Filed 8/11/17 P. v. Glines CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL CLAIR GLINES,

Defendant and Appellant.


G053295

(Super. Ct. No. 12HF2277)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
Michael Clair Glines appeals from a judgment after a jury convicted him of numerous sexual offenses against multiple child victims, including his own daughter. Glines argues his lengthy sentence constituted cruel and unusual punishment, the trial court erred by failing to consider probation for crimes committed before 2006, and the court improperly imposed separate sentences. None of his contentions have merit, and we affirm the judgment.
FACTS
Glines and his family lived in the same neighborhood as the B. family and the F. family. Glines resided with his wife and their three daughters. The B. family included mother M.B. and father B., their sons G.B. and H.B., and a daughter K.B. The F. family consisted of mother M.F., father R.F., and their two daughters T.F. and J.F. The three families considered one another good neighbors, socialized with each other, and their children played together.
Glines spent a lot of time in his garage with the door open. The children in the neighborhood regularly visited Glines in his garage and played with his daughters in the driveway. Glines had a machine used to reload bullets in his garage, and the children went to see him making bullets. He regularly gave them candy.
In 2013, the B. family invited the Glines family over for a barbeque. When M.B. told her children that Glines was coming over, K.B. told her mother that Glines always does something “embarrassing and gross.” H.B. told his mother that Glines “always touches my pee pee.” K.B. then said, “me too.” M.B. spoke with the children separately and called her husband. She cancelled the barbeque.
The B. family contacted the police. K.B. and H.B. had child abuse services team (CAST) interviews. During her CAST interview, K.B. disclosed that on several occasions Glines had touched and licked her vagina while she was helping him make bullets in his garage. She said her neighbors, T.F. and J.F., had witnessed one of the events of molestation. H.B. stated in his interview that he would sit on Glines’s lap while making bullets with him. Glines would reach inside H.B.’s underwear and touch his “pee pee.” H.B. said the molestation started when he was four years old and lasted until he was eight years old. H.B. also saw Glines touch K.B. under her dress. Police arrested Glines soon after H.B. and K.B. made the allegations. When first confronted with the allegations during a covert telephone call, Glines asserted he never did anything intentionally to K.B. and claimed not to remember touching H.B., but said it was possible due to his drinking.
After Glines was arrested, police officers and a social worker went to the Glines’s family home to speak with his wife and daughters. One of the daughters, E.G., told them Glines touched her starting at age eight and continuing until she was 11 years old. Glines’s other daughters recalled an incident with another neighbor, J.F., where Glines came out of the bathroom with J.F. and “it looked weird.” When asked what he was doing, Glines appeared to say he was helping J.F. wipe.
The police officers went to the F. family’s home to interview their daughters, J.F. and T.F. The girls initially said they did not know anything about Glines’s behavior. Before the officers left, J.F. told her father she saw Glines touch K.B. J.F. later had a CAST interview and disclosed incidents with Glines, including one where he made her take off all of her clothing, open her legs, and took a picture of her vagina.
An amended information charged Glines with four counts of oral copulation or sexual penetration with a child 10 years or younger (Pen. Code, § 288.7, subd. (b); counts 1-4), nine counts of committing a lewd act upon a child under the age of 14 years (§ 288, subd. (a); counts 5-11, 13-14), one count of committing a lewd act upon a child (§ 288, subd. (c)(1); count 12), and one count of using a minor for sex acts
(§ 311.4, subd. (c); count 15). The amended information further alleged Glines committed the offenses against more than one victim, within the meaning of section 667.61, subdivisions (b), (e)(4), and (e)(5).
Molestation of K.B. (Counts 1 Through 6)
K.B. was 10 years old at the time of trial. She testified she often went into Glines’s garage, where she would “hang out” and eat candy. K.B. testified Glines touched her vagina starting when she was about five years old for about a year.
On these occasions, Glines reached under K.B.’s skirt, put his hand inside her underwear, and rubbed her vagina. He often inserted his fingernails inside K.B.’s vagina. He touched K.B.’s vagina about two times per week during the period of abuse. Also during this time, Glines licked K.B’s vagina and inserted his tongue in her vagina about three times a week, in addition to the vaginal touching.
Molestation of H.B. (Counts 7 Through 9)
At the time of trial, H.B. was 11 years old. H.B. testified he went to Glines’s garage to make bullets. When making bullets, H.B. sat on Glines’s lap. On several occasions while making bullets, Glines placed his hand underneath H.B.’s underwear and touched H.B.’s penis. This started when H.B. was four years old until he was seven or eight years old.
Molestation of E.G. (Counts 10 Through 12)
Glines’s daughter E.G. was 22 years old at the time of trial. E.G. testified Glines began molesting her when she was eight years old until she was 11 years old. Glines would remove her underwear and rub her pubic area. On one occasion, Glines licked E.G.’s vagina. The molestation was not daily, but happened often.


Molestation of J.F. (Counts 13 Through 15)
J.F. was nine years old at trial. J.F. also played in Glines’s garage, making bullets with him. One time J.F. was sitting on Glines’s lap making bullets and he put his hand underneath her underwear and rubbed her butt.
When J.F. was six years old, she used Glines’s bathroom. Glines brought her back inside the bathroom and shut the door. Glines had J.F. remove all of her clothes, then told her to sit on top of the toilet seat. Glines told J.F. to open her legs, then took a picture of her vagina with his cell phone. Glines’s cell phone was searched after his arrest, and no naked photos of children were found on the phone.
Guilty Verdict and Sentencing
A jury found Glines guilty as charged on all counts. The trial court sentenced Glines to a total of 13 consecutive terms of 15 years to life on counts 1 through 11, 13 and, 14. The court imposed an eight-month term for count 12 and three years for count 15. Glines’s total sentence was for a determinate term of three years and eight months plus an indeterminate term of 195 years to life.
DISCUSSION
Glines’s Sentence Did Not Constitute Cruel and Unusual Punishment
Glines argues his sentence is grossly disproportionate to his offenses so as to constitute cruel and unusual punishment. He further contends his sentence is grossly excessive in light of his lack of prior criminality or history of violence. None of his contentions have merit.
As an initial matter, it appears Glines waived this contention by not raising it in the trial court. Cruel and unusual punishment arguments must be raised with the trial court in order to be preserved for appeal. (People v. Norman (2003) 109 Cal.App.4th 221, 229.) “Nonetheless, we shall reach the merits under the relevant constitutional standards, in the interest of judicial economy to prevent the inevitable ineffectiveness-of-counsel claim.” (Id. at p. 230.)
Both the United States and California constitutions prohibit the infliction of cruel and unusual punishment. (Gregg v. Georgia (1976) 428 U.S. 153, 173 (Gregg); In re Lynch (1972) 8 Cal.3d 410, 424 (In re Lynch).) A punishment violates the Eighth Amendment if it is “grossly out of proportion to the severity of the crime.” [Citations.] (Gregg, supra, 428 U.S. at p. 173.) Under article I, section 17 of the California Constitution, a punishment is cruel and unusual where “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, supra, 8 Cal.3d at p. 424.) We review whether a punishment is cruel or unusual punishment as a matter of law, considering the underlying facts in the light most favorable to the judgment. (People v. Em (2009)
171 Cal.App.4th 964, 971.)
In order to establish cruel and unusual punishment, a defendant must demonstrate the sentence “is disproportionate in light of (1) the nature of the offense and the defendant’s background, (2) the punishment for more serious offenses, or
(3) punishment for similar offenses in other jurisdictions.” [Citation.] (In re Nunez (2009) 173 Cal.App.4th 709, 725.) A defendant is not required to establish all three elements, but faces a “considerable burden” to demonstrate the sentence imposed is grossly disproportionate to the crime. (People v. Wingo (1975) 14 Cal.3d 169, 174.) In light of this burden on defendants, “[f]indings of disproportionality have occurred with exquisite rarity in the case law.” (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196.)
Glines fails to demonstrate his conduct is an exceptionally rare case. He claims the sheer length of his sentence was both objectively and subjectively disproportionate to his crimes, minimizing the nature of his offenses. He argues they did not involve violence, there was no genital to genital contact, and two of the victims involved “mere touching.” We are not persuaded by Glines’s contentions. Glines sexually assaulted four separate victims repeatedly over a period of 11 years. Three of his victims were eight years old and under. One of the victims was his biological daughter. Furthermore, Glines abused his positions of trust as a father, neighbor, and friend to molest the children. Glines was convicted of 15 sexual offenses against four vulnerable children. His sentence was not grossly disproportionate to his crimes. (See e.g, People v. Retanan (2007) 154 Cal.App.4th 1219 [court upheld a sentence of
135 years to life where defendant was convicted of numerous sex offenses against four girls]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283-year sentence not cruel and unusual punishment where defendant committed numerous sexual offenses].)
Glines’s background also fails to present rare circumstances requiring reversal. He argues the trial court failed to consider personal characteristics as mitigating factors. Such considerations included his age (54 years old), his remorse, his use of alcohol, his lack of criminal and violent histories, and the finding of Glines being a low risk for re-offense. Glines’s age, minimal criminal record, and lack of violent history are insufficient for this to rise to an exceptionally rare case. Lack of a prior record and age are not determinative when “seriousness of the crime and the circumstances surrounding its commission substantially outweigh these factors.” (People v. Szadiewicz (2008)
161 Cal.App.4th 823, 845.) Similarly, Glines’s lack of violent history was insufficient to demonstrate the sentence was disproportionate in light of his nature. (See People v. Cooper (1996) 43 Cal.App.4th 815, 826.) Glines failed to show his conduct was an exceptionally rare case. The length of his sentence does not render it disproportionate in light of his repetitive and lengthy conduct.
Glines Was Ineligible for Probation on Counts 10 and 11
Glines argues the court improperly determined he was ineligible for probation for counts 10 and 11 because it sentenced him under the current version of section 667.61, subdivision (b)(8), instead of former section 667.61, subdivision (b)(8), which was in effect at the time Glines committed counts 10 and 11. While Glines was entitled to be sentenced under the statute in effect at the time of his offenses (People v. Brown (1985) 169 Cal.App.3d 728, 744), Glines was ineligible for probation on counts 10 and 11 even when analyzing his sentence under the applicable law. In any event, the trial court specifically found Glines to be ineligible for probation, so any alleged error was also harmless.
Section 667.61, subdivision (b)(8), currently provides that any person who is convicted of section 288, subdivision (a), “shall be punished by imprisonment in the state prison for 15 years to life.” Section 667.61 was amended in 2006. Under the versions of sections 667.61 and 1203.066 in effect when Glines committed counts 10 and 11 between 2001 and 2005, he was eligible for probation if the court made five specific findings under section 1203.066, subdivision (c): (1) the defendant was the victim’s relative or a member of the victim’s household; (2) granting probation to the defendant was in the child’s best interest; (3) rehabilitation of the defendant was feasible, the defendant was amenable, and the defendant was placed in a treatment program; (4) the defendant was removed from the victim’s household; and (5) a probation grant would not pose a threat of physical harm to the child. (Former § 1203.066, subds. (c)(1)-(5), added by Stats. 1997, ch. 817, § 13.) Based on former section 1203.066, Glines could be placed on probation in the discretion of the trial court if he established all of factors set forth in the statute. (People v. Groomes (1993) 14 Cal.App.4th 84, 88-89.)
Glines was unable to show all of the factors required by former section 1203.066, subdivision (c). He could not demonstrate probation to be “in the best interest of the child” because E.G. was 22 at the time of sentencing and no longer a child. “Logically, where, as here, the victim is no longer a child at time of sentencing, the sentencing court is unable to make a finding under [former] section 1203.066(c)(2) that ‘[a] grant of probation . . . is in the best interest of the child’ for the simple reason that there is no child. In such a case, the sentencing court is unable to make ‘all’ of the findings specified in former subdivision (c) of section 1203.066, as required by that subdivision, and thus is not authorized to grant probation to a defendant against whom a true finding under section 1203.066, subdivision (a)(8) has been properly made.” (People v. Wills (2008) 160 Cal.App.4th 728, 737-738.)
Since E.G. was not a child at the time of sentencing, the trial court did not have the discretion to grant Glines probation under former section 1203.066. Because Glines could not qualify for probation under former section 1203.066, the court did not err in finding he was ineligible for probation. In any event, the trial court made specific findings that even if Glines was statutorily eligible for probation, it was not suitable given the nature, seriousness, and circumstances of the crimes. Thus, any possible sentencing error was also harmless.
Glines’s Sentence on Count 15 Should Not Be Stayed
Glines contends counts 14 and 15 arose out of the same criminal transaction at the same time and place with the same victim, so as to prohibit multiple punishment pursuant to section 654. We disagree.
Section 654 precludes separate punishment for “multiple statutory violations produced by the ‘same act or omission.’” [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) To determine whether conduct is indivisible under section 654, we look to Glines’s “intent and objective, not the temporal proximity of his offenses.” (Ibid.) For sex crime cases, the general rule is “multiple sex acts committed on a single occasion . . . are generally ‘divisible’ from one another under section 654, and separate punishment is usually allowed.” [Citations.] (People v. Scott (1994) 9 Cal.4th 331, 344, fn. 6.) We review the factual question of whether Glines had multiple criminal objectives under the substantial evidence standard. (People v. Nubla (1999)
74 Cal.App.4th 719, 730.)
Counts 14 and 15 both involved the bathroom incident with J.F. Count 14 pertains to Glines disrobing and hugging J.F. in the bathroom, while count 15 pertains to him placing her on the toilet with her legs spread open to photograph her vagina. While these two offenses were committed in close temporal proximity to one another, that is not the end of our inquiry. We instead look to see if there was substantial evidence to support a finding of multiple criminal intents and objectives.
Substantial evidence supported the trial court’s sentencing decision. The court reasonably concluded Glines’s intent and objective in having J.F. pose for a pornographic photograph was divisible from his intent to commit a lewd act by having her disrobe and hugging her. Merely because these acts all occurred in the bathroom in close succession to one another did not render them indivisible. Glines’s objective for taking a pornographic photograph of J.F.’s vagina differs from his intent in having J.F. remove her clothes and hugging her. Glines’s objective for taking the pornographic photograph was for future personal viewing, whereas the physical acts of having J.F. remove her clothes and hugging her was for Glines’s immediate sexual gratification. Because the pornographic photograph was for the purpose of satisfying Glines’s sexual desires in the future, the differing intents and objectives of counts 14 and 15 support the court’s imposition of separate sentences for the lewd act and the photograph.
DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



MOORE, J.



IKOLA, J.