Opinion
G052649
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL RAY DUKE, Defendant and Appellant.
Loleena Ansari, Beatrice Tillman and Helen S. Irza, 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, Theodore M. Cropley and Daniel J. Hilton, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CF0792) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Loleena Ansari, Beatrice Tillman and Helen S. Irza, 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, Theodore M. Cropley and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant was sentenced to 30 years to life in prison for orally copulating his granddaughter and his niece when they were four and three years old, respectively. At trial, the victims could not remember anything about the incident in question. Nonetheless, the prosecution was allowed to introduce incriminating statements the victims made to a social worker a few days after the incident took place. Appellant contends the admission of these statements violated his confrontation rights. He also asserts his sentence is cruel and unusual. We reject these claims and affirm the judgment.
FACTS
Appellant and his wife Kelly resided on a property in Santa Ana that included a one-bedroom house, a detached garage and a detached studio. Kelly lived in the house, appellant - who was a heavy drinker - lived in the garage, and his daughter Sa. and granddaughter T. lived in the studio. On the evening of March 2, 2014, Kelly was watching television at the house with her sister Kim and Sa. During that time, Kim's daughter S., age 3, her son A., age 5, and T., age 4, were playing around the house and garage. At one point, A. came up to Kelly and told her he had seen appellant pull down S.'s underwear and lick her vagina and butt. He also said appellant had licked T.'s vagina and butt. At trial, these statements were not admitted for their truth but merely to show what effect they had on Kelly, which was immediate. She stormed into the garage and asked appellant "what the hell was going on?" Appellant looked up at her but didn't say a word. Although he appeared to be drunk, he got in his pickup truck and drove away.
Two days later, appellant was arrested in Mesquite, Nevada. He was then transported to the Las Vegas jail, where Santa Ana police detectives interviewed him on March 5. Appellant told the detectives that S. and T. came into his garage to play on the night in question. While they were up on his bed, they pulled down their pants and showed appellant their butts, and he kissed them on their "butt holes." Appellant admitted it was wrong to do this, but he said he couldn't resist because the girls were "so cute." Asked if he also kissed the girls on their vaginas, appellant said he did not think so. However, he indicated it was possible because he had consumed half a jug of whiskey that day and was "pretty drunk." Despite what happened that evening, appellant claimed he usually did not get sexually aroused when he was around the girls. But he conceded he once masturbated on his bed while T. was sleeping next to him.
On the same day appellant was interviewed in Las Vegas, T. and S. were interviewed in Orange County by social worker Sunday Petrie, who is a member of the Child Abuse Services Team (CAST). T. told Petrie that appellant had her and S. lie face down on his bed. Then he pulled down their pants and took turns licking them where their "poo comes out" and where their "yellow potty comes out." T. also said he saw appellant touch "his own part" one time, on another occasion. S. made similar allegations. She told Petrie that appellant spread her butt cheeks apart and "put his tongue inside [her] butt." In addition, appellant licked the inside of her "titi," which is the word S. used to describe where her "pee pee" comes out. S. further alleged that appellant took out his "peeper" and touched it during this time. She said appellant "always shows his peeper to" her and T., but he has never asked them to touch it.
Appellant was charged with four counts of oral copulation on a child age 10 or younger. (Pen. Code, § 288.7, subd. (b).) Counts 1 and 3 were based on his licking S. and T.'s vaginas, and counts 2 and 4 were based on his licking their butts. By the time of trial, T. and S. were ages six and four, respectively. They testified they had no memory of appellant doing anything bad to them or being interviewed by CAST member Petrie. They were also unable to recognize appellant in the courtroom. Nevertheless, the trial court allowed the prosecution to play the videotape of Petrie interviewing them. The defense did not present any evidence on appellant's behalf. However, in closing argument defense counsel contended it was "remarkably strange" that the victims were unable to identify appellant in court or remember anything about the incident in question. Defense counsel argued the victims' allegations were not credible because the incident involved something that a child would naturally be inclined to remember. In the end, however, the jury convicted appellant as charged, and the trial court sentenced him to 30 years to life in prison for his crimes.
DISCUSSION
Alleged Sixth Amendment Violation
Appellant contends the admission of the victims' CAST interviews violated his Sixth Amendment rights because he was not permitted to cross-examine them in a meaningful fashion, due to their lack of memory. We find no violation of appellant's rights.
Before trial, defense counsel objected to the CAST interviews, but the trial court found they were sufficiently reliable to be admitted under Evidence Code section 1360. That section creates an exception to the hearsay rule for prior statements from a child describing acts of sexual abuse. The exception only applies when the child's statements are reliable, and the child is available to testify at trial or has been shown to be unavailable. (Id., at subds. (a)(2) & (3).) Following S. and T.'s testimony, defense counsel asked the court to revisit its ruling on the basis the girls were unable to remember anything about the crimes in question. However, the court stuck by its original ruling and allowed the prosecution to play the interviews for the jury. Appellant contends this procedure violated his Sixth Amendment rights because he was effectively denied the opportunity to confront the victims on cross-examination. Although appellant did not phrase his objection to the CAST interviews in terms of the Sixth Amendment, we will consider his claim because his inability to cross-examine the victims was an obvious basis for his objection to the interviews.
"The Confrontation Clause of the Sixth Amendment gives the accused the right 'to be confronted with the witnesses against him.' This has long been read as securing an adequate opportunity to cross-examine adverse witnesses. [Citations.]" (United States v. Owens (1988) 484 U.S. 554, 557.) However, "'[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'" (Id. at p. 558, quoting Delaware v. Fensterer (1985) 474 U.S. 15, 21-22.) "The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee." (Id. at p. 560.) In fact, the United States Supreme Court has never found a Confrontation Clause violation based "upon a witness' loss of memory." (Id. at p. 557.)
Appellant recognizes this history but sees reason for optimism in the recent case of People v. Giron-Chamul (2016) 245 Cal.App.4th 932 (Giron-Chamul). In that case, the court did find a Confrontation Clause violation in a prosecution for alleged sexual abuse of a child. However, the basis for that finding was the victim's "refusal" to answer questions on cross-examination. (Id. at pp. 961, 965.) Indeed, the victim, who was five years old at the time of trial, refused to answer hundreds of questions that were posed to her by defense counsel. (Id. at p. 966.) The state argued that refusal still provided the defense with ammunition to impugn the victim's credibility, thereby avoiding any Sixth Amendment problems, but the court was not convinced. To the contrary, it believed the victim's refusal to answer questions actually may have bolstered her credibility because it suggested that whatever happened to her in the past was too traumatic for her to recount in court. (Id. at p. 967.) Therefore, it found the victim's "refusal to answer numerous questions" to be grounds for reversal. (Ibid.)
However, in so finding, the Giron-Chamul court drew a crucial distinction that is pertinent here. While the court was unwilling to countenance a refusal to answer questions on cross-examination, it pointed out "a witness's failure to remember, whether real or feigned, generally does not deny the defendant an opportunity for effective cross-examination. [Citations.]" (Giron-Chamul, supra, 245 Cal.App.4th at p. 965, italics added.) That's because a witness' failure to remember a particular event generally does not enhance their credibility. Instead, it tends to cast doubt on whether the event actually occurred. This is especially true when the event is one that most people would be inclined to remember, like being sexually abused by a relative.
Defense counsel ably incorporated this notion into his closing argument. Speaking to S. and T.'s lack of memory, he argued this proved they were never really molested, otherwise they surely would have remembered it. This type of argument is simply not available in cases like Giron-Chamul, where the victim refuses to answer questions on cross-examination. And although defense counsel's argument did not win over the jury in this case, that is not determinative because, as pointed out above, "successful cross-examination is not the constitutional guarantee." (United States v. Owens, supra, 484 U.S. at p. 560.) Suffice it to say, appellant was afforded a full and fair opportunity to expose the victims' infirmities and call them to the attention of the jury. The fact the victims were unable to remember the events in question does not compel a reversal on Sixth Amendment grounds. (Id. at pp. 558-560 [no Confrontation Clause violation found where witness was unable to remember the basis for his identification of the defendant]; People v. Clark (2011) 52 Cal.4th 856, 927 [witness' inability to recall making prior statement "was a factor for the jury to consider in determining the weight to give that evidence, but did not render its admission a violation of the [C]onfrontation [C]lause."]; People v. Gunder (2007) 151 Cal.App.4th 412, 419 [agreeing with defendant's concession that, unlike the situation involving a witness' refusal to answer questions, "a witness with genuine memory loss is considered available for a defendant's cross-examination"]; People v. Perez (2000) 82 Cal.App.4th 760, 765-766 [same].) We cannot find error here.
Sentencing Claim
Appellant contends his indeterminate life sentence is cruel and unusual. We disagree.
At the time of appellant's sentencing hearing, he was 58 years old and facing a mandatory prison sentence of 15 years to life on each of his four convictions. (Pen. Code, § 288.7.) However, the trial court did have discretion in terms of whether to impose the sentences consecutively or concurrently. (Pen. Code, § 669, subd. (a).) Addressing the court on appellant's behalf, his daughter Sa. said her family did not want to press charges against appellant because he was basically a good person, and it would be hard on the victims to testify in court. While recognizing appellant was in need of help, Sa. believed he would be better off in an alcohol treatment facility than in prison. Several other people in appellant's family echoed this sentiment in letters to the court.
Subdivision (b) of Penal Code section 288.7 provides, "Any person 18 years of age or older who engages in oral copulation . . .with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 15 years to life." --------
For his part, appellant told the court he was sorry for what he had done, and his actions in this case were not indicative of the type of person he is. Indeed, prior to this case, appellant had never been involved in the criminal justice system, other than to deal with a few minor driving violations. The record also shows that while appellant was in custody awaiting trial, he scored in the low-risk category on the Static-99r, which is a test designed to measure the risk of sexual offense recidivism.
Defense counsel argued the statute under which appellant was convicted was cruel and unusual because, unlike other child sex crimes, it is a general intent offense, which precludes the defense of intoxication. The trial court rejected this argument. It reasoned that even if alcohol contributed to appellant's crimes that would not excuse his behavior because there are a lot of people who drink who do not commit crimes. The court also noted it had read the probation report, which indicates appellant has never sought treatment for his drinking problem, even though it has caused him much grief throughout his life. Ultimately, the court decided appellant's alcoholism was something that should be addressed in prison, not the confines of a private treatment facility. It imposed consecutive sentences of 15 years to life on counts 1 and 3 and ran the remaining two counts concurrently, for a total sentence of 30 years to life in prison.
Both the California and United States Constitutions prohibit the imposition of cruel or unusual punishment. (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17.) But 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 our 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.) "Under both standards, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions." (People v. Mendez (2010) 188 Cal.App.4th 47, 64.)
As for the nature of appellant's offenses, the record shows he sexually violated two young children, while a third child was looking on. There can be no dispute that "sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people." (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 244.) Granted, appellant did not use force or violence in carrying out his crimes, and the victims testified they had no memory of what appellant did to them. However, as the victims' grandfather and uncle, appellant took advantage of their trust. As the probation officer noted in her presentence report, "It is difficult to imagine how a child must feel to be hurt by a family member whom she loves, depends on, and looks to for guidance."
And although appellant may have been under the influence at the time of his crimes, he surely knew the gravity of what he was doing because he fled the state as soon as his wife confronted him about it. In any event, it is disingenuous for appellant to cite his decades-long drinking problem as a mitigating circumstance when he has never enrolled in a program to overcome the problem. If anything, appellant's entrenched alcoholism is a sign he might be inclined to reoffend if he were given the opportunity to do so in the future. We recognize appellant was shown to be a low risk for recidivism on the Static-99r, but that test did not take account of appellant's extensive history of alcohol abuse, so we are hesitant to place too much stock in it.
We are also reluctant to read too much into appellant's lack of a prior criminal record. Appellant may not have been formally charged with sexual misconduct before this case arose, but during his police interview he admitted that he once masturbated while T. was sleeping next to him in his bed. And during their pretrial interviews, T. and S. indicated appellant had exposed himself to them on various occasions. All things considered, we think appellant has demonstrated the necessary propensities to warrant a lengthy prison sentence, whether or not we would have imposed it. (See Rummel v. Estelle (1980) 445 U.S. 263, 284-285; People v. Reyes (2016) 246 Cal.App.4th 62, 82-90.)
Appellant contends his sentence is disproportionate compared to the penalty for more serious offenses in California, such as second-degree murder, which, like appellant's crime, carries a penalty of 15 years to life in prison. (See Pen. Code, § 190, subd. (a).) However, it is not unconstitutional for a state to punish nonhomicide crimes as seriously as homicide crimes. (See, e.g., Harmelin v. Michigan (1991) 501 U.S. 957 [upholding sentence of life without the possibility of parole for a defendant who possessed a large quantity of cocaine].) This is particularly true when the crime targets children, who are society's most vulnerable victims. (See generally People v. Scott (1994) 9 Cal.4th 331, 341-342 [recognizing special laws are needed to protect children because they are uniquely susceptible to sexual exploitation].) Moreover, it is clear that, compared to the punishment meted out to other sex offenders who take advantage of children in California, appellant's sentence is not out of proportion. (See Pen. Code, § 269 [mandating sentence of 15 years to life for a variety of sex crimes that are perpetrated against children].)
Lastly, we note that while the punishment for orally copulating a child under 10 is severe in California, it is on par with other jurisdictions. (See, e.g., Fla. Stat. §§ 800.04, subd. (5)(a),(b) & 775.082, subd. (3)(a)4 [lewd act on child under 12 is punishable by life imprisonment or a sentence of not less than 25 years]; 720 Ill. Stat. § 5/11-1.40, subd. (a)(1), (b)(1)(1.2) [authorizing sentence of 60 years in prison for sexual assault on a child under 13 years of age and mandating "a term of natural life imprisonment" if the defendant victimized two children]; Kan. Stat. §§ 21-5506, subd. (b)(3)(A), (c)(3) & 21-6627, subds. (a)(1)(C) [presumptive sentence for taking indecent liberties with a child under the age of 14 is 25 years to life in prison]; Nev. Stat. § 201.230, subd. (2) [the punishment for committing a lewd act on a child under the age of 14 is 10 years to life in prison].) Thus, we find no inter-jurisdictional disproportionality in this case.
At bottom, we are satisfied appellant's sentence comports with constitutional limitations respecting excessive punishment. We do not believe it is cruel or unusual.
DISPOSITION
The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.