Filed 3/13/18 P. v. Alvarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

RAFAEL ALVAREZ,

Defendant and Appellant.
H042446
(Santa Clara County
Super. Ct. No. B1259068)

An information charged defendant Rafael Alvarez with two counts of sexual intercourse with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a) - counts 1 & 2), three counts of sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b) - counts 3-5), and five counts of lewd or lascivious acts with a child by force, duress, or fear (§ 288, subd. (b)(1) - counts 6-10). The information alleged that all counts occurred between July 7, 2009 and March 11, 2012.
A jury convicted defendant on all counts. The trial court sentenced defendant to a total prison term of 95 years to life consecutive to 30 years, calculated as follows: two consecutive terms of 25 years to life for counts 1 and 2, three consecutive terms of 15 years to life for counts 3 through 5, and five consecutive six-year terms for counts 6 through 10.
On appeal, defendant makes the following arguments: 1) the prosecutor presented an invalid theory of unanimity during closing argument, and defense counsel rendered ineffective assistance in failing to object to the prosecutor’s statements; 2) the trial court incorrectly instructed the jury on principles of unanimity; 3) there was insufficient evidence to support the convictions; 4) the trial court abused its discretion in imposing consecutive prison terms for counts 1 through 5; and 5) the sentence constitutes cruel and unusual punishment. As set forth below, we affirm the judgment.

I. Statement of the Facts
A. The Prosecution’s Evidence
T. Doe, who was 10 years old at the time of trial, testified that defendant was her “step dad.” Doe’s mother, O., began dating defendant in 2009, when Doe was six years old. Defendant lived with Doe and O. in a Sunnyvale apartment.
Doe testified that defendant started touching her “in a bad way” when she was six or seven years old, and she described the first incident of touching. During that first incident, Doe was with defendant in the living room of their apartment, and defendant made Doe take off her pants and underwear. Defendant took off his pants and put his “boy private part” in Doe’s “front private part.” Doe testified that it hurt “[a] lot” when defendant put his boy private part in her front private part. Defendant also put his boy private part in Doe’s “back private part.” Doe explained that it hurt “[a] lot” when defendant put his boy private part in her back private part. During the first incident, defendant also “put his fingers in” Doe’s front private part and back private part.
Doe testified that defendant did “bad things” to her “every time” O. left her at the apartment with defendant, which was approximately twice a week. Doe explained that defendant molested her “many times.” She testified that defendant put his boy private part in her front private part more than five times. She testified that defendant put his boy private part in her back private part more than five times. Sometimes defendant put his boy private part “far in” Doe’s back private part, and her “back would go up against his chest.” On some occasions when defendant put his boy private part in Doe’s back private part, Doe told defendant to “stop,” but defendant would “force [her] to do it.” Doe could not recall the “exact number” of times defendant put his fingers inside her front private part, but she testified that it happened “more than once” and “[m]aybe” happened “more than five times.” She testified that defendant put his fingers in her back private part “more than once.”
When shown a diagram of the male body, Doe identified the “boy private part” that defendant used to touch her. When shown a diagram of the female body, Doe identified the parts of her body that defendant had touched, including her “front private part” and her “back private part.” She confirmed that defendant had put his “penis” inside her “vagina” and inside her “bottom.”
Defendant told Doe that she “would get in trouble” if she told anyone about the molestation. Doe was “scared of” defendant. Doe had seen defendant hit O., and defendant “sometimes” hit Doe when she did not do her homework. Doe did not report the molestation because she was “scared.”
On March 9, 2012, Doe and defendant were in the living room of their apartment, and defendant “forced” Doe to take off her pants and underwear. Defendant unzipped his pants and pulled Doe towards him on the couch. O. walked in the front door of the apartment, and she saw that Doe was naked “from the waist down” and “right next to” defendant on the couch. O. started crying, and she screamed at defendant. Doe ran into her bedroom. O. went into the bedroom with Doe and locked the door. O. tried to speak with Doe about what had just happened. Defendant kicked the bedroom door and threatened to knock it down if O. did not open it. O. opened the door, and Doe went to the apartment of her aunt.
The aunt testified that Doe came to her apartment on March 9, 2012. Doe was crying, and she appeared to be “scared” and “in a state of shock.” The aunt spoke with Doe for 30 to 40 minutes. Doe told the aunt that defendant “had been touching her body.” Doe said that defendant “had touched her many, many times” when she was not wearing clothing. Doe said the touching “had been going on for a long time.” When the aunt asked Doe where defendant had touched her, Doe touched her “front private part” and said her “behind.” The aunt contacted the police on March 10, 2012, and she reported what Doe had told her.
O. testified regarding a previous incident in which she saw defendant touch Doe. Approximately one year before March of 2012, Doe climbed into bed with O. and defendant. Defendant told O. that he wanted coffee, so O. got out of bed and went to the kitchen. When O. returned, Doe was getting up from the bed. O. saw defendant reach out his hand and touch Doe’s vagina over her clothing. At the time, O. thought the touching “maybe . . . was an accident” because she “did not want to believe that the defendant was doing anything towards [Doe].”

B. Defense Evidence
Defendant’s sister, Sylvia Alvarez Cerna, testified that Doe’s interactions with defendant were “normal.” Cerna had seen Doe hug defendant.
Defendant’s niece, Fabiola Rodriguez Alvarez, testified that defendant lived at her house when she was 10 years old. She testified that defendant never touched her inappropriately or made her feel uncomfortable. She also testified that she had “seen [Doe] lie” and believed that Doe was “lying about everything” in the case against defendant.
Joseph Ochoa, a police officer with the Sunnyvale Department of Public Safety, testified that he interviewed Doe on March 10, 2012. The interview lasted approximately 10 minutes. During the interview, Doe said that defendant “made her take off her underwear and her pants” and touched her with his fingers.
On cross-examination, Officer Ochoa testified that Doe told him that defendant “had touched her many, many times.” He also testified that Doe reported that defendant “had touched her over a two-year period,” from the time she was six years old until the time she was eight years old.

II. Discussion
A. The Prosecutor’s Statements During Closing Argument
Defendant contends that counts 3, 4, and 5 must be reversed because the prosecutor “presented an invalid theory” of unanimity for those counts during closing argument. Defendant alternatively contends that defense counsel rendered ineffective assistance if his claim is deemed forfeited by failure to object.
1. Background
At the beginning of his closing argument, the prosecutor briefly described “the law” and the “supporting evidence” for each count. As pertinent here, the prosecutor stated: “Counts [3] through [5] . . . deal with sexual penetration of a child. What that refers to, you may recall from [Doe’s] testimony is that the defendant put his fingers inside her front bottom more than twice and then the defendant put his fingers inside her back bottom more than twice so total four . . . times and either of those acts constitute sexual penetration with a child. Doesn’t matter if it happened which front bottom back bottom, either one qualifies.” (Italics added.) Defense counsel did not object to the prosecutor’s comments.
During her closing argument, defense counsel asserted that Doe “had a motive to lie” because she “wanted [defendant] out of the house.” Defense counsel then argued that the evidence showed Doe “was lying” and made “false allegations” against defendant. Defense counsel concluded her argument by asserting that there was “no proof” that defendant committed any of the charged crimes, and she urged the jury to find defendant “not guilty” on all counts.
2. Forfeiture
Defendant contends that the italicized portion of the prosecutor’s argument constituted an invalid theory of unanimity. The Attorney General asserts that defendant forfeited his claim by failing to object. “When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court’s attention by a timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales (2001) 25 Cal.4th 34, 43-44.) Because defendant made no objection to the prosecutor’s comments, he has forfeited his claim that the prosecutor presented an invalid theory of unanimity. We must now determine whether defense counsel rendered ineffective assistance in failing to object to the prosecutor’s comments.
3. Ineffective Assistance of Counsel
Defendant contends that the prosecutor committed misconduct by misstating the law regarding unanimity and misrepresenting the evidence. He asserts that the alleged misconduct “undercut” the unanimity requirement for counts 3, 4, and 5, and that defense counsel rendered ineffective assistance in failing to object. Defendant’s claim of ineffective assistance fails because he cannot show the requisite deficient performance in defense counsel’s failure to object.
The defendant bears the burden of proving ineffective assistance of counsel. (People v. Carter (2003) 30 Cal.4th 1166, 1211.) “To prevail on an ineffective assistance of counsel claim, appellant must prove two elements: (1) trial counsel’s deficient performance and (2) prejudice as a result of that performance.” (People v. Martinez (2014) 226 Cal.App.4th 1169, 1189, citing Strickland v. Washington (1984) 466 U.S. 668, 687.)
Deficient performance is established “if the record demonstrates that counsel’s performance fell below an objective standard of reasonableness under the prevailing norms of practice.” (In re Alvernaz (1992) 2 Cal.4th 924, 937.) “A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.” (People v. Kelly (1992) 1 Cal.4th 495, 520 (Kelly).) Deciding whether to object “is inherently tactical.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
Defense counsel was not deficient in failing to object to the prosecutor’s comments as a misstatement of law. Contrary to defendant’s contention, we do not construe the prosecutor’s comments as an argument regarding unanimity. The prosecutor never mentioned the unanimity requirement in his comments. Rather, the prosecutor explained that defendant put his fingers inside Doe’s genital opening and inside her anal opening, and that “either of those acts constitute sexual penetration with a child.” The prosecutor’s comments correctly advised the jury that sexual penetration, for purposes of section 288.7, is accomplished by penetration of either the genital opening or the anal opening. (See § 289, subd. (k)(1) [sexual penetration is penetration “of the genital or anal opening”].) Defense counsel was not deficient in failing to object to the prosecutor’s comments as a misstatement of the unanimity requirement. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 [“failure to make a futile or unmeritorious objection is not deficient performance”].)
Likewise, defense counsel was not deficient in failing to object that the prosecutor misrepresented the evidence. It is true that the prosecutor misstated the evidence regarding the number of times defendant penetrated Doe’s genital opening and anal opening. Doe testified that defendant put his fingers inside her genital opening “more than once” and put his fingers inside her anal opening “more than once,” but the prosecutor stated that defendant put his fingers inside Doe’s genital opening “more than twice” and put his fingers inside her anal opening “more than twice.” Defense counsel’s decision to not object to this misstatement was a reasonable tactical decision. The defense theory was that Doe was lying and no act of molestation ever occurred. This theory proposed an all-or-nothing approach to the jury—defendant either committed no acts of molestation or all of the acts of molestation alleged by Doe. Under the defense theory, the exact number of acts of sexual penetration alleged by Doe was irrelevant, and it was thus reasonable for defense counsel to forgo an objection to the prosecutor’s misstatement regarding the evidence. (Kelly, supra, 1 Cal.4th at p. 520 [a reviewing court will not second-guess reasonable tactical decisions].)
For the foregoing reasons, defendant has failed to show deficient performance in defense counsel’s failure to object. Defendant’s claim of ineffective assistance fails.

B. Unanimity Instructions
Defendant contends that counts 3, 4, and 5 must be reversed because the trial court incorrectly instructed on unanimity with respect to those counts. Specifically, defendant contends that the trial court erred in instructing pursuant to CALCRIM No. 3501 for counts 3, 4, and 5 because the evidence showed that those counts “involved different types of acts.”
1. Background
Pursuant to CALCRIM No. 3501, the trial court instructed the jury on unanimity as follows: “In each count of Counts 1 through 10, the defendant is charged with committing a crime during the period of July 7, 2009 to March 11, 2012. [¶] For each count, the People have presented evidence of more than one act to prove that the defendant committed the offense in that count. You must not find the defendant guilty of the crime in any count unless: [¶] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed for each offense; [¶] OR [¶] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period and have proved that the defendant committed at least the number of offenses charged in the counts based on those acts.”
The trial court further instructed the jury on unanimity pursuant to a modified version of CALCRIM No. 3502. That instruction provided: “The People are not basing any of the charged crimes in Counts 1 through 10 on any act that occurred on March 9, 2012, or on any act that [O.] testified she saw approximately one year or more earlier when she got out of bed to make coffee.”
After it instructed the jury, the trial court made a record of the “discussions concerning jury instructions.” The trial court summarized the discussions regarding unanimity instructions as follows: “We gave CALCRIM 3501 based on the fact that there were more acts described by the evidence than the counts for each of the offenses. Namely, there were more acts described than the two counts of sexual intercourse, three counts of sexual penetration, and five counts of lewd act[s] . . . . [¶] We also tailored an instruction based on CALCRIM 3502 . . . to instruct the jury clearly that the People were not basing any of the charged crimes in Counts 1 through 10 on any act that occurred on March 9, 2012, or on any act that [O.] testified she saw approximately one year or more earlier when she got out of bed to make coffee.” Following the trial court’s comments, defense counsel confirmed that the trial court had accurately summarized the discussions regarding jury instructions.
2. Forfeiture
The Attorney General contends that defendant forfeited his claim of instructional error by failing to request clarifying or amplifying language. The Attorney General correctly notes that “ ‘a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’ ” (People v. Guiuan (1998) 18 Cal.4th 558, 570.) Here, however, defendant does not complain that the unanimity instructions were too general or incomplete. Rather, defendant contends that CALCRIM No. 3501 was an incorrect unanimity instruction in light of the evidence presented at trial. The Attorney General has failed to show forfeiture, and we now address the merits of defendant’s claim.
3. Legal Principles and the Standard of Review
“In a criminal case, a jury verdict must be unanimous.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) “[T]he jury must agree unanimously the defendant is guilty of a specific crime.” (Ibid., italics omitted.) “Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.)
In People v. Jones (1990) 51 Cal.3d 294 (Jones), the California Supreme Court discussed unanimity when “ ‘generic’ ” testimony is presented in child molestation cases. Generic testimony occurs when the defendant “lives with his victim,” and the victim “testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.” (Id. at p. 299.) Jones announced the following rule for unanimity instructions in cases involving generic testimony: “In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim.” (Id. at pp. 321-322.)
CALCRIM No. 3501 is a “modified instruction” based on the unanimity principles described in Jones. (People v. Fernandez (2013) 216 Cal.App.4th 540, 555 (Fernandez).) CALCRIM No. 3501 “is an alternative instruction to” the standard unanimity instruction, CALCRIM No. 3500. (Fernandez, at p. 556.) “CALCRIM No. 3501 affords two different approaches for the jury to reach the required unanimity. The first is the same as that set forth in CALCRIM No. 3500: agreement as to the acts constituting each offense. But unanimity may also be found under CALCRIM No. 3501 if the jury agrees ‘that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved the defendant committed at least the number of offenses charged].’ ” (Ibid.)
CALCRIM No. 3500 should be given when “ ‘the evidence indicates the jurors might disagree as to the particular act defendant committed.’ ” (Fernandez, supra, 216 Cal.App.4th at p. 555.) CALCRIM No. 3501 should be given “ ‘when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them.’ ” (Fernandez, at pp. 555-556.)
“We review assertions of instructional error de novo. [Citation.] Whether the trial court should have given a ‘particular instruction in any particular case entails the resolution of a mixed question of law and fact,’ which is ‘predominantly legal.’ [Citation.] Accordingly, we examine the issue without deference.” (People v. Selivanov (2016) 5 Cal.App.5th 726, 751.)
4. Analysis
In counts 3, 4, and 5, defendant was charged with sexual penetration of a child 10 years of age or younger, in violation of section 288.7. Sexual penetration, for purposes of section 288.7, is accomplished by penetration “of the genital or anal opening.” (§ 289, subd. (k)(1).) Counts 3, 4, and 5 were based on Doe’s testimony that defendant put his fingers inside her genital opening “more than once” and her testimony that defendant put his fingers inside her anal opening “more than once.”
Based on Doe’s testimony, the trial court instructed the jury on unanimity pursuant to CALCRIM No. 3501. Defendant contends that the trial court erred in instructing pursuant to CALCRIM No. 3501 for counts 3, 4, and 5—and should have instead given CALCRIM No. 3500—because those counts “involved different types of acts.” Defendant asserts that because Doe testified that he put his fingers inside her genital opening and inside her anal opening, the evidence was such that the jurors might disagree as to the particular acts he committed.
Defendant’s argument is unavailing. The evidence did not indicate that the jurors might disagree as to the particular acts defendant committed. Doe described repeated acts of molestation that occurred over a two-year period. She testified that defendant molested her “many” times. She explained that defendant molested her “every time” O. left her at the apartment with defendant, which was approximately twice a week. Doe could not recall the “exact number” of times defendant put his fingers inside her genital opening, but she testified that it happened “more than once.” Doe also testified that defendant put his fingers inside her anal opening “more than once.” Defendant offered no evidence that distinguished one act of molestation from any other act of molestation. Rather, the defense theory was that Doe was lying and no act of molestation ever occurred.
On this record, the jurors either believed defendant committed all of the acts described by Doe, or they disbelieved Doe’s testimony completely. “As Jones explains, if it is not reasonably likely that jurors will disagree as to which particular act[s] the defendant committed and the only issue is whether they were committed at all, the jury should be given . . . CALCRIM No. 3501.” (Fernandez, supra, 216 Cal.App.4th at p. 558.) The trial court here properly instructed the jury pursuant to CALCRIM No. 3501 for counts 3, 4, and 5.

C. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to support the convictions in counts 1 through 10. Specifically, he asserts that Doe’s “baldly generic” testimony was insufficient because it provided “no evidence of separate locations or distinct time frames.”
Our standard of review for the sufficiency of the evidence “is well established.” (People v. Garcia (2016) 247 Cal.App.4th 1013, 1019.) “Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
In Jones, the California Supreme Court concluded that generic testimony “is sufficiently substantial” to support a conviction for child molestation. (Jones, supra, 51 Cal.3d at p. 313.) Jones then prescribed the following rule for evaluating the sufficiency of the evidence when generic testimony is presented in a child molestation case: “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.) “In summary, the Jones court held that, in child molestation cases, as long as the victim specifies the type of conduct involved, its frequency, and that the conduct occurred during the limitation period, nothing more is required to establish the substantiality of the victim’s testimony.” (People v. Matute (2002) 103 Cal.App.4th 1437, 1446.)
Applying the rule prescribed in Jones, we must conclude that there was substantial evidence to support the convictions in counts 1 through 10. Doe described the kinds of acts that defendant committed. She explained that defendant put his penis inside her vagina and inside her anus, put his fingers inside her vagina and inside her anus, and threatened that she “would get in trouble” if she told anyone about the molestation. Doe also described the number of acts that defendant committed. She explained that defendant put his penis inside her vagina more than five times, put his penis inside her anus more than five times, put his fingers inside her vagina more than once, and put his fingers inside her anus more than once. Finally, Doe described the general time period in which the molestation occurred. Doe testified that defendant began molesting her when she was six or seven years old. She explained that defendant molested her approximately twice a week until the time of his arrest, when she was eight years old. Under Jones, the foregoing evidence was sufficient to support the convictions in counts 1 through 10. Contrary to defendant’s assertion, evidence of separate locations and distinct time frames was not required. (See Jones, supra, 51 Cal.3d at p. 316 [“details regarding the time, place or circumstance of the various assaults” are not required to sustain a conviction].)
Defendant contends that “the underlying rationale of the Jones framework is fundamentally flawed,” and he urges this court to reconsider “the continued validity of Jones.” (Capitalization omitted.) We are bound by Jones. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We reject defendant’s invitation to address the continued validity of Jones.

D. Consecutive Prison Terms for Counts 1 Through 5
Defendant contends that the trial court abused its discretion in imposing consecutive prison terms for counts 1 through 5.
1. Background
In counts 1 and 2, defendant was convicted of sexual intercourse with a child 10 years of age or younger. In counts 3, 4, and 5, defendant was convicted of sexual penetration of a child 10 years of age or younger.
When it imposed consecutive prison terms for counts 1 through 5, the trial court explained: “I considered the criteria under California Rule of Court 4.425. In considering those criteria, I considered under subsection (a)(1) of California Rule of Court 4.425 the fact that the crimes and their objectives in those Counts were predominately independent of each other. I also considered under subsection (a), subsection (3) that the crimes were committed in fact at different times or separate places rather than being committed so closely in time and place as to indicate a single period of adherent [sic] behavior.”
2. Analysis
Rule 4.425 of the California Rules of Court “sets forth the criteria affecting the decision to impose consecutive rather than concurrent terms.” (People v. Coelho (2001) 89 Cal.App.4th 861, 886.) Those criteria include whether or not 1) the “crimes and their objectives were predominantly independent of each other,” 2) the “crimes involved separate acts of violence or threats of violence,” or 3) the “crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.” (Rule 4.425(a).) Only a single aggravating factor is required to impose consecutive terms. (People v. Osband (1996) 13 Cal.4th 622, 728-729 (Osband); People v. Davis (1995) 10 Cal.4th 463, 552.) We review the trial court’s decision to impose consecutive terms for abuse of discretion. (People v. Giminez (1975) 14 Cal.3d 68, 71-72.)
Here, the trial court did not abuse its discretion in imposing consecutive prison terms for counts 1 through 5. Rule 4.425(a)(3) specifies that consecutive terms are appropriate when the “crimes were committed at different times” rather than being committed as part of “a single period of aberrant behavior.” The trial court properly concluded that this aggravating factor warranted consecutive terms in defendant’s case. Defendant molested Doe approximately twice a week over a two-year period. Doe testified that defendant molested her “many times” and put his penis inside her vagina “a lot.” Doe told her aunt that defendant had “touched her many, many times” when she was not wearing clothing. Doe told Officer Ochoa that defendant “had touched her many, many times.” The foregoing evidence demonstrated that the offenses in counts 1 through five were not part of a single period of aberrant behavior. Rather, the evidence showed that defendant sexually abused Doe at many different times over the course of two years. The trial court thus did not abuse its discretion in imposing consecutive prison terms for counts 1 through 5. (See Osband, supra, 13 Cal.4th at pp. 728-729 [only a single aggravating factor is required to impose consecutive terms].)

E. Cruel and Unusual Punishment
Defendant contends that his sentence of 95 years to life consecutive to a 30-year term constitutes cruel and unusual punishment in violation of the California and United States Constitutions. Characterizing his sentence as “extremely harsh,” defendant argues that there is an “intolerable disparity between [his] culpability and punishment.”
As the Attorney General points out, defendant “argues for the first time on appeal that his sentence . . . constitutes cruel and unusual punishment . . . .” “A defendant’s failure to contemporaneously object that his sentence constitutes cruel and unusual punishment forfeits the claim on appellate review.” (People v. Speight (2014) 227 Cal.App.4th 1229, 1247 (Speight); see also People v. Kelley (1997) 52 Cal.App.4th 568, 583 (Kelley) [a claim that a sentence is cruel and unusual punishment is forfeited if the issue is not raised in the trial court].) “A claim a sentence is cruel and unusual is forfeited on appeal if it is not raised in the trial court, because the issue . . . requires a fact-bound inquiry.” (Speight, at p. 1247; see also People v. Norman (2003) 109 Cal.App.4th 221, 229 [a claim of cruel and unusual punishment is forfeited by failure to object in the trial court because the issue requires “examination of the offense and the offender,” an inquiry that is “ ‘fact specific’ ”].) Because defendant never raised the issue in the trial court, he has forfeited his claim that his sentence constitutes cruel and unusual punishment.
Even if defendant had not forfeited his claim, he could not prevail. “Successful challenges based on proportionality are extremely rare.” (Kelley, supra, 52 Cal.App.4th at p. 583.) “The defendant must show the sentence is ‘ “out of all proportion to the offense” ’ and that it offends ‘fundamental notions of human dignity.’ [Citation.]” (Ibid.) Defendant has not met this standard. His argument is premised on the notion that his crimes are “a far cry from the most egregious forms of sex crimes or criminal behavior in general.” His argument is also premised on the notion that his crimes do not “reflect[] a serious degree of danger to society at large.” Defendant mischaracterizes the nature of his crimes. The evidence showed that defendant abused a position of trust and molested Doe approximately twice a week from the time she was six years old until the time she was eight years old. The molestation included repeated acts of sodomy and sexual intercourse that caused Doe pain. Contrary to defendant’s assertion, his crimes can certainly be classified as egregious, and his crimes certainly reflect a serious degree of danger to society. Given the faulty premise of defendant’s argument, his claim of cruel and unusual punishment fails.

III. Disposition
The judgment is affirmed.






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Mihara, J.



WE CONCUR:






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Elia, Acting P. J.






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Bamattre-Manoukian, J.