Opinion
A140253
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ROUSE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51309905)
A jury convicted defendant Joseph Rouse of 22 counts of various sex offenses committed against two children who were at a holiday party he attended and three children who lived in his neighborhood. He was sentenced to serve a total of 350 years to life in prison on 14 of the counts, with his sentences on the other eight counts to run concurrently, and two of the concurrent terms were stayed. Defendant contends that his due process right to a fair trial was prejudicially impaired because some jurors three times briefly saw him shackled and in prison garb while being transported to the courtroom, and that his sentence constitutes cruel and unusual punishment. We shall affirm the judgment.
I. BACKGROUND
On appeal, we state the facts in the light most favorable to the People as the prevailing party. (People v. Perez (2010) 50 Cal.4th 222, 229; see also, People v. Zamudio (2008) 43 Cal.4th 327, 342 ["If there is conflicting testimony, we must accept . . . the version of events most favorable to the People"].)
Defendant is charged with offenses that occurred between January 1, 2011 and November 2012. At the beginning of that period, he was 38 years old and lived in a trailer park with his 18-year-old girlfriend, Sarah White (White), who was then pregnant with their son. He had three daughters, who were between 6 and 17 years old.
1. January 1 , 2011: Jane Doe II and Jane Doe III (Counts 17—21)
On December 31, 2010, when Jane Doe II was 13, her father held a New Year's Eve party at their home for 20 to 30 people. Defendant, a friend of Jane Doe II's father, attended, bringing his two younger daughters and his girlfriend, White. A close friend of Jane Doe II's, Jane Doe III, also attended with her family. Jane Doe III was 12 at the time.
While the other adults were inside the house, defendant spent most of the time outside with the children. One of the children, a 12-year-old cousin of Jane Doe II, observed defendant particularly focused on Jane Doe II and Jane Doe III that evening, following them around, staring at them, and touching them. Both girls noticed the attention and it made them uncomfortable.
At various points late that evening, defendant approached Jane Doe II, who was alone in the living room, caressing her hand, shoulder, and back on one occasion, and rubbing her leg another time. Later, when she went to the back of the house to charge her phone, Jane Doe II discovered defendant had followed her, and was blocking the door, staring at her. When she asked to get by him, he waited almost a minute, staring up and down at her body instead. Not long after, defendant sat down next to Jane Doe II outside near the bonfire, and began rubbing her upper thigh with his hand. No other adults were nearby and this felt weird to Jane Doe II, so she stood up again.
Jane Doe III noticed as well that defendant seemed always to be behind her that evening, touching her back and rubbing her shoulders. When she was sitting near the fire, defendant sat next to her, reaching across to touch a hole on the right side of her jeans near her upper thigh. Both girls were uncomfortable and went inside the house together, where they talked about defendant's behavior, unsure how to respond.
When they came outside afterward to rejoin the other children near the fire, defendant came up behind them. Unzipping the jacket he was wearing, he put his arms around both girls' shoulders, wrapping them in his jacket with him, as he walked them toward the awning of the trailer he had parked by the house, saying that he was blocking them from the wind and rain and needed to keep them warm. Jane Doe III could feel defendant rubbing her back and holding her hips. She felt his lower half pressing against her and his erect penis on her butt. She told Jane Doe II, "let's go inside" and the two girls walked away.
Jane Doe II thought defendant's behavior was creepy and sexual and it scared her. As the other adults had been drinking, however, she was afraid there would be a big fight if they reported his behavior. Instead the girls went to a back bedroom together to go to sleep, choosing a room that had a door. Some time later, defendant followed them in there also. Walking into their room, he announced that he had just taken a shower, and he unzipped and opened his jacket to show them his bare chest. When the girls ignored him, he eventually left.
The next day, defendant drove one of his daughters with Jane Doe II and Jane Doe III to a movie in his truck. After almost hitting another vehicle, defendant told the girls he had not been paying attention because he was too focused on staring at the holes in Jane Doe III's pants. "Your jeans are really holey," he told Jane Doe III, touching her thigh.
Jane Doe II's father picked them up after the movie. When Jane Doe II and her father returned home, she told him about defendant's behavior. The family immediately called the police, and the same evening an officer separately interviewed Jane Doe II, her cousin, and Jane Doe III.
2. November 2011: John Doe (Counts 13 —16)
John Doe was born in December 1999. In 2010, his family moved to the trailer park where defendant lived. At some point, defendant offered to have his mother, who then lived with him, tutor John Doe in math at their house. John Doe's younger sister, Jane Doe IV, also became friends with defendant's youngest daughter, R.R.
We discuss Jane Doe IV's experience separately in the next section, below.
In about November 2011, when John Doe was 11, defendant asked him to come over one evening to watch his infant son. John Doe agreed and spent the evening at defendant's house, while defendant stood outside drinking and talking with his girlfriend, White, his mother, and a friend for several hours. According to John Doe, defendant and White brought him an energy drink from the store shortly after 10 p.m. John Doe said he had four swallows of it, that it tasted funny and he felt dizzy, and White told him it contained alcohol. Eventually John Doe fell asleep on defendant's couch.
White woke John Doe at about 2:30 a.m., telling him to come into the bedroom that she shared with defendant. She appeared to be drunk, and lost her balance waking him. When John Doe entered the bedroom, it was dark and defendant was sitting on the bed. White and defendant both disrobed. Standing near the closed door to the bedroom, defendant told John Doe to disrobe also.
John Doe was nervous, confused, and scared. Initially he refused to take his clothes off, thinking "this is not happening." When defendant said he would tell John Doe's mother he had been drinking alcohol if he did not take off his clothes, however, he complied. Standing near the bed where White was lying naked, defendant touched her vagina with his finger, telling John Doe to touch her chest. Then he told John Doe to have sex with White. John Doe did not know how and did not want to do so, but defendant told him what to do and he complied, still concerned that defendant might tell his mother he had been drinking alcohol. Defendant sat on the side of the bed and walked around the bedroom, giving directions, while John Doe had sex with White without a condom for about 15 minutes. After they finished, White threw up. Defendant and White told him not to tell anyone what had happened.
White testified defendant often talked about this incident on later occasions during sex.
White was separately charged with two counts of committing a lewd act by force on a child, in violation of Penal Code section 288, subdivision (b)(1), and was facing a possible 20-year prison term at the time of the trial in this matter.
About six weeks later, John Doe was at his grandfather's home, in the same trailer park. Defendant and White told him his grandfather had said he could go to their trailer to watch their son for 15 minutes. They said they would pay him. Shortly after the three got to the trailer, defendant and White told John Doe to come into their bedroom. When John Doe entered the room, White was undressed on the bed and defendant stood between him and the door. Defendant said, "You're going to have sex with [White] again," and told John Doe to take his clothes off. John Doe did not want to do so and could not believe the same thing was happening again, but began to disrobe, worried defendant would tell his mother he had been drinking. Then, through the bedroom window, he saw his grandfather driving up to the trailer in his golf cart. Putting his shirt back on, he followed defendant's direction to hop out the window, and ran to his grandfather's house.
3. Spring 2012: Jane Doe IV (Counts 22 —24)
Jane Doe IV was born in April 2003. She went to school with defendant's youngest daughter, R.R., and the two lived in the same trailer park. In about spring of 2012, when Jane Doe IV was eight, she and R.R. were in the same class, and became close friends. Jane Doe IV slept over with R.R. in defendant's home at least five or six times. At least three of those times, she woke up to find defendant touching her vagina.
The first time this happened, Jane Doe IV was sleeping with R.R. on the floor in R.R.'s bedroom. Jane Doe IV woke up to see a bright light from a flashlight near her on the floor. Defendant was holding the flashlight. Jane Doe IV was scared. Defendant removed her shorts and panties. She felt him spread her legs, and then felt his finger moving around on her vagina and inside it. It felt weird. She was scared and pretended to be asleep.
The second time, Jane Doe IV and R.R. fell asleep on defendant's living room couch watching a movie. Jane Doe IV woke up and noticed a weird feeling in her vagina. She "peeked a little bit," and saw a dim light, possibly from the street light outside. Her blanket was on the floor and she was not wearing her shorts. Defendant was moving his finger around her vagina, but not inside it. Jane Doe IV was scared and kept her eyes shut.
The third time that Jane Doe IV specifically remembers, she and R.R. were sleeping in R.R.'s bed. When Jane Doe IV woke up, her blanket was on the floor and she was no longer wearing the panties she had on at bedtime. Defendant moved her legs apart and touched on and inside her vagina with his finger. It did not feel good and Jane Doe IV was scared. She lay with her eyes closed until it stopped.
4. Summer 2011 to Summer 2012: Jane Doe I (Counts 1 —12)
Jane Doe I was born in May 2003. She met defendant's daughter, R.R., in second grade, and they eventually became close friends. Jane Doe I visited R.R. at defendant's house probably twice a week, and spent the night there many times before Jane Doe I's family moved to Placerville in the summer of 2012.
Because she had sleepovers at defendant's house often, Jane Doe I could not be certain of the precise number, although she estimated at trial there were more than 5, less than 20, and probably about 10 sleepovers. Often they lasted two nights. Jane Doe I and R.R. would sleep together on the living room couch or on the couch cushions on the living room floor at defendant's house.
Whenever Jane Doe I spent the night, defendant came out to the living room, and sat on the couch where Jane Doe I and R.R. were sleeping. He pulled down Jane Doe I's shorts or moved them to the side, moved her legs apart, and rubbed on and inside her vagina for about 10 to 20 minutes. This happened one time a night. It made Jane Doe I feel disgusted and very scared. Each time, she tried to stop defendant, kicking his hand away, rolling her body away, moving her legs away, and squeezing her legs together. But she could not get away. Defendant just pulled her back into position, held her legs down, and continued.
White testified that, months into their relationship, when she and defendant were having sex, defendant would talk "about touching [Jane Doe I's] vagina," "rubbing his penis on her vagina," and sticking the tip of his penis or his fingers inside her vagina.
Jane Doe I told R.R. what was happening one time, but R.R. did not believe her and said she was going to ask defendant. Afraid that defendant would take R.R. away from her, prohibiting the two from being friends, Jane Doe I told R.R. not to talk to her father, saying she was only kidding.
The abuse ended when Jane Doe I and her family moved to Placerville in September 2012. Jane Doe I did not see defendant again. Months later, she told an older girl what defendant had done to her. That girl told a parent, who told Jane Doe I's mother in November 2012, and Jane Doe I's mother called the police.
B. Sentencing
The jury found defendant had committed two counts of sexual penetration of a child 10 years old or younger (Pen. Code, § 288.7, subd. (b)) (counts 1-2) and ten counts of forcible lewd acts upon a child (§ 288, subd. (b)(1)) (counts 3-12) as against Jane Doe I. It found he had committed eight counts of lewd acts on a child (§ 288, subd. (a)) as against Jane Doe II (counts 17-19), Jane Doe III (counts 20-21), and Jane Doe IV (counts 22-24), respectively. It found him not guilty of committing a forcible lewd act on a child (§ 288, subd. (b)(1)) or attempting a forcible lewd act on a child (§§ 288, subd. (b)(1), 664) as against John Doe, but guilty of the lesser included offenses of having committed a lewd act upon a child (§ 288, subd. (a)) and an attempted lewd act upon a child (John Doe) (§§ 288, subd. (a), 664) (counts 13, 16). A multiple victims enhancement, pursuant to section 667.61, subdivision (j)(2), also was found to be true as to each of the 18 convictions under section 288, subdivisions (a) and (b)(1).
All undesignated statutory references in this decision are to the Penal Code.
The jury found defendant not guilty of one count of kidnapping for child molesting (§ 207, subd. (b)) as against John Doe (count 14), and the court declared a mistrial on the remaining count of kidnapping for child molesting (§ 207, subd. (b)) as against John Doe (count 15) after the jury deadlocked on it.
The court sentenced defendant to serve 350 years to life in prison, consisting of consecutive terms of 25 years to life on counts 3-13, 17, 20, and 22, with concurrent sentences of the same length on counts 18-19, 21, 23, and 24, and a concurrent three-year sentence on count 16. The court imposed terms of 15 years to life on counts 1 and 2, to be served concurrent with the sentences on counts 3-12, but stayed those terms pursuant to section 654. On the prosecution's motion, the court dismissed count 15.
II. DISCUSSION
A. Due Process
1. Background
The trial of this matter commenced on August 5, 2013, and continued for 24 days. On August 6, during jury selection, defense counsel moved to dismiss the jury panel because defendant's custodial status had been exposed twice that day when panel members saw him being escorted through the public hallway wearing handcuffs, which may have been attached to waist chain shackles. Defense counsel asked that her client be permitted to walk in the hallway without restraints, observing that his conduct as a prisoner to that point had raised no security concerns or behavioral problems.
The court denied both requests, observing that the courthouse had only one prisoner elevator and prisoners, therefore, were in close proximity to the public as they were moved through the public hallways to their courtrooms. Hand restraints were a customary security measure in this context, the court observed, and necessary to avoid harm to the public if there was an escape attempt. The court concluded jurors were not likely to be surprised that a person charged with 24 counts of child molestation, as defendant was, might be in custody, given the high bail likely to be imposed in such a case. The court offered to instruct the jury, however, that defendant's custodial status only meant he was unable to post bail, and could not be considered evidence in the case, and defense counsel accepted the offer. It appears the court gave this admonishment in preliminarily instructing the newly empaneled jury about their role on August 12.
Defendant agrees "it is common to expect that a suspect might be jailed upon arrest."
Although the admonishment is not included in the record, both the prosecutor and the court referred to it on the record three days later without contradiction from defense counsel.
Three days later, on August 15, after the jury had been selected, and before opening arguments were to commence, defense counsel advised the court that a number of jurors had seen the defendant cross the hall that morning on his way to the courtroom, wearing his jail clothes and handcuffed. Relaying that her client felt one juror particularly had given him a look of astonishment and disdain, defense counsel asked the court to relieve all jurors who had been present, or to discharge the entire panel. The prosecution objected to the proposal, observing that the court already had instructed the jury not to consider the defendant's custodial status, and the court agreed, offering instead to reiterate its admonishment to the jury on this point.
The record does not indicate, and the parties do not contend, that the jurors ever saw defendant in the actual courtroom wearing jail clothes or physical restraints.
Defense counsel accepted the court's offer without further objection, and the court immediately gave the admonishment. Once jurors returned to the courtroom for that morning's session, the trial judge reminded them of his earlier instruction, adding, "I want to emphasize that [defendant's custodial status] is not something that you should use as evidence in this case. It's irrelevant to the charges. The charges have to be proven by evidence in the courtroom. [¶] If someone is in custody in a trial, it just means that a bail amount was set and the defendant was unable to post that bail. But it is not evidence in the case, and so it should not be considered in any way in your evaluation of the evidence in this case. . . . That applies throughout the trial."
Later, after the parties rested, the court gave further instruction on this topic, reading CALCRIM No. 204 to the jury, "The fact that the defendant may be in custody is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider for any purpose or discuss it during your deliberations."
2. Analysis
Defendant now contends the three brief glimpses some jurors had of him, on two days during a 24-day trial, walking handcuffed in the courthouse hallway, once in jail clothing, prejudicially impaired his due process right to a fair trial, compelling reversal of his conviction. We do not agree.
It is true "that the unjustified imposition of visible physical restraints violates a criminal defendant's right to due process under the Fifth and Fourteenth Amendments to the federal Constitution." (People v. Hernandez (2011) 51 Cal.4th 733, 745 (Hernandez), italics omitted.) Restraints "like handcuffs . . . may erode the presumption of innocence because they suggest to the jury that the defendant is a dangerous person who must be separated from the rest of the community. [Citations.] The same problem arises if the defendant is required to appear before the jury dressed in prison clothing. [Citations.]" (People v. Stevens (2009) 47 Cal.4th 625, 632-633 (Stevens); see also Estelle v. Williams (1976) 425 U.S. 501, 518 (Estelle) ["When an accused is tried in identifiable prison garb, the dangers of denial of a fair trial and the possibility of a verdict not based on the evidence are obvious"].)
For this reason, the United States Supreme Court has long considered the use of visible physical restraints, and the practice of requiring a defendant to wear prison clothing, during trial to be inherently prejudicial (Deck v. Missouri (2005) 544 U.S. 622, 626-629; Estelle, supra, 425 U.S. at pp. 504-505), and our own Supreme Court has reached similar conclusions (Stevens, supra, 47 Cal.4th at p. 633 [" 'a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury's presence, unless there is a showing of a manifest need for such restraints' "]; People v. Taylor (1982) 31 Cal.3d 488, 495 [requiring a defendant "to attend trial attired in jail clothing" is an inherent violation of due process]). "An inherently prejudicial procedure is one that poses such a high risk of unfairness to the defendant that its use is considered to be a violation of due process unless justified by a compelling state interest." (Hernandez, supra, 51 Cal.4th at p. 745.) "[W]hen a challenged practice is not 'so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial,' [however,] the [high] court has held that reversal is warranted only if the defendant shows 'actual prejudice' resulted from the practice. [Citation.]" (Id. at p. 746.)
Defendant here does not claim error based on anything that occurred in the courtroom during trial. As noted, he relies instead on the fact that some jurors briefly saw him being transported through the courthouse hallway to the courtroom in handcuffs, once in jail clothing. Our Supreme Court expressly has noted, however, that it is "permissible to transport [a] prisoner to court in handcuffs and to keep him in such restraints until he enter[s] the courtroom." (People v. Duran (1976) 16 Cal.3d 282, 289; see also People v. Hill (1998) 17 Cal.4th 800, 841, fn. 7 [a decision to physically restrain a defendant while he or she is being transported to court is "clearly within the discretion of the law enforcement personnel in charge of such out-of-court activities"], overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) "Prejudicial error does not occur simply because the defendant 'was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen.' [Citation.]" (People v. Tuilaepa (1992) 4 Cal.4th 569, 584 (Tuilaepa); accord People v. Cunningham (2001) 25 Cal.4th 926, 988 (Cunningham) ["Brief glimpses of a defendant in restraints have not been deemed prejudicial"].)
Contrary to defendant's contention, three brief sightings on two days at the start of a 24-day trial do not qualify as a "pervasive" exposure. (See, e.g., People v. Rich (1988) 45 Cal.3d 1036, 1084-1085 [occasional sightings could not have caused prejudice].)
While we agree with defendant that an effort should be made to avoid juror sightings of a prisoner being transported to the courtroom in physical restraints or custodial clothing, we also recognize that practical constraints, including courthouse design, may make this unavoidable at times. Defendant's effort to suggest the trial court somehow erred in this instance by failing to devise a solution is unpersuasive as he relies entirely on cases involving courtroom shackling and the record here, in any case, indicates the brief sightings were the exception.
As the Ninth Circuit Court of Appeals has explained, " '[E]ven the "most unsophisticated juror" knows that defendants may have to post bail and that some lack the resources to do this.' [Citations.] ' "Under these circumstances we cannot think that the emotional impact of seeing the defendant in custody is necessarily hostile—it may be quite the reverse." ' [Citations.] ' "It is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another, and the jury is aware of this." ' [Citations.]" (Wharton v. Chappell (9th Cir. 2014) 765 F.3d 953, 965 (Wharton) ["jurors know that, as a matter of routine, some defendants are in custody during trial and that security needs during transport demand restraints"].)
See People v. Villasenor (2015) 242 Cal.App.4th 42, 64, fn. 2 ("While 'we are not bound by the decisions of the lower federal courts even on federal questions[,] . . . they are persuasive and entitled to great weight' ").
Because brief observations of a defendant being taken to a courtroom in handcuffs, or jail clothing, are not inherently prejudicial, therefore, defendant must demonstrate actual prejudice. (Hernandez, supra, 51 Cal.4th at p. 746; Wharton, supra, 765 F.3d at p. 966.) This he has not done. Defendant did not examine the jury and has adduced no other evidence probative of prejudice. (See, e.g., U.S. v. Olano (9th Cir. 1995) 62 F.3d 1180, 1190 [relying on the same omissions in concluding the defendant failed to establish that actual prejudice resulted when the jury saw him entering the courtroom in handcuffs].) In comparison, in Parker v. Gladden (1966) 385 U.S. 363, for example, after a court bailiff assigned to "shepherd" a sequestered jury for more than a week told one juror in the presence of others that the defendant was a "wicked fellow . . . he is guilty," the defendant presented juror testimony confirming bias. (Id. at pp. 363-365; see also People v. Jacobs (1989) 210 Cal.App.3d 1135, 1142 [juror comments suggesting bias after observing a defendant being transported in physical restraints conceivably might raise "the specter of prejudice"].)
Defendant suggests we conduct our review for actual prejudice by applying the three-factor test outlined in Larson v. Palmateer (9th Cir. 2008) 515 F.3d 1057. In that case, the defendant had been required to wear a security leg brace in front of the jury during two of the six days of trial. (Id. at p. 1062.) Concluding his due process rights had been violated, the court considered whether there had been prejudicial error, examining "the appearance and visibility of the restraining device, the nature of the crime with which the defendant was charged and the strength of the state's evidence against the defendant." (Id. at p. 1064.) The Ninth Circuit has "recognized that this multi-factor test is not clearly established federal law" (Hedlund v. Ryan (9th Cir. 2016) 815 F.3d 1233, 1242, fn. 7), however, and we note that it derives from cases examining whether a courtroom arrangement is inherently prejudicial, presenting " 'an unacceptable risk . . . of impermissible factors coming into play.' " (Dyas v. Poole (9th Cir. 2003) 317 F.3d 934, 937-938, quoting Holbrook v. Flynn (1986) 475 U.S. 560, 570, italics added.) Larson did not evaluate the question before us, namely, whether a practice that is not inherently prejudicial caused actual prejudice.
In the more recent Wharton case, however, the Ninth Circuit considered precisely that question. There, some jurors saw the defendant shackled but "only occasionally and only while being transported." (Wharton, supra, 765 F.3d at p. 966.) Because those sightings "were not so pervasive or harmful" that inherent prejudice could be presumed, the defendant was obligated to "demonstrate actual prejudice." (Ibid.) In concluding the defendant had not met that burden, the Ninth Circuit reasoned, " '[T]here is no testimony indicating prejudice.' [The defendant] clearly was implicated [for the crime]; jurors likely understood that the transportation shackling was a regular part of his custody—just as it was for all the other prisoners being transported. Moreover, the fact that [the defendant] was not shackled in the courtroom, even though he was shackled entering and exiting the courthouse, suggested that [the defendant] was not a dangerous person . . . . '[The defendant] was not singled out for special treatment, hence he suffered no particular prejudice as a result of his treatment.' " (Id. at pp. 966-967.)
In that case, only 3 of the 12 jurors testified. (Wharton, supra, 765 F.3d at p. 966.) One saw the defendant shackled once; a second saw him shackled once or twice; and the third saw him shackled an unspecified number of times, "[b]etween one and 20." (Ibid.)
The same facts are present here and we reach the same conclusion. As noted, the record contains no testimony indicating any jurors were prejudiced by briefly seeing defendant handcuffed, once in jail clothing, while being transported to the courtroom. There is no suggestion defendant ever entered the courtroom in this manner. As the courthouse design made it unavoidable, we may reasonably presume other prisoners were being transported through public hallways while similarly restrained. Defendant was not singled out for special treatment, therefore, and jurors likely understood the transportation shackling was a regular part of his custody. The trial court also repeatedly and properly instructed the jury to disregard defendant's custodial status, explaining that it only meant he was unable to post bail. "We presume the jury followed this instruction." (Stevens, supra, 47 Cal.4th at p. 641; see People v. Cecil (1982) 127 Cal.App.3d 769, 778 ["Any prejudice from merely observing that the defendant is in custody . . . may be cured by admonition"].)
We reject defendant's contention that the trial court's instruction on this point likely made matters worse, as our Supreme Court repeatedly has confirmed it is appropriate to give such an instruction where it appears several jurors may be aware a defendant is physically restrained. (See, e.g., Cunningham, supra, 25 Cal.4th at p. 988.) We note as well that the trial court initially asked defendant's trial counsel whether she wanted the instruction, and counsel twice assented. (See People v. Jacobs, supra, 210 Cal.App.3d at p. 1142 [If "one or more jurors or veniremen observe[] [a] defendant in physical restraints being transported to or from the courtroom, [and the defense requests it], the trial court must instruct the jury that the physical restraints on defendant have no bearing on the determination of guilt"].)
Defendant also was "clearly implicated" in the crimes for which he was convicted. Five children testified at trial about acts that he committed against them, and key parts of one of those accounts were corroborated by defendant's former girlfriend, White. Defendant does not point to any evidence contradicting the children's claims, or assert that any other errors occurred during the guilt phase. He contends only that the evidence was not "overly strong" in establishing the number of times he abused Jane Doe I and Jane Doe II. Specifically, defendant notes Jane Doe I's testimony did not clearly confirm she slept over at his house as many as twelve times, suggesting the evidence was lacking that he actually committed 12 offenses with respect to her. But Jane Doe I testified she was best friends with defendant's youngest daughter, R.R., had sleepovers with R.R. at defendant's house "a lot," more than five times, probably 10 times, so many times that she could not give a precise number, and defendant sexually molested her each time. This essentially matched what she had told the Child Interview Center nine months earlier, in a videotaped meeting, the recording and transcript of which were admitted into evidence and viewed by the jury, i.e., that R.R. was her best friend, she went to R.R.'s house "[e]veryday pretty much," slept over at her house almost every week, and each time defendant sexually molested her. White corroborated key parts of this account, testifying that Jane Doe I and R.R. were best friends, and that Jane Doe I had between five and nine multi-night sleepovers with R.R. at defendant's house while White lived there. The evidence supporting defendant's conviction for committing 12 offenses against Jane Doe I, therefore, cannot reasonably be dismissed as weak. In any event, the alleged prejudice resulting from defendant being transported while in restraints cannot logically be connected to the number of counts on which he was convicted for his acts with Jane Doe I.
Defendant's effort to challenge the evidence confirming his third offense against Jane Doe II is similarly unavailing. Although Jane Doe II, testifying two and a half years after the events in question, did not appear to recall the specific touching that provided the basis for the third offense, there is no dispute she recounted the events to the police the day after the New Year's Eve party during which they occurred. The police officer who spoke with her on that day took notes, which he converted to a report before completing his shift, and the officer testified at trial relying on memories refreshed by his report. The court allowed the testimony over defendant's objection, as an instance of past recollection recorded, a narrow hearsay exception for a previously recorded statement following a showing that the recorded statement was trustworthy. (Evid. Code, § 1237; see, e.g., People v. Simmons (1981) 123 Cal.App.3d 677, 682 [the exception "recognizes that time universally erodes human memory"], abrogated on other grounds in United States v. Owens (1988) 484 U.S. 554, 559.) Defendant does not now challenge the ruling allowing the testimony, suggest that the report was untrustworthy, or otherwise attempt to dispute the account, and the jury evidently credited it.
There is no evidence suggesting the brief glimpses some jurors had of defendant in handcuffs or jail clothing in the courthouse hallway created a bias against him that produced or contributed to his convictions on these two counts or any other count on which he was convicted. To the contrary, that the jury acquitted him on count 14, deadlocked on count 15, and convicted him of only the lesser included charges on counts 13 and 16 suggests a lack of prejudice and that the jury reviewed the evidence dispassionately. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 370 [acquittal on one count and rejection of a special circumstance allegation demonstrated that error in admitting evidence did not cause prejudice]; People v. Smith (2003) 30 Cal.4th 581, 617 [acquittal on one count demonstrated that the prosecutor's line of questioning did not cause prejudice].)
We also reject defendant's suggestion that remand is appropriate here to more fully develop the record on the question of prejudice. The record is sufficiently developed. The facts regarding jurors' brief sightings of defendant being transported to the courtroom in physical restraints, once in jail clothing, were promptly noted for the record, the court twice instructed the jury to disregard defendant's custodial status, and repeated the instruction again before the jury commenced deliberations. The court was not obligated to go further by conducting an evidentiary hearing to investigate the impact on individual jurors of those brief sightings. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 674 (Osband) [rejecting claim of error based on a court's failure to investigate; any glimpse prospective jurors had of the defendant in handcuffs before he entered the courtroom "could not have caused prejudice"]; People v. Rich, supra, 45 Cal.3d at p. 1084 [jurors' occasional observations of defendant wearing leg restraints and handcuffs while being escorted from the courtroom and the jail building, at most, were "minor and nonprejudicial"].) The California Supreme Court has observed that even a jury's brief sighting of a defendant entering the courtroom in physical restraints—something that defendant does not suggest occurred here—"could not possibly have shocked [jurors] or affected their assessment of the evidence." (Tuilaepa, supra, 4 Cal.4th at p. 585.)
Defendant cites two federal cases involving remand for evaluation of prejudice. Those cases are distinguishable, however, because remand in both instances occurred after the appellate court ruled the defendant's shackling in the courtroom, during trial or jury sentencing, was constitutional error. (Rhoden v. Rowland (9th Cir. 1999) 172 F.3d 633, 634-635 [shackling during trial]; Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 747-749 [shackling during jury sentencing].) He cites a third case in which the trial court held an evidentiary hearing to determine whether jurors saw the defendant in handcuffs when he first entered the courtroom (People v. Olano, supra, 62 F.3d at p. 1190), but the case is distinguishable also as the parties here agree the juror sightings of defendant handcuffed occurred only outside the courtroom. These cases do not convince us that remand is appropriate here.
Defendant's speculation about the expression on a single juror's face on August 15, on seeing him handcuffed, being taken to the courtroom before opening statements, does not alone suffice to indicate that further investigation is or was needed. As our Supreme Court has observed, "not every incident involving a juror's conduct requires or warrants further investigation." (People v. Cleveland (2001) 25 Cal.4th 466, 478.) " '[A] hearing is required only where the court possesses information which, if proven to be true, would constitute "good cause" to doubt a juror's ability to perform his duties and would justify his removal from the case.' [Citation.]" (Osband, supra, 13 Cal.4th at p. 675-676; see, e.g., People v. Fuiava (2012) 53 Cal.4th 622, 703 [a trial court is not required to "conduct an inquiry whenever it becomes aware of any indication of a possibility that there might be good cause to remove a juror"].) The possibility that a juror displayed a negative facial expression as defendant passed by on the way to the courtroom, if true, on its own would not constitute good cause to doubt the juror's ability to perform his or her duties or justify the juror's removal. As the trial court, by then, had explained the nature of the case and read the first amended information to the jury, it is equally possible the juror was not looking forward to commencement of the trial or to any unpleasant evidence that might be presented. (See, e.g., People v. Kaurish (1990) 52 Cal.3d 648, 694 [juror's derogatory remark about defense counsel did not require a hearing absent evidence it reflected bias, as opposed to impatience with proceedings].) Even if the facial expression—which, apparently, was fleeting, as there is no suggestion the same or any other juror later displayed a similar expression during trial—reflected actual bias tied to viewing defendant in custody while proceeding to the courtroom, we presume it was cured by the court's instruction immediately afterward that defendant's custodial status was not evidence and should be disregarded. (See, e.g., Osband, supra, 13 Cal.4th at p. 676 [Any prejudice that may have arisen when jurors overheard police officers discussing material in their police reports in the courthouse hallway was cured when the court immediately admonished jurors to disregard anything not heard on the witness stand].)
Having concluded that an evidentiary hearing was not warranted in this case, and that any bias that conceivably could have arisen from the brief juror observations of defendant physically restrained while being transported to the courtroom was cured by the court's subsequent instructions, we also reject defendant's argument that his trial counsel was ineffective for failing to request an evidentiary hearing. (See, e.g., Osband, supra, 13 Cal.4th at pp. 675-676 [rejecting ineffective assistance of counsel claim premised on failure to seek an evidentiary hearing regarding possible juror bias as any such request at best would have produced the same outcome, admonishment to the jury to disregard out-of-court remarks; "speculation" that jurors might have heard something not curable by admonishment will not "give rise to a successful claim of ineffective assistance" of counsel].)
B. Cruel and Unusual Punishment
We turn to defendant's claim of error based on the sentence that was imposed. Defendant submits that the punishment of 14 consecutive terms of 25 years to life—effectively, 350 years to life—violates both the federal and the state constitutional prohibitions against cruel and unusual punishment.
1. Background and Statutory Framework
Defendant was sentenced to 14 consecutive terms under section 667.61, commonly known as the "One Strike" law, an alternative sentencing scheme that applies to specified felony sex offenses. (People v. Reyes (2016) 246 Cal.App.4th 62, 79 (Reyes).) The One Strike law is intended " ' "to ensure serious and dangerous sex offenders would receive lengthy prison sentences upon their first conviction," "where the nature or method of the sex offense 'place[d] the victim in a position of elevated vulnerability.' " ' [Citation.]" (Ibid.) "According to a general statement of purpose in the legislative history, the targeted group preys on women and children, cannot be cured of its aberrant impulses, and must be separated from society to prevent reoffense. [Citation.]" (People v. Wutzke (2002) 28 Cal.4th 923, 929-930 (Wutzke).)
Section 667.61 states, in part:
"(c) This section shall apply to any of the following offenses: [¶] . . . [¶] (4) Lewd or lascivious act, in violation of subdivision (b) of Section 288. [¶] . . . [¶] (8) Lewd or lascivious act, in violation of subdivision (a) of Section 288. [¶] . . . [¶]
"(e) The following circumstances shall apply to the offenses specified in subdivision (c): [¶] . . . [¶] (4) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. [¶] . . . [¶]
"(h) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section.
"(i) For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), . . . the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6. [¶] . . . [¶]
"[(j)](2) Any person 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. [¶] . . . [¶]
"(o) The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact."
The One Strike law applies to the crimes of committing a forcible lewd act upon a child under the age of 10 (§ 288, subd. (b)), and to committing a lewd act upon a child under the age of 14 (§ 288, subd. (a)). (§ 667.61, subds. (c)(4), (c)(8).) Defendant was convicted on ten counts of the first of those offenses as against Jane Doe I, and on nine counts of the second offense as against John Doe, Jane Doe II, Jane Doe III, and Jane Doe IV, respectively. Because the accusatory pleading alleged, and the jury found true, the aggravating factor that he had been convicted in the present case of committing one of those crimes against more than one victim, the trial court applied the One Strike law, and imposed an indeterminate sentence of 25 years to life on each of the 19 counts. (§ 667.61, subd. (j)(2); see § 667.61, subds. (e)(4), (o); see also People v. Alvarado (2001) 87 Cal.App.4th 178, 186 (Alvarado) ["Section 667.61 mandates indeterminate sentences of . . . 25 years to life for specified sex offenses that are committed under one or more 'aggravating circumstances,' such as when the perpetrator . . . sexually victimizes more than one person"].)
The court then examined whether those terms should be imposed consecutively or concurrently. Finding that defendant had committed the 10 forcible lewd acts against Jane Doe I (counts 3-12) on separate occasions, it concluded consecutive sentences were mandatory on those counts. (§ 667.61, subd. (i).) Applying the criteria listed in the California Rules of Court, rule 4.425, it also exercised discretion to impose a consecutive term on one count for each of the remaining victims (counts 13, 17, 20, and 22), concluding that each offense for which defendant was convicted was an independent crime, involving a separate act, committed at different times. (Cal. Rules of Court, rule 4.425(a); see Alvarado, supra, 87 Cal.App.4th at p. 194 [rule 4.425 "sets forth the relevant criteria for determining whether to impose a consecutive rather than concurrent sentence"].) "The defendant was not demonstrating a single period of abhorrent behavior," the court reasoned, but, rather, "a persistent, repetitive, and relentless pedophilic attraction to children." He began by dating White, who, at 18 was "barely an adult," and half his age, the court observed, then molested Jane Does II and III who were 12 and 13, and "moved on to eight [year olds] with Jane Doe[s] I and IV. He is increasingly moving down in terms of his fondness towards younger and younger victims."
Rule 4.425, provides in part: "Criteria affecting the decision to impose consecutive rather than concurrent sentences 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 . . . ."
In addition, the court found the following aggravating circumstances listed in the California Rules of Court, rule 4.421, supported its exercise of discretion: defendant displayed a high degree of cruelty and callous disregard toward the victims in committing the offenses; the victims were particularly vulnerable because they were in his home when the crimes occurred, and could not escape; he induced his girlfriend, White, to participate in the crimes against John Doe, occupying a dominant position over her; he took advantage of a position of trust as the father of the best friend of Jane Doe I and Jane Doe IV and as a close friend to those girls' parents; and his criminal record evidenced increasing seriousness. (See Cal. Rules of Court, rule 4.425(b) [With specified exceptions, any aggravating circumstance "may be considered in deciding whether to impose consecutive rather than concurrent sentences"].) As a mitigating factor, the court found only that defendant's prior performance on probation had been satisfactory. (Id., rule 4.423(b)(6).)
2. Analysis
The federal Constitution's Eighth Amendment prohibition against "cruel and unusual punishments" bars punishment that is "grossly disproportionate" to the crime. (Graham v. Florida (2010) 560 U.S. 48, 59-60, quoting with approval Harmelin v. Michigan (1991) 501 U.S. 957, 997 (conc. opn. of Kennedy, J.).) Article I, section 17 of the state Constitution prohibits punishment "so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity." (Alvarado, supra, 87 Cal.App.4th at p. 199.)
The Eighth Amendment applies to the states via the Fourteenth Amendment. (Robinson v. California (1962) 370 U.S. 660, 675.)
Article I, section 17 of the California Constitution provides, "[c]ruel or unusual punishment may not be inflicted or excessive fines imposed."
"Outside the death penalty context, ' "successful challenges to the proportionality of particular sentences have been exceedingly rare." ' (Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of O'Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73.)" (Reyes, supra, 246 Cal.App.4th at p. 83.) "[T]he fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is 'properly within the province of legislatures, not courts.' " (Harmelin, supra, 501 U.S. at p. 998 (conc. opn. of Kennedy, J.).) The validity of legislative enactments will not be questioned, therefore, " ' " 'unless their unconstitutionality clearly, positively, and unmistakably appears.' " ' [Citation.]" (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
Here, defendant does not dispute the trial court's legal conclusions or supporting factual findings on the following points: The One Strike law mandates indeterminate sentences of 25 years to life on the 19 counts of forcible lewd acts and lewd acts that he committed against five children, in light of the aggravating circumstance that he sexually victimized more than one person. (§ 667.61, subds. (c)(4), (c)(8), (e)(4), (j)(2); Alvarado, supra, 87 Cal.App.4th at p. 186.) Because the 10 forcible lewd acts that he committed against Jane Doe I occurred on separate occasions, the One Strike law also mandates consecutive sentences for those offenses. (§ 667.61, subds. (c)(4), (i).) And the trial court had the authority, considering the facts, including all aggravating circumstances, to impose consecutive sentences for one of the lewd act convictions committed against each of the four remaining victims. (Cal. Rules of Court, rules 4.421, 4.425.)
Defendant challenges the total sentence that results from these conclusions, however, contending it amounts to cruel and unusual punishment because it is "ridiculously long," cannot be completed within a human lifetime, and amounts to life without parole. He relies in part on Justice Mosk's concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, and dissenting opinion in People v. Hicks (1993) 6 Cal.4th 784, 797. We respectfully decline to follow Justice Mosk's opinions in those cases, as they were not joined by the majority of the Supreme Court and therefore lack precedential value. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan) [declining to rely on Justice Mosk's concurring opinion in Deloza]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [same] (Byrd).)
The fact that the sentence exceeds defendant's life expectancy, does not necessarily render it constitutionally cruel or unusual. (Byrd, supra, 89 Cal.App.4th at p. 1383.) As the court in Byrd reasoned, and as defendant himself observes, "[i]n practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole; he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. [Citation.]" (Ibid.)
Retanan, supra, rejected precisely the same argument, concluding a sentence "substantially longer than [the defendant's] possible life[]span" was not cruel or unusual under either constitution. (Retanan, supra, 154 Cal.App.4th at p. 1230.) There, as here, the defendant was convicted of committing multiple sex offenses against multiple children, including (1) six forcible lewd acts on a child in violation of section 288, subdivision (b)(1), and (2) nine lewd acts on a child in violation of section 288, subdivision (a). (Id. at p. 1222.) The court imposed a total state prison term of 135 years to life under the One Strike law, a sentence that included nine consecutive indeterminate terms of 15 years to life. (Ibid.) Observing that "California courts repeatedly have upheld such lengthy prison [terms]," Retanan affirmed the sentence, concluding it was "not disproportionate to the offender or the offenses." (Id. at p. 1231.)
The defendant in Retanan also was convicted of one count of aggravated sexual assault of a child and one misdemeanor count of annoying or molesting a child. (Retanan, supra, 154 Cal.App.4th at p. 1222.)
People v. Bestelmeyer (1985) 166 Cal.App.3d 520, provides another case in point. There, a defendant convicted of committing 25 sex crimes against a single child contended that his sentence of 129 years in prison, resulting from statutorily required consecutive terms, amounted to life without parole and was unconstitutional per se. (Id. at pp. 522, 530-531.) The court rejected this argument, based on In re Rodriguez (1975) 14 Cal.3d 639 (Rodriguez). (Bestelmeyer, supra, at p. 531.) The Supreme Court there had ruled a statutorily required maximum sentence of life in prison for a single lewd act was not constitutional per se. (Rodriguez, supra, at p. 643 & fn. 5; id. at pp. 647-648.) Relying on this decision, Bestelmeyer concluded "the Legislature was well within its constitutional prerogatives when it mandated full-term consecutive sentences" for the 25 sex crimes in that case (including forcible lewd acts against a child), and it held the resulting 129-year term was not cruel or unusual. (Bestelmeyer, supra, at pp. 531-532.)
As Bestelmeyer acknowledged, the Supreme Court did find the statutorily required maximum term of life in prison to be unconstitutional as applied in Rodriguez, among other things, because the offense there "lasted only a few minutes" and involved no violence. (Rodriguez, supra, 14 Cal.3d at pp. 654-655; see Bestelmeyer, supra, 166 Cal.App.3d at p. 531 & fn. 1.) Defendant also attempts two arguments suggesting the sentence in this case was unconstitutional as applied to him. In the first, he focuses on the two consecutive terms of 25-years-to-life that the court imposed for the offenses he committed against Jane Doe II and Jane Doe III, suggesting those terms were particularly disproportionate, unconstitutionally so. Although describing his conduct towards those two victims as "pathetic," he contends they did not qualify as the sort of "serious acts of child molestation" typically charged under section 288.
We recognize that the sentence is very severe. It is also true that there appears to have been no bare skin contact in either instance nor contact with "private parts" in the case of Jane Doe II. But conviction under section 288 "has never depended upon" such factors. (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) "[A] lewd or lascivious act can occur through the victim's clothing and can involve 'any part' of the victim's body. [Citations.]" (Ibid.) " '[A]ny touching' of an underage child committed with the intent to sexually arouse either the defendant or the child" will suffice for a violation of section 288. (Id. at p. 442.) "[T]he 'gist' of the offense has always been the defendant's intent to sexually exploit a child, not the nature of the offending act. [Citation.]" (Id. at p. 444.) " 'If [the] intent of the act, although it may have the outward appearance of innocence, is to arouse . . . the lust, the passion or the sexual desire of the perpetrator [or the child,] it stands condemned by the statute . . . .' [Citation]." (Id. at p. 444.)
As our Supreme Court explained in Martinez, "section 288 was enacted to provide children with 'special protection' from sexual exploitation. [Citation.] The statute recognizes that children are 'uniquely susceptible' to such abuse as a result of their dependence upon adults, smaller size, and relative naiveté. [Citation.] The statute also assumes that young victims suffer profound harm whenever they are perceived and used as objects of sexual desire. [Citation.]" (Martinez, supra, 11 Cal.4th at pp. 443-444; see, e.g., People v. Christensen (2014) 229 Cal.App.4th 781, 806 [the "seriousness [of lewd conduct on a child] is considerable" as it "may have lifelong consequences to the well-being of the child"]; Reyes, supra, 246 Cal.App.4th at p. 85 [children are "society's most vulnerable victim[s]"].)
In this case, Jane Doe II and Jane Doe III were frightened by defendant's repeated and obviously sexual touchings, which included his pressing his erect penis against Jane Doe III's backside. Their fear was heightened by the vulnerability they felt, given defendant's position as a trusted friend of Jane Doe II's father, and by the fact that the remaining adults present on that occasion were otherwise occupied in another part of the house, and the girls worried reporting his conduct would cause a fight. While not as grave as defendant's offenses against the other three victims, we do not underestimate the impact of his conduct on Jane Doe II or Jane Doe III. (J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009, 1026 ["Child molestation is not the kind of act that results in emotional and psychological harm only occasionally"].)
Nor can those offenses be separated from the remaining convictions in evaluating whether the defendant's sentence was cruel or unusual. As discussed, defendant's offenses were multifold. He was convicted not of one offense, but of twenty-two. He molested not one child, but five. Any lewd act in isolation is a serious offense. Cumulatively, his offenses were grave. As our Supreme Court has recognized, persons convicted of sex crimes against multiple victims under the One Strike law " 'are among the most dangerous' from a legislative standpoint." (People v. Wutzke (2002) 28 Cal.4th 923, 930-931; see also People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 ["The penalty for a single offense cannot be properly compared to the penalty for multiple offenses"].) Additionally, in this case, the trial court found that defendant's criminal record evidenced increasing seriousness and that he had demonstrated "a persistent, repetitive, and relentless pedophilic attraction" to progressively younger children.
Defendant's second argument that the de facto sentence of life without parole is unconstitutional here because a person convicted of murder with special circumstances (§ 190.2) would receive the same sentence is also unpersuasive. As other courts have recognized, "the commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies. [Citation.]" (People v. Cooper (1996) 43 Cal.App.4th 815, 826; accord Estrada, supra, 57 Cal.App.4th at p. 1282.) Defendant here molested five vulnerable children over the course of almost two years, during which time the trial court found he advanced in his criminal conduct to progressively younger children. Two of his victims he molested repeatedly while they were in his home, abusing their trust in him as the father of their best friend and the trust their parents placed in him as their friend. He exercised his dominant position over his much younger girlfriend to abuse a third victim in a manner that "may have lifelong consequences to the well-being of the child." (People v. Christensen, supra, 229 Cal.App.4th at p. 806 [recounting the "devastating impact" of arguably less severe conduct on the young victim in that case].) Having heard all the evidence, the trial court found defendant had displayed a high degree of cruelty and callous disregard toward the victims in committing the offenses. On these facts we cannot say the sentence here is grossly or shockingly disproportionate to the crime, constituting cruel or unusual punishment. (See, e.g., People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [it is an "exquisite rarity" for a challenge to proportionality of a sentence to be successful in California].)
Nor do we accept defendant's final cursory argument, offered without any analysis, that his sentence violates federal due process guarantees by effecting "an end run around the procedural and substantive requirements of section 190.2." Section 190.2, which requires a unanimous jury finding of one or more delineated special circumstances before imposition of a sentence of life without parole for first degree murder, is simply inapposite. Defendant's sentence results from his commission of 10 forcible lewd acts committed against one child, all on separate occasions, and four independent lewd acts, each committed against different children. He was not convicted of one count of first-degree murder, the only offense triggering the special-circumstance requirements of section 190.2. His suggestion that the Legislature intended to reserve the (effective) sentence of life without parole for special circumstance murder also is belied by the fact that the Legislature has enacted sentencing schemes such as the One Strike law, discussed above, which mandates multiple lengthy consecutive sentences that could readily result in a de facto sentence of life without parole.
C. Correction of Sentence
1. Restitution Fine
At sentencing, as noted, the trial court imposed punishment for the 22 counts on which defendant was convicted, but then stayed execution of the sentences for the two counts of sexual penetration of a minor (counts 1-2). It also imposed a restitution fine of $5,280 pursuant to section 1202.4, subdivision (b). Regarding the latter, the trial judge said only, "I will order that you pay a restitution fine of 5,280 dollars."
Defendant posits that the court must have calculated the amount of the restitution fine by multiplying the number of counts on which he was convicted (22) by the minimum applicable restitution fine under section 1202.4, an amount that he puts at $240. To the extent that the court did so, it erred, he contends, because it would have imposed restitution, i.e., punishment (People v. Le (2006) 136 Cal.App.4th 925, 933 [" 'the Legislature intended restitution fines as punishment' "]), based on two counts for which the sentence was stayed, violating section 654, which precludes multiple punishments for the same acts. Although defendant's trial counsel did not object to the restitution fine below, defendant correctly observes that section 654 errors may not be waived (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3.), and asks that the restitution fine be reduced to $4,800, the product of multiplying the remaining 20 counts by $240. The Attorney General concedes the amount should be reduced to $4,800.
Section 654 provides in pertinent part as follows: "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision . . . ."
We are unconvinced, however, because the court did not confirm the method or reasoning that it applied in calculating the restitution fine. Although we agree that multiplying 22 by $240 yields a product ($5,280) that is equal to the restitution fine imposed here, we note as well a qualifying clause in section 1202.4, subdivision (b), which the parties do not acknowledge. That provision states that the mandatory restitution fine for those convicted of a felony "shall not be less than two hundred forty dollars ($240) starting on January 1, 2012." (§ 1202.4, subd. (b)(1), italics added.)
On October 25, 2013, the date of the sentencing hearing, section 1202.4, subdivision (b) provided, and it still provides, in pertinent part as follows:
"(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.
"(1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than two hundred forty dollars ($240) starting on January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand dollars ($10,000) . . . .
"(2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (See Stats. 2012, ch. 873, §§ 1.5, 2.)
Although there was some uncertainty at trial regarding the precise timing of defendant's crimes against Jane Doe I, Jane Doe IV, and John Doe, the first amended information alleged most occurred between 2011 and 2012. There was no question defendant's crimes against Jane Doe II and Jane Doe III occurred a year before the $240 minimum amount for restitution fines took effect, i.e., during a New Year's Eve party that ended on January 1, 2011. In 2011, the minimum restitution fine was $200. (Former § 1202.4, subd. (b)(1), as amended by Stats. 2010, ch. 351, § 9.)
"[T]he imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause." (People v. Souza (2012) 54 Cal.4th 90, 143.) This means restitution fines must be calculated based on the law in effect at the time of the crimes. (Ibid.) " ' "[W]e apply the general rule 'that a trial court is presumed to have been aware of and followed the applicable law.' [Citations.]" ' " (Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1175.) Accordingly, it is possible the court calculated the restitution fine by applying the 2011 statutory minimum of $200 for offenses it concluded occurred in that year, and a greater sum for the remaining counts. As "the restitution fine shall be set at the discretion of the court" (§ 1202.4, subd. (b)(1)), and the court here did not explain the basis for its exercise of discretion, we lack information with which to find error or abuse of discretion and, therefore, decline the request to modify the fine. Instead, we remand the matter to allow the trial court to consider whether modification of the amount is appropriate in light of our conclusions in this section, and to explain its reasoning. (See People v. Zackery (2007) 147 Cal.App.4th 380, 389.)
2. Abstract of Judgmen t
The parties agree that the abstract of judgment must be amended in two particulars. We also agree. " ' "It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts." ' [Citations.] Clerical errors can be corrected at any time, and appellate courts 'have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.' [Citation.]" (People v. Mendez (2010) 188 Cal.App.4th 47, 61.)
First, in count 13, the jury acquitted defendant of forcible lewd conduct in violation of section 288, subdivision (b)(1), but convicted him of the lesser included offense of a lewd act upon a child under 14 in violation section 288, subdivision (a), and the court orally imposed sentence for the lesser offense. The abstract of judgment incorrectly indicates he was convicted of the greater offense. It must be corrected to describe defendant's conviction on count 13 as being for a lewd act upon a child under 14, in violation of section 288, subdivision (a).
Second, in count 16, the jury acquitted defendant of attempted forcible lewd conduct with a child in violation of sections 288, subdivision (b)(1), and 664, but convicted him of the lesser included offense of an attempted lewd act upon a child under 14 in violation of sections 288, subdivision (a), and 664, and the court orally imposed the sentence for that lesser offense. The abstract of judgment incorrectly indicates he was convicted of the greater offense. It must be corrected to describe defendant's conviction on count 16 as being for an attempted lewd act upon a child under 14, in violation of sections 288, subdivision (a), and 664.
Finally, in reviewing the abstract of judgment, we discovered an additional clerical error. Although the court orally imposed a concurrent sentence on count 18, for violation of section 288, subdivision (a), by committing a lewd act on Jane Doe II, a child under 14, and the minute order accurately reflects this fact, the abstract of judgment incorrectly indicates that the court imposed a consecutive term on this count. The abstract of judgment must be corrected to reflect that the court imposed a concurrent sentence on count 18.
III. DISPOSITION
The judgment is affirmed. The case is remanded to the superior court for consideration of whether modification to the amount of the restitution fine is appropriate. Following such consideration, the superior court is directed to prepare a corrected abstract of judgment reflecting any modification to the restitution fine, and confirming that: (1) defendant was convicted on count 13 of committing a lewd act upon a child under 14, in violation of section 288, subdivision (a); (2) defendant was convicted on count 16 of attempting a lewd act upon a child under 14, in violation of sections 288, subdivision (a), and 664; and (3) defendant was sentenced on count 18 to a concurrent term. A certified copy of the corrected abstract of judgment shall be forwarded to the Department of Corrections and Rehabilitation.
/s/_________
Rivera, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.