P. v. Cole

Filed 7/19/07 P. v. Cole CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

‑‑‑‑

Defendant Robert Lee Cole was convicted by a jury of 12 counts of lewd conduct with a child (Pen. Code,  288, subd. (a),^[1]sodomy of a child ( 269, subd. (a)(3)), rape of a child ( 269, subd. (a)(1)), and a lewd act upon a child by force or fear ( 288, subd. (b)(1)), crimes that were perpetrated on two stepdaughters over a five-year period. The jury also rendered special Blakely^[2] findings that defendant inflicted great bodily injury, abused a position of trust and confidence and evinced cruelty, callousness and viciousness in committing the offenses.

After the court found that defendant had two prior strike felonies ( 1170.12) and one prior prison term ( 667.5, subd. (b)), he was sentenced to state prison for 630 years to life, plus 14 years.

On appeal, defendant raises a host of instructional, evidentiary and sentencing errors by the trial court. With the exception of minor sentence modifications, we shall affirm the judgment.

FACTUAL BACKGROUND

The two child victims in this case, A.C. and T.W., are each daughters of women that defendant was married to at one time.

A.C. (counts 1 through 13)

Defendant moved in with D.H. and three of her children in 1994. At the time, her daughter A.C. was four years old. Defendant worked sporadically and took care of the children after school, while D.H. worked. Defendant would sometimes break up with D.H. and return to his former wife R.W.; over the years, he went back and forth between the two women.

A.C., who was 14 years old at the time of trial, testified that defendant started molesting her at age seven. He would play games with her while her mother was at work and touched her private areas while she was naked, or sometimes underneath her clothes. When she was eight, defendant engaged in similar touchings. He also warned her not to tell her mother.

When A.C. was nine years old, defendant had sexual intercourse with her for the first time. He approached her while she was lying on the couch and started tickling and touching her, prompting her to tell him she did not want to play and to get off. Ignoring her pleas, he grabbed her arms and removed her clothes, as she tried to fight him off. He forcibly inserted his penis in her vagina, causing her pain. At one point, the doorbell rang, causing defendant to jump up. He told A.C. to go to her room and warned her, You better not say nothing. Four or five days later, defendant again forced himself on her, kissing and fondling her as she was coming out of the bathroom. The attack stopped when her brother (his son) walked into the room. Afterward, defendant started having regular intercourse with A.C., threatening to kill her and whomever she told if she disclosed the molestations.

Defendant was not around much when A.C. was 10 years old and did not have sexual intercourse with her during that time. However, he often touched her breasts and vagina.

When A.C. was 11, defendant fondled her breasts and vagina, but did not have sex with her. When she was 12, defendant approached A.C. as she was lying asleep on the couch and stuck his penis into [her] butt, causing her to scream and cry out. A.C. told him she would do everything in her power to get him out of the house, to which he responded, Youre not going to do nothing because if you do Im going to kill you. On another occasion, defendant approached her in the living room and started fondling her thighs. He put his hand underneath her shirt and pushed her down on the couch. Holding her down, defendant forced his penis in A.C.s vagina and raped her for two minutes, until the doorbell rang. He jumped up and put his clothes on, warning her as he left the room not to tell anyone or he would kill her. Three days later, defendant was incarcerated.

From the time she was nine until she reached the age of 12, defendant had intercourse with A.C. an average of two to three times per week.

In 2003, shortly after defendant went to jail, A.C. revealed to her mother that he had been molesting her. Her mother dismissed the accusation, telling A.C. that nothing had happened, that it was all in her head and that she was just mad at defendant for things he had done. Her mother drove her to Kaiser Hospital and they sat in the parking lot for 30 minutes but never went inside.

On August 8, 2003, at a youth retreat where other girls talked about molestation, A.C. told her church youth ministers wife that she had been molested by her brothers father. She advised A.C. to report it to her mother, offering her assistance in doing so.^[3]

In early 2004, A.C. revealed the molestations to her grandmother, who then spoke to D.H. about it. Eventually, D.H. took A.C. to Kaiser to have her examined.

Kaiser pediatrician Lynn Bagge, M.D., saw A.C. on May 26, 2004. A.C. reported the sexual assaults to Dr. Bagge in a manner consistent with her testimony at trial. However, Dr. Bagge was unable to complete an internal examination because A.C. was uncomfortable and unable to tolerate the instruments. Dr. Bagge did notify the Sacramento police however, and A.C. was interviewed by Sacramento Police Officer James Walker the same evening. A.C. told him that she had been molested by defendant from the time she was seven, and that, between the ages of nine to 12, he had intercourse with her two to three times a week and sodomized her once a week until March 2003.

Nurse Practitioner Glendora Trestler, who was qualified as an expert in sexual assault examinations, testified that she examined A.C. on June 15, 2004, when A.C. was 13 years 10 months old. A.C. told her she had been molested from ages nine through 12, including sexual intercourse and sodomy.

Based on her examination, Nurse Trestler testified that A.C.s hymen, instead of being full, was narrow on both sides, with scalloped edges, consistent with a pattern of repeated sexual intercourse over time. The anal exam was normal, but since the anus is very elastic and heals over time, this finding was not inconsistent with A.C.s allegation of having been sodomized more than a year earlier.

A peer review of Nurse Trestlers examination conducted by a three-person team of medical practitioners confirmed her finding of abnormal genitalia, consistent with penile penetration on multiple occasions.

T.W. (counts 14 and 15)

T.W., who was 15 at the time of trial, testified that defendant was once married to her mother R.W. When she was in the seventh grade, defendant called her into her sisters bedroom after a family dinner. While sitting on the bed, defendant told T.W. to Come here. When she complied, he began touching her chest and vagina underneath her pajamas. He pulled her panties down and, while she was lying on her back, tried to insert his penis into her vagina, causing her pain. When she cried out, he told her Shh, be quiet, and licked her vagina for several minutes.

When defendant was finished, he warned her that if she said anything I will kill you, and Im not going to buy you nothing.

In 2004, while visiting her sister J.R. in Washington, T.W. got drunk and confided that defendant had molested her. J.R. then phoned their mother R.W. so that T.W. could tell her. T.W. was unable to talk, so she passed the phone to her sister, who informed their mother what had happened. J.R. also helped T.W. write and mail a letter documenting what defendant had done to her. At the time, T.W. was unaware of A.C.s allegation of molestation against defendant.

Uncharged act‑‑J.R.

J.R. is T.W.s older sister. Once, defendant tried to French kiss J.R. on the couch, causing her to spit back at him. He told her not to tell her mother or she would get in trouble, because her mother would believe him.

In 1993, when J.R. was 11 years old, she was playing a game with defendant when he pulled her on top of him, put his hands on her buttocks and was grinding her onto him. She felt his penis, heard him moan and felt him shake, causing her now to believe that he had an orgasm. She reported the incident to her school principal, who notified the police. J.R. described the incident in a police interview, after which defendant was taken to jail.

Defense

Defendant took the stand in his own defense. He admitted having been convicted of two counts of robbery, misdemeanor spousal abuse, assault with force likely to produce great bodily injury and giving false information to a police officer. Defendant categorically denied all the molestation accusations. He claimed A.C. did not like him because he was a strict disciplinarian. He also asserted that A.C. and T.W. wanted him out of their homes because he was cheating on their mothers.

Despite his insistence that the victims were lying, on cross-examination, after defendant testified he went back and forth between R.W. and D.H. because he was not working and needed a place to stay, the following exchange occurred:

Q: What were they [R.W. and D.H. (the girls mothers)] using you for? . . . [] . . . []

A: Sex.

Q: They were using you for sex? [] . . . []

A: Yes, maam.

Q: And you were using their daughters?

A: I was using them as well for sex.^[4]

DISCUSSION

I. Prior Uncharged Molestation of J.R.

Defendant first contends that the trial court committed evidentiary error and violated his constitutional rights in admitting evidence that he molested J.R., the older sister of one of the victims, when she was 11 years old.

Evidence Code section 1108, subdivision (a) provides that evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

Defendant first contends that Evidence Code section 1108 is unconstitutional, in that it violates his due process and equal protection rights. Defendants due process argument was rejected by the California Supreme Court in People v. Falsetta (1999) 21 Cal.4th 903, 910-922. That ruling is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We rejected an equal protection challenge to the statute in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185. We find no persuasive reason to reconsider our decision in that case.

This leaves the contention that the J.R. evidence should have been excluded as more prejudicial than probative, pursuant to Evidence Code section 352. The claim lacks merit.

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Defendant claims the evidence regarding J.R. should have been excluded because the incident was remote in time and her description of grinding and kissing was quite dissimilar to the more substantial and overt sexual conduct described by T.W. and A.C. We disagree.

The J.R. evidence was highly probative in that it showed a unique pattern by defendant of sexually abusing his stepdaughters, consistent with a propensity to commit the charged offenses. In each case, defendant chose a preteen stepdaughter, over whom he exercised parental authority and whom he could easily control; with each victim, he began with touching and fondling, then escalated to more overt sexual conduct; and in each case, defendant threatened the victim after the molestation, in an attempt to silence her.

At the risk of stating the obvious, we also conclude that attempting to French kiss a preteen girl and grinding against her, while holding her buttocks until the perpetrator reaches ejaculation, were not dissimilar acts to the charged offenses.

In support of his argument that the J.R. evidence should have been excluded, defendant cites People v. Harris (1998) 60 Cal.App.4th 727, in which we concluded the trial court abused its discretion under Evidence Code section 352 in admitting evidence of a 23-year-old sexual offense in a prosecution of a mental health nurse who was charged with sexual offenses involving lick[ing] and fondl[ing] an incapacitated woman and a former sexual partner, both of whom were thereafter on speaking terms with him. (Harris, at p. 738.) In contrast, the prior incident involved a viciously beaten and bloody victim who, as far as the jury knew, was a stranger to the defendant. (Ibid.)

Harris bears no resemblance to the present case. In reversing the Harris conviction, we reviewed the various factors relevant to the prejudice inquiry and concluded those factors far outweighed the slight probative value of the evidence. (Harris, supra, 60 Cal.App.4th at pp. 738-741.) In particular, we found the evidence of the prior offense inflammatory in the extreme in comparison to the charged offenses. (Id. at p. 738, italics omitted.) Another factor that strongly influenced our decision was the remoteness of the prior incident. We stated that [a]lthough there is no bright-line rule, 23 years is a long time. (Id. at p. 739.)

Here, remoteness did not favor exclusion, since the uncharged offenses took place in 1993, only four years before defendant began his molestation of A.C.

The evidence pertaining to J.R. was not inflammatory in comparison to the charged offenses, nor did it require an undue consumption of time. On the other hand, the incident was highly probative on the key issue of whether defendant had a propensity to commit sexual offenses against his adolescent stepdaughters, in a case that defendant himself characterizes as a credibility contest between the victims and defendant. On this record, we are satisfied that the trial court acted reasonably and within its discretion in admitting the J.R. evidence.

II. Evidence of A.C.s Association with a Boy

The defense made no attempt to introduce evidence of other sexual conduct by the victims pursuant to Evidence Code section 782.^[5]

During direct examination of defendant, his attorney elicited the fact that defendant regularly drove A.C. to church. Defense counsel then asked, When you picked her up, was there anything unusual about when you picked her up? Defendant answered, Well, when I picked her up she would always be waiting like in front of the church with this boy all the time. At this point, the prosecutor interjected and a hearing was held outside of the presence of the jury on the admissibility of the proposed testimony.

The prosecutor contended the defenses attempt to introduce testimony regarding A.C.s untoward association with a boy should be excluded as evidence of sexual conduct, which was clearly inadmissible without an Evidence Code section 782 motion and hearing. Defense counsel responded that he was not seeking to pursue any sexual relationship [between A.C. and the boy], but sought only to elicit testimony that defendant had disciplined A.C. for being with the boy and that A.C. hated him for being a disciplinarian, thus giving her an additional motive to lie.

The trial court ruled that even if defense counsel did not directly accuse A.C. of being sexually active with the boy, the implication of the proposed testimony in the eyes of the jury was that she was engaging in some sort of inappropriate, i.e., sexual, conduct.^[6] The trial court ruled that since the unavoidable impact of the testimony would be to plant the suggestion that A.C. was engaging in sexual conduct with someone other than defendant, the testimony would be stricken and defense counsel prohibited from mentioning it, under Evidence Code section 782.

Defendant now contends the trial court erred prejudicially in excluding the testimony regarding the boy because it did not implicate Evidence Code section 782, and it was highly probative as impeachment of A.C. Defendant insists the evidence showed only that his disapproval of A.C.s association with a male friend provided another motive for A.C. to lie about the molestations.

We disagree with defendant and agree with the trial court that, notwithstanding counsels stated purpose, the evidence carried an almost compelling suggestion that A.C. was engaging in inappropriate conduct with a boy her age. As the trial judge pointed out, defendants disapproval of A.C. standing in front of a church with a boy made no sense absent the suggestion that something inappropriate was going on between them outside of church. As such, defendant was improperly attempting to introduce evidence of A.C.s untoward sexual behavior through the back door, without complying with the procedural safeguards of Evidence Code section 782.

In any event, any error in excluding the evidence was surely harmless. (Cal. Const., art. VI,  13; Evid. Code,  354.)

The jury received plenty of evidence from other sources that defendant was a strict disciplinarian, and that A.C. did not like him because of it. That defendant also disapproved of her associating with a boy was cumulative and added almost nothing to the defense case.

What is more, it is far from clear that defendant would have benefited from the evidence. The jury could easily have inferred that defendant disapproved of A.C.s association with a boy her age out of jealousy or possessiveness, thus adding credibility to her testimony that defendant was carrying on an ongoing sexual relationship with her. Admission of the subject evidence could very easily have been more damaging than helpful to the defense. For all of these reasons, it is not reasonably probable that defendant would have obtained a better result had the evidence been admitted. (See People v. Cunningham (2001) 25 Cal.4th 926, 999.) We find no reversible error in the trial courts ruling.

III. CALJIC No. 2.21.2

The trial court gave CALJIC No. 2.21.2, which provides in pertinent part, You may reject the whole testimony of a witness who willfully has testified falsely to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars. (Italics added.) While acknowledging that the California Supreme Court has upheld the instruction in a number of contexts (e.g., People v. Cleveland (2004) 32 Cal.4th 704, 751 [the instruction does not reduce prosecutions burden of proof]), defendant claims that giving the instruction constitutes federal constitutional error because the language italicized above lessens the prosecutions burden of proving guilt beyond a reasonable doubt.

Defendants claim is not cognizable on appeal because (1) he never raised a constitutional objection to the instruction in the trial court (Evid. Code,  353; People v. Garceau (1993) 6 Cal.4th 140, 173 (Garceau)); (2) defense counsel agreed to the giving of the instruction and certainly had a tactical reason for doing so, since a key component of his defense was that the victims had lied about other matters and could not be trusted in their molestation accusations (People v. Wader (1993) 5 Cal.4th 610, 657-658 (Wader)); and (3) the authority he cites does not support his predicate assertion that credibility determinations by a trier of fact are governed by a beyond a reasonable doubt rather than by a preponderance of the evidence standard (People v. Stanley (1995) 10 Cal.4th 764, 793).

IV. CALJIC Nos. 2.50.01 and 2.50.1

Defendant claims that even if Evidence Code section 1108 is constitutional, the instructions the trial court gave that accompanied it, CALJIC Nos. 2.50.01 and 2.50.1, constituted federal due process error and deprived him of a fair trial. As given to the jury, CALJIC No. 2.50.01 provides in relevant part:

If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes of which he is accused.

However, if you find by a preponderance of the evidence that the defendant committed a prior sexual offense, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crime. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.

Unless you are otherwise instructed, you must not consider this evidence for any other purpose.

The accompanying instruction, CALJIC No. 2.50.1, provides:

Within the meaning of the preceding instructions, the prosecution has the burden of proving by a preponderance of the evidence that a defendant committed crimes or sexual offenses other than those for which he is on trial.

You must not consider this evidence for any purpose unless you find by a preponderance of the evidence that the defendant committed the other crimes or sexual offenses.

If you find other crimes were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant is guilty of that crime.

The record shows that defense counsel failed to lodge a constitutional objection to these twin instructions and in fact joined in requesting them. Counsel clearly had a tactical reason for requesting both instructions, since each contains several cautionary admonitions favorable to the defense. Thus, defendant is precluded by the doctrines of invited error (Wader, supra, 5 Cal.4th at pp. 657-658) and waiver (Garceau, supra, 6 Cal.4th at p. 173) from raising constitutional objections to the instructions for the first time on appeal.^[7]

In any event, defendants constitutional arguments challenging CALJIC No. 2.50.01 are not materially distinguishable from similar claims that have been rejected by the California Supreme Court in People v. Reliford (2003) 29 Cal.4th 1007, 1013-1015, People v. Carpenter (1997) 15 Cal.4th 312, 380-383, and People v. Medina (1995) 11 Cal.4th 694, 762-764. These decisions are binding upon us. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) We also agree with People v. Van Winkle (1999) 75 Cal.App.4th 133, 142-149, which held that CALJIC No. 2.50.01 passes constitutional muster and does not deprive a defendant of due process of law.

V. Failure to Instruct on Elements of One Strike Law

Defendant claims that the trial court erred in failing to give the jury instructions on all the probation-eligibility elements necessary to bring the subject offenses within the one strike law. The statute, section 667.61, subdivision (a), prescribes a life sentence with no probation eligibility for 25 years for a defendant found guilty of certain sex crimes enumerated in subdivision (c) against more than one victim. Included among those crimes is a violation of section 288, subdivision (a).^[8] Defendant fell within the provisions of this law by virtue of his convictions of violating section 288, subdivision (a) against A.C. and T.W.

As defendant points out, however, the life sentence mandate does not apply if the section 288, subdivision (a) conviction qualified for probation under section 1203.066. ( 667.61, subds. (a), (c)(7).) From this predicate, he argues that the trial court committed reversible error in not submitting to the jury every single element (there are five of them) that might have qualified him for probation.^[9]

The argument is without merit. Enhancements are not separate offenses but sentencing statutes that define and prescribe certain penalties based on the commission of the crime and the history of the offender. (People v. Wims (1995) 10 Cal.4th 293, 304-305.) As we held in People v. Benitez (2005) 127 Cal.App.4th 1274, 1278, because probation is an act of clemency, finding a defendant ineligible for probation does not increase his punishment and a failure to have a jury render findings on probation eligibility does not violate his constitutional rights as set forth in Blakely, supra, 542 U.S. at page 303 [159 L.Ed.2d at pp. 413-414]. Hence, defendant had no right to jury findings, let alone instructions, on the probation eligibility factors set forth in section 1203.066.

In any event, as the Attorney General points out, defendant was statutorily ineligible from receiving probation by virtue of other jury findings that his offenses involved threats of great bodily harm, and that he was guilty of forcible sodomy and rape, both of which qualify as substantial sexual conduct with a child. (See  1203.066, subds. (a)(1) & (8), (b).) And, as defendant himself tacitly acknowledges, he also was precluded from receiving probation by virtue of his prior felony convictions. ( 667, subd. (c)(2).)

Defendant had no right to jury instructions on exceptions that might have granted him a reprieve from a life sentence, where that sentence was dictated as a matter of law by application of other statutory mandates.

VI. Failure to Instruct on Separate Occasions

Section 667.61, former subdivision (g)^[10] requires a life sentence for each enumerated sex offense when committed on separate occasions or on more than one victim on multiple occasions. Defendant claims that the trial court erred in failing to tell the jury that the separate occasions finding pursuant to this statute must be proved beyond a reasonable doubt. We disagree.

The trial court gave CALJIC No. 17.02, which told the jurors that each count charged a separate crime requiring distinct findings of guilt reflected on separate verdicts. The court also told them to consider each and every one of these charges, each and every one of these special allegations separately and that is why I read them to you separately. If defendant desired a more specific instruction on the subject, it was incumbent upon him to have requested one. Since he did not, the point has been forfeited. (People v. Hill (1992) 3 Cal.4th 959, 997, overruled on a different ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

VII. CALJIC No. 10.64

Psychologist Anthony Urquiza, Ph.D., testified for the prosecution regarding child sexual abuse accommodation syndrome (CSAAS). He described the stages and elements, including delayed and unconvincing disclosure, recantations, aborted attempts to disclose, and flat demeanor while recounting abuse. Before Dr. Urquiza took the stand, defense counsel was opposed to giving CALJIC No. 10.64, which cautions the jury about use of expert testimony on CSAAS. Defense counsel initially took the position that he did not want the instruction read, and the court deferred to his wishes. After the expert testimony was given, however, counsel changed his mind and told the court that it should be read.

The court reconvened the jury and informed them that there was a jury instruction that might be helpful in understanding Dr. Urquizas testimony and that counsel and the court agreed it would be helpful to be read to them now. The court then read CALJIC No. 10.64.^[11]

In diametrical opposition to his trial counterpart, appellate counsel argues that the instruction was prejudicial and should never have been given.

The point is nonreviewable. Under the doctrine of invited error, a defendant may not complain of an erroneous instruction given at his own request. (People v. Lucero (2000) 23 Cal.4th 692, 723-724; see also Peoplev. Wickersham (1982) 32 Cal.3d 307, 330 [If defense counsel intentionally caused the trial court to err, the [defendant] cannot be heard to complain on appeal], disapproved on a separate ground in People v. Barton (1995) 12 Cal.4th 186, 200-201.)

VIII. Cumulative Error

Defendant claims that an assessment of the cumulative effect of the trial errors he raises mandates reversal of the judgment. Since we find no such error, this claim is moot.

IX. Prior Prison Term

The trial court imposed 14 one-year prior prison term enhancements, owing to the true finding that defendant had served a prior prison term for aggravated assault. ( 667.5, subd. (b).)

Defendant argues that none of the enhancements was justified because the prior prison term was not completed by the time he committed the charged offenses. As the Attorney General concedes, the point is well taken.

Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563, italics added.)

The prior prison term alleged in the information was aggravated assault. ( 245, subd. (a)(1).) Defendant was convicted of this offense on April 2, 2003, and sentenced to two years in state prison. The record shows he was incarcerated on or about that date and was not released until March 27, 2004. Yet the last molestation offense of which he was convicted occurred sometime before August 11, 2003.

Because defendants prior prison term had not been completed before any of the offenses were committed, the enhancement of section 667.5 did not apply. We shall therefore order that all 14 one-year enhancements be stricken.

X. Multiple-Victim Circumstance

Section 667.61 requires a life sentence in each instance when the defendant is convicted of an enumerated sexual offense and the People plead and prove one or more specified aggravating circumstances. ( 667.61, subds. (a)-(e).) The trial court sentenced defendant to 14 consecutive life terms based on the circumstance set forth in subdivision (e)(5), which requires a life term when [t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.

Defendant argues that applying section 667.61, subdivision (e)(5) more than once per victim violates the prohibition against multiple punishment set forth in section 654.

Section 654, subdivision (a) provides 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.

The argument defendant advances was rejected in People v. DeSimone (1998) 62 Cal.App.4th 693, 700 (DeSimone). In DeSimone the defendant was convicted of multiple sexual offenses against his minor stepdaughter and his spouse. (Id. at p. 695.) The court upheld two life terms based on the multiple-victim circumstance of section 667.61, subdivision (e)(5). After recognizing the Legislatures concern that [o]ffenders who strike against multiple victims are among the most dangerous (id. at p. 698), the court held that the plain language of the statute in no way suggests an intent to limit the multiple[‑]victim circumstance to one life term per case (id. at pp. 698-699).

Defendant asks this court to disagree with DeSimones conclusion that the multiple-victim circumstance provision is a recidivist- or status-based penalty, and thus not subject to section 654. (DeSimone, supra, 62 Cal.App.4th at p. 701.)

We decline the invitation. Like other habitual offender provisions, section 667.61, subdivision (e)(5) merely specifies the applicable sentence upon the present conviction for one with a certain criminal history. It is the current offense which calls for the penalty, the magnitude of which is attributable to [the defendants] status as a repeat offender. [Citations.] That the conviction used to invoke punishment under subdivision (e)(5) occurred in the present case rather than in a prior proceeding does not warrant a different application of section 654. (DeSimone, supra, 62 Cal.App.4th at p. 700; accord, People v. Murphy (1998) 65 Cal.App.4th 35, 40-41 (Murphy) [one strike law requires one indeterminate life term per victim, per occasion].)

Defendant nevertheless claims that DeSimone and Murphy are distinguishable because, unlike the present case, the number of life sentences did not exceed the number of victims. The point is irrelevant.

In this case, each sex crime defendant committed occurred on a different occasion and involved a discrete act. Section 654 precludes multiple punishments for offenses committed as part of an indivisible course of conduct with a single intent and objective. But when offenses are independent of one another, a defendant may be punished separately even though the offenses share common attributes or were part of an otherwise indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294; People v. Green (1996) 50 Cal.App.4th 1076, 1084-1085.) Here, defendant was convicted of molesting A.C. on 13 different occasions over a six-year period and T.W. on two other occasions during a two-year period. Separate life sentences for these acts did not violate section 654.

XI. Cruel and Unusual Punishment

Defendant contends his sentence of 630 years to life plus 14 years violates the state and federal proscriptions against cruel and unusual punishment. However, because the claim is fact based and he failed to raise the issue in the trial court, it has been forfeited. (People v. Kelley (1997) 52 Cal.App.4th 568, 583; People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) In any event, even if defendant had properly preserved the issue, the claim would fail.

A. California Standard

A punishment violates the California Constitution if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) In applying this principle, we look to: (1) the nature of the offense and the offender; (2) a comparison with the penalty for more serious crimes in the same jurisdiction; and (3) a comparison with the punishment imposed for the same offense in different jurisdictions. (Id. at pp. 425-427.)

Here, defendants offenses were reprehensible in the extreme: He took advantage of a position of trust and authority repeatedly to sexually abuse and traumatize two stepdaughters during their preteen and adolescent stages of development. He committed 15 separate sex crimes, forcing himself on his victims and threatening them to ensure their silence.

Defendants prior record, while not consisting of sex offenses, shows him to be a dangerous and violent career criminal. In 1988, he committed two armed robberies, one of a gas station attendant and another of a 23-year-old female who had just driven into her driveway. In 1991 and 1992, he was convicted of obstructing a peace officer and presenting false identification to a peace officer. In 1995, he was convicted of possession of a controlled substance and driving under the influence. In 2000, he was convicted of spousal battery as a result of an incident in which he choked the victim and punched her in the head. In 2002, he was convicted of assault with a deadly weapon (striking the victim with a gun), making terrorist threats, being a felon in possession of a firearm, and spousal battery, arising from an incident in which he grabbed the victim by the throat and began strangling her.

Defendant complains that his sentence will keep [him] in prison long past the time when a person convicted of first degree murder would be eligible for parole‑‑and long past the age [when he] would be likely to repeat anything like the charged offenses . . . .

This argument disregards the fact that defendants sentence represents a cumulative punishment resulting from the commission of numerous offenses on multiple victims. Thus, [t]he penalties for single offenses, such as those defendant cites, cannot properly be compared to those for multiple offenses. (People v. Crooks (1997) 55 Cal.App.4th 797, 807.)

Furthermore, the Legislature is justified in choosing to treat child molesters differently than other types of offenders for sentencing purposes; the Legislature was well within its constitutional prerogatives when it mandated full-term consecutive sentences for the type of sex crimes we see in this case. (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 531 [upholding 129-year sentence consisting of 20 consecutive midterm sentences for a variety of sex crimes committed against stepdaughter (id. at pp. 530-531)].)

Contrary to defendants claim that his term is grossly disproportionate, we find him to be a poster child for a sentence that ensures he will never see the outside of a prison cell. The punishment meted out for the present crimes did not exceed constitutional limitations, given their extreme reprehensibility and defendants extensive history as a violent repeat offender.

B. Federal Standard

Defendants challenge under the Eighth Amendment to the United States Constitution fares no better. Under the federal standard, the question is whether the sentence is grossly disproportionate to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [115 L.Ed.2d 836, 869]; United States v. Bland (9th Cir. 1992) 961 F.2d 123, 129.) While defendants sentence is severe, it is not grossly disproportionate to his crimes. As the Ninth Circuit observed in Cacoperdo v. Demosthenes (1994) 37 F.3d 504, 508, which upheld consecutive sentences on 10 counts of sexually abusing three stepdaughters, [s]exual molestation of a child is a very serious offense. Here, defendant was convicted of 15 molestations against two victims, reflecting a pattern of conduct that continued over many years. The grave impact of the crimes on the lives of these children cannot be overestimated. The danger defendant poses to society is underscored by his repetitive and predatory conduct, his abuse of a position of trust and authority, and the vulnerability of the victims he targeted.

We conclude defendants sentence did not violate state or federal prohibitions on cruel or unusual punishment.

XII. Correction of Abstract of Judgment

Defendant points out that the abstract of judgment incorrectly specifies that he was sentenced to life terms without the possibility of parole. As the Attorney General concedes, this argument has merit. The box LIFE WITH POSSIBILITY OF PAROLE should have been checked instead. We will order a correction.

DISPOSITION

The trial court is directed to amend the abstract of judgment by striking the 14 one-year determinate sentence enhancements imposed under Penal Code section 667.5, subdivision (b) (item 3); and by changing items 4 and 5 to indicate that the life sentence carries the possibility of parole. The court is further directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. So modified the judgment is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P. J.

CANTIL-SAKAUYE , J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2]Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413-414] (Blakely).

^[3] The youth ministers wife testified at trial, but could not recall speaking to A.C. at the retreat.

^[4] Defendant contends this supposed Freudian slip was him stating he used the women (like they used him) for sex, during a rapid-fire cross-examination.

^[5] Evidence Code section 782 requires a defendant seeking to introduce evidence of the victims prior sexual conduct to file a written motion accompanied by an affidavit containing an offer of proof concerning the relevancy of the evidence to the complaining witnesss credibility. ( 782, subd. (a)(1) & (2).) If the offer of proof is sufficient, the court must conduct a hearing outside the presence of the jury and allow defense counsel to question the complaining witness regarding the offer of proof. ( 782, subd. (a)(3).) The defense may offer evidence of the victims sexual conduct to attack the victims credibility if the trial judge concludes following the hearing that the prejudicial and other effects enumerated in Evidence Code section 352 are substantially outweighed by the probative value of the impeaching evidence. (People v. Chandler (1997) 56 Cal.App.4th 703, 708;  782, subd. (a)(4).)

^[6] Said the trial judge: And now we have before the jury that she was always with this boy. And if you had gone further and said, I disciplined her because I did not think it was right to be with a boy, the logical rationale and inference is going to be that, wink, wink, she must have been sexually active. Or even if not intended, in a case like this that is the result of that kind of information coming out.

^[7] Defendants argument that the court committed a second error because it did not define for the jury what preponderance of the evidence meant is also forfeited. A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested the appropriate clarifying or amplifying language. (People v. Lang (1989) 49 Cal.3d 991, 1024.)

^[8] At the time of his conviction in 2005, section 667.61 provided in relevant part:

(a) A person who is convicted of an offense specified in subdivision (c) . . . under two or more of the circumstances specified in subdivision (e) [satisfied here] shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years . . . . [] . . . []

(c) This section shall apply to any of the following offenses: [] . . . []

(7) A violation of subdivision (a) of Section 288 [of which defendant was convicted] unless the defendant qualifies for probation under subdivision (c) of Section 1203.066. (Stats. 1998, ch. 936,  9, italics added.)

^[9] Under former subdivision (c) of section 1203.066, paragraphs 7, 8 and 9 of subdivision (a) (the probation ineligibility provision) are not applicable if the court makes all of the following findings:

(1) The defendant is the victims natural parent, adoptive parent, stepparent, relative, or is a member of the victims household who has lived in the victims household.

(2) A grant of probation to the defendant is in the best interest of the child.

(3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation . . . .

(4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant [to the home]. . . .

(5) There is no threat of physical harm to the child victim if probation is granted. . . . [] . . . [] (Stats. 1997, ch. 817,  13.)

^[10] Former subdivision (g) of section 667.61 was in effect at the time of defendants trial. (Stats. 1998, ch. 936,  9.)

^[11] The instruction cautions that testimony concerning CSAAS is not received and must not be considered by you as proof that the alleged victims molestation claims are true. It reminds the jurors that the defendant is presumed innocent and the People have the burden of proving guilt beyond a reasonable doubt. It concludes with the admonition that evidence concerning CSAAS was received only for the limited purpose of showing, if it does, that the alleged victims reaction as demonstrated by the evidence [is] not inconsistent with her having been molested.