Filed 2/23/18 P. v. Fuentes CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS LINARES FUENTES,

Defendant and Appellant.


E065976

(Super.Ct.No. RIF1500582)

OPINION


APPEAL from the Superior Court of Riverside County. Charles J. Koosed, Judge. Affirmed as modified.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Carlos Linares Fuentes appeals from his 135-year-to-life sentence imposed after a jury convicted him in 2016 of nine counts of forcible lewd acts that he committed on his girlfriend’s two young children over a three-year period.
Defendant argues the matter should be remanded for resentencing because: (1) the trial court believed it lacked discretion to impose a sentence of less than 135 years to life, and defense counsel failed to correct the court’s error; (2) the imposition of nine consecutive terms of 15 years to life is cruel and unusual under these facts; and (3) the court erroneously believed the $4,300 sex offense fine was mandatory despite defendant’s lack of ability to pay. As discussed post, we modify the judgment to delete the $4,300 fine, but otherwise affirm.
FACTS AND PROCEDURE
Jane Doe No. 1 was nine years old when defendant began molesting her in 2012. Her younger sister, Jane Doe No. 2, was five years old when defendant began molesting her in 2014. Defendant began molesting Jane Doe No. 1 when he was dating their mother and moved in with the family. Jane Doe No. 1 called defendant “Dad” or “Charlie.” Defendant only stopped molesting the girls because, during the school’s holiday break at the end of 2014, Jane Doe No. 1 discovered he was molesting her sister and so told her friends and then a teacher when school started again in January of 2015.
On February 16, 2016, the People filed an amended complaint charging defendant with nine counts of committing a lewd act on a child under age 14 by force, violence, duress or menace. (Pen. Code, § 288, subd. (b)(1).) The People also alleged that defendant committed these crimes against more than one victim. (§ 667.61, subds. (c) & (e)(4).) The People based the nine counts on nine incidents to which defendant admitted when he was interviewed by police. However, the girls testified that defendant abused them numerous times, such as Friday “movie nights,” and “every day,” both in the daytime and at night. The abuse took place in the home, often with the other child and/or their mother in the home or even the same room.
In counts 1-3 the People alleged defendant committed the acts against Jane Doe No. 1 in Orange County between January 1, 2012 and December 31, 2014. In counts 4-6, the People alleged defendant committed the acts against Jane Doe No. 1 in Riverside County between January 1, 2014 and January 26, 2015. In counts 7-9, the People alleged defendant committed the acts against Jane Doe No. 2 in Riverside County between January 1, 2014 and January 26, 2015.
On February 22, 2016, a jury convicted defendant of all nine counts and found true the multiple victim allegation.
Defendant’s sentencing hearing was held on April 15, 2016. The People stated, “Your Honor, the People will submit as I don’t believe there are—there’s no range here. There’s one possible sentence. So we’ll submit on that.” Defense counsel asked the court for leniency, but stated he agreed with the People that the court had no discretion to sentence defendant to concurrent sentences, but rather was required to deny probation and sentence defendant to consecutive sentences. The court agreed with counsel that he was required to sentence defendant to consecutive sentences of 15 years to life. The court also commented, “[I]t lasted a long time and, in fact, affected the two little girls for the rest of their lives. If I were to have any discretion or the ability to lessen anything, I would not exercise it. There’s no reason to do that.” The court then sentenced defendant to nine consecutive terms of 15 years to life, for an aggregate term of 135 years to life. The court found defendant had no ability to pay the costs of the presentence probation report and set the restitution fine at the minimum of $300 “based on his lack of ability to pay.” However, the court ordered defendant to pay a $4,300 fine pursuant to section 290.3, stating, “I don’t think that’s contingent on the ability to pay. I think it’s mandatory.”
This appeal followed.
DISCUSSION
1. Mandatory Consecutive Sentences under Section 667.61, Subdivision (i)
Defendant argues the matter should be remanded for resentencing because the court mistakenly believed it was statutorily required to impose consecutive 15-year-to-life sentences for each of his nine convictions, and defense counsel was ineffective for not pointing out the court’s mistake. Specifically, defendant contends that the court had discretion to sentence him to fewer than nine consecutive sentences because: (1) it is not clear that the jury based each of the nine convictions on his actions on “separate occasions”; and (2) there were only two victims, not nine. The People respond that the court was required to impose consecutive sentences for each of the nine crimes because they were committed against two or more victims.
The Law
Defendant is eligible for a sentence of 15 years to life for each of his crimes as provided by subdivision (b) of section 667.61, because he committed the crime of lewd acts on a child against more than one victim.
In addition, subdivision (i) of section 667.61 mandates that, when a defendant is convicted of certain crimes, including lewd acts on a child, “the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.” (Italics added.) The parties disagree regarding whether subdivision (i) required the trial court to sentence defendant to nine consecutive terms in this case.
As set forth ante, the court stated at sentencing: “If I were to have any discretion or the ability to lessen anything, I would not exercise it. There’s no reason to do that.” Hence, there would be no point in directing the trial court to resentence defendant, because the court made it clear that it would sentence defendant to nine consecutive sentences whether or not it was required to by section 667.61, subdivision (i). Directing the trial court to resentence defendant would be futile and of no actual benefit to defendant. (See People v. Osband (1996) 13 Cal.4th 622, 728; People v. Alford (2010) 180 Cal.App.4th 1463, 1473; People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.) We therefore decline to do so, regardless of whether the court retained discretion to sentence defendant to less than 135 years to life.
For the same reason, any error by defense counsel in not arguing that the trial court had discretion regarding the consecutive sentences was not prejudicial. Based on the trial court’s statement that it would not lessen defendant’s punishment if it were able to, it is not reasonably probable that the trial court would have imposed a concurrent sentence on any of the nine counts had defense counsel persuaded the court that it had discretion to do so. (Strickland v. Washington (1984) 466 U.S. 668, 687)
2. Cruel and Unusual Punishment
Defendant also argues that the imposition of nine consecutive sentences of 15 years to life for nine counts of lewd acts involving the two children violates state and federal prohibitions against cruel and unusual punishment. We disagree.
The Eighth Amendment “prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime.” (Rummel v. Estelle (1980) 445 U.S. 263, 271 (Rummel).) But “[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” (Id. at p. 272.)
“A punishment may violate the California Constitution . . . 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.’ ” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136 (Cartwright), quoting In re Lynch (1972) 8 Cal.3d 410, 424 (Lynch).) The court, in applying this standard, examines the offense and the offender, and it compares the punishment with the penalties for other California offenses and crimes in other jurisdictions. (Cartwright, at p. 1136; Lynch, at pp. 425-427.)
a. California Constitution
In determining whether a sentence constitutes cruel or unusual punishment, we first consider the nature of the offense and the offender. (People v. Martinez (1999) 76 Cal.App.4th 489, 494 (Martinez).) “An examination of the nature of the offense and of the offender, ‘ “with particular regard to the degree of danger both present to society’ ” is particularly relevant in determining this issue. [Citation.] In assessing the nature of the offense, a court should consider the circumstance of the particular offense such as the defendant’s motive, the way the crime was committed, the extent of his involvement and the consequences of his acts.” (People v. Felix (2003) 108 Cal.App.4th 994, 1000.) “The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendant’s individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind.” (Martinez, at p. 494.) However, this “inquiry commences with great deference to the Legislature. Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.]” (Ibid.)
Here, defendant was in his early forties when he repeatedly committed sex crimes against these two young, vulnerable girls over a period of two to three years. Defendant cannot argue that he was immature or acted rashly on a single occasion. To the contrary, defendant’s mature age and repeated acts over an extended period of time upon children who called him, “Dad,” are reprehensible. As the trial court commented at sentencing, the abuse lasted a long time and will affect the girls for the rest of their lives. For these reasons, the nature of the defendant and of his offenses do not make the sentence of 135 years to life “so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.)
Further, defendant’s sentence is not disproportionate when compared to other crimes that do not result in death but have sentences that are substantial or even greater than his. (See People v. Crooks (1997) 55 Cal.App.4th 797, 807-808 [comparing penalty for burglary with intent to commit rape to penalties for kidnapping for ransom (§ 209, subd. (a)) and train wrecking, which provide for life without the possibility of parole (§ 218)].) Appellate courts have upheld the constitutionality of mandatory life sentences, including life without the possibility of parole, for offenses that do not result in death. (In re Maston (1973) 33 Cal.App.3d 559, 565 [life without the possibility of parole for aggravated kidnapping where the victim was injured but not killed is not cruel and unusual punishment]; Crooks, at p. 808 [25-year-to-life sentence for aggravated rape, with no prior felonies and no great bodily injury, was not disproportionate to other serious crimes]; People v. Estrada (1997) 57 Cal.App.4th 1270, 1281-1282 [25-year-to-life sentence under § 667.61 for one forcible rape during a burglary, without use of a weapon and with no prior felonies, was not cruel and unusual punishment].)
Additionally, other jurisdictions have upheld sentences comparable to defendant’s term for crimes less serious than the crimes of which defendant is convicted. (People v. Cisneros (Colo. 1993) 855 P.2d 822, 830 [life without the possibility of parole for 40 years not cruel and unusual punishment for possession and sale of drugs with priors of sales of narcotics, menacing with a knife, and violation of bail conditions]; Edwards v. Butler (5th Cir. 1989) 882 F.2d 160, 167 [sentence of life without the possibility of parole for one aggravated rape does not violate the 8th Amend.]; Land v. Commonwealth (Ky. 1999) 986 S.W.2d 440, 441 [life sentence without possibility of parole for rape not cruel and unusual]; Gibson v. State (Fla. 1998) 721 So.2d 363, 369-370 [mandatory life sentence without possibility of parole for sexual battery of minor where defendant had no prior record was not cruel or unusual].)
Even if California statutes were to impose the longest sentence in the nation for defendant’s offenses, that would not mean that defendant’s punishment is cruel and unusual. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) California is not required to conform its Penal Code to either the majority rule or “ ‘the least common denominator of penalties nationwide.’ ” (Ibid.)
Based on the totality of circumstances here, we are persuaded that the extreme seriousness of these offenses negates defendant’s claim of cruel and unusual punishment. The Legislature implemented these types of statutes to protect young children from people who engage in sexual acts with such young victims. (See People v. Alvarado (2001) 87 Cal.App.4th 178, 200 [callous and opportunistic sexual assault against a vulnerable victim is “precisely the sort of sexual offense that warrants harsh punishment”].)
We conclude defendant’s sentence is not so disproportionate “‘as to shock the conscience and offend fundamental notions of human dignity.’ [Citation.]” (People v. Cline (1998) 60 Cal.App.4th 1327, 1338.)
b. Federal Standard
Defendant fares no better under the federal standard. The hurdles defendant must surmount to demonstrate cruel and unusual punishment under the federal Constitution are, if anything, higher than under the state Constitution. (See generally People v. Cooper (1996) 43 Cal.App.4th 815, 819-824, and cases cited.) Strict proportionality between crime and punishment is not required. “‘Rather, [the Eighth Amendment] forbids only extreme sentences that are “grossly disproportionate” to the crime.’” (Cartwright, supra, 39 Cal.App.4th at p. 1135; see also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (Harmelin).)
In Rummel, supra, 445 U.S. 263, the United States Supreme Court rejected an Eighth Amendment challenge to a life sentence based on the defendant’s conviction of credit card fraud of $80, passing a $28.36 forged check, and obtaining $120.75 by false pretenses. (Rummel, at pp. 268-286.) Additionally, in Harmelin, supra, 501 U.S. 957, the high court ruled that a mandatory sentence of life without the possibility of parole for possession of 672 grams of cocaine did not violate the Eighth Amendment. (Harmelin, at p. 995.) By contrast, what defendant did was far worse than all the crimes committed by Rummel and Harmelin combined.
In addition, the United States Supreme Court has upheld statutory schemes that result in life imprisonment for recidivists upon a third conviction for a nonviolent felony in the face of challenges that such sentences violate the federal constitutional prohibition against cruel and unusual punishment. (See Ewing v. California (2003) 538 U.S. 11, 18, 30-31 [25-year-to-life sentence under three strikes law for theft of three golf clubs worth $399 apiece]; Lockyer v. Andrade (2003) 538 U.S. 63 [two consecutive 25-year-to-life terms for two separate thefts of approximately $150 worth of videotapes].)
The protection afforded by the Eighth Amendment is narrow. It applies only in the “ ‘exceedingly rare’ ” and “ ‘extreme’ ” case. (Ewing v. California, supra, 538 U.S. at p. 21.) We are not convinced this is such a case. The 135-year-to-life sentence imposed is noteworthy. However, defendant’s crimes are also noteworthy. He took advantage of his proximity and position of trust to repeatedly molest two young girls over a period of two to three years. Defendant’s acts against these most vulnerable members of our society fully support the lengthy sentence. Defendant cites no persuasive authority to support his claim that this is one of those rare cases in which a sentence is so grossly disproportionate to the gravity of the offenses committed that it violates the Eighth Amendment’s proscription against cruel and unusual punishment.
Accordingly, we conclude this is not the exceedingly rare and extreme case that violates the federal Constitution.
3. Section 290.3 Fine
Defendant argues, the People concede, and we agree, that the trial court erred when it imposed the $4,300 sex offense fine under section 290.3 because it mistakenly believed the fine is mandatory, even for defendants who lack the ability to pay. For this reason, and because the court already determined that defendant is “not going to have any money and the ability to pay,” regarding other fines, we hereby modify the judgment to delete the sex offense fine.
Section 290.3, subdivision (a), provides that persons convicted of certain sex crimes, including section 288, subdivision (b)(1), must pay a fine of $300 for the first conviction and $500 for the second and each subsequent conviction, “unless the court determines that the defendant does not have the ability to pay.”
Here, the trial court relied on the probation report to impose a $300 fine for count 1 and $500 fines for counts 2 through 8, for a total of $4,300. In doing so, the court stated: “There is an additional fine pursuant to 290.3 of $4,300. That’s also ordered to be paid. I don’t think that’s contingent on the ability to pay. I think it’s mandatory.”
Given that the court erred in setting the fine without considering defendant’s ability to pay, both parties ask that this matter be remanded to the trial court to determine whether defendant has the ability to pay the fine. However, we conclude that remand is unnecessary because, for each fine that the court imposed upon defendant, it imposed the statutory minimum or no amount at all, each time determining where relevant that the defendant had no ability to pay. Specifically, the trial court determined that defendant had no ability to pay the $1,095 presentence probation report fee. The court reduced the section 1202.4 restitution fine and the section 1202.45 parole revocation fine to the statutory minimum of $300 each, also based on defendant’s inability to pay. Finally, the court found defendant had no ability to pay attorney fees. We do note that the court imposed the probation-recommended fine of $250 for each violation under section 288, subdivision (e), which the court “may” impose and can be based on “any relevant factors,” including the gravity of the offense, the economic losses suffered by the victim, and any economic gain derived by the defendant. The fine is to be deposited in the Victim-Witness Assistance Fund pursuant to section 13837 and may not exceed $10,000. Although the probation report stated that the court has the discretion to waive the fine based on ability to pay, we did not find this provision in section 288, subdivision (e), and the court did not mention defendant’s ability to pay when it imposed the fine. Therefore, although the court, in theory, could have considered defendant’s ability to pay as a factor, we do not include this fine among those for which the court specifically considered defendant’s ability to pay.
To conclude, we have closely read the transcript of the sentencing hearing and infer from the court’s comments and decisions on each of the fines and fees that it would not choose to impose the $4,300 fine under section 290.3 because it would again find, as it did with the fines discussed ante, that defendant does not have the ability to pay because he is “not going to have any money.” Remand would be unnecessary and a waste of judicial resources, when we can instead modify the judgment to delete the fine.
DISPOSITION
The judgment is modified to delete the $4,300 fine under section 290.3. In all other respects the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.


We concur:


CODRINGTON
J.


FIELDS
J.