P. v. Zargoza

Filed 9/28/07 P. v. Zargoza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

PROCEDURAL HISTORY

Following a jury trial, defendant Antonio Rodriguez Zaragoza was convicted of forcible rape (Pen. Code,  261, subd. (a)(2)),^[1]sexual penetration ( 289, subd. (a)(1)), and first degree residential burglary ( 459, 460, subd. (a)). The jury found true that defendant committed the rape and sexual penetration during the commission of a first degree burglary and, therefore, in violation of the One Strike law ( 667.61). The trial court sentenced defendant to a total of 27 years to life in prison, consisting of a term of 25 years to life for the forcible-rape conviction and the mid-term of two years for the sexual-penetration conviction. A mid-term on the burglary conviction was imposed and stayed pursuant to section 654.

Defendant contends there is insufficient evidence to uphold the burglary and forcible-rape convictions. He also contends that the trial court erred when it failed to instruct with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 225 and that his sentence imposed pursuant to section 667.61 is unconstitutional. We disagree and affirm.

FACTUAL HISTORY

Jessica M. and her boyfriend David Hernandez lived with their 10-month-old son in a trailer home on a dairy in Riverdale. Hernandez worked at the dairy.

On October 2, 2005, Hernandez left for work about 1:00 a.m. Jessica was asleep in the bed with their son. She awoke later to find someone on top of her, trying to kiss her. At first Jessica thought Hernandez had returned to the trailer, which he often did during his night shift to get food or drink, but she then realized it was not Hernandez because the person smelled like beer and had a small ponytail. Hernandez had not been drinking before he went to work, and he had a shaved head.

Jessica was by now fully awake. Defendant, who was on top of her, placed his hand over her mouth and told her to shut up. When defendant moved his hand from her mouth she told him to get out. Defendant told Jessica he had previously worked at the dairy, and she realized who he was. Jessica insisted that he leave and noticed that her son had awakened due to the noise.

Defendant, who was still on top of Jessica, continued to try and kiss her and asked if she wanted to be with him. She repeatedly asked him to stop and leave her alone, but he then pulled down her sleeping shorts. Jessica was concerned about her son and tried to get out from under defendant.

Jessica continued to struggle, but defendants voice got stronger and just sounded like he was starting to get mad. Defendant asked Jessica if he could just do it a little. Jessica testified that she was afraid and did not know if he was going to get angry, so [she] nodded [her] head yes. Defendant penetrated Jessicas vagina for a short time, although she continued to tell him no and asked him to leave.

Defendant finally got up and zipped up his pants. Jessica again asked him to leave. Instead, defendant asked if he could touch her, and, although Jessica said no, he penetrated her vagina with his fingers. After Jessica was able to sit up, she picked up her son and again asked defendant to leave, assuring him that she had not seen his face and did not know who he was. Defendant left, only to return to pick up a hat he had forgotten. While doing so, he asked if he could kiss her. Jessica said no and turned her face, but defendant kissed her anyway. When defendant left, Jessica locked the front door, which had been unlocked earlier.

Jessica was frightened and called 9-1-1. When Deputy Sheriff Michael Montanez arrived at the trailer, Jessica, who was holding the baby, was crying and emotionally upset. Deputy Montanez had to wait for Jessica to calm down before he could interview her. Jessica was able to describe defendant to the deputy because she had recognized him from the dairy.

At approximately 6:00 a.m., Deputy Sheriff Tim Rivera and Detective Michael Belloli interviewed defendant. Defendant, who was not under arrest, told the officers he wanted to clear his name and explained that he had been to a wedding the night before and then went home and made a three-hour telephone call to his wife in Mexico. Defendant told the officers that he knew who Jessica was because he worked with her husband at the diary. Defendant denied he had been to Jessicas trailer, although he had worked on the air conditioning unit of the trailer a month earlier. Defendant offered to have a sexual assault kit done at the hospital.

A sexual assault examination done on Jessica on October 2, 2005, revealed dried fluid, which could have been either saliva or semen, on her inner thigh and some redness to her cervix consistent with vaginal penetration, although the redness could have been attributable to consensual sexual intercourse. Defendant was examined the same day. Penile swabs were taken and a blood sample drawn. A blood sample was also drawn from Hernandez.

Four months later, after getting DNA results on Jessica, defendant, and Hernandez, defendant was arrested and taken into custody. He was subsequently interviewed at the jail.

During the second interview, this time with Detective David Lopez, defendant again claimed that, on the night of the incident, he had gone to a wedding, drank a few beers, and gone home to telephone his wife in Mexico. Defendant acknowledged seeing Jessica several times at the dairy, but claimed not to have spoken to her. Defendant stated that he barely knew Hernandez. He again denied having sex with Jessica.

When Detective Lopez informed defendant that they had evidence to prove defendant had had sexual relations with Jessica, defendant changed his story. He stated that he had made a mistake and was sorry and that he would not want anything like that to happen to his own wife. According to defendant, he went to Jessicas trailer about 1:30 a.m. when he knew Hernandez would be at work. He entered the front door, which was unlocked, saw Jessica on the bed asleep, got on top of her, and started to kiss her. Jessica thought defendant was Hernandez at first and began removing her underwear. When she realized he was not Hernandez, defendant removed his pants and asked Jessica if she wanted to have sex with him. She said no, but his penis was erect and he inserted it slightly into her vagina for 30 or 40 seconds. He also inserted two fingers into her vagina. Defendant admitted that Jessica repeatedly told him no and told him to leave. He also admitted that Jessica told him that if he left she would not tell anybody he had been there. Defendant said that when he left he returned briefly to retrieve his hat. Defendant explained that he had initially denied being in Jessicas trailer because he did not ejaculate and did not think there would be anything left behind.

Detective Lopez acknowledged that defendant had initially said he had gone into the trailer just to have consensual sex, not to force her. Defendant also told the detective he wanted to ask forgiveness of Jessica and Hernandez.

Sherrie Holes, a forensic serologist, testified that the DNA samples from defendant, Jessica, and Hernandez were all tested. One of defendants penile swabs contained Hernandezs DNA. A second penile swab from defendant contained Jessicas DNA, a very, very rare type of DNA profile.

Defense

Defendant testified in his own defense. He claimed that he saw Jessica almost every day when he worked at the dairy and, although they did not speak, on two occasions she made a signal towards me.

Defendant testified that, on the night of the incident, he made a mistake. According to defendant, he had been drinking beer at the wedding and bought beer afterward. He went to Jessicas trailer, knocked on the door, and when no one answered, went inside anyway. He noticed she was asleep, so he straddled her. He did not know why he did this, but thought of waking her up and asking her if she wanted to have sex with him. When she did wake up and realized that he was not Hernandez, he did ask her for sex. Jessica told him no, but after he kept insisting she lowered her head. Defendant thought this was a signal to him that she wanted to have sex. According to defendant, he kept insisting if she wanted to be with me. And I guess because of so many times that I insisted, she just lowered her head. And I took that to mean yes. Defendant testified that he didnt want to force [himself] on her, and he knew that if she wanted to force herself against [him], she wouldnt be able to because he was a man.

Defendant was not sure if he had penetrated Jessica with his penis. Although he understood that there was proof that he had penetrated Jessica, he was somewhat equivocal. When asked if he had heard earlier evidence that Jessicas DNA was found on his penile swab, defendant said, [w]ell, maybe, thenmaybe Imperhaps, I must have penetrated her, but he was still not sure. But he was sure that he put [his] fingers on her. Defendant initially denied everything because he didnt know what to do.

On cross-examination, defendant stated that he had parked the car he had been driving in front of his godmothers trailer down the highway from the dairy and walked to Jessicas trailer. Defendant claimed he put his hand over Jessicas mouth not to keep her from screaming but so she wouldnt be afraid. He did admit that Jessica asked him to leave from the time she woke up until the time he left.

DISCUSSION

I. Sufficiency of the evidence relating to the burglary conviction

The prosecution argued that defendant committed burglary on the theory that he made entry with the intent to commit a rape by force and/or sexual penetration. The jury was instructed that, in order to prove defendant guilty of burglary, the People had to prove that defendant (1) entered a building and, (2) when he did so, he intended to commit rape by force or sexual penetration by force.

Defendant contends that there is insufficient evidence that he entered the trailer with the intent to rape Jessica. Instead, defendant argues that his entry into the trailer was a misguided attempt to request the sexual favors of a woman he had made visual contact with in the past . He also asserts that there is insufficient evidence that he entered the trailer in order to insert his fingers into Jessicas vagina, claiming instead that his action was an afterthought. We disagree.

A person is guilty of burglary if he enters any house or room with the intent to commit a theft or a felony. ( 459; People v. Horning (2004) 34 Cal.4th 871, 903.) While the existence of the specific intent charged at the time of entering a building is necessary to constitute burglary in order to sustain a conviction, this element is rarely susceptible of direct proof and must usually be inferred from all of the facts and circumstances disclosed by the evidence. [Citation.] (People v. Earl (1973) 29 Cal.App.3d 894, 896, disapproved on other grounds in People v. Duran (1976) 16 Cal.3d 282, 292; People v. Holt (1997) 15 Cal.4th 619, 669.) Whether a defendant made entry with the requisite burglarious intent presents a factual question, and if the circumstances of a particular case and the conduct of the accused reasonably indicate his purpose in doing so is to commit a larceny or any felony a verdict of guilty of the crime of burglary will not be disturbed on appeal. (People v. Bard (1968) 70 Cal.2d 3, 5, citing People v. Kittrelle (1951) 102 Cal.App.2d 149, 156.) The question is whether the evidence, including that of defendants conduct during and after his entry, supports a reasonable inference that the [necessary burglarious] intent existed at the time he entered . (People v. Holt, supra, 15 Cal.4th at p. 670.)

In reviewing the sufficiency of the evidence to support defendants conviction of burglary, we must review the entire record to see whether it contains substantial evidencei.e., evidence that is credible and of solid valuefrom which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. [Citation.] We view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. [Citations.] We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. [Citations.] The test on appeal is not whether we believe the evidence established the defendants guilt beyond a reasonable doubt, but whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] (People v. Cochran (2002) 103 Cal.App.4th 8, 12-13.)

On the night of the incident, defendant, who knew Jessica only from having seen her at the ranch, parked the car he had been driving at his godmothers house and walked to Jessicas trailer. He did so at 1:00 a.m. when he knew Hernandez would not be home. He admitted entering Jessicas trailer without her permission or for any legitimate purpose. Burglarious intent can reasonably be inferred from an unlawful entry alone. [Citation.] (People v. Jordan (1962) 204 Cal.App.2d 782, 786; see also People v. Corral (1964) 224 Cal.App.2d 300, 304 [defendants intent to commit theft established, in part, by the secret and noiseless entry in an unusual manner at an odd hour of the night into the homes where he was not an invited guest].)

Then, after entering the trailer, defendant, as described in his own words, straddled Jessica, even though she was sound asleep. When she awoke and discovered defendant was not Hernandez, Jessica repeatedly rebuffed defendants requests for sex and asked him to leave. Defendant did not heed Jessicas requests and instead put his hand over her mouth, raped her, and digitally penetrated her vagina. Defendants post-entry conduct also supports a reasonable inference that he entered with the intent to commit both of those crimes. In People v. Bard, supra, 70 Cal.2d at page 5, the Supreme Court affirmed a conviction of burglary with the intent to commit rape where the defendant, a complete stranger to the victim, entered her apartment through a bathroom window at 2:00 or 3:00 a.m. and began to fondle the woman while she [slept]. [T]he fact that the victim was a complete stranger to [the] defendant makes it more reasonable to conclude from his actions that he intended to rape her than that he intended only to seduce her. (Id. at p. 6; see also People v. Kittrelle, supra, 102 Cal.App.2d at p. 156 [entry with intent to commit rape supported by evidence defendant entered uninvited before 5 oclock in the morning and awakened (the victim) by pulling at the bedclothes].)

Consequently, there is sufficient evidence to support defendants burglary conviction because substantial evidence supports a finding that defendant had a felonious intent to rape and digitally penetrate Jessica before he entered her trailer.

II. Sufficiency of the evidence relating to the forcible-rape conviction

Defendant also contends that his conviction of forcible rape must be reversed because there is insufficient evidence that he used force to accomplish intercourse with Jessica against her will. Defendant insists that, although Jessica initially refused his requests for sex, she did eventually consent, and when she subsequently withdrew that consent, he stopped the act of intercourse. We disagree.

The crime of rape occurs when there is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, [] [] [w]here it is accomplished against a persons will by means of force, violence, duress, menace, or fear or immediate and unlawful bodily injury on the person or another. ( 261, subd. (a)(2).) In order to assess defendants claim, we use the same standard of review enunciated above.

Before we address the issue of whether defendant used force to overcome Jessicas will, we must reject his suggestion that Jessica, even briefly, consented to sexual intercourse. Although defendant claims Jessica consented when she nodded her head yes, by his own account Jessica only nodded her head yes after she repeatedly told him no, repeatedly asked him to stop, and repeatedly asked him to leave, and she continued these requests after she nodded her head as well. Jessica testified that she told defendant no and asked him to leave, but that during the time defendant was on top of her, he got closer to her, his voice got stronger, and he sounded like he was starting to get mad, when he asked if we could just do it a little. Jessica testified that she got scared and didnt know if defendant, who was still on top of her, was going to get angry, so she nodded [her] head yes. When Jessica felt defendants penis go inside, she just kept saying no and telling him to leave. The jury was instructed that [t]he defendant is not guilty of rape if he actually and reasonably believes that the woman consented to the intercourse. The jury obviously rejected defendants claim that Jessica consented to his advances, and there is sufficient evidence to support this finding.

We next address defendants claim that he applied no physical force to accomplish intercourse with Jessica. [I]t has long been recognized that in order to establish force within the meaning of section 261, [former] subdivision (2), the prosecution need only show the defendant used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the [victim]. (People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024, quoting People v. Young (1987) 190 Cal.App.3d 248, 257-258.) According to Griffin, the force requirement for purposes of section 261, subdivision (a)(2), has no special meaning outside the commonly understood definition of force. Though the statute does require proof of both force (or one of the other statutory aggravators) and lack of consent, force plays merely a supporting evidentiary role, as necessary only to insure an act of intercourse has been undertaken against a victims will. (People v. Griffin, supra, 33 Cal.4th at p. 1025, quoting People v. Cicero (1984) 157 Cal.App.3d 465, 475.)

The question for the jury in this case was simply whether defendant used force to accomplish intercourse with Jessica against her will, not whether the force he used overcame Jessicas physical strength or ability to resist him. (People v. Griffin, supra, 33 Cal.4th at p. 1028.) As explained in People v. Barnes (1986) 42 Cal.3d 284, 304, [a]lthough resistance is no longer the touchstone of the element of force, the reviewing court still looks to the circumstances of the case, including the presence of verbal or non-verbal threats, or the kind of force that might reasonably induce fear in the mind of the victim, to ascertain sufficiency of the evidence of a conviction [of forcible rape].

Here, the evidence is that defendant straddled Jessica, who described herself as just about five feet tall and 100 pounds at most, while she was asleep next to her infant son. Defendant admitted that if Jessica wanted to force herself against me, she wouldnt be able to because he was a man. In order to keep Jessica from screaming, defendant put his hand over her mouth. Jessica repeatedly asked defendant to stop and to leave and, all the while, tried to get out from under him but could not. Jessica expressed a fear that defendant was getting angry, and she had concerns that her son, who was lying in bed next to her, not be hurt. From this evidence it is clear that defendant accomplished the rape by force and duress.

This evidence, taken as a whole and viewed in the light most favorable to the guilty verdict, is sufficient to support the conviction of forcible rape.

III. Instructions pursuant to CALCRIM No. 225

Defendant contends that, because the only issue in dispute regarding the burglary was his intent at the time he entered Jessicas trailer, the trial court should have instructed with CALCRIM No. 225. Defendant argues that his alleged intent to commit forcible rape or sexual penetration was the only element of burglary that was based exclusively upon circumstantial evidence, and the trial court erred in failing to instruct the jury on the sufficiency of circumstantial evidence to prove he had the requisite intent. Defendant contends that, had CALCRIM No. 225 been given, it is probable the jury would not have found the requisite intent on the burglary count. We disagree.

Prior to instructing the jury, the court reviewed tentative jury instructions. With respect to CALCRIM Nos. 224 and 225, the trial court stated:

I have had requests from both counsel for 224 and 225. As the use notes explain, when there are both circumstances relating to the acts and mental state proved by circumstantial evidence, 224 is the broader instruction and that is used. And since the People are, both, attempting to prove the defendant having committed the acts in question to circumstantial evidence and attempting to prove his mental state, then 224 is the broader instruction. That will be given. [] 225, then, further use notes, will not be given.

When asked if either counsel wished to be heard on the tentative, defense counsel replied No, your Honor.

Trial courts only have a sua sponte duty to instruct on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense [citation], and on recognized defenses and on the relationship of these defenses to the elements of the charged offense. [Citations.] (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.) There is no error in a trial courts failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial. As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. The failure to give an instruction on an essential issue, or the giving of erroneous instructions, may be cured if the essential material is covered by other correct instructions properly given. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 277.)

The court instructed the jury with CALCRIM Nos. 223 (former CALJIC No. 2.00) and 224 (former CALJIC No. 2.01),^[2]but defendant complains that it did not instruct with CALCRIM No. 225 (former CALJIC No. 2.02).^[3] CALCRIM No. 224 is the proper instruction to give over CALCRIM No. 225, unless the only element of the crime proven entirely by circumstantial evidence is specific intent or mental state. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 347; People v. Marshall (1996) 13 Cal.4th 799, 849 [both addressing the proper use of CALJIC Nos. 2.01 and 2.02].)^[4]

The elements of burglary are (1) that a person entered a building and (2) that he did so with the intent to commit rape by force or sexual penetration by force. Here, defendant admitted he entered the trailer. He argues that, since the forcible rape and sexual penetration counts were proven by direct and not circumstantial evidence, the only remaining issue was that of his intent when he entered the trailer, which was premised on circumstantial evidence. Defendant claims that the instructions failed to tell the jury how circumstantial evidence must be considered in determining whether or not there was a specific intent upon entry.

Despite defendants claim to the contrary, CALCRIM No. 224 includes all issues where guilt is based on circumstantial evidence, including mental state. Defendant refers us to no case that concludes the trial court reversibly errs when, without objection, it gives CALCRIM No. 224 (or CALJIC No. 2.01) instead of CALCRIM No. 225 (or CALJIC No. 2.02).

Even if the trial court did err when it instructed the jury with CALCRIM No. 224, reversal is not warranted because there is no reasonable probability that any instructional error affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836.) [T]he correctness of jury instructions must be determined from all of the instructions given, not from a consideration of parts of an instruction or from a particular instruction. The absence of a critical element in one instruction may be supplied by another or cured by the instructions as a whole. (People v. Lee (1990) 220 Cal.App.3d 320, 327-328.)

Here, the trial court instructed the jury to [p]ay careful attention to all of these instructions and consider them together. The jury was instructed that the prosecution must prove each element of the charged offenses beyond a reasonable doubt. The court explained the difference between direct and circumstantial evidence. The court told the jury that if circumstantial evidence is susceptible to two reasonable interpretations, one pointing to defendants innocence and the other to his guilt, it must adopt that interpretation pointing to defendants innocence. The court instructed the jury regarding the union of act and intent and stated that burglary, and the commission of a crime during the commission of a burglary with the intent to commit rape by force or sexual penetration by force, required that a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The trial court instructed that, in order to find that defendant had committed a burglary, the jury would have to find that when he entered the trailer he had the intent to commit rape or sexual penetration. The trial court instructed also that, if the jury found defendant guilty of either rape or sexual penetration, it must then decide, as to each crime, whether defendant intended to commit rape by force or sexual penetration by force when he entered the trailer. Under these circumstances, we cannot conclude it is reasonably probable that a result more favorable to defendant would have been reached had the trial court instructed with CALCRIM No. 225.

IV. Claim of cruel and unusual punishment

Based on the provisions of section 667.61, the One Strike law, defendant received a sentence of 25 years to life for the forcible-rape offense because he committed the act during a burglary. ( 667.61, subds. (a), (c)(1), (d)(4).) Defendant argues that the 25-years-to-life sentence required by section 667.61 constitutes cruel and/or unusual punishment both on its face and as applied to him. To support his argument, he asserts that the statute does not allow for gradations in culpability based on the circumstances or mitigating factors and punished him more harshly than a second degree murderer ( 190, subd. (a)).

A sentence constitutes cruel or unusual punishment in violation of the Eighth Amendment of the United States Constitution if it is grossly disproportionate to the crime. (Harmelin v. Michigan (1991) 501 U.S. 957, 997-998 (conc. opn. of Kennedy, J.).) Under the California Constitution, a punishment is excessive if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) Consequently, the federal Constitution affords no greater protection than the state Constitution . (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.) Since the federal Constitution provides no greater protection than the state Constitution, we focus our analysis on the three-prong test established in In re Lynch, supra. (People v. Martinez, supra, at p. 1510.)

Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties 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; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty out of all proportion to the offense [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment. (In re Lynch, supra, 8 Cal.3d at pp. 423-424.) Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) A 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.)

Defendant acknowledges that constitutional challenges to the One Strike law on the theory that its punishments are cruel and unusual have been rejected in People v. Alvarado (2001) 87 Cal.App.4th 178, 199-201, People v. Estrada (1997) 57 Cal.App.4th 1270, 1277-1283, and People v. Crooks (1997) 55 Cal.App.4th 797, 803-809. Even so, he asserts his position in order to exhaust his state remedies. Defendant first contends that [t]he statute is constitutionally defective because it does not recognize significant gradations of culpability depending on the severity of the current offense, and it fails to take mitigating factors into consideration. We disagree.

Section 667.61 mandates an indeterminate sentence of 15 or 25 years to life for specified sex offenses that are committed under one or more aggravated circumstances. (People v. Alvarado, supra, 87 Cal.App.4th at p. 186.) Despite defendants claim to the contrary, the structure and provisions of the statute recognize gradations of culpability. First, the penalties outlined in the statute only apply to certain specified sex offenses. ( 667.61, subd. (c).) For example, section 667.61 does not apply to all rape convictions, but only to those rapes committed by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another. ( 261, subd. (a)(2);  262, subd. (a)(1);  667.61, subd. (c)(1) & (2).) Second, the increased penalties apply only if the aggravating circumstances contained in the statute exist. Third, the statute distinguishes between the types of aggravating circumstances that trigger increased penalties in subdivisions (d) and (e) of section 667.61. One commentator refers to the aggravating circumstances listed in subdivision (d) as major factors and those listed in subdivision (e) as minor factors. (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 6th ed. 2002)  37.34, pp. 1044-1045.) Fourth, the length of the sentence depends on the number and types of aggravating circumstances in each case. A defendant is subject to a sentence of 25 years to life if one or more of the major circumstances specified in subdivision (d), or two or more of the minor circumstances specified in subdivision (e), exist. ( 667.61, subd. (a).) If only one of the circumstances listed in subdivision (e) exists, the defendant is subject to a sentence of 15 years to life. ( 667.61, subd. (b).) In addition, the sentences authorized by the statute may be imposed only once per victim, per occasion. ( 667.61, former subd. (g).) As a result, the statute does recognize gradations of culpability, and we reject defendants facial challenge to the constitutionality of section 667.61. (See also People v. Estrada, supra, 57 Cal.App.4th at p. 1280 [one strike law is precisely tailored to fit crimes bearing certain clearly defined characteristics].)

As for defendants claim that the statute does not take into consideration mitigating factors, that issue is necessarily part of the analysis used in determining whether the statute was unconstitutional as applied to defendant, since mitigating factors are unique to each defendant. For these reasons, we conclude that the statute does not, on its face, violate constitutional prohibitions against cruel and unusual punishment.

We next consider and also conclude that there is no unconstitutional punishment when considering the particular circumstances of defendants case. We apply the three-prong test for cruel and unusual punishment established in In re Lynch, supra, 8 Cal.3d 410: Courts should (1) consider the nature of the offense and/or the offender; (2) compare the punishment to other punishments imposed in the same jurisdiction for more serious offenses; and (3) compare the punishment to other punishments imposed for the same offense in other jurisdictions. (Id. at pp. 425-427.)

In contemplating the nature of the offense we consider not only the crime as defined by the Legislature but also the facts of the crime in question including such factors as its motive, the way it was committed, the extent of the defendants involvement, and the consequences of his acts. [Citation.] In considering the nature of the offender we look at such factors as the defendants age, prior criminality, personal characteristics, and state of mind. (People v. Estrada, supra, 57 Cal.App.4th at p. 1278.)

Defendant relies heavily upon the fact that he was 20 years old when he committed the offense, he had no known prior criminal record, and he had lived a productive, law-abiding life. He stresses that no injuries were inflicted on the victim and that he ultimately admitted participation in the offense. While defendant may not have had a criminal past, his offense of entering a home in the middle of the night of someone he barely knew, climbing on top of her while she was asleep next to her infant, and raping her constitutes an egregious, invasive, and frightening act. The evidence shows that defendant walked to Jessicas trailer in the middle of the night when he knew Hernandez would not be home, indicating that he planned in advance to commit the acts. He placed his hand over her mouth to keep her quiet and refused her continual requests to stop. Instead, insisting even at trial that Jessica consented, he raped her. He ignored her subsequent pleas to leave and continued the sexual assault by inserting his fingers into her vagina. Though defendant did not use a weapon or inflict permanent physical injuries, [s]hort of homicide, [rape] is the ultimate violation of self. (Coker v. Georgia (1977) 433 U.S. 584, 597.)

In addition, the offense was committed during the course of an unauthorized entry into Jessicas home, a major aggravating circumstance that creates a combination of factors calling for the higher sentence. ( 667.61, subds. (a), (c)(1), (d)(4).) As explained in People v. Estrada, supra, 57 Cal.App.4th at page 1281, [b]urglary of an inhabited dwelling also poses a risk to human life. As the court explained in People v. Lewis (1969) 274 Cal.App.2d 912, 920 : Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situationthe danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed to forestall the germination of a situation dangerous to personal safety[.] Our Supreme Court has characterized first degree burglary as nonviolent criminal conduct which is, nevertheless, so dangerous as to call for enhanced punishment. [Citation.] Individuals in their homes, especially when they are eating, reading, watching television, bathing, and sleeping are unsuspecting and particularly vulnerable to shock and surprise by an intruder. (People v. Alvarado, supra, 87 Cal.App.4th at pp. 186-187.) The purpose of the statute is to deter by harsher punishment those who burglarize homes and exploit the vulnerability of people inside to commit sex offenses. (Id. at p. 186 [analyzing  667.61, subd. (e)(2), burglary without intent to commit offense specified in subd. (c)].)

To make matters worse, defendant committed an act of forcible sexual penetration during the burglary as well. This act, in and of itself, is also punishable by a term of 25 years to life (see  667.61, subds. (a), (c)(5), (d)(4)), but because defendant was sentenced under section 667.61 for the forcible rape, he could not also be sentenced to a second 25-years-to-life sentence on the sexual-penetration conviction ( 667.61, former subd. (g)).

Comparing punishment imposed here to that imposed in California for more serious offenses, defendant argues that his sentence was much higher than a defendant who commits a second degree murder in California and receives a 15-years-to-life sentence. Defendants argument ignores that his conduct involved both the commission of more than one offense (rape and first degree burglary) and the commission of one offense for the purpose of committing another. The penalties for single offenses, such as those defendant cites, cannot properly be compared to those for multiple offensesespecially where, as here, one offense was committed in order to commit another. (People v. Crooks, supra, 55 Cal.App.4th at p. 807.)

Defendant next contends that his level of culpability is more in line with the section 289 offender who is subject to an 8-year maximum term . Section 289 provides that a person who commits an act of sexual penetration against the victims will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury shall be punished by three, six, or eight years in state prison. ( 289, subd. (a)(1).) His analysis once again fails to take into consideration the fact that defendant committed both burglary with the intent to commit rape or sexual penetration, and also committed the sexual assaults.

Finally, defendant claims that there are only two states, Louisiana and Washington, with comparable sentences for aggravated rape. The fact that Californias sentencing scheme under section 667.61 is among the most extreme in the nation does not compel the conclusion that it is unconstitutionally cruel or unusual. (See People v. Martinez, supra, 71 Cal.App.4th at p. 1516.) Defendant has not satisfied his burden of showing that this sentencing scheme is uniquely harsh.

Since defendant has not established that his sentence is so grossly disproportionate to his crimes that it shocks the conscience and offends fundamental notions of human dignity, we reject his challenge to the constitutionality of section 667.61. (In re Lynch, supra, 8 Cal.3d at p. 424.)

DISPOSITION

The judgment is affirmed.

_____________________

Wiseman, J.

WE CONCUR:

_____________________

Harris, Acting P.J.

_____________________

Cornell, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

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

^[2]CALCRIM No. 223, as instructed by the court, provides as follows: Facts may be proved by direct or circumstantial evidence or by a combination of both. Direct evidence can prove a fact by itself. For example, if a witness testifies he saw it raining outside before he came into the courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence also may be called indirect evidence. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another fact or group of facts from which you may conclude the truth of the fact in question. For example, if a witness testifies that he saw someone come inside wearing a raincoat covered with drops of water, that testimony is circumstantial evidence because it may support a conclusion that it was raining outside. [] Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

CALCRIM No. 224, as instructed by the court, provides as follows: Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

^[3]CALCRIM No. 225 reads as follows: The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instructions for each crime explain the (intent/ [and/or] mental state) required. [] A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. [] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent/ [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent/ [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.

^[4]The bench note following CALCRIM No. 225 states: Give this instruction when the defendants intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence. If other elements of the offense also rest substantially or entirely on circumstantial evidence, do not give this instruction. Give CALCRIM No. 224 .