Opinion
F082649
02-21-2023
THE PEOPLE, Plaintiff and Respondent, v. MARCELO JIMENEZ, Defendant and Appellant.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. No. MCR066362 Dale J. Blea, Judge.
Hilda Scheib, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
Over the course of several years, Marcelo Jimenez (appellant) molested two foster daughters and two nieces. A jury convicted him of four counts of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b); counts 1, 5, 6, and 9),six counts of lewd act upon a child under 14 years of age (§ 288, subd. (a); counts 2, 3, 4, 7, 8, and 11), and one count of continuous sexual abuse of a child under 14 years of age (§ 288.5, subd. (a); count 12). As to the section 288, subdivision (a) (section 288(a)) counts and the section 288.5, subdivision (a) count, the jury found true the allegation that appellant committed the offenses against multiple victims. (§ 667.61, subd. (e)(4).) The trial court sentenced appellant to 175 years to life in state prison, consisting of consecutive terms of 25 years to life for each of the seven offenses on which the multiple victim allegation was found true. (§ 667.61, subd. (j)(2).)
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, appellant contends section 667.61, subdivision (j)(2) (section 667.61(j)(2)) does not apply to section 288(a) convictions, and therefore the corresponding six indeterminate terms of 25 years to life are unauthorized. He also claims the trial court was unaware of its discretion to impose concurrent terms, and that his sentence constitutes cruel and unusual punishment. We conclude appellant's claims lack merit, and we affirm.
BACKGROUND
Appellant does not challenge the sufficiency of the evidence as his claims on appeal only deal with sentencing. We, therefore, provide only a brief summary of the material facts supporting the judgment.
I. Offenses Involving Victim 1 - Counts 1, 2, 3, and 4
Victim 1 was a foster child of appellant and lived in his house when she was nine years old. She testified appellant molested her three times inside of his house. One incident occurred in her bedroom, one incident occurred in appellant's bedroom, and one incident occurred in the dining room. During each incident, appellant touched the outside and inside of her vagina with his hand.
II. Offenses Involving Victim 2 - Counts 5, 6, 7, and 8
Victim 2 is Victim 1's younger sister. She lived in appellant's house as his foster child when she was six years old. She testified appellant molested her twice while living in his house. During one incident, when she was in the living room, he inserted his fingers into her vagina and anus. Another time, while in his bedroom, he inserted his fingers into her anus and touched her vagina, but she could not recall if he inserted his fingers inside.
III. Offenses Involving Victim 3 - Counts 9 and 11
Victim 3 is appellant's niece. She testified appellant molested her three or four times when she was six years old. The molests occurred at her grandmother's house while she was lying on her father's bed and playing with a tablet. In each instance, appellant put his fingers inside of her vagina. He also kissed and touched her breasts.
IV. Offenses Involving Victim 4 - Count 12
Victim 4 is also appellant's niece. He began molesting her when she was 11 years old. She testified that one incident occurred when she was in her room sitting on her bed. Appellant came into the room and gave her his phone to play with, then touched her breasts over and under her clothes, and her vagina and buttocks over her clothes.
Victim 4 testified appellant molested her nine or 10 times when she was at his apartment during family gatherings. These incidents occurred when she was 11 or 12 years old. The molestation occurred when she was alone with appellant in his bedroom. Each time, appellant touched her breasts over and under her clothes, and touched her vagina and buttocks over and under her clothes. She also described two other incidents outside of appellant's apartment in which appellant touched her breasts over her clothes.
DISCUSSION
I. Section 667.61(j)(2) Applies to Appellant's Section 288(a) Convictions.
Appellant was sentenced to 25 years to life on counts 2, 3, 4, 7, 8, and 11, based on the application of section 667.61(j)(2). Appellant contends section 667.61(j)(2) does not apply to section 288(a) convictions, and therefore his sentences on these counts were unauthorized. We disagree.
A. Legal Background
Section 667.61, "the One Strike law[,] is an alternative sentencing scheme [that] applies only to certain felony sex offenses. [Citation.] It mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime (§ 667.61 [listing applicable crimes]) and has also found certain factual allegations to be true (§ 667.61, subds. (d), (e))." (People v. Anderson (2009) 47 Cal.4th 92, 102.) As is relevant here, section 288(a) is a qualifying felony sex offense (§ 667.61, subd. (c)(8)), and one of the applicable factual allegations is committing an enumerated offense against more than one victim. (§ 667.61, subd. (e)(4).)
Section 667.61, subdivision (b), provides that a defendant "who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life." However, subdivision (b) specifies that it applies "except as provided in subdivision ... (j)," which provides for harsher penalties for defendants who commit sexual offenses against children. Under section 667.61(j)(2), a defendant "who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life." Thus, appellant was sentenced on each count of section 288(a) to 25 years to life pursuant to section 667.61(j)(2), rather than 15 years to life pursuant to section 667.61, subdivision (b).
B. Standard of Review
Appellant raises a question of statutory interpretation, which is a question of law subject to this court's independent review. (John v. Superior Court (2016) 63 Cal.4th 91, 95.)
C. Appellant's Sentence was Proper
We begin by examining the statutory language of section 667.61(j)(2)." 'When interpreting statutes, we begin with the plain, commonsense meaning of the language used by the Legislature.'" (People v. Rodriguez (2012) 55 Cal.4th 1125, 1131.) "If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls." (People v. Gray (2014) 58 Cal.4th 901, 906.) "We will follow that meaning unless doing so would lead to absurd results the Legislature did not intend." (People v. Betts (2020) 55 Cal.App.5th 294, 298 (Betts).)
Under the plain language of the statute, section 667.61(j)(2) unambiguously applies to violations of section 288(a) because it is one of the nine sexual offenses specified in section 667.61, subdivision (c). (§ 667.61, subdivision (c)(8).) Committing the offense against multiple victims is a circumstance listed in section 667.61, subdivision (e). (§ 667.61, subdivision (e)(4).) The jury found appellant guilty of six counts of section 288(a), and as to each, found true the allegation that he committed the offenses against multiple victims. Accordingly, the trial court properly sentenced appellant on each count to 25 years to life in state prison.
Despite the clear language of section 667.61(j)(2), appellant claims it is inapplicable to section 288(a) convictions because the offense "already encompasses" the age of the victim. In other words, appellant argues that applying section 667.61(j)(2) to section 288(a) convictions would render the requirement in section 667.61(j)(2), that the victim "is a child under 14 years of age" mere surplusage.
This argument was rejected in Betts, supra, 55 Cal.App.5th 294. There, the court observed that the Legislature added subdivision (j) to section 667.61 "to increase the penalties imposed on defendants who committed sexual offenses against minors." (Betts, at pp. 301-302.) Betts explained that applying section 667.61(j)(2) to other offenses listed in section 667.61, such as forcible lewd acts on a child (§ 667.61, subdivision (c)(4)), and continuous sexual abuse of a child (§ 667.61, subdivision (c)(9)), would also render some language surplusage. (Betts, at pp. 300-301.) However, Betts concluded that excepting these offenses from section 667.61(j)(2), based on some minor redundancies "would require us to elevate the rule against surplusage over legislative intent." (Betts, at p. 301.)
We agree with Betts. As our high court has explained: "The rule against interpreting statutory language 'in a manner that would render some part of the statute surplusage' ... is only a 'guide[] and will not be used to defeat legislative intent' or 'provide an absurd result.'" (People v. Rizo (2000) 22 Cal.4th 681, 687.) Subdivision (j) was added to section 677.61 as part of the Chelsea King Child Predator Prevention Act of 2010. (Stats. 2010, ch. 219, § 16.) "Chelsea's law significantly increase[d] the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions." (People v. Soto (2011) 51 Cal.4th 229, 237, fn. 4.) Appellant's position that section 667.61(j)(2), does not apply to violations of section 288(a), would undermine the legislative intent of providing increased penalties for defendants convicted of sex offenses involving children.
Appellant also contends that the exception of section 288(a) from section 667.61, subdivision (j)(1), without a corresponding exception from section 667.61(j)(2), creates an "anomalous situation" in the One Strike law sentencing scheme. Section 667.61, subdivision (j)(1) mandates a sentence of life without the possibility of parole for a defendant convicted of an offense specified in subdivision (c), "under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e)." However, it expressly excepts convictions for section 288(a). Appellant contends this is problematic because defendants convicted of section 288(a) can only be sentenced to 25 years to life, whereas defendants convicted of any of the other eight offenses listed in section 667.61, subdivision (c) can be sentenced to life without the possibility of parole under section 667.61, subdivision (j)(1).
We decline to apply the exception for section 288(a) in section 667.61, subdivision (j)(1) to subdivision (j)(2). To do so would "violate the cardinal rule of statutory construction that courts must not add provisions to statutes." (Security Pacific National Bank v. Wozab (1990) 51 Cal.3d 991, 998.) In any event, we see no anomaly here. As we explained above, section 667.61, subdivision (j), was one of several provisions added by Chelsea's Law to provide for increased penalties for defendants convicted of sexual offenses against minors. However, the Legislature declined to make section 288(a) punishable by life in prison without the possibility of parole, even if the offense meets the criteria set forth section 667.61, subdivision (j)(1)." 'Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent.'" (City of Emeryville v. Cohen (2015) 233 Cal.App.4th 293, 309.) As Betts explained, this does not suggest the Legislature intended the section 288(a) exception in subdivision (j)(1) of section 667.61 to apply to subdivision (j)(2) of section 667.61. (Betts, supra, 55 Cal.App.5th at p. 302.) If the Legislature had so intended, it would have done so explicitly. (Ibid.)
Finally, appellant argues the exclusion of section 288(a), from section 667.61, subdivision (j)(1), but not from subdivision (j)(2), ignores the Legislature's reasoning in adding both subdivisions, which he claims was to increase the penalty for certain very serious offenses in instances when they are committed against minors, not offenses that are only serious because they are committed against minors. However, nothing in the statutory language of section 667.61, legislative history, or other authority supports appellant's assertion that section 667.61(j)(2) was enacted for this purpose. Accordingly, we reject this claim.
The plain language of section 667.61(j)(2) unambiguously states that it applies to section 288(a) convictions. Therefore, our de novo review reveals the trial court properly applied section 667.61(j)(2) to appellant's section 288(a) convictions, and appellant was properly sentenced.
II. Appellant has Forfeited his Claim that the Trial Court was Unaware of its Discretion to Impose Consecutive Sentences; in any Event, the Record Shows the Trial Court was Aware of its Discretion but Clearly Indicated it Would not Impose Concurrent Sentences.
Appellant next contends the trial court did not recognize that it had the discretion to impose concurrent sentences for his six violations of section 288(a). Appellant does not dispute that the trial court was within its discretion to impose consecutive sentences. (§ 669, subd. (a); see People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262.) Rather, appellant argues the trial court abused its discretion in sentencing him because it was unaware of the scope of its discretion.
We conclude appellant forfeited this claim by failing to raise it during sentencing. Even if the claim was not forfeited, remand would be unwarranted because the record clearly demonstrates the trial court would still impose consecutive sentences.
A. Background
Prior to sentencing, the trial court received a probation report recommending appellant be sentenced to full and consecutive terms on counts 2, 3, 4, 7, 8, 11, and 12. The report stated that pursuant to section 667.6, subdivision (d), "a full, separate, and consecutive term shall be imposed for each offense."
At the sentencing hearing, the trial court stated it had received and reviewed the probation report. The trial court asked defense counsel if there were any errors in the probation report or corrections that needed to be made, and defense counsel replied there were none.
Later in the hearing, the court stated: "[A]fter hearing the evidence presented in this matter, my tentative sentence would be to adopt the recommendation of the probation officer as the order of the Court. I will explain my rationale." The court then asked defense counsel if she would like to be heard, but defense counsel responded that she would "submit on the recommendation by probation."
Prior to imposing sentence, the court explained its sentencing rationale as follows:
"Each term imposed shall be served full and consecutive as the Court finds that each offense involves either different victims or the same victim on separate occasions.
"The Court finds that [appellant] had reasonable opportunity to reflect on his actions, between the commissions of the subject crimes, and nevertheless resumed his sexually assaultive behavior.
"The victims [Victim 1 and Victim 2] are sisters and the former foster daughters of [appellant]. Those children were placed in [appellant's] home with the thought that he was going to provide care for them and protect them because there was no other adult in their lives that was willing to do so. The victim in this case, [Victim 3], was six years old when she was assaulted by [appellant]. [Victim 3] is [appellant's] niece. [Victim 4] was between 11 and 14 years old when she was assaulted by [appellant]. [Victim 4] is also [appellant's] niece.
"In each case, he took advantage of a close familial relationship with each of these victim/children to satisfy his own sexual desires. For whatever gratification [appellant] derived from his sexual abuse of these four children, or however long that gratification lasted, he condemned each of these children to a lifetime of pain, of doubt, questioning themselves, and unspeakable memories.
"You know, we talked about imposing appropriate and fair sentences; there is no fair sentence that could be imposed in this matter. There is nothing this Court can do to take the hurt away from the victims of [appellant]. I can now only condemn him for the rest of his life to state prison. Somehow it doesn't seem to be a fair exchange because the children are going to continue to suffer. If there is anything that I can do to change that, I would, but I can't."
The court then sentenced appellant with the probation report's recommendation. While imposing sentence, the court stated that each indeterminate term was to be served "full and consecutive ... pursuant to Penal Code [s]ection 667.6, subdivision (d)."
B. Standard of Review
"It is well established that a trial court has discretion to determine whether several sentences are to run concurrently or consecutively." (People v. Bradford (1976) 17 Cal.3d 8, 20.) Accordingly, we review a trial court's decision whether to impose concurrent or consecutive sentences under an abuse of discretion standard. (Ibid.) An abuse of discretion will only be found in limited circumstances, such as where a trial court is unaware of its discretion, considers impermissible factors in the exercise of that discretion, or renders a decision "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377-378.)
C. The Claim is Forfeited
As a threshold matter, respondent contends appellant forfeited his claim that the trial court was unaware of its discretion to impose concurrent terms by failing to object at sentencing. We agree.
In People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), our high court held that "claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices" are subject to forfeiture and cannot be raised for the first time on appeal. This includes "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Ibid.)
Here, appellant did not request the trial court impose concurrent sentences. Moreover, defense counsel did not raise an objection even when asked by the trial court if there were any errors in the probation report and asked if she wanted to be heard after the court stated its tentative sentence was to follow the probation report. Appellant may not now challenge the trial court's imposition of consecutive sentences for the first time on appeal. (Scott, supra, 9 Cal.4th at p. 356.)
Appellant contends his claim the trial court was unaware of its discretion is reviewable even though no objection was raised below. However, as we explained above, appellant's sentence was lawful, as the trial court had the discretion to impose consecutive terms. Thus, appellant's claim does not fall within the exception for an "unauthorized sentence," which is a sentence that "could not lawfully be imposed under any circumstance in the particular case." (Scott, supra, 9 Cal.4th at p. 354.) Scott held that forfeiture applies to "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner." (Ibid.) Accordingly, appellant's claim is forfeited.
D. The Record Clearly Indicates the Trial Court Would not Impose Concurrent Sentences.
Even if we concluded appellant had not forfeited this claim, we would not remand the matter for resentencing because "the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) At sentencing, the trial court stated that no fair sentence could be imposed in this matter because appellant condemned each of his victims "to a lifetime of pain, of doubt, questioning themselves, and unspeakable memories." These comments conclusively establish the trial court would not impose a different sentence. Therefore, even if we found appellant's claim meritorious, we would not remand the matter for resentencing, because to do so would be an "idle act." (People v. Coelho (2001) 89 Cal.App.4th 861, 889.)
III. Appellant Has Forfeited his Claim that his Sentence Constitutes Cruel and Unusual Punishment; this Claim also Fails on its Merits.
Appellant contends his sentence of 175 years to life constitutes cruel and unusual punishment in violation of the federal and state constitutions. Specifically, he argues that the punishment is grossly disproportionate to his individual culpability. We disagree. We conclude the claim is forfeited on appeal, and lacks merit because appellant fails to show his sentence is constitutionally disproportionate.
A. The Claim is Forfeited
As appellant concedes, defense counsel did not raise this constitutional claim when the trial court imposed his sentence. California law is clear that by failing to raise the issue below, he has forfeited the claim. (People v. Gamache (2010) 48 Cal.4th 347, 403; People v. Mungia (2008) 44 Cal.4th 1101, 1140-1141; People v. Speight (2014) 227 Cal.App.4th 1229, 1247.)
However, appellant contends this court should still consider the merits of his cruel and unusual punishment claim, arguing defense counsel was ineffective for failing to object at sentencing. To prove ineffective assistance, appellant must show that defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that, in the absence of counsel's failure, it is reasonably probable that the result of the sentencing proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.)
We conclude appellant's ineffective assistance of counsel claim fails because he cannot establish defense counsel's performance was deficient. Counsel is not required "to make a futile or meritless objection." (People v. Reyes (2016) 246 Cal.App.4th 62, 86; see People v. Anderson (2001) 25 Cal.4th 543, 587.) As we explain below, appellant's cruel and unusual punishment claim is without merit.
B. The Claim Fails on the Merits
Appellant concedes that "the offense described in section 288[(a)] encompasses conduct for which life might be a permissible punishment in some cases." (In re Rodriguez (1975) 14 Cal.3d 639, 647.) Instead, he argues that the sentence in this case is disproportionate to his individual culpability. He claims there is no evidence he used force or violence against any of his victims, or that he threatened them or told them not to tell their parents or anyone else. He also argues his conduct did not involve rape, sodomy, or oral copulation, which he characterizes as conduct "considerably more severe" than his own. Finally, he notes that he has no prior criminal record.
The Eighth Amendment of the United States Constitution prohibits the infliction of "cruel and unusual" punishments. (In re Alva (2004) 33 Cal.4th 254, 266.) Likewise, article I, section 17, of the California Constitution prohibits the infliction of" '[c]ruel or unusual'" punishments. (In re Alva, supra, 33 Cal.4th at p. 266.) A punishment violates the Eighth Amendment of the United States Constitution if it involves the "unnecessary and wanton infliction of pain" or if it is "grossly out of proportion to the severity of the crime." (Gregg v. Georgia (1976) 428 U.S. 153, 173.) Similarly, a punishment may violate article I, section 17, of 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." (In re Lynch (1972) 8 Cal.3d 410, 424, superseded by statute on other grounds as explained in In re Palmer (2021) 10 Cal.5th 959, 974.)
"Whether a punishment is cruel and/or unusual is a question of law subject to our independent review, but underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Palafox (2014) 231 Cal.App.4th 68, 82.)
We begin our analysis by observing that "[t]he 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.) Section 288(a), is an offense of considerable seriousness that "may have lifelong consequences to the well-being of the child." (People v. Christensen (2014) 229 Cal.App.4th 781, 806.) The One Strike law reflects the Legislature's "intolerance toward child sexual abuse" and view that "persons convicted of sex crimes against multiple victims ... 'are among the most dangerous.'" (People v. Wutzke (2002) 28 Cal.4th 923, 930-931.) "[I]n making multiple convictions for violent sex offenses punishable by multiple life sentences, the Legislature was expressing the view that multiple violent sex offenses deserve more severe punishment than a single violent sex offense because of the predatory nature of the perpetrator." (People v. Murphy (1998) 65 Cal.App.4th 35, 41.)
Appellant engaged in the type of predatory sexual conduct targeted by the Legislature, the enactment of the One Strike Law, and Chelsea's Law. He repeatedly victimized four young girls over the course of several years. The molestations began when the victims were as young as age six. Appellant used his role as a foster parent and uncle to isolate the victims and repeatedly subject them to significant and invasive acts of sexual assaults. While the record does not detail the impact appellant's conduct has had on the victims, we have no reason to doubt the trial court's conclusion that appellant has subjected them to a lifetime of pain and trauma.
Given the egregiousness and predatory nature of appellant's conduct, there is no basis on which to conclude appellant's sentence was "grossly out of proportion to the severity of the crime" (Gregg v. Georgia, supra, 428 U.S. at p. 173), nor "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch, supra, 8 Cal.3d at p. 424.) Our independent review of the record, therefore, demonstrates that appellant's sentence is not cruel or unusual, and we reject appellant's constitutional challenge to his sentence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: FRANSON, J. MEEHAN, J.