P. v. Grant

Filed 8/17/07 P. v. Grant CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant of committing lewd or lascivious acts on a child under age 14 by force (Pen. Code, 288, subd. (b)(1))^[1](count 1), aggravated sexual assault of a child under age 14 and 10 or more years younger than defendant (former  269; Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 48,  1, p. 8761) by penetration with a foreign object (id., subd. (a)(5); see  289, subd. (a)(1)) (count 2), and threats to commit a crime resulting in death or great bodily injury ( 422) (count 3). The trial court sentenced defendant to 23 years to life in prison, consisting of a principal term of two years for the threats conviction, a full consecutive term of six years for the lewd acts conviction, and a term of 15 years to life imprisonment for the aggravated sexual assault to run consecutively to the other two terms.

On appeal, defendant contends that the trial court erred in excluding proffered evidence that the victim was not home on the day of his alleged first sexual assault against her and abused its discretion in denying his motion for a mistrial following the victims outburst in the courtroom, that there was cumulative error, that his sentence is unconstitutional under the Sixth Amendment to the United States Constitution, and that his sentence constitutes cruel and/or unusual punishment in violation of the United States and California Constitutions.

We will affirm the judgment.

FACTS

I. Prosecution Case

During November of 2004, 13-year-old C. D. and her 14-year-old sister M. were living at their great-grandmothers home. Defendant, then 32 years old, was C. D.s second cousin and also lived there.

C. D. testified that on November 25, 2004, at about 9:00 p.m., after Thanksgiving dinner, Veronica Jacks, a family friend, drove C. D. and defendant home. When they arrived, C. D. went to her room. Defendant left the house for a while; when he returned, C. D. detected that he was intoxicated by alcohol, based on his smell and behavior. Defendant entered C. D.s room carrying a bottle that contained an alcoholic beverage. He offered some to C. D. and she took a sip.

C. D. and defendant then went to defendants room. Defendant went over to C. D., who was lying on his bed, removed her pants, and touched her breast and vagina, penetrating her vagina with his finger. Defendant, restraining C. D. physically, ignored her entreaties that he stop molesting her. He rubbed his penis on her hip and ejaculated. C. D. broke free and ran into the bathroom. Later she emerged and went to sleep without telling anyone what had happened.

A few days later, defendant came into C. D.s room. He brandished a knife and told her he would kill her if she told anyone about what had happened on Thanksgiving. For emphasis, defendant stabbed the wall behind the bedroom door three times.

On December 9, 2004, defendant came into C. D.s room. The two of them talked for a while, then engaged in some play fighting. C. D. became annoyed that defendant was touching her chest and bottom through her clothes and then became afraid that he was trying to hurt her in some way. She told defendant to get off of her, took a cigarette lighter out of defendants pocket, and burned the back of his head. Defendant lay on top of her and proceeded to touch her vagina through her clothes and then insert his finger. She did not physically resist because she was scared, but told him to leave her alone. Defendant exposed his penis, touched her clothed buttocks with it, and ejaculated. C. D. tried to lock herself in defendants bedroom to escape from him, but defendant gained entry when C. D. opened the door to find another place of refuge and locked both of them in his bedroom. It appears that C. D. escaped again and fled to the bathroom. She subsequently came to her bedroom and went to sleep. Her sister Monique woke her up later that night to tell her that her friends, 12-year-old Danielle P. and 15-year-old Laura T., wanted to see her. C. D. told Danielle and Laura what had happened.

The testimony of Danielle P. and Laura T. produced evidence that when C. D. came outside she was crying. C. D. said that defendant was drunk and he had tried to remove her clothes and rape her. She said he had displayed a knife and repeatedly pushed her down when she tried to get up, she had punched him and run out of the house, and he had threatened to kill her if she told anyone.

In the late afternoon of the next day, December 10, 2004, C. D., distressed and seeking help, encountered a stranger, Diane Comstock. C. D. reported her recent sexual and physical abuse to Comstock, who called the police. San Jose Police Officer Erin Fong interviewed C. D. at Comstocks office. C. D. discussed defendants sexual assaults, physical assaults, and threats with Fong. The police photographed bruises on C. D.s arm and leg.

In the first of two phone calls that the police arranged and monitored, and of which the jury received evidence via audio recording and transcripts, C. D. reminded defendant of what you didded [sic], and defendant tacitly admitted to having committed crimes against her:

C. D.: . . . I dont want you to do that no more.

Defendant: Okay.

C. D.: Is that all youre saying is Okay?

Defendant: Im sorry.

C. D.: Youre sorry? You promise?

Defendant: Yes.

Defendant also made incriminating statements during the second phone call:

C. D.: Do you promise not to touch me in places I dont wanna be touched?

Defendant: Yeah.

C. D.: Last time you touched me there, it hurt. [] . . . [] . . . And I dont like it, Isaac.

Defendant: Okay. Just come home.

C. D.: You act like its funny or something.

Defendant: . . . I didnt say it was. [] . . . [] . . . Im sorry, I apologize.

Defendant was arrested on December 10, 2004. In the course of searching defendant, the police found a knife. In August of 2005, an investigator went to C. D.s house and took photographs of three half-inch slash marks on a wall in C. D.s bedroom.

Obtaining C. D.s testimony at trial was very difficult. Almost from the outset she was crying, and it took all of the prosecutors and the trial courts skill to get her to testify about defendants sexual assaults. As the parties and court struggled with the situation, the court found on the record that C. D. was extremely frail, began crying almost as soon as she took the witness stand, [and] was so traumatized by the prospect of testifying that she has been almost in a state of inability to speak or to even gesture. The court observed that C. D. was much more immature than what the court would expect based on the courts experience in family law and in delinquency to be the average 13-year-olds demeanor. The court opined that C. D.s in-court distress stemmed from her fright, her traumatization with respect to the incident, to the extent that there was an incident.

II. Defense Case

Veronica Jacks began living in the same house as C. D. around May of 2005. She had been in C. D.s bedroom a number of times before then when C. D. was living in it. She recalled seeing holes in the wall of the bedroom, similar to the alleged knife marks, in August of 2004. C. D. told Jacks that she had made the holes with a little knife.

III. Prosecution Rebuttal Case

Shanina Grant is C. D.s cousin. In May of 2005, Grant moved into C. D.s former bedroom. Grant became aware of knife marks on the bedroom wall only when an investigator came to the house to look for and photograph them. That night Grant pointed out the marks to Veronica Jacks, who appeared to be surprised by them and speculated that C. D. could have made them but did not say that C. D. told her she had done so.

DISCUSSION

I. Ruling Excluding Certain Proffered Testimony of Veronica Jacks

Defendant claims that the trial court erred and violated his constitutional rights in granting the prosecutions motion to exclude testimony from Veronica Jacks suggesting that the victim was not at home on the day on which the victim testified the first sexual molestation occurred. The court did not abuse its discretion in granting the motion.

As noted, C. D. testified that defendant first assaulted her in her bedroom late in the evening of Thanksgiving Day of 2004, after they had returned from Thanksgiving dinner at another location. Jacks (who was not living in C. D.s house at the time) testified at an in limine hearing (Evid. Code,  402) that defendants grandmother, the houses owner, told Jacks that C. D. had run off on the preceding Tuesday and hence was not at home during Thanksgiving Day before the dinner. Although the record is far from ideal on this point, as we read it Jacks also implied that she never saw C. D. at all on Thanksgiving Day and did not drive C. D. home after Thanksgiving dinner, contrary to C. D.s testimony. But Jacks did not enter the home after Thanksgiving dinner and would not have known whether defendant and C. D. would have been present at the time C. D. testified she was assaulted.

The prosecution argued that the testimony should be excluded because defendant had acknowledged in a statement to the police that was excluded from evidence for Miranda reasons (Miranda v. Arizona (1966) 384 U.S. 436) that he and C. D. had been together for Thanksgiving dinner, the testimony would cast C. D. into disrepute before the jury by portraying her as a runaway, and C. D.s whereabouts earlier on Thanksgiving Day were irrelevant to her testimony that defendant assaulted her late that evening after they both returned from Thanksgiving dinner.

As we read the record, the trial court granted the prosecutions motion on the ground that the proffered evidence would be irrelevant (Evid. Code,  350) and substantially more prejudicial than probative (id.,  352). The court was concerned that defendant himself had stated that C. D. was present for Thanksgiving dinner, whereas Jacks testified she was not. Ultimately, the court ruled that the motion to exclude Jackss testimony would be granted on grounds of relevance and the arguments of the People.

Defendant claims error under state law. And he claims, as an additional legal consequence of the error (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5; see id. at p. 1031; see also id. at pp. 997, 1000, 1024, 1029, 1055), a violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution to present a defense.

Because defendant presents his due process claim as an additional legal consequence of the superior courts purportedly erroneous ruling, rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)

With regard to the courts ruling that the evidence was irrelevant: Only relevant evidence is admissible (Evid. Code, 210, 350), and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. [Citations.] The test of relevance is whether the evidence tends logically, naturally, and by reasonable inference to establish material facts such as identity, intent, or motive. [Citation.] The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. [Citation.] We review for abuse of discretion a trial courts rulings on the admissibility of evidence. (People v. Benavides (2005) 35 Cal.4th 69, 90.)

The standard of review of a ruling that evidence would be substantially more prejudicial than probative is the same as for relevance: In ruling on the question whether evidence is substantially more prejudicial than probative, the trial court enjoyed broad discretion. (People v. Ayala (2000) 24 Cal.4th 243, 282; accord, Evid. Code,  352.)

A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides, supra, 35 Cal.4th at p. 88.)

We do not find that the trial courts ruling fell outside the bounds of reason. Jacks testified at the in limine hearing that she did not know whether defendant and C. D. were present in the house after Thanksgiving dinner, when C. D. testified that he assaulted her. To be sure, there was a conflict between Jackss in limine testimony that she never saw C. D. on Thanksgiving Day and did not drive her home and C. D.s testimony that Jacks did drive her home after Thanksgiving dinner. But this was a minor point, not important to the case even if marginally significant, and we cannot say, on the deferential standard we apply on review, that the trial court abused its discretioni.e., acted outside the bounds of reasonwhen it ruled the testimony inadmissible on both relevance and undue prejudice grounds. (See People v. Cornwell (2005) 37 Cal.4th 50, 81.)

II. Ruling Denying Mistrial Motion

Defendant contends that the trial court erred in denying his motion for a mistrial after the victim yelled at him while testifying on cross-examination and ran from the witness stand out of the courtroom into the adjacent corridor, where she had a crying fit. He also argues, as additional legal consequences, that the episode resulted in a violation of his due process rights and to a jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. The trial court did not abuse its discretion in denying defendants mistrial motion.

As with defendants first claim, because he presents his constitutional claims as additional legal consequences of the superior courts purportedly erroneous ruling, rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)

The record reflects the episode as follows:

Q [By defense counsel:] Did you ever tell Danielle and Laura about . . . what happened with the knife?

A [C. D.] I dont remember nothing.

Q Okay. When you say you dont remember nothing, you dont remember anything about that day . . . Im not sure what youre having problems remembering.

A I dont remember nothing.

Q Do you need to take a break . . . ?

A I dont want to do this no more. I dont care. Im not gonna do this no more. I hate this. I cant believe you did that to me, youre my cousin.

(Whereupon, the witness left the courtroom, after which the following proceedings were had in open court

THE COURT: Ladies and gentlemen, we will be taking a recess as soon as the hallway is clear. I need to admonish you please to disregard the outburst. [I will ask you to leave] [j]ust as soon as the deputies let me know when the jury is able to go to the jury room.

Both the trial court and the prosecutor described the victims behavior after leaving the courtroom as a tantrum. The prosecutor opined that the court may have heard some screaming emanating from the hallway. She stated: I followed [C. D.] out of the courtroom and I think the screaming that you may have heard was from her aunt who yelled out justice, or is this justice, theres no justice, something like that. When I got out there the aunt was yelling other things about justice. I asked her to sit down and please stop talking. [C. D.] was on the ground in the fetal position crying hysterically and was not the one who was doing the screaming. She was crying . . . .

Defendant moved for a mistrial. Defense counsel stated that the witness flung the chair back, walked in front of the . . . jury. And at some point she was standing in front of the jury, as I observed it, kind of threw down towards Mr. Grant a bracelet. And, again, saying something to the effect of how could you do this to me, youre my cousin. And then she went out the, the rear courtroom door. [] There was some yelling on her part. I didnt go out to observe what happened, but I did hearbut I know that her aunt, one of the support people that was here, ended up going out in the hallway, as well. There was very loud yelling, screaming. My understanding is that, again, Im not sure I think it came from the aunt, that something to the effect that this is not justice. And again, there was a lot more yelling and, and screaming. [] And my understanding is, from talking to others, at least outside, there was something said to the effect that shes being raped again, or something to that effect. I was told that. I did not hear that, but that was told to me. But based on those actions, what was said, what was done, . . . I think theres undue prejudice in this case which the court, through any sort of instruction or . . . admonishment could not cure.

The prosecutor opposed the mistrial motion. She argued that C. D. had not thrown anything at defendant or in his direction and that C. D.s aunt had not screamed anything about rape.

The trial court stated that it had heard screaming from the hallway, but could not hear specific words. The court also commented that it had a direct view of the courtroom door and the jury did not.

On defendants request, the trial court voir dired each juror outside one anothers hearing. All 12 jurors stated that they had not heard specific words coming from the hallway and that no discussion had taken place after the witnesss outburst. (One alternate juror said he had heard someone say I dont want to do this. Defendant does not raise any issue regarding that reply.) All also stated that they would follow an instruction by the court not to consider anything that happened in the hallway, with one minor qualification: Juror No. 3, stated I think so.^[2]

The trial court denied the mistrial motion and gave an admonition to the assembled jurors that they were to disregard anything they may have seen or heard in the hallway as though it never happened.

A motion for mistrial should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala, supra, 24 Cal.4th at p. 284.) We review a ruling denying a motion for mistrial for abuse of discretion. (Id. at p. 283.) None appears here. People v. Martin (1983) 150 Cal.App.3d 148 is dispositive. In that case a prosecution witness had an emotional outburst in which she told Martin he was guilty. The court questioned each juror individually to determine whether this unsolicited remark would affect their ability to unemotionally and independently evaluate the case. The court was satisfied each juror could ignore the remark and admonished the jury against using the remark for any purpose. Absent any evidence to the contrary, we assume the jury was able to follow the trial courts admonition and disregard the statement. Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured. (Id. at pp. 162-163.) As in Martin, the jurors all satisfied the trial court that the possibly tainting events would not affect their deliberations. As long as the events in question did not yield a verdict based on caprice, or on impermissible or irrelevant factors (People v. Chatman (2006) 38 Cal.4th 344, 370), defendant is not entitled to relief, and there is no evidence that the verdict was so tainted.   [I]t is generally assumed that such errors are cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice.   (Id. at p. 369.)

III. Cumulative Error

Defendant claims that the cumulative effect of the errors and constitutional violations that occurred at his trial require reversal.

As we have explained, no error or constitutional violation occurred. Accordingly, we reject defendants claim that he is entitled to reversal on this basis.

IV.              Consecutive Sentencing

Defendant claims that sentencing him to the two-year and six-year consecutive terms on counts one and three (see ante, p. 1) based on facts not found by the jury or admitted by him violated the Sixth Amendment. We disagree.

In Cunningham v. California (2007) 549 U.S. __ [127 S. Ct. 856]), which the United States Supreme Court issued while this appeal was pending, the high court overruled in part the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held, among other things, that the provisions of Californias determinate sentencing law authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendants right to a jury trial. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 860].) The United States Supreme Court concluded that because our determinate sentencing law authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent. (Id. at p. ___, fn. omitted [127 S.Ct. at p. 871, fn. omitted].)

The decision in Cunningham did not address consecutive sentencing, and therefore we remain bound by the California Supreme Courts holding in Black I, supra, 35 Cal.4th at page 1262, that a defendants Sixth Amendment right to a jury trial is not violated when the trial court exercises its discretion to determine whether to impose sentences consecutively or concurrently. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Our Supreme Court reaffirmed Black I last month in People v. Black (2007) __ Cal.4th __ [2007 WL 2050875] (Black II), stating that consistent with this courts determination in Black I, we hold that neither Cunningham nor the relevant prior high court decisions apply to the imposition of consecutive terms. (Black II, supra, __ Cal.4th at p. __ [2007 WL 2050875 at p. *1].) The high courts decision in Cunningham does not call into question the conclusion we previously reached regarding consecutive sentences. The determination whether two or more sentences should be served in this manner is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Black I, supra, 35 Cal.4th at p. 1264.) Accordingly, we again conclude that defendants constitutional right to jury trial was not violated by the trial courts imposition of consecutive sentences on all three counts. (Id. at p. __ [2007 WL 2050875 at p. *13].) Black II is binding on this court (Auto Equity, supra, 57 Cal.2d at p. 455) just as Black I is, and both cases require us to reject defendants challenge to the imposition of consecutive terms.

V.                 Cruel and/or Unusual Punishment

Defendant presents two arguments regarding the constitutionality of his sentence under the cruel and unusual punishments clause of the Eighth and Fourteenth Amendments to the United States Constitution and the cruel or unusual punishment clause of article I, section 17, of the California Constitution.

A. Constitutionality of Section 269

Defendant contends that section 269 constitutes unconstitutional cruel and unusual punishment on its face. We disagree.

The Eighth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that [e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. (U.S. Const., 8th Amend.) Article 1, section 17, of the California Constitution likewise declares that [c]ruel or unusual punishment may not be inflicted or excessive fines imposed.

A punishment is cruel and unusual under the Eighth Amendment if it involves the unnecessary and wanton infliction of pain or if it is grossly out of proportion to the severity of the crime. (Gregg v. Georgia (1976) 428 U.S. 153, 173; see also Ewing v. California (2003) 538 U.S. 11, 21; Lockyer v. Andrade (2003) 538 U.S. 63, 72.) Cruel and unusual punishment under this states constitution occurs when a penalty 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, fn. omitted.) Thus, the federal constitution affords no greater protection than the state Constitution. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

Section 269 was enacted to increase[] the penalties for enumerated sexual offenses where the victim is under 14 years of age and the perpetrator is more than 10 years older than the victim. Thus, the Legislature intended to aggravate punishment for forcible sexual offenses where the defendants culpability is increased by a substantial age disparity. (People v. Jimenez (2000) 80 Cal.App.4th 286, 291.) The statute provides a term of 15 years to life imprisonment under those factual circumstances. As defendant points out with commendable candor, this court has rejected similar claims. In People v. Alvarado (2001) 87 Cal.App.4th 178, we rejected a claim that a life term for rape during a burglary violates the constitutional proscriptions against cruel and/or unusual punishment. The fact that the sentence is mandatoryand longmerely reflects the Legislatures zero tolerance toward the commission of sexual offenses against particularly vulnerable victims. It does not, however, render a defendants sentence excessive as a matter of law in every case. (Id. at pp. 200-201.) The same reasoning applies here.

B. Cruel and/or Unusual Length of Sentence

Defendant contends that sentencing him to 23 years to life term for his crimes against C. D. violates the federal and state constitutional proscriptions against cruel and/or unusual punishment.

Because a sentence that is constitutional under the California criteria for cruel and unusual punishment is also constitutional under the Eighth Amendment, we evaluate defendants claim that his sentence constitutes cruel and unusual punishment under California Supreme Court authority. Our high court has identified three factors to be considered in this inquiry: (1) the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society (In re Lynch, supra, 8 Cal.3d at p. 425); (2) a compar[ison of] the challenged penalty with the punishments prescribed in the same jurisdiction for different offenses which, by the same test, must be deemed more serious (id. at p. 426); and (3) a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions having an identical or similar constitutional provision (id. at p. 427). The defendant bears the burden of establishing that the punishment prescribed for his offense is unconstitutional. (People v. King (1993) 16 Cal.App.4th 567, 572.)

Applying the first Lynch factor, in evaluating the offense, we look at 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 defendants involvement, and the consequences of his acts. (People v. Dillon (1983) 34 Cal.3d 441, 479.) With regard to the particular offender, we focus on individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (Ibid.)

Defendant contends his prior criminal record was relatively minor, that he was intoxicated and acted out of character, and that he completed various remediation programs in jail. While acknowledging that his crimes were serious, he asserts that he never brutalized the victim.

But factors similar to those defendant claims to have in his favor are not necessarily dispositive on the issue of whether the punishment for the specific crimes committed is cruel and unusual. (Cf. People v. Alvarado, supra, 87 Cal.App.4th at p. 200 [life term constitutional despite defendants age, lack of record, remorse]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 528-532 [129-year term for multiple sexual offenses constitutional despite mental impairment and lack of prior record].)

And contrary to his assertion, defendant did brutalize the victim. In committing these offenses, defendant took advantage of C. D.s relative physical weakness, youth, immaturity, and vulnerability to inflict enormous harm on her for his own personal gratification. He overlooks the fact that C. D. suffered ongoing emotional damage as a result of his sexual offenses against her. C. D.s conduct at defendants trial well illustrates the harm she had suffered and continued to suffer at that time. She was, contrary to defendants assertion, brutalized.

Convictions for multiple sexual offenses can result in sentences that could not possibly be served in a human lifetime. Yet such sentences are routinely upheld when challenged as unconstitutionally disproportionate. (See, e.g., People v. Wallace (1993) 14 Cal.App.4th 651, 666 [283-year sentence for 46 sex crimes against seven victims]; People v. Bestelmeyer, supra, 166 Cal.App.3d at p. 532 [129 years for 25 sex crimes against one victim); People v. Byrd (2001) 89 Cal.App.4th 1373, 1382 [115 years plus 444 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137 [375 years to life plus 53 years].)

Defendants position is also not supported when we apply the second Lynch prong. He argues that his overall sentence approaches the sentence imposed on an individual who commits a cold-blooded premeditated murder (see 189, 190, subd. (a)), and that a defendant who commits a second degree murder in California receives a sentence of 15-years-to-life (see ibid.; but see  190, subds. (b), (c), (d)), significantly less than the sentence imposed on him.

We find the comparison unavailing. The choice of fitting and proper penalty is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will. [Citation.] Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime. Leniency as to one charge does not transform a reasonable punishment into one that is cruel or unusual. [Citation.] (People v. Bestelmeyer, supra, 166 Cal.App.3d at pp. 530-531.) Because it is the Legislature which determines the appropriate penalty for criminal offenses, defendant must overcome a considerable burden in convincing us his sentence was disproportionate to his level of culpability. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196-1197.)

Defendant fails to so convince us. Under these circumstances, we conclude that, under either the California or the federal constitutions, the trial courts decision to impose the term of 23 years to life imprisonment was not 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, fn. omitted.) The punishment imposed is not constitutionally infirm.

DISPOSITION

The judgment is affirmed.

_________________________________

Duffy, J.

WE CONCUR:

______________________________________

Bamattre-Manoukian, Acting P. J.

______________________________________

McAdams, J.

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^[1]All further statutory references are to the Penal Code unless otherwise specified.

^[2]Juror No. 11 initially said it would be hard just [because] it seemed like a realistic outburst, but that he or she (the jurors identities have been concealed) could follow such an instruction. The juror explained that he or she was referring to C. D.s outburst. The trial court explained in turn that it was referring to events in the hallway, not the courtroom. The jurors were, of course, entitled to take into account C. D.s demeanor while testifying and the manner in which [she] testifies (Evid. Code,  780, subd. (a)) in considering her credibility and the veracity of her testimony, meaning that they could consider C. D.s behavior in the courtroom. After the court explained the limited scope of the instruction it might give, the juror stated that he or she could follow an instruction not to take into account anything that happened in the hallway.