People v. Silva CA4/1 ( 2023 )

Filed 12/20/23 P. v. Silva CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082207
Plaintiff and Respondent,
v. (Super. Ct. No. INF1900889)
ERNESTO SILVA SILVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Timothy F. Freer, Judge. Affirmed.
Matthew A. Siroka, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Arlene A. Sevidal and Susan
Elizabeth Miller, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted Ernesto Silva Silva of two counts of oral copulation of
a child 10 years of age or younger (Pen. Code,1 § 288.7, subd. (b); counts 1, 2)
1 Undesignated statutory references are to the Penal Code.
and two counts of committing a lewd and lascivious act on a child under the
age of 14 (§ 288, subd. (a); counts 3, 4). The trial court sentenced Silva to two
consecutive terms of 15 years to life in prison for counts 1 and 2, and imposed
but stayed 6-year midterms on counts 3 and 4 under section 654. Silva
contends: (1) the court prejudicially erred and violated his rights to due
process by admitting expert testimony regarding Child Sexual Abuse
Accommodation Syndrome (CSAAS); (2) the court violated his Sixth and
Fourteenth Amendment rights to due process and a fair trial by improperly
instructing the jury with CALCRIM No. 1193; (3) the court failed to exercise
its newly created sentencing discretion under section 654 as amended by
Assembly Bill No. 518; and (4) his 30-year-to-life sentence, which he claims is
de facto life without parole, is constitutionally excessive. We reject the
contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Silva does not challenge the sufficiency of the evidence of his
convictions, so we briefly summarize the underlying facts. When Doe was in
about fifth grade, she began living in an apartment with her mother and her
mother’s boyfriend, Silva, as well as three of Doe’s siblings. For a time before
that, Doe had been in foster care. At the apartment, Doe’s mother and Silva
slept on a bed inside a walk-in closet, where at times Silva let Doe use his
phone to play games. A few months after Doe moved in, on two different
occasions a few days apart, Silva approached Doe while she was playing with
his phone and began rubbing her back; he then touched her breasts under her
shirt, and also rubbed her behind with his hands. Silva pulled Doe’s shorts
and underwear down, rubbed his hand on her vagina, then orally copulated
her. The second time, the closet door was open. Silva’s daughter saw what
Silva was doing to Doe and screamed for her to leave the closet. At the time
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of these incidents, only Doe’s siblings were in the house. Doe was about nine
or 10 years old when the abuse occurred.
Doe did not tell anyone about the incidents because she was scared no
one would believe her, and because she did not want to return to foster care.
When Doe was 14 years old, she disclosed the incidents to a social worker,
Denise Bowman, telling Bowman Silva orally copulated her twice. At trial,
the court permitted the jury to view a video of the forensic interview. The
transcript shows that Doe initially denied the incidents or being touched by
anyone, but eventually described what happened by writing on a piece of
paper.
At trial, the prosecution presented testimony from Bowman. She
discussed her experience working with children where there were allegations
of sexual abuse, and particularly Doe’s interview. Bowman generally
explained that some children were not ready to talk about what happened to
them: “It just depends on so many factors that are going on in the family
dynamics and them inside internally, fear, shame, inability to process the
trauma of the abuse, may not have an understanding, depending on the age
of the child. They may not even know what happened or what that means.
[¶] So we do have children that don’t disclose.” The prosecutor asked her if
she experienced instances where a child denies abuse, but then later discloses
it in the same interview: “[W]e call it ‘delayed disclosure,’ but typically
delayed disclosure is when kids take a minute [sic], months, weeks to talk
about what happened. If you look at—someone took the research regarding
disclosure. Many people do not tell about abuse when they’re children, and
they know that by interviewing adults and adults saying, ‘I never told
anybody.’ So we know that disclosure is something that we have to contend
with in interviews, and the delayed disclosure of children or reluctancy to
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tell, so we just have to wait it out.” Bowman explained that fear was the
number one element leading to delayed disclosure, and that the abuser being
a family member can impact the child’s decision. She related that she asked
Doe why she had not said anything before, and Doe responded that she did
not want to be separated again.
Silva called his daughter as a witness. In part, she denied seeing any
inappropriate touching between Silva and any of the children. However, she
admitted that she had initially answered yes to an investigator’s question
whether Doe was ever alone with her father, telling him that Doe had
entered the closet with her father, but only when he was asleep. Silva’s
daughter retracted that answer a few days later, telling the investigator that
Doe never went into the closet with Silva.
DISCUSSION
I. CSAAS Expert Testimony
A. Background
Before trial, the court heard the parties’ arguments as to admission of
testimony about CSAAS via the prosecution’s expert, clinical and forensic
psychologist Jody Ward. Defense counsel argued under Evidence Code
section 352 the CSAAS testimony was irrelevant and lacked foundation; that
jurors no longer operated under misconceptions about sex abuse victims’
delayed reporting, recantations or denials, and jurors would be more prone to
misuse the information and “work[ ] backward” to conclude that because a
person had certain attributes, she must be an abuse victim. He pointed out
that in jury selection, no juror had misconceptions or expressed concern about
delayed reporting by victims.
The prosecutor stated that the main thrust of Dr. Ward’s testimony
would be about why a child would delay reporting abuse. He argued CSAAS
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was not within the general knowledge of persons in the community, and still
required expert testimony.
The court admitted Dr. Ward’s CSAAS testimony, finding “potentially
many jurors have never even come close to dealing with this subject matter,
may not be aware or understand or fully grasp the reactions of individuals
who have survived child abuse sexual assault.” It stated the evidence was
“highly probative to explain the conduct of the complaining witness or victim
in the case and why their act might not be something that a juror would
expect. It might be inconsistent with what someone would believe to be,
quote, unquote, ‘a normal reaction’ or inconsistent with their own beliefs on
that subject matter.” The court ruled that the evidence was relevant, that its
relevance outweighed any prejudicial effect, and that there were sufficient
safeguards in place so as to avoid misconceptions about how to use the
CSAAS instruction for that testimony. Defense counsel then asked the court
to pre-read the related CSAAS jury instruction, CALCRIM No. 1193: “Would
the court consider reading that jury instruction before [Dr.] Ward testifies in
this case?” The court agreed to counsel’s request and read the instruction
before she gave her testimony as follows: “You will hear testimony from Dr.
. . . Ward regarding child sexual abuse accommodation syndrome. Dr. 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 . . . Doe’s conduct
was not inconsistent with the conduct of someone who has been molested and
in evaluating the believability of her testimony.”
Thereafter, Dr. Ward gave her opinion generally on “how children
respond to sex abuse that occurs within an ongoing relationship as a whole.”
She stated she did not review materials or evidence relating to Silva’s case or
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Doe, and explained she was not opining on whether Doe was telling the truth
or Silva committed the crime. Dr. Ward testified that CSAAS is a “pattern of
behaviors” that many, but not all, children who have been sexually abused
exhibit; that “[m]any times these behaviors are counterintuitive or not what
we would expect.” According to Dr. Ward, when it is known that a child has
been sexually abused, then “these patterns of behaviors kind of make sense
in terms of the way a child copes with that sexual abuse.” She explained the
syndrome was not a disease or disorder, nor a tool to determine whether a
child has been sexually abused. Dr. Ward testified that children who were
abused by someone well known to them respond differently than children
abused by a stranger: “[C]hildren who have been abused within an ongoing
relationship, out of loyalty and love for the abuser, tend to not report that
abuse right away. When they do report it, they tend, unfortunately, not to be
believed, because, again, it doesn’t fit our idea of how sexual abuse should
happen. And because they’re not believed, they do not receive as much
support and help that they need to recover from that sexual abuse.” Dr.
Ward also discussed the five components of CSAAS: (1) secrecy; (2)
helplessness; (3) entrapment or accommodation; (4) delayed, unconvincing
disclosure; and (5) recantation or retraction. In part, she explained that
children tend to keep sexual abuse secret for a very long period of time, even
without a typical threat. She also explained that most children delay their
disclosure of abuse until a time when they feel safe or less helpless; studies
showed that two-thirds of children waited until adulthood to report.
According to Dr. Ward, even when the child reports as an adult, the
disclosure could be “tentative and hesitant and could come across as very
unconvincing.”
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The court again instructed the jury with CALCRIM No. 1193 as
follows: “You have heard testimony from Dr. Jody Ward about [CSAAS]. [¶]
Dr. Ward’s testimony about [CSAAS] 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 [ ] Doe’s conduct was not
inconsistent with the conduct of someone who has been molested and in
evaluating the believability of her testimony.”
During closing arguments, the prosecutor explained that three of the
components of CSAAS—secrecy, helplessness, and delayed disclosure—“fit
nicely within our fact pattern here in this case.” He stated: “In this case, you
saw what can be described as a textbook example of a child exhibiting some of
the patterns and traits of child sexual abuse accommodation. There was a
long time in delaying of reporting. There was a concern about secrecy. There
was a concern of helplessness and what happens next. [¶] In this case, the
little girl couldn’t or wouldn’t talk for so long. She didn’t want to tell
anybody. But in this case, the evidence speaks volumes. The evidence in this
case screams guilty. The corroboration that to the un—the naked eye—to the
untrained eye screams, beyond a reasonable doubt, that man over there, that
defendant there did these things to [Doe]. [¶] When you consider the context
of her disclosure, both in the forensic interview and as she sat there, ask
yourselves, why would that little girl sit on that couch, make that disclosure
and cry and weep and write out what happened to her if it weren’t true? [¶]
Why would she come all this way, sit in that chair, and in a room full of
strangers, detail the most intimate and most disturbing thing that’s ever
happened to her in her young life unless it were true?” He concluded, “In this
case, ladies and gentlemen, it is the evidence that does the speaking. It is the
evidence that does the talking. And it is the evidence that will guide you to
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convict that man of all four counts beyond any reasonable doubt. [¶] The
word ‘evidence’ in this case screams guilty.”
In his closing argument, defense counsel began by telling the jury they
were “here to decide if it happened . . . .” He addressed the burden of proof,
pointing out that the prosecution bore it, and Silva did not need to prove his
innocence: “Because in a case like this, or other cases with a long delay, with
unspecified charges for when they happened, sometimes the most someone
can do is say, ‘Hey, I didn’t do it. I don’t know what to tell you, but I did not
do this.’ And you don’t have to hear from Mr. Silva on the stand saying that.
You know he’s saying he didn’t do it. That’s why we’re here, all right? He
pled not guilty and that’s why we’re having this trial, because he denied
these charges.” Defense counsel explained that the reason he was addressing
the burden was that he suggested the contrary in his opening statement: “[In
o]pening, I got up and I said, ‘Hey, lack of opportunity. There’s no way that
there’s—that [Doe] could have been in that room. It’s impossible. There’s
going to be evidence showing that there’s no way this could have happened’;
right? And, that didn’t happen.” Counsel explained to the jury that Silva did
not have the burden to prove Doe was never in the room, but the People had
to prove she was in the closet where it happened, and that it happened
beyond a reasonable doubt.
Defense counsel went on: “Based on the six-year delay—now 10
years—based on the lack of corroborating evidence, based on the suspicious
timing of the allegation, at most what we can say in this case is there’s not
enough evidence to say what happened. Maybe something happened,
possibly, but not to the point where we can convict someone of these charges,
not to the point where we can convict Mr. Silva of doing what [the prosecutor]
has alleged that he did. [¶] And the most concerning part we have in this
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case is the timing of the allegations. And I’m not just talking about the delay,
but the reason for the delay and the timing of when the allegations came up
and why they came up when they did.” Defense counsel stated that given the
event happened so long ago, “[w]e don’t expect physical evidence in this case,
DNA, witnesses remembering things. . . . So if someone is going to make
something up, that’s a lot harder to disprove if they say it happened a long
time ago. So the delay in itself is not credibility—it doesn’t go to credibility.”
Defense counsel asked the jury to think about whether there was a “not
so innocent reason” why the allegations came out so late, and proposed that
Doe’s older sisters influenced Doe negatively against Silva, and shortly
afterwards Child Protective Services received an anonymous report. “That
can’t be discounted. The timing of that is too suspicious to just toss away. So
while the delay in itself may not be suspicious, the timing of when these
allegations came out are.” He told the jurors they could consider “a few
pretty big inconsistencies between [Doe’s] 2018 interview and her 2022
testimony.”
B. Contentions
Silva contends Dr. Ward’s testimony was irrelevant and inadmissible
under Evidence Code section 801 as it was not relevant to any disputed fact,
nor was it sufficiently beyond the common experience of a lay juror. He
asserts neither the court nor the prosecutor rebutted his counsel’s statement
that no misconceptions emerged from any juror during voir dire, and he
characterizes the court’s ruling as a “highly speculative musing” that is
without support by evidence or by statements from the jurors. Silva asserts
his counsel did not rely on misconceptions or use Doe’s delayed disclosure to
attack her credibility, but instead argued her delayed disclosure did not go to
credibility. According to Silva, the prosecution did not meet its burden to
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demonstrate a need for the evidence to clear up some jury confusion caused
by the facts of the case or their understanding of typical victim behavior.
C. Legal Principles and Standard of Review
“No evidence is admissible except relevant evidence.” (Evid. Code,
§ 350; see People v. Hardy (2018) 5 Cal.5th 56, 87.) “ ‘ “Relevant evidence is
evidence ‘having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.’ ” ’ ” (People v.
Govan (2023) 91 Cal.App.5th 1015, 1030; see also Hardy, at p. 87.) Under
Evidence Code section 352, the court “in its discretion” may exclude otherwise
admissible 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.” In weighing probative value and prejudice, courts
consider the unique facts and issues of each case, not a “mechanical
application of automatic rules.” (People v. Lapenias (2021) 67 Cal.App.5th
162, 174.) Evidence only creates “undue prejudice” if it tends to evoke an
emotional bias against the defendant, and the evidence has relatively little
importance based on the specific issues involved in the particular case.
(Ibid.; People v. Megown (2018) 28 Cal.App.5th 157, 164.)
“ ‘The requirements for expert testimony are that it relate to a subject
sufficiently beyond common experience as to assist the trier of fact and be
based on matter that is reasonably relied upon by an expert in forming an
opinion on the subject to which his or her testimony relates.’ ” (People v. Polk
10
(2019) 36 Cal.App.5th 340, 353; see Evid. Code, § 801.2) “ ‘The jury need not
be wholly ignorant of the subject matter of the opinion in order to justify its
admission; if that were the test, little expert opinion testimony would ever be
heard. Instead, the statute declares that even if the jury has some knowledge
of the matter, expert opinion may be admitted whenever it would “assist” the
jury. It will be excluded only when it would add nothing at all to the jury’s
common fund of information, i.e., when “the subject of inquiry is one of such
common knowledge that men [or women] of ordinary education could reach a
conclusion as intelligently as the witness.” ’ ” (People v. McAlpin (1991) 53
Cal.3d 1289, 1299-1300.)
“ ‘The trial court has broad discretion in deciding whether to admit or
exclude expert testimony [citation], and its decision as to whether expert
testimony meets the standard for admissibility is subject to review for abuse
of discretion.’ ” (People v. Brown (2014) 59 Cal.4th 86, 101; People v. Sedano
(2023) 88 Cal.App.5th 474, 479.) Under this standard, “[a] trial court’s
decision to admit or exclude evidence . . . will not be disturbed unless there is
a showing that the trial court acted in an arbitrary, capricious, or absurd
manner resulting in a miscarriage of justice.” (People v. Wall (2017) 3
Cal.5th 1048, 1069.) This same review standard applies to the court’s
relevance determination. (People v. Hardy, supra, 5 Cal.5th at p. 87; People
v. Caparaz (2022) 80 Cal.App.5th 669, 683.)
2 Evidence Code section 801, subdivision (b) allows an expert to testify
“Based on matter (including his special knowledge, skill, experience, training,
and education) perceived by or personally known to the witness or made
known to him at or before the hearing, whether or not admissible, that is of a
type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is precluded
by law from using such matter as a basis for his opinion.”
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As for CSAAS expert testimony, it “has long been held admissible in
California for the limited purposes of dispelling commonly held myths or
misconceptions about child sexual abuse and aiding the jury in ‘evaluating
the credibility of an alleged child victim of sexual abuse.’ ” (People v. Sedano,
supra, 88 Cal.App.5th at p. 479, quoting People v. Lapenias, supra, 67
Cal.App.5th at p. 171; see also People v. McAlpin, supra, 53 Cal.3d at pp.
1300-1301.) CSAAS testimony is permitted “ ‘ “to explain the emotional
antecedents of abused children’s seemingly self-impeaching behavior,” ’ such
as delayed disclosure of the abuse.” (Sedano, at p. 479.) “An expert’s
explanation of CSAAS ‘is admissible to rehabilitate [a complaining] witness’s
credibility when the defendant suggests that the child’s conduct after the
incident—e.g., a delay in reporting—is inconsistent with his or her testimony
claiming molestation.’ ” (Ibid.) But a CSAAS expert may not generally
testify about the components of the syndrome in such a way as to allow the
jury to apply it to the facts of the case and conclude the child was sexually
abused. (Id. at p. 480.)
D. Analysis
1. The CSAAS Evidence Was Relevant
It is evident from defense counsel’s recounting of his opening statement
and his closing arguments, as well as his examination of Silva’s daughter,
that a main issue for the jury was Doe’s credibility. That defense counsel did
not directly attack Doe’s credibility on the basis of her delayed disclosure is
not necessary. As long as Doe’s credibility was an issue of consequence to the
action, evidence that had a tendency in reason to prove or disprove it was
relevant. Dr. Ward’s testimony that children who have been sexually abused
tend to delay their disclosure, as Doe did here, tended to bolster the
credibility of her testimony about Silva’s abuse, which she testified had
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occurred years earlier. The court framed its ruling of probative value in
terms of “explain[ing] the conduct of the complaining witness or victim . . .
and why their act might not be something that a juror would expect,” but we
see no distinction between that framing and the question of Doe’s credibility
or believability.
We hold the court’s decision as to the relevance of the CSAAS evidence
was reasonable, not arbitrary, capricious or absurd. As the court in People v.
Lapenias aptly put it: “The [trial] court made a reasoned judgment that the
probative value of the proffered CSAAS evidence was substantially
outweighed by any prejudicial effect. (See [Evid. Code,] § 352.) Prior to its
evidentiary ruling, the prosecutor informed the court about the anticipated
evidence . . . . The court plainly did not approach its ruling in an arbitrary or
capricious manner. Thus, we find no abuse of discretion.” (People v.
Lapenias, supra, 67 Cal.App.5th at p. 174.) We do not reach the question of
prejudice or harmless error.3
Under the circumstances, we reject Silva’s claim that the CSAAS
evidence violated his Sixth and Fourteenth Amendment rights to due process.
“Generally, a court’s compliance with the rules of evidence does not violate a
defendant’s right to due process. [Citation.] Further, reviewing courts have
routinely held the admission of CSAAS evidence does not violate due
process.” (People v. Lapenias, supra, 67 Cal.App.5th at p. 174.)
3 That Bowman also testified about delayed disclosure and other
reactions of child sex abuse interviewees would tend to show any supposed
error in admitting CSAAS evidence was harmless in any event.
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2. The Evidence Was Properly Admitted Under Evidence Code Section
801
We reach the same conclusion as to the court’s decision to admit the
CSAAS expert evidence under Evidence Code section 801. Dr. Ward
explained that children who are victims of sexual abuse exhibit behaviors
that are counterintuitive or unexpected, and CSAAS helped adults or
laypeople to understand “why children do what they do in response to sexual
abuse that occurs within an ongoing relationship.” That the jurors may have
not expressed having such misconceptions does not mean the evidence would
not help them in assessing Doe’s behavior, and understanding her delayed
reporting. The trial court reasonably concluded that while some issues might
be within the purview of jurors’ knowledge, many may not “fully grasp” the
reactions of child sexual abuse survivors, and thus expert testimony
regarding CSAAS would assist the jurors (Evid. Code, § 801, subd. (a)), even
if they were not completely ignorant of the subject matter. (People v.
McAlpin, supra, 53 Cal.3d at p. 1299.) We hold the court did not manifestly
abuse its broad discretion in admitting the evidence; its decision was not
arbitrary or wholly unreasonable.
II. Instruction with CALCRIM No. 1193
Silva further contends that the court’s instruction with CALCRIM No.
1193 violated his rights to due process and a fair trial because the instruction
made it reasonably likely the jury would use CSAAS evidence to determine
whether Doe’s story was true. He asserts CSAAS testimony is to be admitted
only for a limited purpose, that is, to rehabilitate a child witness’s credibility
when the defendant suggests his or her conduct is inconsistent with their
testimony about molestation, but that the second part of CALCRIM No. 1193
results in a “logical inconsistency” that specifically authorized use of CSAAS
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as evidence of guilt. More specifically, Silva maintains under the facts
presented in his case, the two statements in CALCRIM No. 1193 are
irreconcilable: “When, as here, a witness’s account is the only evidence the
defendant committed the charged offenses, it is not possible to use testimony
to evaluate her believability, and simultaneously not use the testimony as
evidence that the defendant committed those offenses.” He maintains the
double negative phrase “not inconsistent with” permitted the jury to use the
CSAAS evidence “as a diagnostic tool, by concluding that because Doe’s
conduct was ‘consistent with’ those of sexual abuse victims, her claims were
true.”
Silva further contends the instruction is argumentative in that it
“expressly permits jurors to use CSAAS evidence to determine if the
complainant’s behavior is consistent with that of a sexual abuse victim, but
ignores the inference that the same behavior might suggest falsity. Without
the instruction, a juror might—and properly would—consider whether Doe[’s]
delayed reporting, inconsistent and implausible stories, in conjunction with
[Silva’s daughter’s] denial that she witnessed one of the incidents, supported
an inference that [Doe] was confabulating her claims. But CALCRIM No.
1193 says nothing about this possible inference. Nor does it offer jurors the
option of rejecting CSAAS’s explanation for a witness’s conduct.”
The People contend in response that Silva forfeited the error by failing
to object to the use of CALCRIM No 1193. Silva’s counsel, however, did not
just omit an objection; he requested that the court give the instruction
without modification or clarification. This affirmative request invited the
error. The “doctrine of invited error bars [an appellant] from challenging a
jury instruction given by the trial court when the [appellant] has requested
the instruction based on a ‘ “ ‘ “conscious and deliberate tactical choice.” ’ ” ’ ”
15
(People v. DeHoyos (2013) 57 Cal.4th 79, 138; People v. Lucero (2000) 23
Cal.4th 692, 723-724.) The doctrine “ ‘ “ applies ‘with particular force in the
area of jury instructions . . . .’ ” ’ ” (People v. Mason (2013) 218 Cal.App.4th
818, 823; see also Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 592.) We
agree with the People that Silva may not acquiesce in the instruction then
claim on appeal that as read it was improper, inadequate, or incomplete.
(People v. Covarrubias (2016) 1 Cal.5th 838, 901 [“Because defendant did not
object at trial that the instructions were incomplete as given, the issue is
forfeited”]; People v. Lee (2011) 51 Cal.4th 620, 638 [a defendant believing an
instruction requires elaboration or clarification is obliged to request such
elaboration or clarification in the trial court].)
Even if we were to consider Silva’s challenge, we would reject it on our
de novo review. (People v. Rivera (2019) 7 Cal.5th 306, 326.) In assessing a
jury instruction challenge we consider the instruction at issue “ ‘in the
context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in an
impermissible manner.’ ” (Ibid.; see also People v. Lemcke (2021) 11 Cal.5th
644, 655.) We “ ‘presume [jurors] generally understand and follow the court’s
instructions.’ ” (People v. Wilson (2023) 89 Cal.App.5th 1006, 1014; see also
People v. Buenrostro (2018) 6 Cal.5th 367, 431.)
Silva concedes that appellate courts considering challenges to
CALCRIM No. 1193 have upheld it as a correct statement of the law and the
limitations on the use of CSAAS testimony. (See People v. Lapenias, supra,
67 Cal.App.5th at p. 175.) Lapenias observed that courts have held the
instruction “does not: (a) improperly allow an alleged minor victim of sexual
abuse to corroborate her own testimony; (b) violate due process; or (c)
misapply the burden of proof.” (Ibid., citing People v. Gonzales (2017) 16
16
Cal.App.5th 494, 503-504 & People v. Munch (2020) 52 Cal.App.5th 464, 473-
474.)
But Silva maintains none of the cases address logical inconsistency,
which he says is the “most problematic aspect” of CALCRIM No. 1193. Silva
argues: “If the evidence can allow the jury to conclude that the complaining
witness did not lie when she said she was abused, then it means her
allegations are true.” He also asserts that in People v. Gonzales, supra, 16
Cal.App.5th 494 and People v. Munch, supra, 52 Cal.App.5th 464 there was
corroborating evidence so that the jury was not relying exclusively on the
complaining witness’s credibility, and neither case addressed the
instruction’s assertedly argumentative nature. Silva is incorrect. Gonzales
involved testimony from the same CSAAS expert who testified in his case, Dr.
Ward. (People v. Gonzales, supra, 16 Cal.App.5th at p. 499.) In that case, the
court expressly addressed the defendant’s claim that the instruction was
“inconsistent” in that it “states that the CSAAS testimony is not evidence the
defendant committed the charged crimes, and also that the jury may use the
evidence in evaluating the believability of [the victim’s] testimony.”
(Gonzales, at p. 503.) This is Silva’s claim. The Gonzales court rejected the
defendant’s argument that it was “impossible to use the CSAAS testimony to
evaluate the believability of [the victim’s] testimony without using it as proof
that Gonzales committed the charged crimes.” (Ibid.) The court reasoned the
instruction “must be understood in the context of Ward’s testimony. Ward
testified that CSAAS is not a tool to help diagnose whether a child has
actually been abused. She said that if it is not known whether a child has
been abused, CSAAS is not helpful in determining whether a child has, in
fact, been abused. The purpose of CSAAS is to understand a child’s reactions
when they have been abused. [¶] A reasonable juror would understand
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CALCRIM No. 1193 to mean that the jury can use Ward’s testimony to
conclude that [the victim’s] behavior does not mean she lied when she said
she was abused. The jury also would understand it cannot use Ward’s
testimony to conclude [the victim] 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 Ward’s testimony will
find both that [the victim’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.”
(Gonzales, at pp. 503-504.) Dr. Ward testified similarly here.4
As for Silva’s claim that Gonzales and the other cases are
distinguishable given corroborating evidence, that went to the question of
prejudice or whether the error in giving the instruction was harmless. (See
People v. Gonzales, supra, 16 Cal.App.5th at pp. 502-503, 504.) We find no
error in the instruction, so we do not reach the prejudice question.
We reject Silva’s claim that the instruction is also argumentative. An
instruction is argumentative when it is “ ‘ “of such a character as to invite the
jury to draw inferences favorable to one of the parties from specified items of
evidence.” ’ ” (People v. Woods (2015) 241 Cal.App.4th 461, 488, in part citing
4 Dr. Ward testified: “[CSAAS] is what we would call a nondiagnostic
syndrome. A syndrome is, in this case, a pattern of behaviors or group of
symptoms that are thought to come from a certain cause, but we can’t
necessarily prove that they come from that cause. [¶] So in this case, we
can’t prove that child—these behaviors involved in child sexual abuse
accommodation come from sexual abuse because there is no way for me to
know for sure whether a child was sexually abused. [¶] But when we do
know that a child has been sexually abused, then these—these patterns of
behaviors kind of make sense in terms of the way a child copes with that
sexual abuse. But it’s not a disease or disorder. It’s not a tool that tells us
whether or not a child has been sexually abused.”
18
People v. Wright (1988) 45 Cal.3d 1126, 1135 [an argumentative instruction
“invite[s] the jury to draw inferences favorable to [a party] from specified
items of evidence on a disputed question of fact, and therefore properly
belongs . . . in the arguments of counsel to the jury”].) We disagree the
instruction invited the jury to draw any particular conclusion about the
CSAAS evidence or Doe’s credibility in the People’s favor. And, viewing
CALCRIM No. 1193 in context with the other instructions, it had no such
impact. The jurors were instructed that they were the sole judges of
credibility or believability of the witnesses, and they could believe “all, part,
or none of any witness’ testimony.” (CALCRIM No. 226.) They were
instructed via CALCRIM No. 332 that they were not required to accept
expert testimony as true or correct. The instructions as a whole gave the jury
the option to disbelieve Doe as well as Dr. Ward regardless of the CSAAS
evidence. We presume the jury followed them. In sum, the trial court did not
err or violate Silva’s constitutional rights by instructing the jury with
CALCRIM No. 1193.
III. Section 654 Sentencing Discretion
A. Background
The trial court sentenced Silva in June 2022, after the January 1, 2022
effective date of section 654’s amendment by Assembly Bill No. 518 (2021-
19
2022 Reg. Sess.).5 During the sentencing hearing, the People asked the court
to sentence Silva to consecutive life terms on counts 1 and 2 given that the
crimes had occurred on two separate days. Silva’s counsel argued the court
had discretion to run the terms concurrently, and asked the court to do so
given Silva’s lack of criminal record, his supporting letters, and the trial
evidence. He had previously advised the court in a sentencing brief that
under amended section 654, it had discretion to impose a “tailored sentence
that fits the facts and circumstances of this case instead of just imposing a
30[-year-]to[-]life sentence. Defense counsel proposed the court stay the
punishment on either both or one of the indeterminate counts 1 and 2 and
sentence Silva under counts 3 and 4, or to one indeterminate and one
determinate term.
The court proceeded to sentence Silva, finding him ineligible for
probation based on the nature of the charges. It imposed the two consecutive
5 Before its amendment by Assembly Bill No. 518, section 654 provided
in part: “An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.” (Former § 654, subd.
(a).) Assembly Bill No. 518 amended section 654 to provide in part: “An act
or omission that is punishable in different ways by different provisions of law
may be punished under either of such provisions, but in no case shall the act
or omission be punished under more than one provision.” (§ 654, subd. (a).)
“Previously, where . . . section 654 applied, the sentencing court was required
to impose the sentence that ‘provides for the longest potential term of
imprisonment’ and stay execution of the other term. (. . . § 654, former subd.
(a).) As amended by [Assembly Bill No.] 518, . . . section 654 now provides
the trial court with discretion to impose and execute the sentence of either
term, which could result in the trial court imposing and executing the shorter
sentence rather than the longer sentence.” (People v. Mani (2022) 74
Cal.App.5th 343, 379.)
20
indeterminate terms of 15 years to life for counts 1 and 2. In doing so, the
court expressly stated that “recognizing the discretion it has,” it “[did] not
view in this particular situation it would be appropriate to run [counts 1 and
2] concurrent.”6 The court imposed the six-year midterms on counts 3 and 4,
which it stayed under section 654, finding they arose out of the same
circumstances and transactions of counts 1 and 2. The trial court did not
mention Assembly Bill No. 518 or acknowledge section 654’s January 2022
amendment.
B. Contentions
Asserting that the sentencing hearing transcript indicates the court did
not mention or understand its discretion under newly amended section 654,
Silva now contends the matter should be remanded for the court to exercise
its discretion at a new sentencing hearing. He asserts: “Whereas the court
6 The court stated that, considering the totality of the trial evidence, it
was convinced beyond a reasonable doubt that there were two separate and
distinct individual acts. It stated in part: “I think also what warrants
commenting was that although it’s not necessarily a fact that’s been pled and
proved that would typically occur in the type of situation where the court has
to select . . . a base term, lower term, or upper term, it was clear to the court
that one of the reasons why the court is considering and is going to impose
consecutive terms is the position of trust that was occupied in this particular
case. [¶] . . . [¶] And for the purpose of this case and what I’ve heard, this
court believes it’s appropriate to run consecutive sentences. The court took
note of that and took note that [Silva] took advantage, if you will, of the
familial situation and acted as a predator in that instance, because it’s true
there were many individuals that were running around, many children,
a blended family in a small apartment. [¶] . . . [¶] When I heard the
testimony of the victim in this case, it’s consistent with someone that took
advantage of that situation, took advantage of the mother’s desperation to
reunify with her children to put herself in a situation, and he further took
advantage of situation [sic] knowing that the children weren’t paying
attention for his sexual needs and sexual pleasure. [¶] I was convinced there
were two separate acts that distinctly occurred.”
21
explicitly acknowledged its discretion to impose concurrent or consecutive
terms on counts 1 and 2 and explained its decision, it made no mention of its
discretion pursuant to [Assembly Bill No.] 518.” He finds “telling” the court’s
comments about Silva’s position of trust (see footnote 6, ante), stating it
shows the court “failed to recognize that this was a case where it could be
selecting from a determinate sentencing triad if it elected to impose sentence
on counts 3 and 4.” According to Silva, remand for resentencing is not futile,
given his nonexistent criminal history, low risk for reoffending, and the
court’s “broad range of discretion in which it could have imposed anywhere
from 5 to 16 years of a determinate term.”
The People respond that section 1203.065, subdivision (a) prohibits the
court from staying execution of sentence for the counts 1 and 2 section 288.7
convictions. They rely on People v. Caparaz (2022) 80 Cal.App.5th 669, 689
(Caparaz), in which the People similarly argued against a remand for
resentencing in light of Assembly Bill No. 518’s amendment to section 654 on
grounds the court lacked discretion to stay the punishment there mandated
by the “One Strike” law. (Id. at pp. 688-689.) The Caparaz court agreed,
holding section 667.61, subdivision (h)7 meant that a court has no discretion
to suspend or stay a one strike sentence in favor of a shorter non-one strike
7 Section 667.61, subdivision (h), the provision at issue in People v.
Caparaz, supra, 80 Cal.App.5th 669 provides: “Notwithstanding any other
law, probation shall not be granted to, nor shall the execution or imposition of
sentence be suspended for, a person who is subject to punishment under this
section.” Section 1203.065, entitled “Probation and suspension of sentence
prohibited for certain sex offenses,” similarly provides in part:
“Notwithstanding any other law, probation shall not be granted to, nor shall
the execution or imposition of sentence be suspended for, a person who is
convicted of violating . . . Section 288.7 [engaging in sexual penetration with
a child who is 10 years of age or younger] . . . .” (§ 1203.065, subd. (a).)
22
sentence notwithstanding section 654. (Id. at pp. 689-690.) Caparaz
reasoned in part that “a stay is [a] type of suspension; thus, a prohibition
against suspending a sentence necessarily prohibits the stay of a sentence.”
(Id. at p. 689.) The Caparaz court rejected the defendant’s interpretation of
the statute, construing section 667.61, subdivision (h) so as to not render the
phrase “nor shall the execution or imposition of sentence be suspended for”
meaningless. (Ibid.)
C. People v. Govan
A division of the Second District Court of Appeal has disagreed with
Caparaz. (People v. Govan, supra, 91 Cal.App.5th at p. 1020.) Govan
interpreted section 667.61, subdivision (h) differently: “Reasonably read,
section 667.61, subdivision (h), prohibits only probation and not a stay under
section 654. The language in subdivision (h) is unique to a grant of
probation. Moreover, section 667.61, subdivision (h), is intended to increase
the punishment for forcible sex offenses, whereas section 654 is intended to
ensure the punishment for an offense is commensurate with a defendant’s
culpability where two crimes arise from a single, indivisible course of
conduct.” (Ibid.) The Court of Appeal acknowledged that a section 654 stay
has the effect of suspending a sentence until a specific contingency, but found
it “[did] not follow that the Legislature’s use of the precise language ‘nor shall
execution or imposition of sentence be suspended’ in section 667.61,
subdivision (h), was intended to bar a stay of a sentence under section 654,
which uses different language and serves a separate purpose.” (Govan, at pp.
1032-1033.) Govan also examined legislative history of the One Strike law,
and concluded in part it showed the Legislature sought to prohibit trial
courts from placing one-strike offenders on probation, not to extend the
section’s reach to bar other forms of suspended sentences. (Id. at p. 1033.)
23
Govan held that because the One Strike law did not divest the court of
discretion under section 654 to stay the defendant’s sentence, he was entitled
to resentencing under amended section 654, which applied retroactively to
his nonfinal judgment. (Id. at pp. 1020, 1031, 1035.)
We do not need to resolve whether we agree with Govan or Caparaz. If
we were to agree with the People and Caparaz, remand is not warranted.
But if we were to agree with Silva, we would likewise conclude remand is not
warranted. Assuming the court had discretion to apply amended section 654,
the record here does not rebut the appellate presumption that the court
understood that discretion. Silva cannot demonstrate affirmatively that the
court misunderstood it.
D. Remand for Resentencing Is Not Required on this Record
“ ‘Defendants are entitled to sentencing decisions made in the exercise
of the “informed discretion” of the sentencing court. [Citations.] A court
which is unaware of the scope of its discretionary powers can no more
exercise that “informed discretion” than one whose sentence is or may have
been based on misinformation regarding a material aspect of a defendant’s
record.’ [Citation.] In such circumstances, . . . the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’ that the trial
court would have reached the same conclusion ‘even if it had been aware that
it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391;
see also People v. Lee (2017) 16 Cal.App.5th 861, 866.) But remand is not
necessary if the trial court was aware of its sentencing discretion or “if the
record is silent concerning whether the trial court misunderstood its
sentencing discretion. Error may not be presumed from a silent record.”
(People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229; see also Lee, at p.
867.)
24
Rather, “[i]n the absence of evidence to the contrary, we presume that
the court ‘knows and applies the correct statutory and case law.’ ” (People v.
Thomas (2011) 52 Cal.4th 336, 361.) “Isolated or ambiguous remarks by the
trial court do not overcome that presumption.” (People v. Superior Court (Du)
(1992) 5 Cal.App.4th 822, 835.) These principles apply to the court’s
sentencing decisions. (See People v. Mosley (1997) 53 Cal.App.4th 489, 496-
497 [presumption of correctness of court’s decision and regularity of judicial
exercises of discretion apply to sentencing issues].)
It is Silva’s burden “ ‘to clearly show that the [court’s] sentencing
decision was irrational or arbitrary;’ ” to do so he must “ ‘affirmatively
demonstrate that the trial court misunderstood its sentencing discretion.’ ”
(People v. Lee, supra, 16 Cal.App.5th at p. 866.)
Silva cannot meet this burden. The court had before it Silva’s counsel’s
written arguments and position as to how it could apply recently-amended
section 654 to his sentence. The court did not acknowledge those papers, but
that is of no moment as we must presume in the face of the silent record that
it read and considered them. (Evid. Code, § 664 [“It is presumed that official
duty has been regularly performed”]; accord, People v. Black (2007) 41
Cal.4th 799, 818, fn. 7 [“The trial court is presumed to have read and
considered the probation report”], overruled on other grounds by
Cunningham v. California (2007) 549 U.S. 270, 292.) Nor did the court
mention Assembly Bill No. 518 or refer to the amendments to section 654, but
again, a silent record requires that we presume the court understood its
discretion under the new law.
We disagree with Silva that the court’s remarks during sentencing
indicated it misunderstood or failed to appreciate its new-found section 654
sentencing discretion. That the court mentioned its discretion with respect to
25
running terms concurrently or consecutively, or referred to the determinate
sentencing triad, does not mean it failed to recognize its discretion in other
respects or that the new law “escaped the court’s notice.” To reach that
conclusion would require us to draw an inference that the court did not read
the papers before it, ignoring the required presumptions of correctness and
properly performed judicial duty.
IV. Claim of Constitutionally Excessive Sentence
Pointing out he is 55 years old with no prior criminal history and a
below average re-offense risk score, Silva contends his 30-year-to-life without
parole sentence is constitutionally excessive because it “ensured his earliest
parole eligibility exceeds his actuarial life expectancy.” He maintains his
challenge may be raised even though he did not object below on grounds of
cruel and/or unusual punishment as this court has discretion to address it; it
implicates fundamental constitutional rights as well as his substantial rights,
permitting review under section 1259; and it is a pure question of law based
on undisputed facts before this court.
A. Forfeiture
The People argue Silva forfeited any cruel and unusual punishment
challenge by not objecting to his total sentence on that ground below. They
do not address Silva’s reasons why the claim should survive or be exempt
from forfeiture. We agree the forfeiture rule applies to claims based on
violations of fundamental constitutional rights (In re Seaton (2004) 34
Cal.4th 193, 197-198) and specifically “in the context of sentencing . . . .” (In
re Sheena K. (2007) 40 Cal.4th 875, 881.) Appellate courts acknowledge
forfeiture applies where a defendant fails to contemporaneously object in the
lower court that his sentence constitutes cruel and unusual punishment,
26
because the issue “often requires a fact-bound inquiry.” (People v. Speight
(2014) 227 Cal.App.4th 1229, 1247.)
Here, however, there appear to be no conflicting facts concerning Silva’s
prior criminal history or personal characteristics. (Compare People v. Russell
(2010) 187 Cal.App.4th 981, 993 [cruel and unusual punishment claim
“should have been raised in the trial court where the trial judge, having
heard all of the evidence, would be in a position to assess the validity of
[defendant’s] claims for [mental] impairment and make assessments as to
their impact, if any, on the constitutionality of the sentence in this case”].)
Given the absence of disputed facts, the issue would appear to be a question
of law subject to our independent review. (Accord, People v. Wilson (2020) 56
Cal.App.5th 128, 166-167 [“ ‘Whether a punishment is cruel and/or unusual is
a question of law subject to our independent review, but underlying disputed
facts must be viewed in the light most favorable to the judgment’ ”].) We
would in any event exercise our discretion to address the claim, if just to
forestall a claim of constitutionally deficient representation. (See People v.
Williams (2000) 78 Cal.App.4th 1118, 1126; see also People v. Demirdjian
(2006) 144 Cal.App.4th 10, 14 [“appellant’s forfeiture [by failing to make a
cruel and/or unusual punishment objection], if his inaction amounted to that,
does not preclude an appellate court from reaching the issue”].)
B. Legal Principles
The Eighth Amendment to the federal Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” (U.S. Const., 8th Amend.) It is firmly
established that “ ‘[t]he concept of proportionality is central to the Eighth
Amendment . . . .’ ” (In re Coley (2012) 55 Cal.4th 524, 538.) The Eighth
Amendment “ ‘ “does not require strict proportionality between crime and
27
sentence” but rather “forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” ’ ” (People v. Baker (2018) 20 Cal.App.5th
711, 732.) The California Constitution similarly provides: “Cruel or unusual
punishment may not be inflicted or excessive fines imposed.” (Cal. Const.,
art. I, § 17.)
To decide whether a sentence is grossly disproportionate to a crime
under the Eighth Amendment, a court “ ‘begin[s] by comparing the gravity of
the offense and the severity of the sentence. [Citation.] “[I]n the rare case in
which [this] threshold comparison . . . leads to an inference of gross
disproportionality” the court should then compare the defendant’s sentence
with the sentences received by other offenders in the same jurisdiction and
with the sentences imposed for the same crime in other jurisdictions.
[Citation.] If this comparative analysis “validate[s] an initial judgment
that [the] sentence is grossly disproportionate,” the sentence is cruel and
unusual.’ ” (In re Coley, supra, 55 Cal.4th at p. 542.) In a noncapital context
as here, successful Eighth Amendment challenges are “ ‘exceedingly rare.’ ”
(Ewing v. California (2003) 538 U.S. 11, 21; see also People v. Wilson, supra,
56 Cal.App.5th at p. 167.)
“Under the California Constitution, we use a three-pronged test to
determine whether a particular sentence is disproportionate to the offense for
which it is imposed. First, we examine ‘the nature of the offense and/or the
offender, with particular regard to the degree of danger both present to
society.’ [Citation.] Second, we compare the punishment imposed with
punishments prescribed by California law for more serious offenses.
[Citation.] Third, we compare the punishment imposed with punishments
prescribed by other jurisdictions for the same offense.” (People v. Em (2009)
171 Cal.App.4th 964, 972; see also People v. Wilson, supra, 56 Cal.App.5th at
28
pp. 167-168.) A lengthy sentence is cruel and unusual under the California
Constitution 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.’ ” (Wilson, at p. 167.)
Thus, under both the federal and the state frameworks, we consider
the gravity or nature of the offense, but under the federal inquiry, we
proceed to the comparative analysis only if the “ ‘ “threshold” ’ ” analysis
concerning the gravity of the offense “ ‘ “leads to an inference of gross
disproportionality . . . .” ’ ” (In re Coley, supra, 55 Cal.4th at p. 542.)
C. Silva Has Not Demonstrated His Sentence Is Cruel and/or Unusual
Silva does not engage in a comparative analysis, as he argues
application of the first factor alone may suffice to show constitutional
disproportionality. He focuses solely on the nature of his offenses, which he
minimizes, and his personal circumstances including his lack of any prior
criminal history, combined with an assertion that the 30-year-to-life sentence
is a de facto sentence of life-without-parole.
We are not persuaded. Though Silva concedes his offenses were
egregious, he maintains his offenses were not “especially egregious” and are
on the “lower end of the range of conduct that would violate [section 288.7,
prohibiting oral copulation of a child 10 years of age or younger].” He asserts
he did not use force, violence or weapons, nor did he restrain Doe or prevent
her from leaving. He claims Doe suffered no physical injury or pain. He
argues the offenses are commonly committed by a person in a position of
trust. According to Silva, that there were only two instances during the years
Doe lived with him suggests his behavior was not deliberate or planned, but
brought on by acute stress or alcohol abuse.
29
In People v. Wilson, supra, 56 Cal.App.5th 128, we rejected the
defendant’s similar effort to minimize his offenses of oral copulation of a child
10 years or younger, claiming he had minimal culpability as he was an aider
and abettor, was not present when one victim committed molestation at his
leading, and did not force the sex acts on the victims. (Id. at p. 168.) Like
Silva does here, the defendant in Wilson argued the harm to his victims was
minimal. (Id. at p. 169.) We likewise reject Silva’s contention here.
“California courts have long recognized ‘a strong public policy to protect
children of tender years.’ [Citation.] ‘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.” ’ [Citation.] Rather than decreasing [Silva’s] culpability, the
vulnerability of [Doe] given [her] young age is an aggravating circumstance.”
(Ibid.) In Wilson, we held the defendant’s culpability was heightened because
he aided his victim to abuse her trusted position as a mother and caregiver so
as to assault other children (ibid.); here, Silva’s acts are more egregious
because he used his own position of trust as a boyfriend to Doe’s mother to
take advantage of Doe.
It is true that Silva has no prior criminal record. But that is not
determinative; even someone without a criminal history who commits the
crimes Silva committed is a grave danger to society. (See People v. Gonzales
(2001) 87 Cal.App.4th 1, 17 [“The lack of a significant prior criminal record is
not determinative in a cruel and unusual punishment analysis”]; accord,
People v. Gomez (2018) 30 Cal.App.5th 493, 499-502 [holding constitutional
under both the state and federal Constitutions a sentence of 15 years to life
on one count of sexual penetration of a child 10 years of age or younger for a
defendant with a “very limited criminal record”].) His crimes as Doe
30
described them were calculated, premeditated, and predatory, committed
against a particularly vulnerable victim and stemmed from his abuse of a
position of trust. He sexually abused Doe while alone with her in the closet,
taking advantage of Doe’s desire to use his phone to play games. Doe was
only nine or 10 years old, and her mother was not home. Silva was a mature
adult in his fifties. Whatever arguably mitigating factors might have been
present, they are substantially outweighed by the seriousness of his crimes
and the circumstances surrounding their commission.
We end by emphasizing that the cruel and unusual punishment inquiry
is undertaken with “great deference to the Legislature. Fixing the penalty
for crimes is the province of the Legislature, which is in the best position to
evaluate the gravity of different crimes and to make judgments among
different penological approaches. [Citations.] Only in the rarest of cases
could a court declare that the length of a sentence mandated by the
Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76
Cal.App.4th 489, 494; see also People v. Gomez, supra, 30 Cal.App.5th at p.
499.) This is not such a rare case. The comparison of Silva’s crimes with his
sentence does not “ ‘ “lead[ ] to an inference of gross disproportionality” ’ ” (In
re Coley, supra, 55 Cal.4th at p. 542), and his sentence is not cruel and
unusual punishment.
31
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
KELETY, J.
32