Filed 9/19/17 P. v. Diaz CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Sheila F. Hanson, Judge. Affirmed.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted defendant Ruben Hernandez Diaz of committing 12 counts of lewd acts upon his two stepdaughters, C.M. and L.P., in violation of Penal Code section 288, subdivision (a).^[1] The jury also found: (1) as to all counts, defendant committed the crime against more than one victim, in violation of section 667.61, subdivisions (b) and (e)(4) and section 1203.066, subdivision (a)(7); and (2) as to counts 1, 2, 5 through 7, and 9 through 12, defendant had substantial sexual contact with a child under the age of 14, within the meaning of section 1203.066, subdivision (a)(8). The trial court sentenced defendant to 60 years to life in prison.

Defendant contends substantial evidence does not support his convictions on counts 10 (touching L.P.’s vagina) and 12 (touching defendant’s penis), involving L.P., because the evidence was duplicative of that for counts 9 and 11, and her testimony did not sufficiently describe two separate acts of touching L.P’s vagina and touching defendant’s penis. He also argues his sentence violates federal and state constitutional prohibitions on cruel and/or unusual punishment and the trial court abused its discretion by not considering his lack of a criminal history. We reject these contentions and affirm the judgment.

FACTS

Because defendant’s insufficiency of the evidence claim is limited to L.P., our statement of facts will be too.

Defendant began touching L.P. when she was approximately 11 or 12 years old and in the sixth grade. At different times of the day and night, defendant would call L.P. into her bedroom, and lock the door behind her. He would then take off his clothes and put on a pornographic movie. Occasionally, defendant would already be completely naked when he called her into the room.

Once they were alone behind a locked door, defendant would place his bare hand down through the waistband of L.P.’s pants to touch her vagina, both over her clothing and under her underwear, moving his hand around her vagina. According to L.P., the skin of defendant’s hand touched the skin of her vagina “more than one time.” Defendant also forced L.P. to “grab onto his penis” by placing her hand on it. Defendant would then move L.P.’s hand up and down until he ejaculated. Sometimes L.P would be standing and other times she would be sitting when defendant grabbed her hand and “put it on his penis.” Often, defendant told L.P. to stare at his penis while she rubbed it with her hand. On other occasions, defendant would force her to look into his eyes or at a specific scene in the pornographic movie.

The first time defendant called L.P. into her bedroom, locked the door, touched her vagina and made her touch his penis occurred when she was in the sixth grade. The second time occurred when she was “still in sixth grade.” The last time L.P. remembers defendant touching her in this manner was when she was in the eighth grade.

DISCUSSION

Sufficiency of Evidence on Counts 10 and 12

“[A]ny person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . . ” (§ 288, subd. (a).) Counts 9 and 10 charged defendant with two separate acts of touching L.P.’s vagina while counts 11 and 12 charged him with forcing L.P. to touch his penis two separate times. Defendant contends counts 10 and 12 should be reversed because the evidence supports only one count of vaginal touching and one count of penile touching inasmuch as L.P.’s testimony was too general and unspecific to support convictions for multiple counts. We disagree.

In reviewing a case for sufficiency of the evidence, an appellate court determines “whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (People v. Jones (1990) 51 Cal.3d 294, 314 (Jones).)

A “victim’s failure to specify precise date, time, place or circumstance [does not] render generic testimony insufficient.” The “particular details surrounding a child molestation charge are not elements of the offense and are unnecessary to sustain a conviction.” (Jones, supra, 51 Cal.3d at p. 315.) “The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every time we went camping’). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., ‘the summer before my fourth grade,’ or ‘during each Sunday morning after he came to live with us’) to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.” (Id. at p. 316.) A victim’s testimony alone can amount to substantial evidence: “California law does not require corroboration of the testimony of a child sexual abuse victim . . . .” (People v. Harlan (1990) 222 Cal.App.3d 439, 454.)

Defendant argues that although L.P. testified he called “her into her bedroom and put on pornographic movies, then touch[ed] her vagina and [made] her touch and rub his penis . . . more than once, [she] gave no other information about how often it happened or any significant differentiation between the acts.” But the frequency of the molestation is irrelevant as long as L.P. described a number of acts sufficient to support each count. (See Jones, supra, 51 Cal.3d at p. 316.) “[E]ven generic testimony (e.g., an act of intercourse ‘once a month for three years’) outlines a series of specific, albeit, undifferentiated, incidents, each of which amounts to a separate offense, and each of which could support a separate criminal sanction.” (Id. at p. 314.) Here, defendant’s own argument admits, L.P. testified the vaginal and penile touching occurred “more than once.” L.P. also testified that the “first time” and the “second time” defendant called her to the bedroom, locked the door, touched her vagina, and forced her to touch his penis, both occurred when she was in the sixth grade. This is sufficed to support two counts of each type of touching.

L.P.’s testimony, as set forth in the recitation of facts, also described “the kind of act or acts committed with sufficient specificity” to assure that the touching alleged in all four counts occurred. (Jones, supra, 51 Cal.3d at p. 316, italics omitted [where “the victim specified the type of conduct involved (rape) and its frequency (‘almost every night’ for three months), and confirmed that such conduct occurred during the limitation period,” [n]othing more is required to establish the substantiality of the victim’s testimony in child molestation cases”].) She not only specified the type of conduct involved (lewd acts), but also distinguished between defendant’s acts of touching her vagina and forcing her to touch his penis. She also quantified these acts as occurring “more than one time” and that there was at least a “first” and a “second” time, both of which occurred when she was in the sixth grade. This testimony was sufficiently specific to support defendant’s convictions of two counts each of vaginal touching and penile touching.

Cruel and Unusual Punishment

Eighth Amendment

The trial court sentenced defendant to 60 years to life, consisting of consecutive 15 years to life terms on counts 1, 5, 8 and 9, plus concurrent 15 years to life terms on all remaining counts. Defendant contends his sentence of 60 years to life — in his case, a de facto sentence of life without the possibility of parole, given his age of 45 at the time of sentencing — constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. More specifically, he contends this sentence is unconstitutional under Coker v. Georgia (1977) 433 U.S. 584, 592 (Coker), which held that “a punishment is ‘excessive’ and unconstitutional if it . . . makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.” Defendant argues his sentence falls under this definition because “it serves no legitimate penal purpose.” We are not persuaded.

The goals of criminal punishment include vindication of society’s sense of justice, protecting society from criminal harms, and deterring criminal behavior. (See People v. Mesce (1997) 52 Cal.App.4th 618, 632 [The “classic concerns of sentencing” are “retribution, deterrence, and incapacitation”]; see also In re Nunez (2009) 173 Cal.App.4th 709, 730 [“Valid penological goals include retribution, incapacitation, rehabilitation, and deterrence”].) Here, defendant’s repeated and predatory sexual assaults affected two children at extremely vulnerable times in their lives, realistically leading to lifelong consequences for them.^[2] Additionally, defendant continued to commit the offenses over a considerable span of time. It began in approximately 2004 or 2005, when C.M. was about six or seven years old and in C.M.’s case, continued until about 2009 or 2010, if not until 2013. Defendant then began molesting L.P. in approximately 2011 to 2012, when she was 11 or 12, and in the sixth grade, and did not cease until she was 14.^[3] Given this record, the sentence defendant received furthered acceptable penological goals of retribution, deterrence, and incapacitation and, accordingly, was not excessive under Coker.

Defendant further argues “a sentence that a human being cannot conceivably complete serves no rational legislative purpose, under either a retributive or utilitarian theory of punishment.” He relies on Justice Mosk’s concurring opinion in People v. Deloza (1998) 18 Cal.4th 585 (conc. opn. of Mosk, J.). (Id. at pp. 600-602 [any sentence longer than the human life span can serve no rational penological purpose and is inherently cruel and unusual].) But as People v. Byrd (2001) 89 Cal.App.4th 1373 clarified when confronted with the same argument, “‘no opinion has value as a precedent on points as to which there is no agreement of a majority of the court. [Citations.]’ [Citations.] Because no other justice on our Supreme Court joined in Justice Mosk’s concurring opinion [in Deloza], it has no precedential value.” (Id. at p. 1383.) Furthermore, as the Byrd court observed, a sentence in excess of a human life span does” serve “valid penological purposes: it unmistakably reflects society’s condemnation of [the] defendant’s conduct and it provides a strong psychological deterrent to those who would consider engaging in that sort of conduct in the future.” (Ibid.) Accordingly, we reject defendant’s claim that a sentence like his, which reasonably exceeds human life expectancy, serves no rational penological purpose and in turn is unconstitutional under Coker, supra, 433 U.S. 584.

Abuse of Discretion

Defendant contends the trial court abused its discretion by merely acknowledging his lack of a prior criminal record but then failing to weigh this factor in sentencing him. The record of the sentencing proceedings does not support his claim. It demonstrates that before sentencing defendant, the trial court considered the defense counsel’s sentencing brief and the probation report, both of which noted defendant had no criminal history. The probation report further indicated defendant’s Static-99 score of “-1” placed him in the “Low Risk Category” of reoffending. The trial court also listened to defense counsel’s arguments in mitigation, which again pointed out defendant’s absence of any criminal background.

In sentencing defendant, the trial court observed “that while [defense counsel] correctly points out circumstances in mitigation as it relates to the defendant in that he has no prior criminal record, there are circumstances in aggravation as to these crimes, not only the offense themselves and the severe emotional harm that each of the victims suffered in this case, but the fact that he violated a position of trust to commit these offenses. [¶] The fact that there was planning involved. He had to commit these offenses repeatedly and under circumstances he had to plan so that he could go undetected; that is, molest them while their mother was not present.” This record shows the court considered and weighed defendant’s lack of a criminal record but found it was outweighed by the aggravating factors. It did not abuse its “wide discretion” in doing so. (People v. Evans (1983) 141 Cal.App.3d 1019, 1022.)

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

ARONSON, ACTING P. J.

FYBEL, J.