People v. Atwood CA2/6 ( 2021 )

Filed 12/22/21 P. v. Atwood CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B304822
(Super. Ct. No. 2015014383)
Plaintiff and Respondent, (Ventura County)
v.
DONALD ATWOOD,
Defendant and Appellant.
A jury found Donald Atwood guilty of two counts of
continuous sexual abuse of a child under 14 years of age (counts 1
and 2) in violation of Penal Code1 section 288.5, subdivision (a);
one count of lewd act on a child (count 3) in violation of section
288, subdivision (a); and one count of possession of child
pornography (count 4) in violation of section 311.11, subdivision
(a). The jury also found true that Atwood committed the acts
against more than one victim pursuant to section 667.61,
1 All statutory references are to the Penal Code.
subdivision (e)(4), and that, as to count 3, the victim was under
14 years of age pursuant to section 667.61, subdivision (j)(2).
The trial court sentenced Atwood to an aggregate term of
65 years to life. We affirm.
FACTS
Atwood and J.H. were married for about 20 years. J.H. had
two adult children from prior relationships, J. and J. (Adult Son
and Adult Daughter). Adult Son and his wife have two children,
P. (Child 1) and M. (Child 2). Adult Daughter has three children,
H. (Child 3), I. (Child 4), and A. (Child 5.)
Atwood and J.H. lived in the back half of a duplex. Adult
Son and his wife lived in the front half of the duplex with their
children. Adult Daughter’s children, Child 3 and Child 4, often
spent the weekend at Atwood’s house.
Adult Daughter died in August 2017 prior to trial.
Atwood had a small office with a computer in a shed in the
backyard of his duplex. He did not allow his wife or other adults
to use the computer. He molested the children in his office.
(a) Child 3
Child 3 was born in February 2003. Atwood first touched
her when she was three or four years old. He touched her vagina
both over and under her underwear. He also placed his mouth on
her vagina.
Child 3 told her mother (Adult Daughter). Her mother
reported the matter to her own mother, J.H. J.H. confronted
Atwood. Atwood explained the matter away, so that J.H. was not
sure anything happened. No one did anything about it. Atwood
touched and licked Child 3 repeatedly after that. He would also
place his finger inside her vagina.
2.
Atwood would also lift up the girls’ shirts or pressure them
to show their breasts. He did this around other people. J.H. told
him it was inappropriate, but he passed it off as a joke.
Atwood threatened to harm Child 3 or her sisters if Child 3
told anyone. He said no one would believe her. She believed him
because nothing happened when she told her mother the first
time.
Atwood touched Child 3 for the last time when she was 10
years old. Child 3 told her mother a second time after her mother
showed her a text message from Atwood to mother, criticizing
mother’s actions over an altercation some time ago in Big Bear
that resulted in mother’s arrest. Child 3 felt safe telling her
mother because she believed she would not be seeing Atwood
soon.
Adult Daughter called the police. Child 3 was
uncomfortable telling the police what happened so her mother
told her to write it down. Child 3 wrote alone in her room.
(b) Child 4
Child 4 was four to six years old when Atwood touched her
for the first time. The girls would play on the computer with
Atwood in his office. Because there was only one chair, they
would sit on his lap.
Atwood touched Child 4’s vagina over and inside her
underwear. He also placed his finger in her vagina. He licked
her vagina many times. This happened almost every weekend
when she was in preschool. She also saw him do the same to
Child 1.
Atwood told Child 4 not to tell anyone. She believed he
meant that if she told he would hurt her family.
3.
The last time Atwood touched her was after he picked the
children up from Big Bear in April 2015. Child 4’s mother (Adult
Daughter) asked her if Atwood ever touched her in an odd way.
She told her mother he did, but did not give her mother any
details. Her mother did not tell her what to say to the police.
Child 4 and Child 1 never talked about what happened to them.
Child 4 did not tell Child 3 what Atwood had done to her.
(c) Child 1
Child 1 was born in April 2010. Child 1 went to Atwood’s
house before and after school. She spent time alone with him.
She played games on Atwood’s computer. Sometimes she sat on
his lap.
When Child 1 was four years old, Atwood touched her
private parts when they were in his office. It happened more
than once.
In April 2019, Child 1 learned that J.H. had bailed Atwood
out of jail. Child 1 no longer wanted to speak to her grandmother
because she believed she did not support her. Neither Child 1
nor her parents spoke to J.H. anymore. Child 1 was afraid of
Atwood at the time of trial.
Child Pornography
Atwood called J.H. from jail, and told her to get rid of the
computer in his office. When the police arrived at Atwood’s home
to execute a search warrant, the computer was not there. The
police told J.H. that she could be criminally liable if she was
hiding evidence. Thus persuaded, she turned the computer over
to the police.
The next day Atwood called J.H. and asked if she had
gotten rid of the computer before the police arrived. She told him
4.
she did not have a chance to do so. Atwood replied, “Oh, my God,
damn, [J.H.] … fuck … oh, fuck.”
A forensic examination of Atwood’s computer showed that
he had been visiting sites containing child pornography.
CSAAS Testimony
Jody Ward, an expert on child sexual abuse, testified about
Child Sexual Abuse Accommodation Syndrome (CSAAS). Ward
said that CSAAS helps adults understand that behaviors of
sexually abused children are often counterintuitive or
unexpected. Ward did not know the facts of the case, and CSAAS
is not intended to show that the victims in this case are telling
the truth.
Children tend to keep sexual abuse secret for a long time
even without threats. Children are helpless because they are
taught to listen to adult authority figures and they lack the
mental and physical capacity to fight back. Because of secrecy
and helplessness, children learn to accommodate the abuse. They
often act as if nothing is happening. They typically will not act
frightened of the perpetrator. Children’s disclosure of abuse is
often conflicted or unconvincing. It is even more embarrassing
for a child than an adult to discuss sexual matters. Finally,
sometimes children recant once the consequences of disclosure –
intrusive interviews, physical examinations, upended home life –
occur.
DISCUSSION
I
Illness During Jury Selection
Atwood contends the trial court erred in denying his
motions for a continuance or mistrial due to his illness during
jury selection.
5.
A criminal defendant has the constitutional right to be
present at any stage of the proceeding that is critical to the
outcome and where the defendant’s presence would contribute to
the fairness of the proceeding. (People v. Harris (2008) 43 Cal.4th
1269, 1306.) We assume, without deciding, that jury selection is
such a stage. (See People v. Marks (2007) 152 Cal.App.4th 1325,
1332 [jury selection outside of defendant’s presence a violation of
due process]; but see People v. Ferguson (1932) 124 Cal. App. 221,
225-227 [no violation of defendant’s rights where court examined
prospective jurors outside of defendant’s presence]; People v.
Gonzales (2012) 54 Cal.4th 1234, 1254 [where the defendant
complained that he was not present at portions of the jury
selection, the court said, “Neither the state nor federal
Constitution, nor the statutory requirements [for the defendant’s
presence at felony proceedings] require the defendant’s personal
appearance at proceedings where his presence bars no
reasonable, substantial relation to his opportunity to defend the
charges against him”].) The defendant bears the burden of
demonstrating that his absence prejudiced his case or denied him
a fair trial. (Gonzales, at p. 1254.)
Here Atwood was present during jury selection, but he was
ill. The trial court postponed jury selection for two days because
of Atwood’s illness. When the trial resumed, Atwood claimed he
was still very ill. The court denied his request for a continuance.
During jury selection, Atwood spent some of the time with
his head on the table. The trial court asked Atwood if he was
capable of going forward. Atwood answered, “As long as I can
keep my head down.” Later Atwood said, “I feel like I’m going to
pass out or something like that. I’m not here.” [6 RT 433]
Atwood’s counsel said, “If Mr. Atwood could just sit here that
6.
would be fine.” Counsel expressed his concern that sitting with
his head down would give the jury the wrong impression. The
court agreed to instruct the jury that Atwood may put his head
down because he is not feeling well. Atwood said he would rather
have a continuance. The court denied the request for a
continuance. The court instructed the jury that it is not to
interpret Atwood’s head being down as anything other than that
he does not feel well.
At the end of the day Atwood’s counsel told the trial court
that Atwood was too ill to assist in jury selection. Counsel moved
for a mistrial.
In opposition, the prosecutor stated: “Mr. Atwood is sitting
straight up and appearing alert now. I don’t know how much of
this is malingering. I would suggest that we have been off for
two and a half days and if he was as ill as he is portraying
himself to be, then he should have gotten medical attention. It’s
easy to say, oh, I’m so sick, I haven’t been listening. But he’s
been here. He’s seated upright now and could easily take a look
at the jurors and give an opinion.”
In denying the motion for a mistrial, the court stated, “[M]y
observations have been similar [to those of the prosecutor].
[Atwood has] had his head down at various times. He’s been
sitting up. He’s had his head in his hands at various times. He’s
been coughing. I don’t doubt that he’s sick. But I don’t think
that that rises to the level of granting a mistrial. Particularly we
were dark for two and a half days specifically because he was sick
and to give him time to recover and address that issue medically
and professionally if that was necessary. I haven’t heard
anything that there was any type of doctor note or indication that
he’s so sick that he can’t be here and participate.”
7.
The trial court found that Atwood did not appear so ill that
he could not assist counsel, but nevertheless postponed the trial
for two days during which time Atwood could have sought
medical attention. When the trial resumed, Atwood did not bring
a note or report from a doctor attesting to his medical condition.
The court had ample opportunity to observe Atwood during jury
selection. The court determined that Atwood was well enough to
fully participate in his trial. Nothing in the record is sufficient to
contradict that finding.
II
Excluded Evidence
Atwood contends the trial court erred in excluding evidence
tending to show the victim’s biases and motive to make
exaggerated and false claims against him. He wanted to
introduce the following evidence regarding Adult Daughter’s
character:
1) The same month Adult Daughter reported Atwood to the
police, she was arrested for assaulting her sister-in-law.
2) When Adult Daughter was a child, she reported she had
been sexually abused by the father of her stepbrother. The
person who Adult Daughter accused was not arrested or charged.
He was removed from the home and ordered to take a parenting
class. Atwood wanted to ask J.H., Adult Daughter’s mother,
whether she believed her.
The trial court excluded the evidence under Evidence Code
section 352. The court, however, allowed Atwood to ask J.H.
whether Adult Daughter made an allegation of sexual abuse
when she was in seventh grade.
Atwood argues the excluded evidence was crucial to his
defense. He claims it shows Adult Daughter was unstable and
8.
vindictive, that she had motives for encouraging the girls to make
false allegations, and that the girls in turn had motives to protect
their mother.
Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
Atwood wanted to divert the jury’s attention to Adult
Daughter who was deceased. But Adult Daughter’s credibility
was not at issue. The principal issue at trial was the credibility
of the three girls who testified against Atwood
The best that Atwood could hope for is that the jury would
draw the inference from the excluded evidence that Adult
Daughter influenced her daughters to lie about what he did. But
no such inference was necessary. Child 3 testified about what
her mother told her. Her mother said, “[I]f I wanted anything to
happen or come out of it … [my mother’s] goal was to have him go
to jail I guess … [my mother] had said that I should over-
exaggerate, not lie but over-exaggerate on … what I was telling
the officers – or officer, but I had – that felt wrong to me. It
didn’t – that didn’t feel right. I knew that was wrong. Like, it’s
just not something you do, and I had told her, like – that I’m not
going to do that because I don’t – I don’t see why I should have to
exaggerate or lie … to get help.”
The jury believed Child 3 even though her mother told her
to exaggerate what happened.
9.
In addition, Child 1 testified that Atwood molested her.
Child 1 was not one of Adult Daughter’s daughters. Child 1’s
testimony corroborated the testimony of Child 3 and Child 4.
Finally, Atwood’s computer showed he viewed multiple
sites containing child pornography. Thus, Atwood had a sexual
interest in children.
The evidence the trial court excluded involved collateral
matters and had little, if any, relevance. The court was well
within its discretion to exclude evidence under Evidence Code
section 352.
III
CSAAS Evidence and CALCRIM No. 1193
(a) Admissibility of CSAAS Evidence
Atwood contends that the trial court erred in admitting
CSAAS testimony because it does not meet the Kelly/Frye test
for scientific reliability. (People v. Kelly (1976) 17 Cal.3d 24; Frye
v. U.S. (D.C. Cir. 1923) 293 F. 1013.) Suffice it to say, we rejected
that argument in People v. Munch (2020) 52 Cal.App.5th 464,
472-473.
(b) CALCRIM No. 1193
The trial court instructed with CALCRIM No. 1193 as
follows:
“You have heard testimony from Dr. Jody Ward regarding
child sexual abuse accommodation syndrome.
“Dr. Jody Ward’s testimony about child sexual abuse
accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against him.
“You may consider this evidence only in deciding whether
or not an alleged victim’s conduct was not inconsistent with the
10.
conduct of someone who has been molested, and in evaluating the
believability of her testimony.”
Atwood contends the instruction deprived him of due
process by reducing the prosecution’s burden of proof. We have
also previously rejected that contention. (People v. Munch, supra,
52 Cal.App.5th at pp. 473-474; People v. Gonzalez (2017) 16
Cal.App.5th 494, 504.)
Atwood claims there is a conflict in the instruction. The
second sentence of the instruction tells the jury that CSAAS
evidence is not evidence that the defendant committed the crimes
charged against him. Atwood argues the third sentence
contradicts the second sentence by telling the jury that it may
consider the evidence in determining whether or not the alleged
victim’s conduct was consistent with someone who had been
molested.
But as we said in Gonzalez in rejecting the same argument:
“The purpose of CSAAS is to understand a child's reactions when
they have been abused. [¶] A reasonable juror would understand
CALCRIM No. 1193 to mean that the jury can use [the expert’s]
testimony to conclude that [the child’s] behavior does not mean
she lied when she said she was abused. The jury also would
understand it cannot use [the expert’s] testimony to conclude [the
child] was, in fact, molested. The CSAAS evidence simply
neutralizes the victim's apparently self-impeaching behavior.
Thus, under CALCRIM No. 1193, a juror who believes [the
expert’s] testimony will find both that [the child’s] apparently
self-impeaching behavior does not affect her believability one way
or the other, and that the CSAAS evidence does not show she had
been molested. There is no conflict in the instruction.” (People v.
Gonzalez, supra, 16 Cal.App.5th at p. 504, italics added.)
11.
Atwood claims the phrase “not inconsistent with,” as used
in CALCRIM No. 1193, is confusing. He points out that “not
inconsistent with” means the same as “consistent with.” Atwood
argues that the jury could determine that if the witness’s conduct
was consistent with CSAAS evidence, their claims must be true.
But CALCRIM No 1193 does not instruct that the jury can
use CSAAS to determine that the complaining witness’s claims
must be true. Instead it instructs the jury can consider CSAAS
evidence only in deciding “whether or not” the victim’s conduct
was consistent with the conduct of someone who has been
molested. Moreover, Ward repeatedly testified that she was not
familiar with the facts of the case and that her testimony could
not be used to assess the truth of any claim of abuse.
Atwood claims CALCRIM No. 1193 violates the rule that
the instructions must reflect “absolute impartiality as between
the People and the defendant.” (Citing People v. Moore (1954) 43
Cal.2d 517, 526.) Atwood argues the instruction ignores the
defensive inference that the witness’s conduct might suggest
falsity.
But the “whether or not’ language in the instruction tells
the jury that it is free to credit the defense evidence and find not.
The instruction is impartial.
Moreover, the jury was instructed with CALCRIM No. 226,
“In evaluating a witness’s testimony you may consider anything
that reasonably tends to prove or disprove the truth or accuracy
of that testimony. Among the factors that you may consider are:
… Has the witness engaged in other conduct that reflects on his
or her believability?” Thus the jury is expressly invited to
consider the conduct of the complaining witnesses in assessing
their credibility.
12.
IV
25-Years-to-Life Sentence on Count 2
Atwood contends he was denied due process when the trial
court sentenced him to 25 years to life on count 2 under section
667.61, subdivision (j)(2), even though subdivision (j)(2) was not
alleged as to count 2.
The jury convicted Atwood on count 2 of continuous sexual
abuse of a child under 14 years of age in violation of section
288.5, subdivision (a). The jury also found true that Atwood
committed the offense against more than one victim pursuant to
section 667.5, subdivision (e).
The trial court sentenced Atwood to 25 years to life
pursuant to section 667.61, subdivision (j)(2).
Section 667.61 is known as the “one strike law.” It provides
for a life sentence for anyone convicted of sex crimes listed in
subdivision (c) of the section under aggravating circumstances
listed in subdivisions (d) and (e). (§ 667.61, subds. (c), (d), (e).)
Subdivision (c)(9) of section 667.61 lists continuous sexual abuse
of a child in violation of section 288.5. Subdivision (e) of section
667.61 lists aggravating circumstances, including that the
defendant has been convicted in the case of a qualifying offense
against more than one victim. (Id. at subd. (e)(4).) Subdivision
(j)(2) of section 667.61 provides: “Any person who is convicted of
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.”
Atwood argues he was denied due process because he had
no notice he could be sentenced under section 667.61, subdivision
(j)(2).
13.
It is a fundamental rule of due process that the defendant
must be given fair notice of any alleged crimes in order to mount
a possible defense. (In re Hess (1955) 45 Cal.2d 171, 175.) The
defendant’s right to fair notice also applies to allegations that will
be invoked to increase punishment for his crimes. (People v.
Houston (2012) 54 Cal.4th 1186, 1227.)
There is a division of authority on whether section 667.61,
subdivision (j)(2) must be expressly pled.
Atwood relies on People v. Jimenez (2019) 35 Cal.App.5th
373. There the People pled both qualifying offenses under section
667.61, subdivision (c) and that the offenses were against
multiple victims. But the People did not plead section 667.61,
subdivision (j)(2). Instead the People pled section 667.61,
subdivision (b), mandating a 15-years-to-life sentence. The Court
of Appeal concluded that the defendant did not have sufficient
notice that he faced a 25-years-to-life sentence under subdivision
(j)(2) and remanded for resentencing. (Jimenez, at p. 397.)
The court in In re Vaquera (2019) 39 Cal.App.5th 233,
review granted November 26, 2019, S258376, under similar facts,
refused to follow Jimenez. In Vaquera, the information alleged
the defendant committed lewd and lascivious acts against two
children under age 14. It also alleged multiple victims. The
information referenced section 667.61, subdivision (b), providing
for a 15-years-to-life sentence, instead of subdivision (j)(2),
providing for a 25-years-to-life sentence. Nevertheless, the court
upheld a 25-years-to-life sentence under subdivision (j)(2).
The court reasoned that an accusatory pleading does not
have to state the number of the statute. (In re Vaquera, supra,
39 Cal.App.5th at p. 239.) Nor does a sentence enhancement
need to state the number of the statute. (Ibid.) The pleading is
14.
sufficient if it gives the defendant notice of the offense of which
he is accused, apprises the defendant of the potential for the
enhanced penalty, and alleges every fact and circumstances
necessary to its applicability. (Ibid.) Even a pleading that
alleges a wrong-numbered statute may still be valid. (Ibid.)
The court pointed out that the information gave the
defendant notice that he would be subject to the 25-years-to-life
sentence. It alleged qualifying offenses under section 667.61,
subdivision (c) against children under 14 years of age and
multiple victim aggravating circumstances under subdivision (e).
(In re Vaquera, supra, 39 Cal.App.5th at p. 240.) The court
acknowledged that the information referenced section 667.61,
subdivision (b). But the court pointed out that section 667.61,
subdivision (b) references subdivision (j) of that section as an
exception to its provisions. (Vaquera, at p. 242.)
Vaquera is the better-reasoned decision than Jimenez.
Jimenez is unique in requiring an accusatory pleading to notify
the defendant of the maximum period of incarceration he faces.
(People v. Jimenez, supra, 35 Cal.App.5th at p. 397.) We are
aware of no such rule, and most accusatory pleadings do not do
so.
Here the accusatory pleadings notified Atwood of every
element required for punishment under section 667.61,
subdivision (j)(2). It notified Atwood that he was being charged
with offenses that qualify under section 667.61, subdivision (c),
that the alleged victims were under 14 years of age, and that
there were qualifying circumstances under section 667.61,
subdivision (e)(4).
The only difference between Vaquera and this case is that
here there is no reference to section 667.61, subdivision (b). If
15.
anything, a reference to section 667.61, subdivision (b) could
distract a defendant from considering punishment under section
667.61, subdivision (j)(2). Here there was no such distracting
factor.
Atwood’s reliance on People v. Mancebo (2002) 27 Cal.4th
735 is misplaced. Our Supreme Court held that the aggravating
circumstance of multiple victims could not be used to enhance the
defendant’s sentence under section 667.61, subdivision (j)(2)
because multiple victims had not been pled. (Mancebo, at p. 745.)
The court pointed out that section 667.61 requires the
circumstances in subdivisions (d) and (e) be pled and proved.
(Mancebo, at p. 743, citing former section 667.61, subdivision (i)
now section 667.61, subdivision (o).) But here all the elements
necessary for section 667.61 subdivision (j)(2) to apply, including
multiple victims, had been pled.
V
Sentencing
Atwood contends the trial court erred in imposing
consecutive sentences and inflicted cruel and unusual
punishment.
The trial court sentenced Atwood on count 1 (continuous
sexual abuse of a child) to 15 years to life; on counts 2
(continuous sexual abuse of a child) and 3 (lewd act on a child) to
25 years to life on each count, all to run consecutively, for a total
term of 65 years to life. The trial court imposed on count 4
(possession of child pornography) a concurrent term of three
years.
16.
(a) Consecutive Sentences
Atwood cites section 669 for the proposition that the trial
court has the discretion to impose concurrent or consecutive
sentences.
Section 667.61, subdivision (i) requires the imposition of
consecutive sentences for continuous sexual abuse of a child if the
crimes involve separate victims or involve the same victim on
separate occasions. Thus, consecutive sentences are mandated
for counts 1 and 2. The trial court only had the discretion to
sentence Atwood to a concurrent sentence on count 3, lewd act on
a child.
Atwood relies on California Rules of Court, rule 4.425(b).
That rule limits the trial court’s discretion to impose consecutive
sentences. The court cannot use the same fact used to impose an
upper term, the same fact used to enhance the defendant’s
sentence, and the same fact that is an element of the crime.
Atwood argues that the trial court’s stated reason for
imposing consecutive sentences was each victim deserves an
independent sentence. He claims multiple victims was a factor in
his enhanced sentence under section 667.61.
But that is not the only reason the trial court imposed
consecutive sentences. The court stated that Atwood refused to
take responsibility and that he tried to shift blame to the victims
and Adult Daughter. Any one of those reasons is sufficient to
support consecutive sentences.
Atwood has failed to carry his burden to show an abuse of
discretion in sentencing him to a consecutive sentence on count 3.
(b) Cruel and Unusual Punishment
The Eighth Amendment to the United States Constitution
prohibits cruel and unusual punishments. A punishment is
17.
excessive under the Eighth Amendment if it makes no
measurable contribution to the acceptable goals of punishment or
is grossly out of proportion to the severity of the crime. (Coker v.
Georgia (1977) 433 U.S. 584, 592.)
Atwood argues that he was 58 years old at the time of
sentencing. He cannot conceivably complete a 65-year term. He
claims a sentence that a human being cannot conceivably
complete serves no rational purpose.
But it serves the rational purpose of giving the victims
some peace of mind knowing that Atwood will never be able to
hurt them or some other child again.
Moreover, the Eighth Amendment does not apply unless
the sentence is grossly out of proportion to the severity of the
crime. (Coker v. Georgia, supra, 433 U.S. at p. 592.) Suffice it to
say, Atwood molested three little girls over a period of time. His
sentence is not grossly disproportionate to the severity of the
crime.
Atwood’s reliance on the concurring opinion of Justice Mosk
in People v. Deloza (1998) 18 Cal.4th 585 is misplaced. There the
trial court sentenced the defendant to consecutive sentences for
four armed robberies plus two prior convictions constituting
strikes within the meaning of the three strikes law, for a total of
111 years to life. Our Supreme Court reversed and remanded for
resentencing because the trial court erroneously concluded that
consecutive sentences were mandatory. In concurring, Justice
Mosk stated that a sentence of 111 years violates the Eighth
Amendment because it is impossible for a human being to serve
it. (Deloza, at pp. 600-601.) Justice Mosk decried “multicentury
sentences.” (Id. at p. 601.)
18.
First, 65 years is not a “multicentury sentence.” Second, a
concurring opinion has no controlling weight. (People v. Byrd
(2001) 89 Cal.App.4th 1373, 1383.) Third, Atwood points to no
case in which the majority of our Supreme Court has adopted
Justice Mosk’s opinion. Fourth, at least one Court of Appeal has
expressly rejected it. (Ibid.)
VI
Assessments
Atwood contends the trial court erred in assessing him with
a $1,350 restitution fine (§ 1202.4, subd. (b)), a $10,000
restitution fund fine (§ 294), and a $9,200 penalty assessment
(§ 290.3) without holding a hearing on his ability to pay.
Atwood relies on People v. Dueñas (2019) 30 Cal.App.5th
1157. There the court held that due process required a hearing
on the defendant’s ability to pay before such assessments and
fines may be imposed. (Id. at p. 1164.)
But Atwood did not request a hearing on his ability to pay
or object to the imposition without a hearing. Atwood was
sentenced more than a year after Dueñas was decided. He has
waived the issue on appeal. (People v. Aguilar (2015) 60 Cal.4th
862, 864.)
Atwood claims the waiver resulted from ineffective
assistance of counsel. But Atwood fails to show that his counsel’s
representation fell below an objective standard of reasonableness.
(People v. Mayfield (1993) 5 Cal.4th 142, 185.) When a client is
facing 65 years to life, counsel has more to worry about than
whether fines and assessments are properly imposed.
Moreover, Dueñas involved the homeless mother of young
children who was convicted of driving with a suspended license.
Given the less serious nature of the defendant’s offense, it is
19.
understandable the court focused exclusively on her ability to pay
in determining the appropriateness of the fines. But Dueñas was
wrong in relying on due process, and in more serious cases it is
not appropriate to focus exclusively on the defendant’s ability to
pay.
Atwood suggests that the fines are excessive because he
lacks the ability to pay. The appropriate challenge is under the
Eighth Amendment’s ban on excessive fines. Where an explicit
textual source of constitutional protection against an alleged
harm exists, that amendment must be the guide for analyzing
those claims. (Graham v. Connor (1989) 490 U.S. 386, 395.)
The court considers four factors in determining whether a
fine is disproportionate: (1) the defendant’s culpability, (2) the
relationship between the harm and the penalty, (3) penalties
imposed by similar statutes, and (4) the defendant’s ability to
pay. (United States v. Bajakajian (1998) 524 U.S. 321, 337-338.)
Even under each due process analysis, there is no reason why the
court should be confined to considering only the defendant’s
ability to pay. The court should consider all the factors.
First, with the possible exception of some murders, child
molesting is the most reprehensible of crimes. This was not a
moment of aberrant behavior. Atwood molested three girls over a
significant period of time. Atwood has refused to accept
responsibility and has blamed the victims and their mother.
Atwood’s culpability alone would justify maximum fines.
Second, the harm Atwood did to his victims is incalculable.
They will carry it with them for the rest of their lives.
Third, we are aware no penalties imposed by similar
statutes that would indicate the fines imposed here are
disproportionate.
20.
Fourth, even if Atwood has no present ability to pay, as the
trial court pointed out, he can earn money in prison.
The first two factors outweigh by far any claimed inability
to pay. Atwood has failed to show he would have achieved a more
favorable result had his counsel requested a hearing. (Strickland
v. Washington, supra, 466 U.S. at p. 687.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
21.
TANGEMAN, J., Concurring:
I agree with the majority opinion in all respects but one:
Because Atwood forfeited his objection based on People v. Dueñas
(2019) 30 Cal.App.5th 1157, we need not opine on the continued
validity of that case. (See People v. Buza (2018) 4 Cal.5th 658,
693 [“‘“cardinal principle of judicial restraint”’” that “‘“if it is not
necessary to decide more, it is necessary not to decide more”’”].) I
therefore do not join in the criticism of Dueñas or whether there
exists a more appropriate challenge to the fees and assessments
imposed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
Anthony J. Sabo, Judge
Superior Court County of Ventura
______________________________
Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.