Opinion
G051761
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. RENE CENTENO, Defendant and Appellant.
Rodger P. Curnow, 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 Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10NF3676) OPINION Appeal from a judgment of the Superior Court of Orange County, Daniel Barrett McNerney, Judge. Affirmed. Rodger P. Curnow, 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 Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was sentenced to 155 years to life in prison for sexually abusing his girlfriend's daughters. On appeal, he contends: 1) His admissions to the police should have been excluded from his trial because they were involuntarily rendered; 2) the victims' interviews with a social worker should also have been excluded because they were unreliable; 3) the jury instructions defining the charged offenses were argumentative; and 4) his sentence is cruel and unusual. Finding these contentions unmeritorious, we affirm the judgment.
FACTS
Born and raised in Mexico, appellant immigrated to the United States when he was 25, in 2008. In July 2010, he met Diana B., and she moved into his apartment with her four daughters, Rose, age 11, Danna, age 7, Laura, age 5, and Daniela, age 4. Appellant, Diana and the girls all slept in the same bedroom. Since Diana left for work at 5:00 a.m., it was appellant's job to wake the girls and get them ready for school. It was during this time that appellant perpetrated his crimes.
Oftentimes, appellant would lie down beside the girls while they were sleeping, and they would awake to find him putting his fingers or penis inside their vagina. He also sodomized Rose and Danna on occasion. The sexual activity always occurred while all four girls were in the room. Thus, in addition to being victims themselves, the girls were forced to witness many of the acts appellant committed against their sisters. In fact, it was not uncommon for appellant to molest the girls one right after another.
Eventually, the girls told their mother Diana about the molestation, and she called the police on November 29, 2010. That same day, Buena Park Police Detective Pedro Montez contacted appellant at his home, and appellant agreed to accompany him to the police station for questioning. During his interview, appellant initially told Montez he did not do anything wrong. However, as the interview progressed, appellant admitted having sexual contact with Laura and Daniela.
The next day, all four of Diana's daughters were interviewed by a member of the Orange County Child Abuse Services Team (CAST). They each accused appellant of sexually molesting them.
At trial, appellant testified he never molested anyone. He said the reason he confessed to Detective Montez is because he felt pressured by him and he had been mistreated by the police in the past. To support his claim that his confession was false, appellant presented testimony from an expert witness on police interrogations who opined Montez employed interview techniques that were coercive in nature. As part of his defense, appellant also presented evidence that Diana's daughters disliked his strict parenting style and that Diana had previously ejected their natural father from their house for molesting Rose. Based on this evidence, the defense theorized the girls lied about appellant molesting them as a way of getting him out of their lives.
Appellant claimed that when he was living in Mexico, the police kidnapped him on two occasions and held him hostage until his employer paid a ransom.
The jury did not see it that way. It convicted appellant of eight counts of child sexual abuse, including lewd conduct, sexual intercourse, sexual penetration and sodomy. (Pen. Code, §§ 288, subd. (a), 288.7, subds. (a) & (b), 286, subd. (c)(1).) The jury also found appellant committed a lewd act against multiple victims and engaged in substantial sexual conduct with them. (Id., at §§ 667.61, subds. (b) & (e)(5), 1203.066, subd. (a)(8).) He was sentenced to 155 years to life in prison for his crimes.
DISCUSSION
Admissibility of Appellant's Confession
Appellant contends his admissions to Detective Montez were involuntarily rendered because, inter alia, Montez repeatedly offered to get him help during his interview. We find appellant's admissions were legally obtained and properly admitted into evidence.
As stated above, appellant voluntarily accompanied Montez to the police station for questioning. When they got there, Montez brought appellant into an interview room and reiterated to him that he was not under arrest. He also told appellant he could leave at any time for any reason. Appellant said he understood and wanted to cooperate. He did not express any hesitation about speaking with Montez. They ended up talking for about one hour and twenty minutes.
At the start of the interview, appellant explained he had been living with Diana and her daughters for about five months. He said they all slept in the same bedroom, with the girls on the floor and he and Diana in a bed. And after Diana left for work in the morning, he spent time with the girls getting them ready for school. Asked if the girls ever came into his bed, appellant said they did sometimes to wrestle with him. However, he said the wrestling was purely playful, not sexual. When Montez floated the idea appellant may have accidentally touched the girls inappropriately while they were wrestling, he said it was highly unlikely.
Montez then told appellant the girls were accusing him of sexual misconduct unrelated to the wrestling. He asked appellant if the girls had ever seen his penis or if his semen could have gotten on their clothes somehow. Appellant did not think so. He said he always wore clothes when he was around the girls, and they were never present when he and Diana had sex. Montez told appellant it was important for him to be honest because the police were going to check the girls' clothing for DNA evidence.
Montez also told appellant that Laura had accused him of "mounting" her. Montez said Laura was experiencing pain in her vaginal area, and Rose had reported seeing him having sex with Laura and Daniela. When appellant denied any wrongdoing, Montez told him all four girls had accused him of sexual misconduct. Montez also told appellant he did not think of him as "some kind of animal." Rather, he simply wanted to know if appellant's affection toward the girls had caused him to make some "mistakes." Appellant said that was not the case.
Despite appellant's denials, Montez said he sensed appellant was getting uncomfortable and wanted to get something off his chest. He told appellant, "I see you like a person that is regretful. . . . I don't see a person with any intentions of hurting a child. Okay. If you need help sir [unintelligible] have help here. Okay. We can give you . . . an appointment with a counselor or with a psychiatrist. Something like that we can do [unintelligible]. Okay. But I need for you to be honest with me because what I am seeing right now and what the girls have told me, it indicates that you are not telling me everything. . . . I want for you to tell me sir why is it that we are going to find your . . . DNA on the girls' clothes? What is the excuse sir?" "If you need help I need to know. . . . Do you need help, sir?"
Appellant's response was ambivalent, so Montez asked him again if he needed help. Appellant asked, "Help like what?" and Montez told him, "For having sexual relations with minors. . . . You need help. We can get you help." Montez also told appellant that if he wasn't willing to "open up and talk" they could not help him. Montez said, "I need to . . . know why it is that this occurred. If we don't know why it occurred, how can you get help? How can you help yourself? How can you get better, if you can't accept what happened[?]" Appellant remained steadfast in his denial, even after Montez reminded him of the girls' allegations and brought up the prospect of him taking a polygraph test.
Shifting to new terrain, Montez asked appellant if he had ever been sexually abused as a child. Appellant paused momentarily before revealing he was molested by a neighbor while growing up in Mexico. Appellant also told Montez he had never told this to anyone before. Montez thanked appellant for confiding in him and assured him his situation was not unique. He told appellant it was important for people to be honest about their own victimization so they do not become sexual predators themselves. Working on the assumption appellant had already crossed that line, Montez asked him what was going through his mind when he was molesting the girls in his home. In particular, Montez wanted to know if appellant intended to hurt the girls somehow. Appellant replied, "Well no. I have never hurt them." Montez then asked appellant if he used a condom when he put his penis in Laura, and appellant said, "No. I didn't use one."
Next, Montez asked appellant how many times he had victimized Laura and whether he had actually put his penis inside her vagina. Appellant said there was only one incident with Laura, which occurred about a month earlier, and on that occasion he only touched the outside of her vagina with his penis. He also said Laura's three sisters were sleeping in the room at the time.
After commending appellant for his honesty, Montez asked him "what happened" with Daniela, and appellant said, "The same." Elaborating on that, appellant initially said he put his penis "in" Daniela's vagina, but then he insisted he did not "penetrate her." Rather, he only touched his penis to the outside of her vagina, on "the lips." Appellant said this happened only one time. He also insisted that he never had any sexual contact with Rose or Danna.
Montez pressed appellant for more details and admissions, but none were forthcoming, so he advised appellant of his Miranda rights. After appellant said he understood his rights, Montez asked him what caused him to molest Laura and Daniela. Appellant said he acted out of "impulse" but did not ejaculate on either occasion. He also explained to Montez how his body was positioned when he molested the two girls. Asked if his penis could have touched Laura's anus in the process, appellant said, "Maybe in a movement I grazed her . . . I don't know."
Hoping to get more information out of appellant, Montez told him he could not help him or the girls unless he came clean about everything he had done to them. However, appellant insisted there was nothing more to tell, so Montez began to wrap up the interview. At that point, appellant asked about "the help" Montez had talked about. Montez told him, "That is going to be through court." He then arrested appellant for child sexual abuse.
Before trial, defense counsel moved to suppress appellant's admissions on the basis they were coerced and involuntarily rendered. It was defense counsel's position that Montez's "repeated promises of leniency, [his] lies, [and his] minimizing in the face of [appellant's] constant denials, created a psychologically coercive environment which caused [appellant] to confess." He also pointed out that appellant was only 27 years old, had never been arrested before, and had only been in the United States for two years when the interview took place.
At the motion hearing, the trial court raised the issue of whether Montez's repeated offers to get appellant help amounted to an implied promise of leniency. Arguing they did not, the prosecutor emphasized that Montez never told appellant he would receive treatment in lieu of being prosecuted if he confessed. However, in defense counsel's view, the offers created the impression appellant could avoid prosecution by admitting his guilt. In the end, the court stated it was "less than pleased" that Montez had offered to get appellant help during the interview. Nonetheless, the court observed that "offering an individual help for mental problems that may have created criminal behavior" is not the same as making a "promise of leniency with respect to . . . criminal charges themselves." Based on the circumstances presented, the court simply did not believe appellant's statements were involuntarily rendered. It therefore denied his motion to suppress.
As our Supreme Court has explained, "A statement is involuntary if it is not the product of '"a rational intellect and free will."' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' [Citation.] '"The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were 'such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined.' [Citation.]" [Citation.] In determining whether or not an accused's will was overborne, "an examination must be made of 'all the surrounding circumstances - both the characteristics of the accused and the details of the interrogation.' [Citation.]" [Citation.]' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404.)
We must also keep in mind that police interrogation will necessarily "'involve some pressure because its purpose is to elicit a confession.' [Citation.] '[T]he fact that the tactics produced the intended result . . . does not make [a] confession involuntary.' [Citation.] In other words, 'there is nothing inherently wrong with efforts to create a favorable climate for confession.' [Citation.]" (United States v. Santos-Garcia (8th Cir. 2002) 313 F.3d 1073, 1079.) After all, the "business of police detectives is investigation[.]" (People v. Jones (1998) 17 Cal.4th 279, 297.) "'[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.' [Citation.]" (Ibid.)
Nevertheless, appellant contends Detective Montez went too far in this case by confronting him with false evidence and attempting to minimize the consequences of his behavior. In that regard, appellant points out Montez falsely implied the police would find DNA from his semen on the girls' clothing, and Montez also told him Laura was experiencing vaginal pain from having been molested, which was not true. In addition, Montez suggested appellant could have touched the girls inappropriately, but by "accident," while they were wrestling on his bed. However, Montez's use of these interrogation techniques does not compel the conclusion appellant's admissions were involuntary. (See Frazier v. Cupp (1969) 394 U.S. 731, 739; People v. Holloway (2004) 33 Cal.4th 96, 112-117; People v. Musselwhite (1998) 17 Cal.4th 1216, 1240.) In fact, it has long been held that the police may utilize a variety of "deceptive stratagems to trick [a suspect] into confessing." (People v. Chutan (1999) 72 Cal.App.4th 1276, 1280.)
Of course, it is also well established that the police may not obtain a confession "by threats or promises of leniency, whether express or implied. [Citations.]" (People v. Clark (1993) 5 Cal.4th 950, 988, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Appellant asserts that by repeatedly offering to get him help during the interview, Montez impliedly promised he would not be prosecuted if he confessed, but instead would merely have to undergo psychological counseling for his problems. Appellant also claims those offers created an impermissibly coercive environment that caused him to confess. We disagree with both contentions.
As for whether Montez's offers to get appellant help constituted an implied promise of leniency, the trial court's reasoning was correct that "promises to help [a suspect] with his collateral health problems are far different from promises of leniency in the criminal proceeding." (United States v. McClinton (8th Cir. 1992) 982 F.2d 278, 283.) While it is undisputed Montez offered appellant help in the form of counseling or psychiatric assistance, this was in reference to appellant's suspected pedophilia. Nothing Montez said could reasonably be construed as "holding out hope of leniency in the courts or a shorter sentence." (Green v. Scully (2d Cir. 1988) 850 F.2d 894, 903-904; see also People v. Hurd (1998) 62 Cal.App.4th 1084, 1091 [confession deemed voluntary where "none of the detectives' statements indicated that the district attorney would act favorably in specific ways if appellant cooperated" with the police].) Therefore, the offers did not constitute an improper inducement. (Compare In re Shawn D. (1993) 20 Cal.App.4th 200 [minor's confession deemed involuntary where the police both threatened him and promised him leniency during the course of a lengthy interrogation].)
Moreover, it does not appear that Montez's offers of help were the "'motivating cause'" of appellant's admissions. (People v. Hogan (1982) 31 Cal.3d 815, 838, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) As a matter of fact, appellant did not make any incriminating statements in response to those offers. Appellant did mention the offers after he confessed; however, the thing that got him to open up and admit his misconduct in the first place were the inquiries about his own sexual victimization as a child, which is an unchallenged aspect of the interrogation. Therefore, the requisite element of causation appears to be missing in this case. (People v. Maury, supra, 30 Cal.4th at pp. 404-405 [coercive police activity is a necessary predicate to establish an involuntary confession, but in order to justify a finding of involuntariness, the activity and the confession must be causally linked].) There was no evidence offered that the offers of help were what caused appellant to confess, and nothing in his question about help after the interview to indicate anything other than remorse.
Lastly, appellant maintains his personal characteristics support the conclusion his admissions were involuntary, and the trial court was remiss for failing to consider them. As for the characteristics cited by appellant - his being a "poor immigrant" who spoke "no English" and whose only other experience with the police was "being kidnapped" in Mexico - there is nothing in the record to suggest these factors caused appellant to abandon his free will and falsely confess to child molestation. Nor is it reasonable to infer they did, given appellant was an adult at the time of the interview, and it was conducted in his mother tongue.
And although the trial court did not expressly mention appellant's personal characteristics in making its ruling, they were discussed in the parties' written and oral arguments. Under these circumstances, it is reasonable to presume the trial court took them into consideration. (See People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [trial court's awareness of applicable legal principles may be inferred from the arguments of counsel].) In any event, it is clear from our independent review of the proceedings and the totality of the circumstances surrounding appellant's interrogation that his admissions to Montez were voluntarily rendered. They were thus properly admitted at trial.
Admissibility of the Victims' CAST Interviews
Appellant also challenges the court's decision to admit the videotape recordings of the victims' CAST interviews. He contends the decision violated his statutory and constitutional rights because the recordings were unreliable and the trial court did not sufficiently consider their admissibility. The record shows otherwise.
Under Evidence Code section 1360, the trial court may admit as an exception to the hearsay rule a prior statement from a minor victim describing acts of sexual abuse. As a foundational prerequisite for admissibility, the statute requires the trial court to conduct a hearing outside the presence of the jury to ensure "the time, content, and circumstances of the statement provide sufficient indicia of reliability." (Evid. Code, § 1360, subd. (a)(2).) The statute also requires the prosecution to give notice of its intent to admit such statements and to show the victim is unavailable if he or she does not testify at trial. (Id., at subds. (a)(3), (b).) These requirements ensure the defendant's due process and confrontation rights will be protected when such statements are admitted against him at trial. (People v. Eccleston (2001) 89 Cal.App.4th 436, 442-450; People v. Brodit (1998) 61 Cal.App.4th 1312, 1325-1327.)
Here, the prosecution provided defense counsel with the requisite notice, and all four of the victims testified at trial, so the only issue is whether their statements provided sufficient indicia of reliability. At a pretrial hearing on that issue, defense counsel argued the statements from Daniela, Laura and Danna were unreliable "due to their young age." In so arguing, defense counsel recognized the social worker who conducted the interviews, CAST member Adrianne Ball, had "voir dired" all three girls with respect to their competency. Nonetheless, defense counsel believed the girls' statements were suspect because Ball did not subject them to the type of adversarial scrutiny that is associated with cross-examination. The trial court did not believe that was necessary. Having reviewed each of the girls' interviews, the court determined they were sufficiently reliable to be admitted into evidence and played to the jury.
Appellant's attack on that ruling is two-fold. First, he claims the court did not make a properly informed decision because it did not consider the girls' interviews individually or expressly refer to the timing, circumstances or content of their statements. However, not only did the court say it had carefully reviewed each of the girls' interviews, it discussed their ages, it reviewed the specific manner in which they were voir dired by Ball, and it considered how their dialogues with Ball developed throughout their interviews. This belies appellant's contention the court's ruling was uninformed.
Appellant also assails the ruling on the basis the girls' interviews "exhibited too many indicia of unreliability" to pass muster under Evidence Code section 1360. In particular, appellant asserts the interviews "were uniformly conducted with litigation in mind, and the questioning [by Ball] ceased to be open-ended whenever the topic of sexual conduct was broached. [Ball] was often inquisitorial, filing in gaps for the [girls]. Consequently, much of the information from [them] was not spontaneous." It would have been nice if appellant had included the requisite record citations to support these factual allegations. (See Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 ["It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations."].) Instead, he simply asks us to review the transcripts of the girls' interviews to determine whether his claim has merit.
Having done so, we are convinced it does not. Ball started each of the interviews by making sure the girls understood what it means to tell the truth. She told the girls she was only interested in hearing honest answers and did not want them to guess about anything she asked them. Ball also made it clear to the girls that it was okay for them to tell her if she made a mistake about something, or if they did not understand what she was asking them. Each of the girls exhibited an understanding of these rules, and each of them demonstrated they knew the difference between the truth and a lie.
In addition, once the interviews got rolling, Ball asked the girls few leading questions. Instead, she simply tried to get the girls to explain what happened in their own words and then asked them follow-up questions based on the answers they provided. This sometimes resulted in imprecise descriptions of appellant's conduct. For example, Daniela said appellant put his "this" inside her vagina; Laura described how appellant put his "thingy" in her "colita;" Danna alleged appellant put his hand in her "bottom;" and Rose said appellant put his "private" in her "private." Ball tried to ascertain the precise meaning of these terms, by using dolls and having the girls draw things out on a board. However, if the girls were unable to be more specific, or if they misidentified certain body parts, Ball simply went along with them rather than trying to correct them or put words in their mouth. This lends an aura of authenticity and reliability to the interviews.
So does the fact the girls' statements were cross-corroborated to a large extent. Not only did the girls make it clear to Ball that appellant had touched them inappropriately, they said they had witnessed appellant touching their sisters in the same or similar fashion. All things considered, we believe the girls' interview statements were sufficiently reliable to justify their admission under Evidence Code section 1360. Because of this, and because the girls were subject to cross-examination at trial, there was no violation of appellant's rights.
Propriety of Jury Instructions
Next, appellant claims the pattern jury instructions used to define the charged offenses "contain constitutionally impermissible argumentative language which rendered the proceedings below fundamentally flawed." The claim is not well taken.
Appellant arguably forfeited this claim by failing to raise it in the trial court. But because he asserts his trial attorney was ineffective for not bringing it up below, we will consider the claim on its merits to forestall a future habeas corpus petition on the issue. (See People v. Butler (2003) 31 Cal.4th 1119, 1128.)
The targeted instructions are CALCRIM Nos. 1110, 1090 and 1127, which define the crimes of lewd conduct and sodomy with a person under the age of 14 and sexual intercourse with a child age 10 or younger. Appellant has no complaint regarding what these instructions say about the affirmative elements of these crimes, i.e., the things the prosecution must prove to support a conviction. However, he contends the instructions are argumentative, duplicative and biased because they also tell the jury what the prosecution is not required to prove. To wit, CALCRIM No. 1110 states 1) the willful commission of a lewd act does not require that the person intend to break the law, hurt someone, or gain advantage; and 2) it is not necessary that the child or perpetrator be sexually aroused. And CALCRIM Nos. 1090 and 1127 state that ejaculation is not required for the crimes of sexual intercourse or sodomy with a child.
The law is well established: "A trial court bears a sua sponte duty to instruct the jury on the essential elements of an offense [citation], and '"on the general principles of law governing the case,"' i.e., '"'those principles of law commonly or closely and openly connected with the facts of the case before the court.'"'" (People v. Bell (2009) 179 Cal.App.4th 428, 434, italics omitted.) The instructional wording at issue here reflects general legal principles that are commonly associated with the type of child sexual abuse displayed in this case. Moreover, it is undisputed the language is correct from a legal standpoint. This is not a case where the jury instructions are being challenged as incorrect or inaccurate. Rather, appellant simply objects to the inclusion of language that he feels favors one side over the other.
We agree with appellant that jury instructions must be fair and impartial. However, we disagree with appellant's claim that telling the jury what one of the parties does not have to prove is tantamount to the court putting its thumb on one side of the scale. This is an effective way to facilitate the jury's understanding of the legal principles involved in the case. (See generally People v. Watie (2002) 100 Cal.App.4th 866, 876 [trial courts function as the jury's guide to the law]; People v. Moore (1996) 44 Cal.App.4th 1323, 1331 ["The trial court has the primary duty to help the jury understand the legal principles it is asked to apply."].) Which is probably why this manner of expression can be found in defense instructions as well as instructions that describe the elements of the charged offenses. (See, e.g., CALCRIM No. 3400, which explains that a criminal defendant relying on the defense of alibi does not have to prove where he was when the subject crime was committed.) We see nothing wrong with this method of instruction, so long as it clarifies the law for jury, as the subject instructions did in this case. (Cf. People v. Sigala (2011) 191 Cal.App.4th 695, 698 [rejecting challenge to a jury instruction which stated the touching required for the crime of continuous child abuse "need not be done in a lewd or sexual manner"].)
At any rate, the targeted language could not have prejudiced appellant because it pertained primarily to the issue of intent, which was not disputed in this case. Instead, appellant argued he did not commit the sexual acts that were alleged against him. That being the case, the alleged instructional error was manifestly harmless. (People v. Sigala, supra, 191 Cal.App.4th at pp. 701-702.)
Legality of Appellant's Sentence
Lastly, appellant contends his sentence of 155 years to life in prison is cruel and unusual. Again, we cannot agree.
Forfeiture is also an issue with respect to this issue. For the reasons explained in footnote 2, ante, we will consider appellant's claim on the merits. --------
Both the California and United States Constitutions prohibit the imposition of cruel or unusual punishment. (See U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) However, successful challenges based on that prohibition are extremely rare. (People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 ["exquisite rarity"].) Absent gross disproportionality in the defendant's sentence, no Eighth Amendment violation will be found. (Ewing v. California (2003) 538 U.S. 11; Lockyer v. Andrade (2003) 538 U.S. 63.) Similarly, a sentence will not be found unconstitutional under the state Constitution unless it is so disproportionate to the defendant's crime and circumstances that it shocks the conscience or offends traditional notions of human dignity. (People v. Dillon (1983) 34 Cal.3d 441; In re Lynch (1972) 8 Cal.3d 410, 424.)
In arguing his sentence is unconstitutional, appellant relies on a death penalty case (Coker v. Georgia (1977) 433 U.S. 584) and cases involving the punishment of juvenile offenders (Graham v. Florida (2010) 560 U.S. 48 and its progeny). However, appellant was not sentenced to death, and he was not a juvenile when he committed his crimes. Therefore, those cases are inapt.
Appellant's real complaint about his sentence is that he will be unable to complete it during his natural lifetime. He correctly points out that Justice Mosk once wrote a stirring concurring opinion decrying multicentury sentences as being oblivious to life expectancy tables. (People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn. of Mosk, J.).) But concurring opinions are not the law (People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383), and as respondent points out, the courts have consistently upheld sentences that exceed the defendant's life expectancy when, as here, they are imposed for the defendant's commission of multiple sex crimes. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230-1231 [upholding sentence of 135 years to life in prison]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [upholding sentence of 283 years and 8 months]; People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 522, 531 [upholding sentence of 129 years].)
Suffice it to say, by repeatedly sexually victimizing four young girls who were entrusted to his care appellant has demonstrated the necessary propensities to warrant a lengthy prison sentence. (Rummel v. Estelle (1980) 445 U.S. 263, 284-285; People v. Reyes (2016) 246 Cal.App.4th 62, 82-90.) The fact his sentence exceeds his life expectancy is fodder for theoretical musing, but it does not, either in the abstract or as applied to his particular circumstances, render his sentence unconstitutional under current legal standards. (See also Harmelin v. Michigan (1991) 501 U.S. 957, 1001 [sentence of life in prison without parole for possessing 672 grams of cocaine was not cruel or unusual under the Eighth Amendment].)
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. IKOLA, J.