People v. RamirezGutierrez CA2/6 ( 2024 )

Filed 6/17/24 P. v. RamirezGutierrez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B327144
(Super. Ct. No. 22F-01654)
Plaintiff and Respondent, (San Luis Obispo County)
v.
DANIEL
RAMIREZGUTIERREZ,
Defendant and Appellant.
Daniel RamirezGutierrez appeals from a judgment
following a bench trial at which the court found him guilty of 14
counts of committing a lewd act upon a child (Pen. Code1, § 288,
subd. (a); counts 1-10, 16-19); two counts of forcible rape (§ 261,
subd. (a)(2); counts 11-12); two counts of forcible oral copulation
(§ 287, subd. (c)(2)(A); counts 13-14); and one count of sex or
1 All further statutory references are to the Penal Code
unless otherwise noted.
sodomy with a child under 10 (§ 288.7, subd. (a); count 15). The
court found true allegations regarding multiple victims and
victims under the age of 14. (§ 667.61, subds. (b), (e), and (j)(2).)
The trial court imposed consecutive sentences totaling 435
years to life: 15 years to life for each of counts 11 through 14, and
25 years to life for each of the remaining counts.
Appellant contends his sentence violates state and federal
prohibitions against cruel and unusual punishment. We disagree
and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Allison Doe
Allison Doe, appellant’s stepdaughter, was 12 years old at
the time of trial. Allison’s mother is Glenda. Allison met
appellant when she was about three years old. Within a few
months, appellant began touching Allison. The first instance she
recalled was when appellant pulled out his penis and told her to
touch it.
Sometimes appellant would take Allison’s clothes off and
touch her vagina and breasts with his hands. Appellant put his
penis inside her vagina and used it to touch her butt.
Penetration was painful. Once, when Allison woke up in bed,
appellant was behind her naked. He removed her clothes and
touched her vagina with his penis. Appellant had Allison touch
his penis with her hands or mouth on multiple occasions.
Appellant would ask Allison if she liked it. He told her that
she would be sent back to Honduras if she told anyone.
Appellant would not let Allison speak to boys or participate in
extracurricular activities at school. Allison eventually told a
friend about appellant touching her. Subsequently, Allison spoke
with a police officer.
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Glenda Doe
Allison’s mother Glenda testified that appellant forced
Glenda to have anal sex with him on more than one occasion.
Appellant also forcibly put his penis in her mouth multiple times.
Appellant forced Glenda to have vaginal sex with him many
times. Appellant would use his body weight and hands to force
sex. Before speaking to detectives, Glenda did not know her
partner forcing her to be intimate was a crime. Once, appellant
said he could have Glenda deported when she did not want to be
intimate with him. Glenda did not see the harm appellant was
causing her because she loved him.
Lysette Doe
Appellant previously lived with Maria R., with whom he
has a daughter, Lysette. Lysette was 16 years old at the time of
trial. Appellant, Maria, and Lysette shared a bed when Lysette
was about four years old. Before Lysette entered kindergarten,
Maria took her to the doctor because she complained it hurt to
pee. Lysette had bubbles or blisters on the sides of her labia.
Lysette testified appellant touched her in a way that made
her uncomfortable. When she and appellant were lying down in
the master bedroom, appellant would touch her waist, hips, legs,
and thighs. He would “physically move [her] butt to his . . .
crotch area.” When no one else was home, appellant pulled down
Lysette’s pants and took off his own. He rubbed her vagina
against his penis “until he got the pleasure that he needed.”
Appellant also attempted to put his penis into her butt, but she
pushed him away. Lysette was about eight or nine years old.
Appellant said he would not buy her a toy or ice cream if she told
anyone.
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Emily Doe
Emily Doe was Lysette’s sister, but appellant was not
Emily’s father. The trial court found appellant not guilty of the
counts related to appellant’s alleged conduct against Emily. The
court found Emily’s testimony credible and compelling but “felt
like the touching did not rise beyond a reasonable doubt to a 288
level.”
DISCUSSION
Appellant argues his sentence of 435 years to life violates
the state and federal prohibitions against cruel and unusual
punishment. We disagree.
Under the California Constitution, a sentence constitutes
cruel or unusual punishment if it is “‘so disproportionate to the
crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.’” (People v. Dillon
(1983) 34 Cal.3d 441, 478; Cal. Const., art. 1, § 17.) Deference to
the Legislature “is an important element in any
disproportionality analysis.” (In re Palmer (2021) 10 Cal.5th 959,
972.) Three analytical techniques aid this deferential review:
“(1) an examination of the nature of the offense and the offender,
with particular attention to the degree of danger both pose to
society; (2) a comparison of the punishment with the punishment
California imposes for more serious offenses; and (3) a
comparison of the punishment with that prescribed in other
jurisdictions for the same offense.” (Id. at p. 973.)
The trial court convicted appellant of 19 sexual offenses
against three victims, two of whom were children at the time.
Appellant sexually abused his biological daughter. Appellant
also raped a mother whose daughter he repeatedly sexually
abused. As the trial court noted, appellant “is a serial predator,”
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and he plainly endangers society. Appellant’s egregious conduct
in this case dwarfs the mitigating impact of his minimal prior
criminal history. (See People v. Edwards (2019) 34 Cal.App.5th
183, 192 [no cruel and unusual punishment for lengthy life
sentences where defendants’ minimal prior criminal history did
not “outweigh the ruthlessness” of their attack].)
Appellant argues comparison to the punishment for murder
shows his sentence is disproportional. He argues that had he
“been convicted of three counts of first degree murder and the
sentences were imposed consecutively, the sentence would be 75
years to life.” However, convictions for three murders in the
same proceeding would almost certainly be coupled with a true
finding on the multiple murder special circumstance, elevating
the exposure to life without the possibility of parole or death.
(§ 190.2, subd. (a)(3).) Appellant’s argument also ignores the fact
that his sentence length stems largely from the multiplicity of his
offenses. While each sexual offense may be less egregious than
one murder, 19 sexual offenses can properly ground a sentence
longer than is possible for three murders.
Appellant directs us to no jurisdiction with lesser
punishment for similar offenses. Regardless, the state
constitution “does not require California to march in lockstep
with other states in fashioning a penal code. It does not require
‘conforming our Penal Code to the “majority rule” or the least
common denominator of penalties nationwide.’” (People v.
Martinez (1999) 71 Cal.App.4th 1502, 1516.) Fundamentally,
appellant’s punishment is not so disproportionately harsh as to
shock the conscience or offend notions of human dignity.
Especially given the legislative deference we must afford, the
punishment is not cruel or unusual under the state constitution.
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Appellant cites the late Justice Mosk’s criticism of
sentences exceeding life expectancy. However, that criticism
never became the law in California. (People v. Deloza (1998) 18
Cal.4th 585, 600-601 (conc. opn. of Mosk, J.); see also People v.
Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.).) California
courts have repeatedly affirmed sentences exceeding the
defendant’s natural life. (See, e.g., People v. Andrade (2015) 238
Cal.App.4th 1274, 1309-1310 [195 years to life upheld]; People v.
Panighetti (2023) 95 Cal.App.5th 978, 1000-1004 [280 years to
life].) Such punishment promotes deterrence of potential
offenders by unequivocally expressing society’s intolerance of the
punished behavior. “In practical effect, [appellant] is in no
different position than a defendant who has received a sentence
of life without possibility of parole: he will be in prison all his
life.” (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.)
Appellant’s life expectancy does not constrain his sentence.
Nor does appellant’s sentence violate the Eighth
Amendment ban on cruel and unusual punishment. (U.S. Const.,
8th Amend.) The Eighth Amendment contains a “‘narrow
proportionality principle’ that ‘applies to noncapital sentences.’”
(Ewing v. California (2003) 538 U.S. 11, 20 (lead opn. of
O’Connor, J., joined by Rehnquist, C.J., and Kennedy, J.).)
“Outside the context of capital punishment, successful challenges
to the proportionality of particular sentences have been
exceedingly rare.” (Rummel v. Estelle (1980) 445 U.S. 263, 272.)
“There is considerable overlap in the state and federal
approaches. ‘Although articulated slightly differently . . . [t]he
touchstone in each is gross disproportionality.’” (People v. Baker
(2018) 20 Cal.App.5th 711, 733.)
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The Eighth Amendment analysis begins with a comparison
between the gravity of the offense and the severity of the
sentence. (Graham v. Florida (2010) 560 U.S. 48, 60.) In the
“‘rare case’” 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.” (Ibid.) For
reasons discussed above, appellant’s case is not the rare situation
in which an inference of gross disproportionality arises.
Therefore, no Eighth Amendment violation exists.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P. J.
BALTODANO, J.
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Craig B. Van Rooyen, Judge
Superior Court County of San Luis Obispo
______________________________
Verna Wefald, 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, Senior
Assistant Attorney General, David E. Madeo and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
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