at pp. 479, 482-488.) However, turning to the second Lynch factor, we conclude a comparison of defendant‘s punishment for his current crimes with the punishment for other crimes in California is inapposite because it was defendant‘s
Indeed, because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, we decline to compare defendant‘s punishment for his “offense,” which includes his recidivist behavior, to the punishment of others who perhaps have committed more serious crimes, but have not qualified as repeat felons. (See e.g., People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136 [rejecting the defendant‘s comparison of his punishment to that of a murderer because that comparison “ignores that the three strikes law punishes not only his current offenses, but also his recidivism“]; People v. Karsai (1982) 131 Cal.App.3d 224, 242 [holding the sentence enhancements imposed on defendant for his conviction of the crimes of false imprisonment with force, oral copulation by force, and rape by force or violence did not constitute cruel and/or unusual punishment because (former) section 667.6 is “directed at recidivism by providing for longer enhancements for prior convictions of the same type of offense,” and because “defendant‘s sentence is not the product of an isolated conviction for a single offense but is the result of conviction for multiple violent sex offenses after having previously been convicted of multiple violent sex offenses“], overruled on another ground as stated in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.)
Defendant fares no better when comparing California‘s punishment scheme to those of other states, including Oregon and New York—on which he specifically relies. “That California‘s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional
Although defendant contends the maximum sentence in Oregon for a single offense would be 20 years (
In any event, under Oregon law the “presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.” (
Similarly, in New York when a person is found to be a “persistent violent felony offender,” the court “must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment.” (
A person is guilty of the crime of “course of sexual conduct against a child in the first degree” in New York “when, over a period of time not less than three months in duration: [¶] (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of . . . oral sexual conduct . . . or [¶] (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of . . . oral sexual conduct . . . , with a child less than thirteen years old.” (
Turning to the instant case, if defendant was convicted in New York of the nine offenses of sexual misconduct against Raquel, he would meet the definition of a “persistent violent felony offender” under
Moreover, as we noted in Baker, myriad states impose harsh penalties for sexual misconduct of a child, including life in prison. (Baker, supra, 20 Cal.App.5th at p. 731.)9 Although defendant‘s punishment on nine counts is no doubt severe, based on the three Lynch factors we conclude it is not so disproportionate to the punishment he could have
Finally, defendant contends his sentence is even more cruel and/or unusual because it is largely mandatory. We rejected a similar argument raised by the defendant in Baker: ” ‘[T]here can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is “mandatory.” ’ (Harmelin[, supra,] 501 U.S. [at p.] 995 [upholding mandatory life sentence without parole for first-time offender for possession of 672 grams of cocaine]; see People v. Zepeda (2001) 87 Cal.App.4th 1183, 1214 [same principle applies to state constitutional challenge].)” (Baker, supra, 20 Cal.App.5th at p. 731.) We thus reject defendant‘s claim he was subjected to cruel and/or unusual punishment because his sentence was largely mandatory.
II
Petition
A. Senate Bill No. 1393
As noted ante, defendant in his petition asks us to remand to allow the trial court to exercise discretion newly granted it by Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1 & 2) to strike one or more of his serious felony priors used to support the five-year enhancements under
Indeed, absent evidence to the contrary, amendments to statutes that reduce the punishment for a crime or vest in trial courts the discretion to impose a lesser penalty, such as Senate Bill No. 1393, apply to all defendants whose judgments are not final as of the amendment‘s effective date. (In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) When it enacted Senate Bill No. 1393, the Legislature did not indicate it intended the legislation to apply prospectively only. (Garcia, at p. 972.) The act thus applies retroactively to this case.
We are required to remand in instances such as this “unless the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] . . . enhancement” even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) The record here contains no such evidence. We thus remand for the court to consider striking one or more of the serious felony priors that support the enhancements imposed under
B. Imposition of Fines, Fees, and Assessments
Briefly, in Gutierrez I the trial court imposed without objection a $10,000 restitution fine (
Following Gutierrez I, the court at resentencing again imposed without objection a $10,000 restitution fine and a suspended matching parole revocation fine, a $360 court security fee, a $270 ICNA fee, a $154 criminal justice administration fee,10 and a $500 sex registration fee. As noted, defendant first raised the issue of his alleged inability to pay these fines and fees in his petition, relying on Dueñas, supra, 30 Cal.App.5th 1157.
In Dueñas, the defendant at sentencing objected on due process grounds to the trial court‘s imposition of a $30 court facilities assessment (
The trial court at that hearing considered the defendant‘s “uncontested declaration concerning her financial circumstances, determined that she lacked the ability to pay the previously ordered attorney fees, and waived them on the basis of her indigence. The court concluded that the $30 court facilities assessment under Government Code section
In reversing, the Dueñas court concluded that “due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant‘s present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373” (Dueñas, supra, 30 Cal.App.5th at p. 1164); and that, “although . . . section 1202.4 bars consideration of a defendant‘s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid.)
The application of Dueñas has been addressed in several recent cases.11 In People v. Castellano (2019) 33 Cal.App.5th 485 (Castellano), the same division of the Second Appellate District that filed Dueñas applied its holding to a defendant who had
In People v. Frandsen (2019) 33 Cal.App.5th 1126 (Frandsen) the court took a different approach on forfeiture. There, the trial court assessed various fees totaling $120 and imposed a statutory maximum $10,000 restitution fine. The appellate court first rejected the defendant‘s contention that his Dueñas-based challenge to the fine and fees presented a purely legal claim that could be raised for the first time on appeal. (Frandsen, at p. 1153Dueñas was unforeseeable. (Frandsen, at p. 1154Dueñas governing law permitted a challenge to a maximum restitution fine based on ability-to-pay grounds. (Frandsen, at p. 1154 We find it unnecessary to address any perceived disagreement on the forfeiture issue between Frandsen on one hand and Castellano and Johnson on the other. Both Castellano and Johnson involved situations in which the trial court imposed the statutory minimum restitution fine. (Castellano, supra, 33 Cal.App.5th at p. 488; Johnson, supra, 35 Cal.App.5th at pp. 137-138 and fn. 5.) In this case, as in Frandsen, the trial court imposed the statutory maximum restitution fine. And as Frandsen correctly notes, even before Dueñas a defendant had every incentive to object to imposition of a maximum restitution fine based on inability to pay because governing law as reflected in the statute (§ 1202.4, subd. (c)) expressly permitted such a challenge. (Frandsen, supra, 33 Cal.App.5th at p. 1154.) On two separate occasions, Gutierrez had the statutory right to request that the court consider his ability to pay in setting the restitution fine, but he did not do so. His silence is a classic example of the application of the forfeiture doctrine relied upon by the California Supreme Court in numerous criminal sentencing cases decided well before Dueñas. (See, e.g., People v. Aguilar (2015) 60 Cal.4th 862, 864 [applying the forfeiture rule to challenges to probation-related costs and an order for reimbursement of fees paid to appointed trial counsel]; People v. Trujillo (2015) 60 Cal.4th 850, 853-854 [applying the forfeiture rule to an unpreserved claim regarding probation-related fees and defendant‘s inability to pay them]; People v. Nelson (2011) 51 Cal.4th 198, 227 [defendant‘s claim that the trial court erred by failing to consider ability to pay a restitution fine is forfeited by the failure to object].) Thus, even if Dueñas was unforeseeable (a point on which we offer no opinion), under the facts of this case Gutierrez forfeited any ability-to-pay argument regarding the restitution fine by failing to object. The same is true of the fees the court imposed.12 As a practical matter, if Gutierrez chose not to object to a $10,000 restitution fine based on an inability to pay, he surely would not complain on similar grounds regarding an additional $1,300 in fees. Moreover, at the time of sentencing the court relied on trial testimony and the probation report to make a factual finding that “defendant has the financial ability to pay” these fees. Gutierrez did not object, a decision that is understandable in view of his lengthy employment history, including service as an aircraft mechanic, manager of retail tuxedo shops and, at the time of trial, 12 years’ experience operating a taco shop. DISPOSITION The matter is remanded only for resentencing to allow the court to consider whether it should strike one or more of defendant‘s serious prior felonies on which the enhancements imposed under section 667, subdivision (a)(1) are based. In all other respects, the judgment—including all fines, fees, and assessments imposed by the trial court—is affirmed.13 HALLER, J. I CONCUR: DATO, J. BENKE, J., concurring in part. Defendant in his petition relied on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), this time seeking an ability-to-pay hearing despite twice failing to object to the imposition of the fines and fees. The majority finds the various fines and fees imposed on defendant at resentencing were not improper. I agree with the majority‘s conclusion. I write separately, however, because I disagree with the majority‘s reasoning in support of its conclusion. More fundamentally I write to express my disagreement with Dueñas, which I believe misapplies California‘s statutory law and erroneously selects a general due process and equal protection theory as the basis for its decision. I instead believe that the Eighth Amendment to the United States Constitution offers a more proper basis for determining when a fine or fee exceeds constitutional limits, to the extent such an analysis is necessary. The Majority Opinion As noted, the record shows defendant did not object either in Gutierrez I, or on remand from that appeal, to the imposition of the following fines and fees: a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)(1))1 and a suspended matching parole revocation fine (§ 1202.45); a $360 court security fee (§ 1465.8); a $270 Immediate and Critical Needs Account fee (Gov. Code, § 70373); a $154 criminal justice administration fee (Gov. Code, § 29550.1);2 and a $500 sex offender registration fee (§ 290.3). The majority expresses no opinion on whether Dueñas was properly decided (fn. 11), but instead finds the case inapplicable because the trial court here imposed a restitution fine under section 1202.4, subdivision (b)(1) above the statutory minimum, and thus, defendant, unlike Ms. Dueñas, had the right under subdivision (c)3 of this statute to object on inability-to-pay grounds. The majority goes on to find that, as a result of section 1202.4, subdivision (c), defendant‘s failure to object to the restitution fine constituted a forfeiture irrespective of Dueñas Dueñas and its Constitutional Underpinning Unlike the majority, I am not certain that Dueñas can be so easily dismissed. Dueñas involved unique facts that have been well-documented by others, so I will refrain from repeating them here. But the directive of Dueñas is clear: “due process of law requires the trial court to conduct an inability to pay hearing and ascertain a defendant‘s present ability to pay before it imposes court facilities and court operations assessments under . . . section 1465.8 and Government Code section 70373” (Duenas, supra, 30 Cal.App.5th at p. 1164, italics added); and that, “although . . . section 1202.4 bars consideration of a defendant‘s ability to pay unless the judge is considering increasing the fee over the statutory minimum, the execution of any restitution fine imposed under this statute must be stayed unless and until the trial court holds an ability to pay hearing and concludes that the defendant has the present ability to pay the restitution fine.” (Ibid., italics added.) In support of its reasoning, the Dueñas court relied on Griffin v. Illinois (1956) 351 U.S. 12 (Griffin) and related case law. It also cited several Government Code sections in concluding our Legislature also “has recognized the deleterious impact of increased court fees on indigent people” (Dueñas, supra, 30 Cal.App.5th at p. 1165); further noting as follows on this point: “The Legislature has declared that ‘our legal system cannot provide “equal justice under law” unless all persons have access to the courts without regard to their economic means. California law and court procedures should ensure that court fees are not a barrier to court access for those with insufficient economic means to pay those fees.’ (Gov. Code, § 68630, subd. (a).) The Legislature has also declared that ‘fiscal responsibility should be tempered with concern for litigants’ rights to access the justice system. The procedure for allowing the poor to use court services without paying ordinary fees must be one that applies rules fairly to similarly situated persons, is accessible to those with limited knowledge of court processes, and does not delay access to court services.’ (Gov. Code, § 68630, subd. (b).) “Accordingly, the Legislature has provided for fee waivers for indigent litigants at the trial and appellate court levels that excuse them from paying fees for the first pleading or other paper, and other court fees and costs, including assessments for certain court investigations. (Gov. Code, § 68631.) Government Code section 68632 grants permission to proceed without paying costs to those receiving certain public assistance benefits, to those whose monthly income is 125 percent or less of government poverty guidelines, and to those who ‘cannot pay court fees without using moneys that normally would pay for the common necessaries of life for the applicant and the applicant‘s family.’ (Gov. Code, § 68632, subds. (a)-(c).) “While this protective mechanism lessens the disproportionate burden that these fundraising fees present to indigent litigants in the civil context, the Legislature neither instituted nor rejected a corresponding safeguard for assessments attached to a criminal conviction. Both Government Code section 70373 and . . . section 1465.8 are silent as to the consideration of a defendant‘s ability to pay in imposing the assessments.” (Dueñas, supra, 30 Cal.App.5th at pp. 1165–1166, italics added, fn. omitted.) After additional policy discussion, the Dueñas court concluded the assessment provisions of Government Code section 70373 and section 1465.8, “if imposed without a determination that the defendant is able to pay, are thus fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution. (U.S. Const. 14th Amend.; Cal. Const., art. I, § 7.) These fees, assessed as part of a larger statutory scheme to raise revenue to fund court operations, should be treated no differently than their civil counterparts enacted in the same legislation and imposed only on those with the means to pay them. [Citation.]” (Dueñas, supra, 30 Cal.App.5th at pp. 1168–1169, fn. omitted.) Dueñas and its Repercussions Since Dueñas was decided, this court has been flooded with petitions for rehearing and requests to submit supplemental briefing on the issue of ability to pay fines and fees imposed on defendants. Defendant in the instant case is no exception. I note new cases, most unpublished, are filed almost daily in which Dueñas‘s ability-to-pay hearing is an issue. Some defendants in the first instance are also moving under Dueñas for such relief in the trial courts, despite having pending appeals, and then moving to augment the records on appeal with minute orders showing the trial courts in the first instance granted their ”Dueñas motions.”4 (See, e.g., People v. Adame (May 29, 2019) 2019 LEXIS 3642, *1, fn. 2.) There has also been a succession of cases analyzing whether a defendant forfeits Dueñas‘s newly created constitutional right to a preassessment ability-to-pay hearing by failing to make this specific objection in the trial court. Some of the cases have found there was a forfeiture,5 others have found no forfeiture,6 and still others have either found Dueñas to be factually distinguishable,7 or refused to decide the issue altogether, stating that because remand was necessary on another ground, a defendant then could raise the ability-to-pay issue in the trial court. To these cases the majority here adds refusal to apply Dueñas altogether. The result of Dueñas has been neither fair to all appellants nor consistent. I see no reason to refrain from examining its correctness. Dueñas‘s Analysis is Fundamentally Flawed Unlike the majority, I instead would conclude the Dueñas decision incorrectly applies California statutes; and in addition, is fundamentally flawed in that general “fairness” grounds of due process and/or equal protection principles do not afford a defendant a preassessment ability-to-pay hearing before a trial court imposes fines and fees on him or her. First, I believe that in reaching its conclusions, Dueñas by judicial fiat inserted language into statutes that did not exist. That is, I note the adjective “present” used by the Dueñas court in its ability-to-pay analysis is nowhere to be found in Penal Code sections 1202.4 and 1465.8, or in Government Code section 70373. (See Dueñas, supra, 30 Cal.App.5th at p. 1164; but see Pen. Code, § 987.8 [noting if a defendant is provided legal assistance, following the conclusion of criminal proceedings a court “may, after notice and hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof” (italics added)].) Perhaps more egregiously, Dueñas in its analysis completely disregarded unambiguous language in subdivision (c) of section 1202.4 stating that inability to pay cannot be considered when only the statutory minimum is imposed, as was the case there. Moreover, by also adding the word “present” to the ability-to-pay analysis with respect to the restitution fine, Dueñas ignored section 1202.4, subdivision (d), which says the exact opposite: “Consideration of a defendant‘s inability to pay may include his or her future earning capacity.” (Italics added.) A court lacks the power to rewrite a statute either so as to make it conform to a presumed intention that is not stated, or to ignore a statute‘s plain and unambiguous language. (See People v. Statum (2002) 28 Cal.4th 682, 692.) I would conclude that, to the extent the Legislature provided such a right, which in the instant case it did with respect to the restitution fine (see § 1202.4, subds. (b)(1) & (c)) and the sex offender registration fee (see § 290.3, subd. (a)),8 a defendant‘s failure to avail him- or herself of that statutory relief constituted a forfeiture under the “traditional” rule. (See Frandsen, supra, 33 Cal.App.5th at p. 1155.) Second, with regard to the application of general due process and equal protection principles, the heavy reliance Dueñas places on Griffin was, in my view, misplaced. Griffin involved the issue of court access. Specifically, that case concluded that due process and equal protection guaranteed an indigent criminal defendant a free transcript of trial proceedings in order to provide that defendant with access to a court of review, where he would receive an adequate and effective examination of his criminal conviction. (Griffin, supra, 351 U.S. at p. 16.) I, for one, do not believe the imposition of the two assessments and one restitution fine on the defendant in Dueñas is an issue of access to our courts or justice system, as was the case in Griffin and similar authorities.9 Nor do I believe the fines or fees imposed on the defendant in Dueñas satisfied the traditional due process definition of a taking of life, liberty or property. Likewise, Dueñas‘s citations to multiple provisions of the Government Code do not support its conclusion that our “Legislature has recognized the deleterious impact of increased court fees on indigent people.” (Dueñas, supra, 30 Cal.App.5th at p. 1165.) In my view, these statutes instead ensure that all people, without regard to economic status, have equal access to our justice system. Again, in my opinion the imposition of the two assessments and one restitution fine on the defendant in Dueñas was not an issue of access to the courts or our system of justice. In sum, I find no general due process and equal protection authority which requires a court to conduct a preassessment present ability-to-pay hearing before imposing any fine or fee on a defendant, as Dueñas seems to conclude. On a practical note, it takes little imagination to envision the potential expansion of the holding of Dueñas to a multitude of other fines or fees that were not the subject of that case, or the instant case. One such possible fine is victim restitution, which is encompassed in subdivision (f) of section 1202.4—one of the same statutes at issue in Dueñas. Although that subdivision expressly requires a court to order “full restitution” to the victim, should the constitutional basis of Duenas stand, any restitution hearing might require a finding of present ability to pay victim restitution. Finally, I would further conclude relief from fines or fees based on inability to pay is more properly analyzed under the Eighth Amendment prohibition against excessive fines, fees, and punishment, which analysis I turn to next. The Excessive Fines Clause Rejection of the due process and equal protection analysis of Dueñas does not leave parties without recourse if they believe a statutory assessment of fines, fees, and punishment amounts to a constitutional violation as written or applied. To the extent defendant in the instant case claimed poverty is the “only reason [he] cannot pay the fine[s] and fees,” as was the case in Dueñas (Dueñas, supra, 30 Cal.App.5th at p. 1160), I would analyze that claim under the excessive fines clauses of both the Eighth Amendment,10 made applicable to the states through the Fourteenth Amendment, as recently announced by the United Supreme Court in Timbs v. Indiana (2019) __ U.S. __, 139 S.Ct. 682, as well as article 1, section 17, of our state constitution.11 The Eighth Amendment prohibits the imposition of excessive fines. The word “fine,” as used in that provision, has been interpreted to be ” ‘a payment to a sovereign as punishment for some offense.’ ” (United States v. Bajakajian (1998) 524 U.S. 321, 327–328 (Bajakajian).) A fine is excessive for purposes of the Eighth Amendment “if it is grossly disproportionate to the gravity of the defendant‘s offense.” (Id. at p. 334.) Briefly, in Bajakajian the defendant attempted to take $357,144 out of the country, in contravention of federal law requiring any person transporting more than $10,000 out of the United States to file a report with the appropriate government agency. The government in Bajakajian claimed that the entire $357,144 was forfeited. (Bajakajian, supra, 524 U.S. at p. 325.) The high court in Bajakajian pointed out that “[t]he touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality.” (Bajakajian, supra, 524 U.S. at p. 334.) As found by our own high court, Bajakajian “then set out four considerations: (1) the defendant‘s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant‘s ability to pay.” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 (R.J. Reynolds), citing Bajakajian, at pp. 337–338.) After reviewing those considerations, the Bajakajian court held that the forfeiture of the defendant‘s currency constituted an excessive fine barred by the Eighth Amendment. (Bajakajian, at p. 343.) I believe the application of an Eighth Amendment analysis allows for consistent and fair review of fines and fees imposed on individuals while they are focused both legally and factually in the trial court, with the appeal process remaining available for review. In the instant case, with respect to the restitution fine of $10,000 and the sex offender registration fee of $500, I would find that defendant forfeited his statutory right by failing to object to such imposition and make a showing of inability to pay. With respect to the remaining fines and fees, I would find that, to the extent defendant challenged them based only on his indigency, such fines and fees are not “excessive” in violation of the Eight amendment of the federal Constitution, or article 1, section 17 of our state Constitution, based on the Bajakajian “considerations” as identified by our own high court. (See R.J. Reynolds, supra, 37 Cal.4th at p. 728, citing Bajakajian, supra, 524 U.S. at pp. 337–338.) On this basis, I thus would affirm the fines and fees imposed on defendant in the instant case. BENKE, Acting P. J.