People v. Cadena

Filed 8/27/19
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B281175
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112281)
v.
BONIFACIO CRUZ CADENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert M. Martinez, Judge. Affirmed in
part and reversed in part with directions.
Judith Kahn, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle, and Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
*Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts III–V of the Discussion post, at pp. 26–32.
A jury convicted defendant Bonifacio Cruz Cadena of
six counts of lewd acts upon a child: three acts against each
of his two nieces. (Pen. Code, § 288, subd. (a).)1 The jury also
found true the special circumstance allegation that he committed
the acts against more than one victim. (§ 667.61, subds. (b) &
(e).) Pursuant to the “One Strike” law (§ 667.61), the trial court
sentenced him to an aggregate term of 30 years to life in state
prison, consisting of consecutive 15-years-to-life terms on two
counts—one for each victim—and concurrent 15-years-to-life
terms on the remaining four counts.
Defendant contends the following: (1) There was no
substantial evidence to support the finding that he committed
more than two lewd acts on each victim; (2) His sentence
violates the constitutional prohibition against cruel or unusual
punishment; (3) His counsel was constitutionally deficient for
failing to object to expert witness testimony on child sexual abuse
accommodation syndrome; (4) The trial court should be afforded
an opportunity to strike the multiple victim enhancement;
and (5) The trial court miscalculated his presentence custody
credit. We agree that the evidence supported findings as
to only two lewd acts on each victim and that his sentence is
unconstitutionally excessive. We therefore vacate the convictions
on two counts, reverse the judgment, and direct the court to hold
a new sentencing hearing.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, defendant was 44 years old and married with two
children. The four of them shared an apartment with defendant’s
sister, his sister’s husband (Mario), and their five children,
including twin sisters G. and M. All seven children slept in the
living room, with G. and M. sharing a bed.
During the summer of 2014, when G. and M. were 11
or 12 years old, the girls would sometimes wake up around
3:00 a.m. to see defendant near their bed. Once, M. awoke to
find defendant removing a blanket that covered her. Defendant
told her that he was trying to kill a bug he had seen. On other
occasions, G. and M. would awaken and find defendant touching
them over their clothes on their stomachs or their “vagina[s].”2
This made G. feel “uncomfortable” because she had “never
been touched there.” M. also felt “uncomfortable,” as well as
“confused” because defendant had “always [been] respectful”
toward them.
G. and M. conferred and learned that defendant had
touched the other in the same way. They told their father, Mario,
who then installed an inconspicuous video camera on the girls’
bed. The camera subsequently recorded video of someone’s arm
and a hand touching and rubbing M. on top of her clothes in her
2 Because the offensive touching occurred over the clothes
of G. and M., the witnesses and counsel appear to have used
the term “vagina” colloquially—albeit inaccurately—to refer
generally to female genitalia or “ ‘private parts.’ ” (See People v.
Paz (2017) 10 Cal.App.5th 1023, 1037; People v. Quintana (2001)
89 Cal.App.4th 1362, 1367.) For the sake of consistency, we will
use the term in the same way.
3
pubic area for about 12 seconds. The video does not show the
perpetrator’s face. At trial, Mario said he recognized the arm in
the video as defendant’s.
Mario confronted defendant and asked, “Why was he
molesting [Mario’s] children?” According to Mario, defendant
initially denied the accusation, but ultimately admitted to
touching the girls, asked Mario to forgive him, and promised
“that he was not going to do that anymore.” Mario agreed to
forgive him.
Defendant continued to live in the apartment with the
others, and did not touch the girls again. For a while, G. did not
“really talk” to defendant. But they eventually began talking
again.
More than one year after defendant last touched the girls,
G. told a tutor at her middle school about the incidents.3 The
tutor informed child protective services personnel, who contacted
the police.
During a police interview, defendant admitted he had
touched the girls on their legs or their vaginas one or two times,
and only over their clothes. When asked why he touched them,
defendant stated: “I didn’t have any intention of doing harm
or anything, just, I don’t know, the devil came to my mind. I
don’t know.” He stated that he regrets his actions and that he
3 The tutor testified that G. told her that her uncle had
raped her. G., however, denied that she had said this, and the
prosecution did not rely on the tutor’s statement. Indeed, the
prosecutor argued to the jury that defendant’s offensive touching
was “through the clothing. There’s no testimony it was skin to
skin.”
4
had asked Mario for forgiveness and said it would not happen
again, and it has not. He and the girls, defendant stated,
now talk and “get along well.” Defendant added that he has
“changed” and “it won’t happen, not even with any other person.”
G. and M. testified about the touching incidents at trial.
G. said that defendant touched her on her stomach or vagina
“two to three times.” M. testified he touched her stomach and
vagina “like, three or two times.” She described the touching
as grabbing or rubbing. G. also said that defendant “hadn’t done
anything to [them]” since Mario confronted him, and “everything
was fine.” M. testified that she felt conflicted about the criminal
prosecution because although defendant “did a wrong,” he “knew
he did a wrong,” and he “accepts it.”
Dr. Jayme Jones, an expert on child sexual abuse, testified
that child sexual abuse accommodation syndrome (CSAAS)
is a model that provides insight into why children do or do not
disclose sexual abuse. Dr. Jones described five components of
CSAAS: (1) express or implied secrecy concerning the incident;
(2) the child’s helplessness; (3) accommodation of the abuse;
(4) delayed or partial disclosure; and (5) recanting. Dr. Jones
did not interview G., M., or any of the witnesses in the case, and
did not offer any opinion as to whether G. or M. was a victim of
sexual abuse.
Defendant testified at trial that he did not touch the
“private areas” of G. or M. He said he admitted doing so during
the police interrogation because he understood it would help him
“when [he went] to see the judge.” The hand that is shown in the
video recording of someone touching M., he stated, was not his
hand.
5
Defendant’s wife, children, and parents testified that
defendant is a youth leader in their church, is respected by
others, treats others with respect, and has never shown any
tendency to touch children in a sexual manner. He has worked
with children in a church choir for about 10 years and no one
has alleged that he molested any of the children.
A jury found defendant guilty of six counts of lewd acts
upon a child and found true the special circumstance allegation
that he committed the acts against more than one victim. (Pen.
Code, §§ 288, subd. (a), 667.61, subds. (b) & (e).)
According to a probation officer’s report submitted in
connection with the sentencing hearing, defendant had been
convicted in 1991, when he was 21 years old, of driving under
the influence of alcohol, and driving with a suspended license.
(Veh. Code, §§ 14601.1, subd. (a), 23152, subds. (a) & (b).)
Defendant had no other criminal history prior to the convictions
in this case.
The probation report includes a statement by Mario to
the probation officer “that he, his daughters, and his family have
forgiven the defendant” and that “the defendant should not go to
prison.” Mario added that “his daughters have had an evaluation
and two counseling sessions and both are fine.”
The trial court sentenced defendant under the One Strike
law (§ 667.61) to an aggregate term of 30 years to life in
state prison, consisting of consecutive 15-years-to-life terms on
two counts, one for each victim, and concurrent 15-years-to-life
terms on the remaining four counts.
Defendant timely appealed.
6
DISCUSSION
I. No Substantial Evidence Supported Two of the
Lewd Conduct Counts
Defendant was convicted of three counts of lewd conduct
involving each child, for six total counts. Yet G. and M. testified
that each child was only touched “two or three” times, or “two
to three” times. Defendant contends evidence that he touched the
children two or three times each does not support a conviction for
touching either one a third time. The Attorney General does not
appear to disagree, but argues additional evidence supported the
convictions.
Subdivision (a) of section 288 makes it a felony to “willfully
and lewdly commit[] any lewd or lascivious act . . . upon or with
the body, or any part or member thereof, of a child who is under
the age of 14 years, with the intent of arousing, appealing to,
or gratifying the lust, passions, or sexual desires of that person
or the child.” “The elements of section 288, subdivision (a)
are: (1) a lewd touching[,] (2) of a child under 14 years of age[,]
(3) with the intent of sexual arousal.” (People v. O’Connor (1992)
8 Cal.App.4th 941, 947.)
“In considering a claim of insufficiency of evidence, a
reviewing court must determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’ ” (People v. Earp
(1999) 20 Cal.4th 826, 887.) To support each count of lewd
and lascivious conduct alleged in an information, the “victim . . .
must describe the kind of act or acts committed” and “the number
of acts committed with sufficient certainty . . . (e.g., ‘twice a
7
month’ or ‘every time we went camping’).” (People v. Jones
(1990) 51 Cal.3d 294, 316.)
Here, because testimony by the girls that defendant
touched each of them two or three times is certain as to
only two instances of unlawful conduct, not three, it supports
convictions on only two counts each. For the jury to have found
defendant guilty of a third count of lewd conduct as to either
G. or M. there had to have been other evidence of such conduct.
In addition to G. testifying that defendant touched her
stomach or vagina “two or three” times, M. testified that she
saw defendant “like, reaching over my, like, twin sister, I guess,
trying to touch her or something.” The Attorney General argues
that this testimony supports defendant’s conviction on a third
count for committing a lewd act upon G. We disagree. It is
unclear whether M. was describing one of the two instances of
lewd touching that G. had already related or a third instance.
And M. did not testify that defendant actually touched G., only
that he was “trying” to touch her “or something.” Even if he had
touched her on this occasion, nothing in M.’s testimony indicated
he did so lewdly, with the intent of arousing, appealing to, or
gratifying his lust, passions, or sexual desires.
After M. testified that defendant touched her vagina
twice, the prosecutor asked, “What about your stomach? Do
you remember ever talking about that?” M. replied, “I don’t
remember exactly. But I remember he would, like, touch me.
But the thing is, I don’t remember where because, like, I was
tired. So I was asleep.” The Attorney General argues that this
testimony supports a third touching incident, and a lewd or
lascivious touching may occur when one touches any part of a
child’s body. We do not disagree, but, again, M. testified only
8
that she was touched somewhere other than her vagina, but said
nothing about the nature of that touching. Not every touch by a
man who once touched a girl lasciviously is itself lascivious.
Both girls testified that they would sometimes awaken to
see defendant standing over them, looking at them. The Attorney
General argues that a rational juror could conclude from this
evidence that defendant committed lewd acts upon each child
before they woke up, i.e., on occasions other than those to which
they testified. We disagree. Like the nonspecific or attempted
touching described by the girls, ominous staring does not itself
constitute evidence of lascivious touching.
We conclude the evidence supports defendant’s convictions
on only two counts of lewd or lascivious conduct as to each
child, and will order that the third conviction as to each child be
vacated.
II. Defendant’s Indeterminate Life-Maximum Sentence
is Unconstitutionally Excessive
Defendant contends that his 30-years-to-life sentence
violates California’s constitutional prohibition against cruel or
unusual punishment.4 (Cal. Const., art. I, § 17.) We agree.
4 Defendant did not raise this argument below. Although
that failure would ordinarily forfeit the argument on appeal,
we exercise our discretion to address the argument because it
presents an important question of law that requires no further
factual development in the trial court. (See In re Sheena K.
(2007) 40 Cal.4th 875, 887–889; People v. Andrade (2015)
238 Cal.App.4th 1274, 1310; People v. Williams (1998) 17 Cal.4th
148, 161–162, fn. 6.)
9
When, as here, a defendant contends that his sentence is
unconstitutionally excessive, “[t]he judicial inquiry commences
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.”
(People v. Martinez (1999) 76 Cal.App.4th 489, 494.) “Yet
legislative authority remains ultimately circumscribed by
the constitutional provision forbidding the infliction of cruel
or unusual punishment, adopted by the people of this state as
an integral part of our Declaration of Rights. It is the difficult
but imperative task of the judicial branch, as coequal guardian
of the Constitution, to condemn any violation of that prohibition.”
(In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).)5
Punishment is unconstitutionally cruel or unusual “if
it is grossly disproportionate to the offense as defined or as
committed, and/or to the individual culpability of the offender.”
(People v. Dillon (1983) 34 Cal.3d 441, 450 (Dillon) (plur. opn.
of Mosk, J.).) Stated differently, if the punishment “is so
disproportionate to the crime for which it is inflicted that
it shocks the conscience and offends fundamental notions of
human dignity,” it is unconstitutionally excessive. (Lynch,
supra, 8 Cal.3d at p. 424; see People v. Leonard (2007)
40 Cal.4th 1370, 1426–1427.)
5 Our Supreme Court is currently considering whether
a habeas petitioner’s sentence of life with the possibility of
parole for a minor’s commission of kidnapping for robbery
is unconstitutionally disproportionate. (In re Palmer (2019)
33 Cal.App.5th 1199, review granted July 31, 2019, S256149.)
10
Courts have found such disproportionality by:
(1) examining “the nature of the offense and/or the offender,
with particular regard to the degree of danger both present to
society”; (2) comparing the punishment with punishments for
more serious crimes in the same jurisdiction; or (3) comparing
the punishment with punishments for the same offense in other
jurisdictions. (Lynch, supra, 8 Cal.3d at pp. 425–428; accord,
Dillon, supra, 34 Cal.3d at p. 478 (plur. opn. of Mosk, J.).)
Any one of these methods “can be sufficient to demonstrate that a
particular punishment is cruel and unusual.” (People v. Mendez
(2010) 188 Cal.App.4th 47, 64–65.)
The nature of the offense is evaluated based upon “ ‘the
facts of the crime in question’ [citation]—i.e., the totality of the
circumstances surrounding the commission of the offense in the
case at bar, including such factors as its motive, the way it was
committed, the extent of the defendant’s involvement, and the
consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479
(plur. opn. of Mosk, J.).)
The inquiry into the nature of the offender “focuses
on the particular person before the court, and asks whether
the punishment is grossly disproportionate to the defendant’s
individual culpability as shown by such factors as his age, prior
criminality, personal characteristics, and state of mind.” (Dillon,
supra, 34 Cal.3d at p. 479 (plur. opn. of Mosk, J.).)
Two cases are particularly instructive: In re Rodriguez
(1975) 14 Cal.3d 639 (Rodriguez) and People v. Baker (2018)
20 Cal.App.5th 711 (Baker). In Rodriguez, a habeas corpus
petitioner had committed statutory rape when he was 19 years
old and two years later was arrested for molesting a child. (In re
Rodriguez, supra, 14 Cal.3d at p. 644, fn. 6.) He was diagnosed
11
a “ ‘sexual psychopath’ ” and committed to a state hospital.
(Ibid.) He eventually escaped from the institution with another
patient, whom he later married. (Ibid.) Less than two years
later, he and his wife were driving in their car when they saw
a six-year-old girl roller skating. (Id. at p. 643, fn. 5.) He put
the girl in the car, and “drove to a less public place where [he]
fondled the child’s private parts.” (Ibid.) “[C]urious citizens
investigated the parked car, [and] found that the child’s skirt
was raised above her knees and that petitioner’s trousers were
unzipped.” (Id. at pp. 643–644, fn. 5) A medical “examination
showed no penetration of the sexual organs of the victim.”
(Id. at p. 644, fn. 5.) The petitioner was convicted of violating
section 288, and sentenced to prison for an indeterminate term
of one year to life. By the time the Supreme Court decided his
habeas corpus petition, he had served 22 years of that term.
The Court issued the writ and directed the petitioner be released
from custody because the time he had served exceeded that
permitted under the cruel or unusual punishment proscription
of the California Constitution. (Id. at p. 656.)
In considering the nature of the offense, the Rodriguez
Court acknowledged that the petitioner’s crime was “by no
means ‘trivial,’ ” but explained that its commission involved
no violence or weapon, caused no physical harm to the victim,
and “lasted only a few minutes.” (Rodriguez, supra, 14 Cal.3d
at pp. 654–655.) The petitioner also “attempted none of
the dangerous offenses sometimes associated with violations
of section 288.” (Id. at p. 655.) Regarding the offender, the
Court observed that the petitioner “was only 26 years old” when
he committed the crime, and his conduct could be “explained in
part by his limited intelligence, his frustrations brought on by
12
intellectual and sexual inadequacy, and his inability to cope with
these problems.” (Ibid.)6 The petitioner also had “no history of
criminal activity apart from problems associated with his sexual
maladjustment.” (Ibid.)
The Rodriguez Court also compared the petitioner’s
punishment with sentences under California law for more
serious crimes and the punishment for similar crimes in other
states, and found both comparisons supported its conclusion
that the petitioner’s punishment constituted cruel and unusual
punishment. (Rodriguez, supra, 14 Cal.3d at pp. 655–656.)
In Baker, the court upheld a 15-years-to-life sentence
for one count of oral copulation of a six-year-old girl, in violation
of section 288.7, subdivision (b),7 and two counts of lewd acts
in violation of section 288, subdivision (a). (Baker, supra,
20 Cal.App.5th at p. 715.) The defendant was a 50-year-old
uncle of the victim. (Id. at p. 716.) While the defendant was
visiting with the victim’s family, he brought the victim into
bed with him, rubbed her stomach, pulled down her underwear,
licked her “ ‘on the middle,’ ” and asked her if it felt good. (Id.
6 The petitioner had an I.Q. of 68 and was “functionally
illiterate and unskilled.” (Rodriguez, supra, 14 Cal.3d at p. 644,
fn. 6.) He asserted that he was led to commit his crime against
the six-year-old girl because he discovered “that his wife was
sterile,” which “frustrated his intense desire to have children.”
(Ibid.)
7 Section 288.7, subdivision (b) provides: “Any person
18 years of age or older who engages in oral copulation . . . with
a child who is 10 years of age or younger is guilty of a felony and
shall be punished by imprisonment in the state prison for a term
of 15 years to life.”
13
at pp. 716–717.) The victim said, “ ‘No, it’s gross.’ ” The
defendant then kissed the victim on her mouth with a “ ‘lick
kiss.’ ” (Ibid.) The victim pulled a blanket over her face. (Id. at
p. 716.) The defendant said he was sorry, and they went to sleep.
(Id. at p. 717.) The next morning, the child told her mother about
the incident, and the mother contacted the sheriff’s department.
(Id. at p. 716.) The defendant’s DNA was found on a genital
swab from the victim, and saliva was found in the crotch of her
underwear. (Ibid.) The victim told a social worker that “she
kept thinking about what happened and felt ‘disgusting.’ ” (Id.
at p. 717.)
In evaluating the nature of the offense in Baker—oral
copulation of a six-year-old child—the court began by noting
that there is “ ‘a strong public policy to protect children of tender
years.’ ” (Baker, supra, 20 Cal.App.5th at p. 724.) Although
the child victim “was not physically harmed,” she had told a
“social worker she felt ‘disgusting’ and kept thinking about what
had happened, indicating at least some level of psychological
harm.” (Id. at p. 725.) The court considered that the child “was
particularly vulnerable given her age, and the defendant abused
a position of trust to commit the offense.” (Ibid.) The court also
found significant the fact that the defendant “perpetrated not one
but three sexual acts against [the victim]. He touched her vagina,
orally copulated her, and then kissed her mouth. Although
the three acts took place within a short period of time, Baker
did not stop the molestation immediately and proceeded to kiss
her on the mouth after she said the oral copulation felt ‘gross.’
[The victim] had to pull a blanket over her face to make him
stop.” (Ibid.)
14
The Baker court distinguished Rodriguez, stating that the
facts before it “are significantly more aggravated than those in
Rodriguez.” (Baker, supra, 20 Cal.App.5th at p. 727.) “Whereas
Rodriguez was convicted of unspecified fondling of a six-year-old
child, Baker was convicted of oral copulation—conduct that the
Legislature has since made clear is more heinous. [Citations.]
And Baker was convicted of not one but three separate sexual
acts against [his victim].” (Id. at p. 726.) The court also stated
that it did not appear that the defendant had a low I.Q., was
“illiterate or unskilled, or [was] coping with problems of sexual
inadequacy.” (Ibid.)
We turn now to the instant case.
When evaluating the constitutionality of an indeterminate
sentence, “it is the maximum term prescribed by the statute . . .
which must survive constitutional scrutiny.” (Lynch, supra,
8 Cal.3d at pp. 416–417.) Therefore, we must determine whether
defendant’s indeterminate life-maximum sentence withstands
constitutional scrutiny in this case, without regard to the fact
that defendant may be eligible for parole after serving 30 years
of his term. (See ibid.; Baker, supra, 20 Cal.App.5th at p. 723.)
Defendant was sentenced under the One Strike law, which
the Legislature “enacted to ensure serious and dangerous sex
offenders would receive lengthy prison sentences upon their
first conviction.” (People v. Palmore (2000) 79 Cal.App.4th 1290,
1296.) The Legislature “targeted” the law at those who “prey[]
on women and children, cannot be cured of [their] aberrant
impulses, and must be separated from society to prevent
reoffense.” (People v. Wutzke (2002) 28 Cal.4th 923, 929–930.)
“Almost all of the enumerated crimes involve the use of force
or fear.” (Id. at p. 930.) Indeed, the only enumerated crimes
15
that do not require such use are the crimes of continuous sexual
abuse of a child (§ 288.5) and the crime defendant committed
in this case—lewd and lascivious acts in violation of section 288,
subdivision (a). (§ 667.61, subd. (c)(8) & (9).)
Commission of an enumerated crime is not enough to
trigger a 15-years-to-life term under the One Strike law; the
enumerated crime must also involve at least one additional
circumstance, such as the perpetrator kidnapping the victim,
committing the sexual offense during a burglary, using
a dangerous or deadly weapon or firearm, tying or binding
the victim, administering a controlled substance to the victim,
or, as in this case, committing the offense “against more than
one victim.”8 (§ 667.61, subd. (e); see People v. Luna (2012)
209 Cal.App.4th 460, 471.)
Defendant does not challenge—and we do not address—
the constitutionality of the One Strike law in the abstract or
even of life sentences imposed under that law for violations
of section 288, subdivision (a).9 Indeed, as the Rodriguez
8 The One Strike law also provides for 25-years-to-life
sentences if certain other or additional circumstances exist.
(§ 667.61, subd. (a).)
9 Courts have upheld sentences imposed under the
One Strike law under circumstances involving more heinous
crimes. (See, e.g., People v. Reyes (2016) 246 Cal.App.4th
62, 68-70, 87-88 [defendant committed forcible rape and
oral copulation against a minor during a burglary]; People v.
Alvarado (2001) 87 Cal.App.4th 178, 200 [forcible rape during
burglary]; People v. Crooks (1997) 55 Cal.App.4th 797, 806–807
[forcible rape while armed with a deadly weapon during a
burglary].)
16
Court observed, “section 288 encompasses conduct for
which [a] life [sentence] might be a permissible punishment
in some cases.” (Rodriguez, supra, 14 Cal.3d at p. 647.)
But a statutory punishment that may be permissible in the
abstract, “is nevertheless constitutionally impermissible if it
is disproportionate to the defendant’s individual culpability.”
(Dillon, supra, 34 Cal.3d at p. 480 (plur. opn. of Mosk, J.).) Thus,
although life sentences for violating section 288, subdivision (a),
may be permissible under the One Strike law “in some cases,”
they may be unconstitutionally “excessive in others.” (Rodriguez,
supra, 14 Cal.3d at p. 647.) Defendant contends that his life
sentence in this case is excessive.
Regarding the nature of the offense, we observe
that defendant’s offenses were, like the offense committed in
Rodriguez, “by no means ‘trivial’ ” (Rodriguez, supra, 14 Cal.3d
at pp. 654–655), and that although “lewd conduct on a child
may not be the most grave of all offenses, . . . its seriousness
is considerable” (People v. Christensen (2014) 229 Cal.App.4th
781, 806 (Christensen)). The offenses were, however, far less
serious than the petitioner’s conduct in Rodriguez and the
defendant’s actions in Baker. Defendant committed the crimes
by touching the girls’ private parts above their clothes; he did
not touch their skin.10 By contrast, the petitioner in Rodriguez
10 Although a lewd or lascivious act under section 288 does
not require a touching of the victim’s skin (People v. Martinez
(1995) 11 Cal.4th 434, 444), the Legislature has determined
that touching a victim’s sexual organs over the victim’s clothes
should not be punished as harshly as touching the victim’s skin
directly. (Compare § 243.4, subds. (a)–(d) & (f) [felony sexual
battery requires the touching of the victim’s skin] with § 243.4,
17
“fondled the child’s private parts” (Rodriguez, supra, 14 Cal.3d
at p. 643, fn. 5); and the defendant in Baker rubbed the victim’s
stomach, orally copulated her, and gave her “a ‘lick kiss.’ ”
(Baker, supra, 20 Cal.App.5th at p. 717.) He did not transport
the girls to another location, as the petitioner did in Rodriguez,
or bring them into bed with him, as in Baker. (Rodriguez,
supra, 14 Cal.3d at p. 643, fn. 5; Baker, supra, 20 Cal.App.5th
at p. 716). He did not use a weapon, force, fear, threats, or
intimidation. The six-year-old victims in both Rodriguez and
Baker were also considerably younger than G. and M., justifying
greater punishment for crimes committed against them. (See,
e.g., §§ 288.7, subds. (a) & (b) [sexual offenses against children
10 years of age or younger punishable by up to life in prison],
1170.72 [the age of victim under 11 years may be considered
an aggravating circumstance in sentencing].)
There is no evidence of defendant’s motive or intent
other than his statements to police that he did not “have any
intention of doing harm or anything.” Nor is there any evidence
that defendant planned to escalate his behavior beyond the
over-the-clothes touchings he committed or that he “attempted
[any] of the dangerous offenses sometimes associated with
violations of section 288.” (Rodriguez, supra, 14 Cal.3d at p. 655.)
By contrast, the defendant in Baker ended his molestation only
when the victim “pull[ed] a blanket over her face to make him
stop” (Baker, supra, 20 Cal.App.5th at p. 725), and the petitioner
in Rodriguez was found with his trousers unzipped and his
subd. (e)(2) [sexual battery by touching “through the clothing
of the victim” is a misdemeanor]; see People v. Dayan (1995)
34 Cal.App.4th 707, 716.)
18
victim’s skirt raised when “curious citizens” intervened
(Rodriguez, supra, 14 Cal.3d at pp. 643–644, fn. 5).
The only evidence of the duration of any instance of
touching is the video recording in which the touching lasted
about 12 seconds. Even if each instance lasted that long, the
sum of the instances encompassed less than one minute, which
is less than the “few minutes” that the fondling “episode” took
in Rodriguez. (Rodriguez, supra, 14 Cal.3d at p. 655.)
Significantly, there is no substantial evidence that
defendant harmed the girls physically or psychologically.11
Although G. and M. said they felt “uncomfortable” when
they realized what had occurred, there is no evidence that
defendant, in contrast to the defendant in Baker, inflicted
any “level of psychological harm” on the victims. (Baker,
11 The probation officer’s report states that “[t]he crime
involved great violence, great bodily harm, threat of great bodily
harm or other acts disclosing a high degree of cruelty, viciousness
or callousness.” The record does not support this statement.
We do not suggest that the defendant’s acts were without
harm. Defendant’s offensive touching of G. and M. violated,
at least, their rights to privacy and their interest in bodily
autonomy and security. (See Rest.3d Torts, Intentional Torts
to Persons (Tent. Draft No. 1, 2015) § 101, com. b [right not
to suffer offensive physical contact with one’s body is “rooted
in fundamental interests in autonomy, or freedom of choice
over one’s body”]; Civ. Code, § 1708.5, subd. (f) [sexual battery
includes “contact that offends a reasonable sense of personal
dignity”]; Sacks, Intentional Sex Torts (2008) 77 Fordham L.Rev.
1051, 1074 [“[d]ignitary harm is presumed to flow from
interference with bodily autonomy”].)
19
supra, 20 Cal.App.5th at p. 725.) Indeed, according to Mario,
the girls have had counseling and “both are fine.”
The Attorney General nevertheless suggests that the
girls may have suffered psychological damage, and points to
Dr. Jones’s testimony regarding the effects of child abuse on
some victims. Dr. Jones, however, did not interview G. or M.
and expressed no opinion as to whether they had been abused
or would suffer any ill effects of defendant’s conduct. The
Attorney General’s assertion is thus speculative.
In considering the nature of the offense, the fact that
defendant committed his crimes multiple times against
two victims is, of course, significant and justifies a penalty
more harsh than if defendant had committed fewer instances
or against one victim only. (See Christensen, supra,
229 Cal.App.4th at p. 808 [“ ‘penalties for single offenses . . .
cannot properly be compared to those for multiple offenses’ ”].)
Without diminishing the seriousness of multiple instances and
victims involved, however, even when the occurrences of brief,
over-the-clothes touchings are considered cumulatively, in light
of all other circumstances in this case, the “degree of danger”
that defendant’s crimes “present to society” (Lynch, supra,
8 Cal.3d at p. 425) is not greater than the petitioner’s conduct
in Rodriguez.
Regarding the nature of the offender, there is little
in the record to suggest that defendant remains a danger to
society. Unlike the petitioner in Rodriguez—who was caught
with his trousers unzipped and his victim’s skirt raised—and
the defendant in Baker—who stopped molesting his victim only
when she covered herself with a blanket—there is no evidence
that defendant intended to commit any act more serious than
20
the acts he committed. Upon being confronted by Mario with
the evidence of his conduct, defendant expressed remorse, asked
for forgiveness, and promised never to do it again—a promise
he kept. There is no evidence that he had ever committed any
wrongful act toward others, including any of the children in his
charge as a church choir leader for more than 10 years. He has
no record of any prior criminal activity other than his convictions
26 years earlier for driving with a suspended license and driving
under the influence. During his police interview, he insisted he
has changed and vowed that he would never commit such acts
again against anyone—a credible assertion in light of his kept
promise to Mario made more than one year earlier.
Even if we assume that defendant testified falsely that he
did not commit the crimes at all, the record demonstrates that
defendant was far less of a danger to society than the petitioner
in Rodriguez, who, in addition to fondling a six-year-old girl
for which he was imprisoned, was convicted of statutory rape,
arrested for child molestation, diagnosed a sexual psychopath,
and an escapee from a state hospital. (Rodriguez, supra,
14 Cal.3d at pp. 643–644, fns. 5 & 6.)
Based on all the facts and circumstances concerning
the nature of the offenses and the offender, a sentence of life
in prison for this defendant for the crimes committed in this
case shocks our conscience and offends fundamental notions
of human dignity. The sentence therefore violates California’s
constitutional prohibition against cruel or unusual punishment.
(Lynch, supra, 8 Cal.3d at p. 424.)
Our conclusion is further supported by the second method
for determining disproportionality: comparing defendant’s
punishment with the punishment for more serious offenses under
21
California law. (See Lynch, supra, 8 Cal.3d at p. 426.) Here,
defendant touched the victims’ genitalia over their clothes while
they slept. Because there were two victims, the court sentenced
him under the One Strike law to indeterminate terms with a
maximum of life in prison. By comparison, one who is convicted
of raping children under 14 years of age when the children are
incapable of resisting because they are asleep or intoxicated
may be sentenced to a term of three, six, or eight years per crime.
(§§ 261, subd. (a)(3) & (4), 264, subd. (a).) The One Strike law
does not apply to such crimes, so even its commission against
two victims would result in no more than a 16-year determinate
term, assuming the upper term is imposed on each count and
the two terms run consecutively. The punishment is the same
for rape of a spouse and sodomy when the victims are likewise
incapable of resisting. (§ 262, subd. (a)(2) & (3); § 286, subds. (f)
& (g).) Assault of a minor with intent to commit certain sex
offenses—including rape, sodomy, oral copulation, or sexual
penetration—is punishable by five, seven, or nine years in prison.
(§ 220, subd. (a)(2).) Pimping or pandering a child under the age
of 16 years old for prostitution is punishable by up to eight years
(§§ 266h, subd. (b)(2), 266i, subd. (b)(2)), and abducting a minor
for prostitution is punishable by no more than three years.
(§§ 266a, 18.) Sexual penetration or sodomy with a child under
14 years and more than 10 years younger than the perpetrator
is punishable by up to eight years (§§ 286, subd. (c)(1), 289,
subd. (j)), and one who restrains a minor and commits a sexual
battery that involves touching the skin of the minor’s sexual
organs where the defendant has been previously convicted of the
same crime is punishable by no more than four years in prison.
(§ 243.4, subds. (a), (f), (g)(1) & (j).) Incest between an uncle and
22
niece is punishable by a maximum of three years. (§§ 285, 18.)
None of the foregoing crimes is punishable under the One Strike
law or subject to a life sentence even if committed on multiple
occasions and against multiple victims.
Although the One Strike law imposes the same
punishment for numerous other sexual offenses, such offenses
are generally far more serious than the crimes defendant
committed, particularly in light of the brief over-the-clothes
touching manner in which he committed them. Under the
One Strike law, for example, 15-years-to-life terms are imposed
when the crimes of rape, sexual penetration, sodomy, and oral
copulation are committed with the use of force, violence, or fear
of immediate bodily injury, and when rape is forcibly committed
in concert with others. (§ 667.61, subd. (c).) Strikingly, rape,
sexual penetration, sodomy, and oral copulation are not subject
to punishment under the One Strike law if they occur because
the victim is unconscious, asleep, or intoxicated, or the
perpetrator has threatened the victim with arrest or deportation
(see §§ 261, subd. (a)(3), (4) & (7), 262, subd. (a)(2), (3) & (5),
286, subds. (f), (i) & (k), 667.71, subd. (c)), but defendant’s
over-the-clothes touching of G. and M. while they slept subjected
him to the heightened punishment.
The Attorney General points out that if defendant had
been previously convicted of committing a lewd act on a child
and then committed a subsequent act, he “could have faced
a 25-year-to[-]life sentence.” (See §§ 667.61, subds. (a), (c)(8)
& (d)(1), 667.71, subds. (a) & (c)(4).) The greater sentence
under this hypothetical, however, depends upon a prior
conviction for a sex offense. Such a sentence might thus be
justified by the fact that the perpetrator, having already been
23
convicted of a sex offense, had “not been deterred by more
conventional approaches to punishment.” (Ewing v. California
(2003) 538 U.S. 11, 24–25 [upholding “Three Strikes” law because
the state has a valid interest in “incapacitating criminals who
have already been convicted of at least one serious or violent
crime”].) Here, however, defendant had never been convicted
of a sex offense. The comparison to the punishment one would
receive as a recidivist sexual offender, therefore, is inapt.
Based on our comparison of defendant’s punishment with
lesser punishments imposed for more serious crimes involving
sexual behavior, defendant’s punishment is unconstitutionally
disproportionate.12
We now turn to the remedy. Under the authority of
section 1260, some courts have modified an unconstitutional
sentence to impose a certain and constitutional punishment.
(See People v. Schueren (1973) 10 Cal.3d 553, 561-562 [where
defendant was charged with a crime for which the maximum
penalty was 14 years in prison and convicted of a lesser crime
for which he was sentenced to an unconstitutional indeterminate
maximum-life term, court reduced the sentence to the maximum
permitted under the charged crime]; Dillon, supra, 34 Cal.3d
12 Because our conclusion is supported by the first
two methods identified in Lynch, we need not undertake
the third method, a comparison of defendant’s punishment
with the punishment for similar crimes in other jurisdictions.
(See People v. Norman (2003) 109 Cal.App.4th 221, 230
[disproportionality need not be established under each Lynch
technique].) We also need not determine whether defendant’s
punishment violates the Eighth Amendment to the United States
Constitution
24
at p. 489 (plur. opn. by Mosk, J.) [where Court held that the
defendant’s sentence for first degree murder was constitutionally
excessive, it reduced the sentence to the punishment for second
degree murder].)
Generally, however, appellate courts have declined to
direct imposition of a particular sentence and simply remanded
with directions to resentence the defendant in light of the views
expressed in the reviewing court’s opinion. (See, e.g., People v.
Keogh (1975) 46 Cal.App.3d 919, 935 [56-year sentence for four
forgery convictions was unconstitutional; court “remanded for
resentencing in light of the views expressed in [the] opinion”];
People v. Speight (2014) 227 Cal.App.4th 1229, 1249 [de facto life
sentence for juvenile reversed; court remanded case for a new
sentencing hearing without explicit direction]; People v. Mendez,
supra, 188 Cal.App.4th at p. 68 [same]; In re Nunez (2009)
173 Cal.App.4th 709, 739 [same].)
Here, defendant contends that we should remand with
directions to resentence defendant based upon the determinate
terms specified for violating the crime he committed without
regard to the unconstitutionally applied One Strike law. That
is, the court should sentence defendant under section 288,
subdivision (a), to three, six, or eight years for each of the
four counts for which there is substantial evidence, taking into
account appropriate aggravating and mitigating circumstances
and exercising its discretion as to whether such terms shall run
concurrently or consecutively. Although the Attorney General
had an opportunity to respond to this point in supplemental
briefing, he offered no alternative. We do not disagree with
the defendant’s proposed remedy, but decline to mandate it.
Although upon remand, the trial court may not impose
25
punishment under the One Strike law for the reasons set forth
above, we otherwise defer sentencing decisions to the trial court
to be made in accordance with the views we have expressed. 13
III. Defendant Was Not Denied Ineffective Assistance of
Counsel For Failing to Object to CSAAS Evidence
Defendant contends that his trial counsel’s performance
was constitutionally deficient because counsel failed to object to
Dr. Jones’s testimony on CSAAS as irrelevant and prejudicial.
We reject this contention because defendant has failed to
establish that any deficiency in counsel’s performance was
prejudicial.
“To prevail on a claim of ineffective assistance of counsel,
a defendant ‘ “must establish not only deficient performance, i.e.,
representation below an objective standard of reasonableness,
but also resultant prejudice.” ’ ” (People v. Maury (2003)
30 Cal.4th 342, 389.) To establish prejudice, “the record must
demonstrate ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” (Ibid.)
Courts need not determine whether counsel’s performance was
deficient before examining whether defendant has established
13 In addition to supplemental briefs regarding the cruel
or unusual punishment question, we requested and received
supplemental briefs addressing questions regarding the
court’s decision to impose consecutive 15-years-to-life terms
for two of the four counts. Because of our conclusion that
the indeterminate life-maximum terms are unconstitutional
as applied here, we need not reach these additional issues.
26
prejudice as a result of any alleged deficiency. (Strickland v.
Washington (1984) 466 U.S. 668, 697; People v. Cox (1991)
53 Cal.3d 618, 656.)
Testimony regarding CSAAS is inadmissible to prove that
child abuse occurred. (People v. Patino (1994) 26 Cal.App.4th
1737, 1744; People v. Bowker (1988) 203 Cal.App.3d 385, 393
(Bowker).) It may, however, be “ ‘admissible for the limited
purpose of disabusing a jury of misconceptions it might hold
about how a child reacts to a molestation.’ ” (People v. Wells
(2004) 118 Cal.App.4th 179, 188 (Wells).) “For instance, where
a child delays a significant period of time before reporting
an incident or pattern of abuse, an expert could testify that
such delayed reporting is not inconsistent with the secretive
environment often created by an abuser who occupies a position
of trust. Where an alleged victim recants his story in whole
or in part, a psychologist could testify on the basis of past
research that such behavior is not an uncommon response for
an abused child who is seeking to remove himself or herself from
the pressure created by police investigations and subsequent
court proceedings.” (Bowker, supra, 203 Cal.App.3d at p. 394.)
Although the admissibility of CSAAS evidence is dependent
upon the need, as shown by the evidence, to disabuse jurors of
misconceptions and myths about reactions to child abuse, the
prosecutor may offer CSAAS evidence during the case-in-chief
once the victim’s credibility has been placed in issue. (People v.
Patino, supra, 26 Cal.App.4th at p. 1744; Couzens & Bigelow,
Sex Crimes: Cal. Law and Procedure (The Rutter Group 2016)
Trial, § 12.8(d), p. 12-38.)
When expert CSAAS evidence is admissible, the “evidence
must be tailored to address the specific myth or misconception
27
suggested by the evidence.” (Wells, supra, 118 Cal.App.4th
at p. 188.) It must also be “limited to discussion of victims
as a class . . . and [may] not extend to discussion and diagnosis
of the witness in the case at hand.” (People v. Roscoe (1985)
168 Cal.App.3d 1093, 1100.) Lastly, the jury must be instructed
“that the expert’s testimony is not intended and should not
be used to determine whether the victim’s molestation claim is
true.” (Bowker, supra, 203 Cal.App.3d at p. 394.)14
Defendant and the Attorney General disagree as to
whether any objection to Dr. Jones’s testimony about CSAAS
would have been sustained. In particular, they dispute whether
there was any evidence that the victims displayed any behavior,
such as delaying their disclosure of the abuse or failing to call
out for help when the lewd conduct occurred, that would have
made Dr. Jones’s testimony regarding CSAAS relevant. We need
not decide these issues because even if an objection would have
had merit and defense counsel was constitutionally deficient
for failing to assert it, defendant has failed to show a reasonable
probability that, if Dr. Jones’s testimony was excluded, the result
of the proceeding would have been different.
Defendant’s defense at trial was that he did not touch G.
or M. as alleged. As defendant argues, this is a “he-said-she-said”
case in which defendant “denied the molestation” occurred.
14 In the instant case, the jury was instructed: “Jayme
Jones’[s] testimony about [CSAAS] is not evidence that . . .
defendant committed any of the crimes charged against him.
[¶] You may consider this evidence only in deciding whether
or not [the] complaining witnesses’ conduct was not inconsistent
with the conduct of someone who has been molested, and in
evaluating the believability of their testimony.”
28
The evidence that defendant committed the lewd acts, however,
was compelling. Not only did G. and M. testify that defendant
had touched their vaginas, but Mario testified that defendant
admitted to him that he did so, and that he asked Mario
for forgiveness. And, during his police interview, defendant
admitted touching and rubbing the girls’ legs and “vagina[s].”
At trial, defendant denied that he made the admission
to Mario. The denial, however, was impeached with his
statements to police officers about his conversation with Mario.
An officer asked him, “when your good friend told you that
you touched the girls’ vaginas, what did you say?” Defendant
responded: “I asked for forgiveness. I said, forgive me and it
won’t happen again. It won’t happen again. I told him like that.
He knows that I asked for forgiveness and I told him it wouldn’t
happen again.” The defendant’s response corroborates Mario’s
testimony regarding the conversation.
Defendant also asserted that he made his admissions
during the police interview because the officer told him “if I
wanted to go home, when I came to see the judge, that I should
do—that I should state there so the judge would believe me.”
Although this testimony is unclear, it suggests that defendant
made the admission because the officer told him the admission
would benefit him when he appeared before “the judge.” The
transcript of the interview, however, does not support this
suggestion. Indeed, it was only after defendant had admitted
touching the girls that he and an officer discussed what would
happen next. Defendant wanted to know if he was “going to
get out or what?” The officer told defendant that they will “take
this to court” and the “court decides what’s going to happen.”
Defendant then asked for the officer to “help” him. The officer
29
said that she asked defendant “to tell [her] the truth about
what happened,” so that she could “explain to the judge, to
the attorneys what happened.” She would “explain it all” and
then the “court decides what’s going to happen” and whether
defendant would “get out or not.” Defendant again asked for
help and promised the officer “that it won’t happen again.”
There is nothing to indicate that the officers told or suggested
to defendant to admit to touching the girls as a means of gaining
favor before a judge.
Even if the evidentiary prerequisites to CSAAS evidence
were lacking in this case and, therefore, Dr. Jones’s testimony
should have been excluded as irrelevant, her testimony was
limited to the discussion of child abuse victims generally and
how their seemingly paradoxical behavior can be explained
by the CSAAS model; she specifically testified that she had
not interviewed any victims or witnesses in this case and she
was not in court to render an opinion as to whether G. or M.
are victims of sexual abuse. The prosecutor did not mention
Dr. Jones’s testimony in his arguments to the jury, and the
jury was instructed that her “testimony about [CSAAS] is not
evidence that . . . defendant committed any of the charged crimes
against him”; they could “consider this evidence only in deciding
whether or not [the] complaining witnesses’ conduct was not
inconsistent with the conduct of someone who has been molested,
and in evaluating the believability of their testimony.” We
assume the jury followed this instruction. (See People v. Wilson
(2008) 44 Cal.4th 758, 798.)
In light of the overwhelming evidence that defendant
had touched the girls in the manner alleged in counts 1, 2, 4,
and 5, the lack of support for defendant’s defense, the nature
30
of Dr. Jones’s testimony, the absence of any reference to her
testimony during closing arguments, and the court’s instruction
regarding the limited purpose of the testimony, there is no
reasonable probability that defendant would have obtained a
more favorable result if the testimony had been excluded.
Defendant further argues that Dr. Jones indicated that
the touching that occurred in this case “was ‘equal’ to ‘a full-on
penetration of a penis and a vagina,’ ” and thus suggested the
defendant “was a rapist.” The argument is without merit. In
the pages defendant cites for this argument, Dr. Jones merely
testified that in terms of the traumatic impact on a child, the
closeness of the relationship between the child and the abuser
tends to be more important than the nature of the abuse. She
also testified that even a “minimal amount of abuse” that does
not involve sexual penetration can have an effect on the child.
Nothing in the record suggests that Dr. Jones stated or implied
that defendant’s touching was equal to sexual penetration or that
defendant was a rapist.
IV. Court Must Correct Custody Credits
Cadena contends he is entitled to three additional days
of presentence custody credit because the court miscalculated
the days that he spent in actual custody. The Attorney General
concedes the point, and points out the actual number is
four additional days, not three. We agree defendant is entitled
to four additional days.
When calculating conduct credit, the court must take into
account the days of arrest and sentencing, as well as all days in
between spent in custody. (People v. Bravo (1990) 219 Cal.App.3d
729, 735.) Defendant was in custody from April 12, 2016 to
February 22, 2017, which is 317 days, but he was awarded only
31
313 days of custody credit. He is entitled to the additional
four days.
V. Defendant’s Argument For Trial Court Discretion
to Strike the One Strike Law Special Circumstance
is Moot
Defendant argues that the policies underlying
recent statutory amendments that grant to trial courts the
authority to strike or dismiss firearm enhancements under
section 12022.53 (Stats. 2017, ch. 682, § 2), or prior convictions
under the Three Strikes law (Stats. 2018, ch. 1013, § 1), should
be applied to permit the court the same power to strike the
special circumstance findings under the One Strike law. This
issue, however, is mooted by our holding that the One Strike law
was applied in an unconstitutional manner in this case, and that
defendant should be sentenced under section 288, subdivision (a).
32
DISPOSITION
The convictions on counts 3 and 6 are vacated based
on insufficiency of evidence and the sentence is vacated
as unconstitutionally excessive. The judgment is otherwise
affirmed. The superior court shall hold a new sentencing
hearing in accordance with the views expressed herein.
CERTIFIED FOR PARTIAL PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
33