Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. WF00067
MIHARA, J.
A jury convicted defendant Virgelio Garcia Yepez of forcible lewd conduct on a child under 14 (§ 288, subd. (b)(1)) and oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)). The trial court imposed an indeterminate term of 15 years to life for the oral copulation count, concurrent to a determinate term for the forcible lewd conduct count.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant claims (1) the trial court prejudicially erred in finding his child victim competent to testify; (2) the court abused its discretion in admitting irrelevant and highly prejudicial evidence showing that his office computer had been used to access “erotic” Web sites; (3) his trial counsel rendered ineffective assistance; (4) the forcible lewd conduct conviction was not supported by substantial evidence; (5) the oral copulation conviction was not supported by substantial evidence of contact with the victim’s “sexual organ”; (6) the court prejudicially erred by failing to instruct the jury that lewd conduct on a child under 14 is a lesser offense necessarily included in the offense of oral copulation with a child 10 years of age or younger; (7) the cumulative effect of the court’s errors violated his right to a fair trial; and (8) his life sentence constitutes cruel and/or unusual punishment under the state and federal Constitutions.
We reject these contentions, but conclude that a remand is required to resolve a conflict in the record. We requested and received supplemental briefing from the parties (Gov. Code, § 68081) on whether the court imposed an eight- or a six-year concurrent term for the forcible lewd conduct count. (See pp. 35-37, post). We direct the court, on remand, to clarify the length of the concurrent determinate term.
I. Factual and Procedural Background
On September 1, 2007, defendant and his family (his wife C., their infant son, and C.’s then four-year-old daughter A.) attended a baptism celebration. C. took the children home at 10:00 p.m. Defendant stayed at the party, and when he came home around three in the morning, C. and the children were asleep in C.’s bed. Defendant had been sleeping on the sofa since his son’s birth because the baby had become accustomed to sleeping in his mother’s bed.
C. woke up briefly as defendant lifted A. from the bed. “More asleep than awake, ” C. asked what he was doing, and he said he was taking A. to her own bed. He had carried A. to her own bed before, when, for example, she fell asleep on the couch watching television, or in her parents’ bed. But he had not done so “in the middle of the night.”
Defendant left for work a few hours later. A., who “thought [defendant] was her father, ” woke C. around seven, complaining that “her dad had made her ill” and that her “vagina” was hurting. She said defendant had gotten on top of her, put his penis on her stomach, pulled on her breasts, and licked her vagina.
A. had been taught the words “penis” and “vagina” at a very young age, and she had also been taught “that no one had to touch her private parts.” She had never said anything like this about anyone before. She appeared “[s]ad, ” and C. tried to comfort her by telling her “that perhaps it had been a dream.”
C. asked her sister to come over. When she arrived, A. told her, “ ‘My dad made me sick.’ ” C. and her sister took A. to the hospital “to be checked over.”
Santa Cruz County Deputy Sheriff Cesar Ramirez, a bilingual deputy, was called to the hospital and spoke with C., whom he described as “very nervous, very emotional, ” and sometimes crying.
Sexual assault nurse examiner Connie Blackmore examined A. Ramirez instructed Blackmore not to take a history and not to ask questions during the exam. Blackmore was not told beforehand that A. had been orally copulated. The purpose of the exam was simply to swab for DNA. Blackmore collected a number of swab samples from A.’s belly, breast, inguinal fold, and genital areas. A.’s chest was bruised, and Blackmore noted numerous injuries to her genitals. A.“winced” and “pulled back in pain” when Blackmore examined them.
A.’s indications of pain and C.’s emotional reaction to the removal of A.’s shirt prompted Blackmore to broaden the scope of the exam. Blackmore said that when C. saw A.’s bruises, she “teared up and began shaking” and looked like she was going to faint. C. had not previously seen the bruises because A. had fallen asleep in the car after the party, and C. had put her to bed in her dress. A. had the same dress on when she woke C. that morning.
Blackmore concluded that the bruising on A.’s chest could have been caused by pinching or sucking, and that her genital injuries were “consistent” with oral copulation. She found A.’s injuries “very concerning, warranting law enforcement investigation.”
When Ramirez interviewed A. at the sheriff’s office later that afternoon, he showed her a diagram of a child’s body. Drawings are used because “oftentimes kids mention certain body parts by their own language so... we’ll have them mark them to see if we’re talking about the same body part....” A. drew two circles on the diagram.
At Ramirez’s behest, C. made a pretext call to defendant, who agreed with her statement that A. was a truthful child. He said, “ ‘No, she doesn’t lie, ’ ” but denied having sexually touched A. He was arrested later that evening by Santa Cruz County Sheriff’s Office Sergeant Daniel Campos.
Defendant was charged by amended information with lewd conduct on a child under 14 (§ 288, subd. (a)), forcible lewd conduct on a child under 14 (§ 288, subd. (b)(1)), and oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)). It was also specially alleged that the section 288 offenses were serious felonies within the meaning of section 1192.7, subdivision (c).
Campos and Ramirez testified that they interviewed defendant after his arrest. They noted that defendant recalled events before and after the incident, but insisted he could not remember anything between the time he put A. in her own bed and woke up a few hours later to go to work. Defendant did not attribute his lack of memory to alcohol consumed at the party. He resisted all suggestions that A. was a liar and affirmatively stated many times that she did not lie. After watching the videotape of A.’s interview, defendant told Campos it did not look like she was lying. Asked whether C. might have invented the allegations, defendant said he did not think she would be able to. Defendant neither admitted nor denied the allegations but said he could not believe he had done, or would do, such a thing. He was unable to explain how he and A. could both be telling the truth.
The officers described defendant’s demeanor during the interview as “resigned, ” “low key, ” and “defeated.” Only once did he suggest that A. might be lying—when he was asked, “Well, what if A. said that this happened more than one time?” He replied, “ ‘then she’s obviously lying.’ ” Both officers testified that defendant did not show outrage at suggestions that he had molested A. In Ramirez’s experience, “typically people get angry when you accuse them of something like this.”
Defendant’s boss testified that he learned of the allegations when C. called him on the morning of the assault. When he confronted defendant and asked if the allegations were true, defendant became “[s]omewhat” emotional and replied, “ ‘I don’t know if I did it or not.’ ”
A. testified at trial. Asked if defendant had ever touched her in a way she did not like, she responded that he had pinched her in the area of her upper left breast. “And get on me.” “And do bad things to me.” A. told the jury defendant had “licked” her “vagina” after taking her from her mother’s room to her own room. She said that her mother was the first person she told about the assault. The next person she told was her aunt, and the news made her aunt sad. Defendant’s actions made A.“a little bit” sad too. Mostly, A. said, “It made me just angry, ” because “[i]t had [n]ever happened to me before.”
Katie Swango, a DNA expert for the California Department of Justice’s DNA laboratory, compared evidence samples collected from A. with samples collected from defendant. A. lase, an enzyme present in saliva, was found on the inguinal fold and belly swabs that Swango received. Swango tested an inguinal fold swab and a belly swab and concluded that DNA matching defendant’s genetic profile was present on both swabs. Swango told the jury that the odds of another individual having the same genetic profile as defendant’s were about one in three quadrillion for Hispanics, one in 580 quadrillion for Caucasians, and one in 31 quintillion for African-Americans.
Gregory Maynard testified as an expert in computer forensics. Maynard understood the term “hentai” to refer to “a form of animation originating in Japan, ” but he did not “know specifically if ‘hentai’ refers to the obscene version” of animated cartoons known as “anime.” For purposes of this case, however, the district attorney established that “hentai” would be used to refer to animated cartoons depicting adult men in sexual situations with very young girls. He showed Maynard five cartoon images of adult men orally copulating very young girls and asked him, “My question to you, sir, is, are those hentai images, as we’ve used the term in this proceeding?” (Italics added.) Maynard responded, “As I understand hentai, yes.” [¶] “Q: And are those images of the sort you saw in the hentai material on the computer in question? [¶] A: Yes. [¶] Q: And, in fact, those were images you obtained, you extracted from that computer? [¶] A: That’s correct.” Those five images were ultimately shown to the jury. Maynard testified that he found numerous hentai movies as well as still images from those movies on defendant’s office computer’s hard drive.
We use the term in the same sense here.
The five images were selected by the court from 42 images the district attorney culled from a much larger group depicting adult men in sexual situations with very young girls
Maynard testified that the hentai images found on defendant’s hard drive were not the result of malware or spyware. Instead, queries including “hentai” had been deliberately typed into the computer’s search engine. Maynard explained he had access to only limited data because someone had deliberately cleared the computer’s history seven weeks before defendant lost control of the machine. The limited data Maynard had access to included “hundreds” of pornographic images. One hentai site took 95 “hits” in just two days. Maynard estimated that 20 percent of the sites visited during the seven-week period after the history was cleared were “erotic.”
Defendant was arrested on September 2, 2007, posted bail, and returned to work until January 22, 2008, when he was taken back into custody and lost control of his office computer.
Defendant’s boss testified that his office was “right next door” to defendant’s in the company’s main office building. The boss was in his office seven days a week and never saw anyone but defendant using defendant’s computer. Defendant’s office was “off-limits” and kept locked. Not even the boss had a key.
Defendant’s teenaged son testified that he sometimes used defendant’s office computer on weekends and after 5:00 p.m. on weekdays for homework and Web surfing. Pornographic anime images would sometimes pop up, and when that happened, he would close the window. He never saved those images, never logged on to anime or hentai sites, and never searched for pornographic images. He was certain he had never visited any Web sites that contained the hentai images that the jury saw. “I’m sure.”
Defendant has three children from a previous marriage. At the time of trial, his sons were 18 and 16, and his daughter was 14.
Defendant testified on his own behalf. He heard about the allegations from his boss. “I was surprised. I said, ‘What are they talking about? They’re crazy, ’ and I didn’t know what they were talking about.” Defendant said his boss never asked him if he had molested A., and he denied telling his boss that he couldn’t remember if he had done it or not. He denied orally copulating A. or having any sexual interest in her.
Defendant said A. was “very bright” and “sweet, ” “very lively, as if she were an adult, ” but C.“[m]anipulated” her. He told the jury C.“believes a lot in dreams” and uses them in an “abnormal” way “because it’s not -- it’s not normal for you to use dreams in your life.” He suggested black magic was “a custom in [her] family.”
Defendant could not remember whether he had, in fact, taken A. to her own bed that night. Asked on cross-examination to explain “how a lot of [his] saliva got in the fold of A.’s leg, ... which is the area that [a defense expert] called the inguinal fold and another witness referred to as the thigh fold, ” defendant was unable to do so.
Defendant denied deleting “cookies” from his office computer and erasing the history reflecting searches before September of 2007. “I had nothing to erase.” “I don’t even know what cookies are.” He said many people used his office computer—C., his teenaged children, his nephews, his sister-in-law, and the office accountant.
A “cookie” is “a file that a Web page downloads to the computer to give the Web site information about the computer user’s access and use of the Web site.” (Tecklenburg v. Appellate Division (2009) 169 Cal.App.4th 1402, 1409, fn. 10.)
The jury deliberated for just two hours before returning guilty verdicts on the forcible lewd conduct and oral copulation counts. At sentencing, the court imposed an indeterminate term of 15 years to life on the oral copulation count and a concurrent term on the forcible lewd conduct count. Defendant filed a timely notice of appeal.
The amended information charged defendant in the alternative with lewd conduct on a child under 14 (§ 288, subd. (a) [Count 1]) and forcible lewd conduct on a child under 14 (§ 288, subd. (b)(1) [Count 2]). The jury was instructed that the former was a lesser included offense of the latter, and that a defendant may not be convicted of both a greater and lesser crime for the same conduct.
II. Discussion
A. A.’s Competence as a Witness
Defendant contends the court prejudicially erred by allowing A. to testify without adequately establishing her “truth-competency” or administering an oath. We disagree.
“As a general rule, ‘every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.’ (Evid. Code, § 700; see Pen. Code, § 1321.) A person may be disqualified as a witness for one of two reasons: (1) the witness is incapable of expressing himself or herself so as to be understood, or (2) the witness is incapable of understanding the duty to tell the truth. (Evid. Code, § 701, subd. (a).) The party challenging the witness bears the burden of proving disqualification, and a trial court’s determination will be upheld in the absence of a clear abuse of discretion. [Citation].” (People v. Mincey (1992) 2 Cal.4th 408, 444 (Mincey).)
In Mincey, the trial court asked a five-year-old who had witnessed her younger brother’s murder “whether she knew the difference between telling the truth and lying, and whether she would tell the truth in responding to questions. [She] said ‘yes’ to both inquiries, as well as to the question whether it would be a lie if the judge said his [black] robe was white.” (Mincey, supra, 2 Cal.4th at pp. 443-444.) Satisfied after this brief exchange that the child was competent, the court permitted her to testify. (Mincey, at p. 444.) The California Supreme Court found no abuse of discretion: “Here, the trial court... ascertained that [the child] could distinguish between truth and falsity, and that she understood she had to tell the truth.... Contrary to defendant’s assertion, an actual direct threat of punishment for not telling the truth is not a prerequisite for a trial court’s determination that a person is competent to be a witness.” (Ibid.)
The voir dire questioning here, by the court and by the district attorney, was almost identical to the questioning in Mincey. The district attorney used a coloring book to establish A.’s ability to distinguish truth from falsity. After she identified images of a king and a princess and said she had colored them, the district attorney asked, “If I were to say that this was the king, (indicating), would that be true?” A. shook her head no. “If I were to say that’s the princess, (indicating), would that be true?” A. responded, “Yes.” This sufficiently established her ability to distinguish between truth and falsity. (Mincey, supra, 2 Cal.4th at pp. 443-444.)
Defendant generalizes that “[a] child of A.’s age, even when able to identify a factually accurate statement, does not necessarily understand the relative moral values of intentionally factually accurate and inaccurate statements.” He argues that here, unlike in Mincey, A. was not expressly asked about “lying.” We think this is a distinction without a difference. A. demonstrated that she understood the difference between “true” and “not true.” After she had done so, the court impressed upon her the importance of telling the truth and obtained her promise to be truthful. The court told her, “And you know what’s really, really, really important? That you tell the truth. Okay?” When A. nodded her head affirmatively, the court asked her, “Can you do that for me?” She nodded her head again. The court confirmed, “Yes?” A. nodded her head again.
Characterizing the trial judge as “[s]till not sure whether she understood” his questions, defendant complains that A.’s “head-nodding in response is hardly the equivalent of a ‘solemn’ promise to tell the truth.” We disagree. We see nothing equivocal about A.’s affirmative nod to the direct question, “ ‘Can you do that [i.e., tell the truth] for me?’ ” (People v. Thomas (1967) 65 Cal.2d 698, 708 [rejecting claim that adult witness who merely nodded assent to oath had not been sworn]; see In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299 [holding it sufficient that child witness responded “Okay” when asked, “ ‘Now you can tell the judge the truth, okay?’ ”].) We note that at this point in the proceedings, A. had not yet been instructed to give audible responses. It was not until several minutes later, after she had responded audibly to a different question, that she was told, “That’s very good that you answered out loud, because it’s important that we answer out loud. You can shake your head yes or no, but then you also need to talk. Is that okay?” A. nodded and responded, “Yes” to that question.
That the trial court correctly determined A.’s competence is confirmed by her subsequent testimony. “It is well settled that, in determining whether the trial judge has abused his discretion in passing upon the competency of [child witnesses], the entire record will be reviewed and considered. [Citations.]” (People v. Arcia (1948) 85 Cal.App.2d 127, 129; accord, People v. Denton (1947) 78 Cal.App.2d 540, 546 [“Since a review of her testimony appearing in the record shows that the court was justified in allowing her to testify before the jury, we are not concerned here with any lack of thoroughness in her voir dire examination”].) Our review of the entire record shows that A.’s testimony was responsive, straightforward, and intelligent. We conclude that because the record supports the determination that A. was competent, the court did not abuse its discretion in permitting her to testify.
Defendant’s argument that the court failed to administer the oath does not, in the circumstances of this case, change our conclusion. Evidence Code section 710 requires that witnesses, even child witnesses, be sworn before they testify. (Evid. Code, § 710; In re Heather H. (1988) 200 Cal.App.3d 91, 95 (Heather H.).) But as defendant acknowledges, “irregularities [with respect to the oath] can be waived, and a failure to object will result in an implied waiver.” (People v. Berry (1968) 260 Cal.App.2d 649, 652-653 (Berry).) Further, “ ‘[n]o constitutional provision is violated when unsworn testimony is received.’ [Citation]” (Heather H., at p. 96.)
Defendant insists there was no waiver here because his “competence objection was sufficient to encompass th[e] procedural flaw.” We cannot agree. The purpose of the waiver doctrine is to encourage parties to bring errors to the attention of the trial court so that they may be corrected or avoided and a fair trial had. (People v. Saunders (1993) 5 Cal.4th 580, 590 (Saunders).) Here, the entirety of defendant’s objection was, “Your Honor, before we go any further, I don’t know if the foundational issues have been taken care of as to competency. I know that he asked her a question about a king and a princess.” This objection was plainly insufficient to alert the trial court to an oath-taking error.
Defendant’s reliance on Heather H. is misplaced. There, unlike here, counsel were absent when the four-year-old witness was questioned in camera without having been sworn. (Heather H., supra, 200 Cal.App.3d at p. 96.) Without counsel, “there could be no waiver imputed to the minor, ” and the unsworn testimony was inadmissible. (Ibid.) Heather H. stands for the proposition that “ ‘[w]hen... there is no waiver and an unsworn witness is permitted to give material testimony, a ground for new trial exists.’ ” (Ibid., italics added.) The case is inapposite here.
“ ‘ “An appellate court will ordinarily not consider procedural defects or erroneous rulings... where an objection could have been, but was not, presented to the lower court by some appropriate method.... [T]he explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” ’ [Citation.]” (Saunders, supra, 5 Cal.4th at pp. 589-590.) “ ‘ “No procedural principle is more familiar to this Court than that a constitutional right, ” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” ’ ” (Saunders, at p. 590, citations omitted.) We conclude that defendant forfeited his claim of procedural error by failing to object below to the absence of the oath. (People v. Stitely (2005) 35 Cal.4th 514, 538 (Stitely).)
B. Admission of Evidence
1. Computer Evidence
Defendant contends the court abused its discretion in admitting “evidence of images and electronic artifacts of searches for images other than those [it] specifically admitted....” He claims the evidence was irrelevant, “facially inadmissible” under Evidence Code section 1101, and “highly prejudicial and confusing to the jury in that it tended to portray [defendant] as generally aberrant and evil....”
a. Background
Upon learning that defendant planned a character-based defense, the People moved in limine to admit images recovered from the hard drive of his office computer. The motion explained that more than 1, 200 such images, including “animated representations of children and prepubescent teens... in a variety of degrading and violent sexual situations with adult males, ” as well as photographs depicting bestiality, had been recovered. The images were relevant, the People argued, to show defendant’s state of mind “and specifically confirm his interest in the sexual degradation of young females.”
At the hearing on the motion, the court noted that there were two classes of images, “So let’s take them one at a time.” “The... animated images go to the alleged interest your client would have in minor girls, sexual interest, which would go to his motive --” Defendant conceded that “there may be some relevance there, ” but argued that the prejudicial impact of the images greatly outweighed their probative value. The court reviewed 42 still images that the district attorney had culled from a much larger group. After an Evidence Code section 402 hearing and extensive argument, the court selected five images meeting its criteria: “ones that clearly indicate a female who appears to be close in age to the victim, and I would probably put that in the under-ten range, ” being orally copulated by an adult male. The court ruled that those five images could be shown to the jury.
The court reserved a ruling with respect to the bestiality photographs. The court cautioned defense counsel: “Well, the latter photographs, again, [the district attorney] has indicated he’s not intending to introduce those until they become relevant based on the character evidence, so they stay out. They would only come in if you open the door. So again, it depends. The comments and quotes that he had cited here, if these were to all come in, you could very well be opening the door. [¶] ‘Never noticed anything unusual about the defendant. He never did anything that made her feel uncomfortable, ’ quotes like that could possibly open the door to ‘Don’t you think pictures like this are unusual?’... [¶]... [¶] Just depends upon how you portray him, the defendant. Portraying him as a saint who would never look at this type of material, that’s fair game to put on information to the contrary. Again, just depends upon what you introduce.” “We’ll just wait and see how he’s portrayed by the defense through the character witnesses.”
Immediately before Maynard testified, defendant renewed his objections to the admission of any images. Overruling them, the court said, “Well, the Court has weighed the prejudice to the defense, as opposed to the probative value. It does indicate an individual who would have an interest -- a sexual interest in young girls. That’s the basis of the case here, so the probative value is great. [¶] The... defense is certainly free to cross-examine, and part of my concern, though, is I’m not sure how far you want to go with that cross-examination, because your cross-examination could open up the door to the jury finding out about other images that may be embarrassing to your client. I don’t know, you know, how prejudicial they would be, so that -- you have to be cautious.” (Italics added.) “[F]or instance, ” the court posited, “if you were to say, ‘Well, okay, of 17, 000 images, you only found... five that were introduced as being offensive’.... Then that could open the door to, ‘Well, hold it. There were other sexual images and other animated sexual images.’ ”
Maynard then testified on direct examination that someone using defendant’s computer had deliberately accessed hentai sites. Defendant argues here that what followed went beyond the parameters set by the court: [¶] “Q: What, if any, evidence did you see of someone intentionally accessing hentai sites? [¶] A: There were artifacts of search pages. Someone had intentionally gone in and created search queries within search engines, and some of the terms included in those searches were ‘hentai.’ [¶] Q: What were some of the other terms in those searches, if you can recall? [¶] A: ‘Free hentai movies.’ ‘Hentai.’ ‘Hentai movies.’ [¶] [DEFENSE COUNSEL]: Your Honor, I object. That’s irrelevant. [¶] THE COURT: Let’s move on. [¶] [DISTRICT ATTORNEY]: Q: Did you find hentai movies on the hard drive of the computer? [¶] A: I did. [¶] [DEFENSE COUNSEL]: Objection; irrelevant. [¶] [THE COURT]: Next question.”
After Maynard testified that the five images had been extracted from defendant’s computer, they were admitted into evidence and shown to the jury.
Defendant’s cross-examination suggested the five images had arrived in an “unwanted email” that had infected defendant’s computer with malware, spyware, or other adware. Maynard acknowledged that he could not establish that defendant had “actually viewed” those five particular images or that they had been accessed during the “particular hours” when defendant was at work in his office.
To counter the inference that the images had accidentally ended up on defendant’s computer, the district attorney on redirect asked Maynard if his study “indicate[d] that during one two-day period, a hentai site took more than 95 hits from [defendant’s] computer....” Maynard responded in the affirmative.
Defendant argues that what followed once again went beyond the parameters set by the court: [¶] “Q: Did you get a flavor for what percentage of the usage of that computer was devoted to looking for what I’ll call erotic material? [¶] [DEFENSE COUNSEL]: I would object, Your Honor. It’s irrelevant. [¶] THE COURT: Overruled. You can answer the question. [¶] THE WITNESS: It’s difficult to say, in that the numbers we were viewing don’t necessarily give us the overall usage habit. [¶] If, for example, I turned on my browser and went directly to a Web page, circumnavigating my home page, those numbers then don’t begin to make a true ratio. I can see that of the Web visits during that time period and the history, those that were specific to erotic sites are a large portion. I would estimate 20 percent. [¶] Q: So 20 percent of the websites visited by that computer are erotic? [¶] A: During the period of the history file that we have access to, if I were to examine the number of hits that went to sites legitimate versus those potentially containing erotic data, imagery, I would say it’s south of 20 percent, but not much.”
Before defendant began his recross-examination, the court asked counsel to approach. The court warned defense counsel, “The problem with the cross-examination is that the more you ask, the more it starts ebbing away, going into areas that are outside of my -- of my parameters, but when you start questioning, you know, the witness in this fashion, it starts to open the door. [¶] I don’t know if [the district attorney] went too far with the last question, maybe he did, but we’ve talked about that. I don’t want to talk about that in front of the jury, but I don’t know where you’re going from here, but -- I don’t know. Just wanted to put it out there. Be cautious where you’re going.” The court warned defense counsel that “it’s a very slippery slope.”
On recross, Maynard agreed that images like the five shown to the jury could “pop up” on an infected computer. On further redirect, he clarified that the activity he viewed on defendant’s computer showed someone had intentionally accessed the hentai sites. “I have never heard of in my industry any malware or spyware capable of writing typed URLs into the registry file.”
b. Analysis
Defendant challenges the admission of testimony “that the hard drive of [his] computer had ‘hentai’ movies or artifacts of searches for ‘hentai’ movies and other still images stored on it, ” and that almost 20 percent of the Web site visits in the history file were visits to sites that potentially contained “erotic” data and imagery. Arguing that this evidence was irrelevant, outside the court’s parameters, and more prejudicial than probative, he contends that its admission rendered his trial fundamentally unfair in violation of his Fourteenth Amendment right to due process. We need not decide whether this evidence should have been excluded because we conclude that any error in admitting it was harmless.
Defendant contends that Chapman’s “beyond a reasonable doubt” standard of review applies because the alleged error deprived him of due process. (Chapman v. California (1967) 386 U.S. 18, 24.) We disagree. As the federal cases defendant cites establish, “[t]he admission of ‘other acts’ evidence, which a defendant contends is unduly prejudicial, will violate due process only when ‘there are no permissible inferences the jury may draw from the evidence.’ [Citation.]” (Windham v. Merkle (9th Cir. 1998) 163 F.3d 1092, 1103 (Windham); accord, McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1384 (McKinney).) Even then, “a trial court’s ruling does not violate due process unless the evidence is ‘of such quality as necessarily prevents a fair trial.’ [Citation.]” (Windham, at p. 1103; McKinney, at p. 1384.)
The defendant in McKinney was charged with killing his mother with a knife that was never found. A large quantum of evidence (more than 60 pages of testimony) about his “fascination” with his “knife collection” and with death was introduced at trial. (McKinney, supra, 993 F.2d at pp. 1382, 1385-1386.) The Ninth Circuit held that the admission of such “emotionally charged” evidence violated due process because there were no permissible inferences that could be drawn from it, and it formed a significant part of the prosecution's case, which was entirely circumstantial. (McKinney, at p. 1385.)
In our view, Maynard’s testimony that the hard drive of defendant’s office computer had hentai movies and “other still images” on it supported a permissible inference that the five images the jury viewed were not attributable to spam but had instead been intentionally accessed. (See Windham, supra, 163 F.3d at pp. 1103-1104 [no due process violation where evidence of gang involvement supported permissible inferences about shooter’s motive for killing and the defendant’s motive for participating in the crime].) Assuming that no permissible inference could be drawn from Maynard’s testimony that the computer’s hard drive also had unspecified “erotic” material on it, that evidence was not, in our view, “ ‘of such quality as necessarily prevents a fair trial.’ [Citation.]” (Windham, at p. 1103.) Here, the jury had before it properly admitted evidence that the hard drive contained specific images of adult men orally copulating girls younger than 10—precisely the conduct alleged. Considered in the context of that evidence, Maynard’s brief reference to other erotic material of unknown description was so vague and non-inflammatory that it was not the type of evidence that precludes a fair trial. There was no federal constitutional error here.
“[T]he application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution....” (People v. Marks (2003) 31 Cal.4th 197, 227.) Accordingly, we review defendant’s claim of error under Watson’s “reasonably probable” standard. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) Under Watson, “[a] conviction of the charged offense may be reversed... only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred [citation].” (People v. Breverman (1998) 19 Cal.4th 142, 178, quoting Watson, at p. 836.)
Here, properly admitted evidence established that defendant had five images of adult men orally copulating young girls under 10. A.’s compelling testimony that defendant had “pinched” her chest and “licked” her “vagina” was corroborated by the extent of her injuries, and the DNA evidence made it virtually impossible to conclude that anyone other than defendant had molested her. Given all of the properly admitted evidence, it is not reasonably probable that the exclusion of the brief bits of testimony that defendant challenges would have produced a different result. (Watson, supra, 46 Cal.2d at p. 836.)
2. Ramirez’s Testimony About the Diagram A. Marked
Defendant contends the court abused its discretion when it overruled his relevance and hearsay objections to the admission of Ramirez’s testimony about interviewing A. and to the diagram A. marked during that interview. We disagree. Our examination of the record reveals that defendant forfeited the former objection and expressly waived the latter.
a. Ramirez’s Testimony
Ramirez interviewed A. at the sheriff’s office immediately after Blackmore finished examining her at the hospital. He testified at trial that he had, at the outset, ascertained A.’s ability to distinguish between truth and lies. The district attorney then elicited testimony that Ramirez had interviewed A. for about 30 minutes, in Spanish, “about the events in question.” This exchange followed: [¶] “Q: Did you ask A. to mark any documents in the course of that interview? [¶] A: Yes. [¶] [DEFENSE COUNSEL]: And, Your Honor, at this time I’m going to object to this line of questioning. I think it’s irrelevant, and it’s going to call for hearsay.” There was additional colloquy at a sidebar conference: “[DEFENSE COUNSEL]: My objection is that it’s hearsay and that he’s going to be, basically, bringing up the interview with the child and -- [¶] THE COURT [addressing the district attorney]: Where are you going? [¶] [DISTRICT ATTORNEY]: I’m going to ask him if that’s the document A. marked. [¶] THE COURT: Is that it? [¶] [DISTRICT ATTORNEY]: That’s it. [¶] THE COURT: That’s no problem.”
After Ramirez authenticated the document, the district attorney ventured outside the limits he had just set, eliciting testimony that A. had marked “the vagina” and “the left breast” on the diagram and had specifically used the word “vagina.” Defendant did not renew his objection to this line of questioning, nor did he move to strike Ramirez’s testimony about what A. said during the interview.
“Q: Did you show -- that particular [diagram], did you show that to A. in the course of the interview? [¶] A: Yes. [¶] Q: And did she make two marks on that, or indicate where to make two marks on that document? [¶] A: Yes. [¶] Q: There’s [sic] two circles on that document? [¶] A: Correct. [¶] Q: Did she make those, or did you make them at her direction? [¶] A: She made them.” “Q: In response to a question you asked, did A. indicate a certain body part on the diagram? [¶] A: Yes. [¶] Q: And that’s the breast area? [¶] A: Correct. [¶] Q: Where is the other circle on the diagram? [¶] A: The vagina. [¶] Q: And in speaking of body parts, what term did A. use in circling that area? [¶] A: ‘Vagina.’ [¶] Q: The four-year-old used that word? [¶] A: Yes.”
We agree with the Attorney General that defendant’s failure to “to renew” his “initial objections” to Ramirez’s testimony forfeited the issue on appeal. (Evid. Code, § 353; People v. Mickle (1991) 54 Cal.3d 140, 187-189 & fn. 31 [having failed to object to testimony, defendant “should have at least moved to strike the testimony of the first two witnesses when seeking to bar similar testimony by the third one”].)
We reject defendant’s suggestion that the ruling on his “initial objections” was “erroneous.” His relevance and hearsay objections to the proffered testimony were properly overruled. The proffered testimony was relevant because it illustrated how Ramirez conducted his interview with then four-year-old A. (Evid. Code, §§ 350, 351), and it was not hearsay because the facts were within Ramirez’s personal knowledge. (Evid. Code, § 1200, subd. (a).)
b. Body Diagram
Defendant challenges the admission of the body diagram, arguing that the court should have excluded it as irrelevant, hearsay, and testimonial hearsay. The Attorney General contends defendant expressly waived any objection to the document’s admission. We agree with the Attorney General.
When the district attorney moved to admit the diagram into evidence, the court asked if defendant’s trial counsel had any objections. Counsel asked the court to reserve its ruling until a later time, and the court did so. Several days later, outside the presence of the jury, the following colloquy ensued: [¶] “[DISTRICT ATTORNEY]: Would the Court admit 43, 47, and 51? [¶] THE COURT: Is there any objection? [¶] [DEFENSE COUNSEL]: Which ones are those? [¶] [DISTRICT ATTORNEY]: The ones I’ve already shown to the jury: the diagram A. marked with Ramirez.... [¶] [DEFENSE COUNSEL]: Oh. No objection. [¶] THE COURT: All right. Those are admitted.”
We see nothing in the record, beyond this statement by the district attorney, to suggest that the diagram had “already” been shown to the jury.
The court did not abuse its discretion in admitting the diagram after defendant expressly and unambiguously waived any objection. (Stitely, supra, 35 Cal.4th at p. 546.)
Defendant insists that he could not have waived a Sixth Amendment objection because “forensic documentary exhibits were not recognized as being testimonial hearsay” when the case was tried. We reject defendant’s argument. We have already determined that the trial court properly found A. competent to testify. Defendant had a full and fair opportunity to confront and cross-examine her at trial. There was no Sixth Amendment violation here. (See Crawford v. Washington (2004) 541 U.S. 36, 59 [“when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”].)
C. Ineffective Assistance of Counsel
Defendant contends his trial counsel was prejudicially deficient in three respects: (1) in failing to object to and/or to renew his objections to the absence of an oath, (2) in failing to invoke defendant’s Sixth Amendment right to confrontation in the course of his objection to A.’s competence, and (3) in failing to object to the admission of Ramirez’s testimony about what A. said during the interview and to the body diagram that she marked. We reject defendant’s claims.
A defendant seeking reversal for ineffective assistance of counsel must prove both deficient performance and prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The first element “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, at p. 687.) The court “must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed at the time of counsel’s conduct.” (Strickland, at p. 690.) “Judicial scrutiny of counsel’s performance must be highly deferential” and “every effort [must] be made to eliminate distorting effects of hindsight....” (Strickland, at p. 689.) When counsel’s conduct can reasonably beattributed to sound strategy, a reviewing court will presume the conduct was the result of a competent tactical decision, and the defendant must overcome that presumption to establish ineffective assistance. (Ibid.)
“Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, supra, 466 U.S. at p. 687.) “The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” (Strickland, at p. 694.) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [¶] In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law.” (Ibid.)
A court deciding an ineffective assistance claim does not need to address the elements in order, or even to address both elements if the defendant makes an insufficient showing on one. (Strickland, supra, 466 U.S. at p. 697.) “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” (Ibid.)
Defendant attacks his trial counsel’s failure to object to the lack of an oath. We dispose of this argument “on the ground of lack of sufficient prejudice.” (Strickland, supra, 466 U.S. at p. 697.) A timely objection to the lack of an oath would not have precluded A. from testifying, because the trial court could easily have corrected the error. The court’s assessment of A.’s testimony as “striking” and “more than enough to convince a jury to convict [defendant] beyond a reasonable doubt” convinces us that a motion to strike would not have succeeded either. The court was certainly not obligated to strike A.’s testimony, because “ ‘[n]o constitutional provision is violated when unsworn testimony is received.’ ” (Heather H., supra, 200 Cal.App.3d at p. 96.) Since it is virtually certain A.’s testimony would have been admitted even if defendant’s counsel had challenged the absence of an oath, there is no “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, at p. 694.)
Defendant next attacks his trial counsel’s failure “to explicitly invoke [the] right to confrontation” in the course of his objection to A.’s competence to testify. We do not consider this deficient performance. In our view, defense counsel made a strategic decision not to press (or attempt to bolster) his objection after the trial court overruled his objection to A.’s ability to understand her duty to tell the truth. Since he was present during voir dire, defendant’s counsel was able to observe firsthand that, as defendant himself later told the jury, A. was a “very bright” little girl. Counsel was also undoubtedly aware that his client had repeatedly asserted (to C. during the pretext call and to the officers who questioned him at the station) that A. did not lie. In these circumstances, counsel could reasonably have decided that continuing to argue against A.’s “truth-competency” would gain his client nothing. This was not deficient performance. “Representation does not become deficient for failing to make meritless objections.” (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Finally, defendant attacks his trial counsel’s failure “to renew” his objection to the diagram A. marked and to Ramirez’s testimony about it. We need not determine whether counsel performed deficiently, because we do not think any prejudice resulted from the claimed error. The diagram and Ramirez’s hearsay testimony about it were, at best, cumulative, serving only to underscore that A. understood the meaning of the word “vagina.” That fact had already been established by C.’s uncontradicted testimony that she had taught A. the meaning of the word. That A. understood the word was further corroborated by Blackman’s description of A.’s injuries, which supported what A. had told her mother, her aunt, and the jury: that defendant had licked her vagina.
We reject defendant’s ineffective assistance of counsel claim.
D. Substantial Evidence
1. Oral Copulation
Section 288a defines “oral copulation” as “the act of copulating the mouth of one person with the sexual organ... of another person.” (§ 288a, subd. (a).) Importing that definition into section 288.7, defendant contends there was not substantial evidence that his mouth contacted A.’s sexual organ. We disagree.
“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “Evidence, to be ‘substantial, ’ must be ‘of ponderable legal significance... reasonable in nature, credible, and of solid value.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576.) “We view the evidence in the light most favorable to the prosecution, and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 1015, 1028.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) “An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.” (Maury, at p. 396.) Reversal is warranted only if it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Here, there was ample evidence of oral copulation even without the DNA evidence that defendant urges us to discount. A. told the jury that defendant licked her vagina. She had made precisely the same statement, just hours after the assault, to her mother, her aunt, and Ramirez. Although A. was only four when the assault occurred, she understood the meaning of the word “vagina.” Her mother’s testimony, bolstered by the circle that A. drew on the child’s body diagram Ramirez showed her, was more than sufficient to establish that point.
A.’s testimony was corroborated by Blackmore’s physical examination. Blackmore explained that “when [A.] began to complain of pain [during the examination], ... I asked her where it hurt as I was touching and at that point... she was showing me, and I looked closer, and she had what is described as edema, which is swelling, on her clitoral hood.” Blackmore also observed “punctuate erythema, which is redness... on the right side of [A.’s] labia minora, ” and “[l]ocalized petechiae, the little red marks on her hymenal tissue” These injuries were “consistent” with oral copulation. Defendant’s medical expert found it significant that no one had suggested to Blackmore, before the exam, that A. had been orally copulated by an adult. It showed that Blackmore was not looking for (and expecting to find) evidence of oral copulation.
Defendant argues that the injuries Blackmore observed were not seen by the other two forensic examiners who looked at the photographs she had taken. But this did not require the jury to disbelieve her testimony. “The uncorroborated testimony of a single witness is sufficient to sustain a conviction.” (People v. Scott (1978) 21 Cal.3d 284, 296; see Evid. Code, § 411.) Moreover, as defendant’s medical expert noted, “[p]hotographs are difficult to take sometimes.” Blackmore explained that although she had been “taught the ideals for forensic photography, ” she had failed “[m]iserably” in this instance. Using the camera setup was “a difficult process, ” because the computer monitor did not always accurately reflect what the camera was focused on. It was not possible to take a few photographs and then check the quality before proceeding. That A. was “squirming” further complicated the process.
Defendant argues that A.’s injuries “need not have been caused by oral contact.” He fails to suggest any other explanation, however, and points to no evidence that might support one. We note that when Blackmore was asked what else could have caused those particular injuries, she replied, “I have no idea.”
We conclude that substantial evidence supports the jury’s finding that defendant orally copulated A.
2. Forcible Lewd Touching
Defendant contends there was not substantial evidence of forcible lewd touching because “[t]he evidence here permits no rational inference that carrying A. to bed on this occasion was for the purpose of accomplishing a lewd touching.” It was “routine and expected” for him to carry A. to her own bed, defendant claims, and any lewd touching was simply “an afterthought.” We disagree.
Section 288, subdivision (a) makes criminal any lewd act upon or with a child under the age of 14 with the intent of arousing the sexual desires of the defendant or the child. (§ 288, subd. (a).) Subdivision (b)(1) makes criminal the commission of such acts accomplished “by use of force....” (§ 288, subd. (b).) “A defendant uses ‘force’ if the prohibited act is facilitated by the defendant’s use of physical violence, compulsion or constraint against the victim other than, or in addition to, the physical contact which is inherent in the prohibited act.” (People v. Bolander (1994) 23 Cal.App.4th 155, 163 (Bolander) (Mihara, J. concurring).)
Defendant does not dispute that carrying A. from one room to another would satisfy the “force” element, but instead claims the requisite intent was lacking. In finding him guilty of forcible lewd touching, the jury found the requisite intent, and substantial evidence supported the jury’s determination. Although it was not unusual for defendant to carry A. to her own bed if she had fallen asleep on the couch or in her parents’ bed, there was no innocent reason for him to remove her from her mother’s bed at 3:00 a.m. He did not need to make room in the bed for himself, because he had been sleeping on the sofa at least since the birth of his son. There was no evidence that the baby was crying or otherwise disturbing A.’s slumber. C., A., and the baby were all sound asleep.
The jury could reasonably have inferred that defendant took A. from her mother’s bed to facilitate the lewd touching. The jury viewed five hentai images depicting adult males orally copulating young girls under 10—precisely the conduct that A. described here. There was expert testimony that the hentai images on defendant’s office computer were not the result of malware or spyware, and that one hentai site had taken 95 hits in a two-day period. Defendant’s son testified that he sometimes used that computer, but not during office hours and not to visit hentai or anime sites. There was testimony that defendant spent long periods of time in his office with the door locked and sometimes took as long as five minutes to open it in response to a knock. This evidence amply supported an inference that defendant entertained thoughts of sex with very young girls and formed the intent to molest A. either immediately before or while he carried her from her mother’s bed to her own. We conclude that substantial evidence supported defendant’s conviction for forcible lewd conduct.
E. Lesser Included Offense
Defendant contends the trial court prejudicially erred in failing to instruct the jury that lewd conduct on a child under 14 (§ 288, subd. (a)) is a lesser included offense of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)). We disagree.
“An offense is necessarily included in another if (1) the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater; or (2) if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed.” (People v. Clark (1990) 50 Cal.3d 583, 636 (Clark).) Lewd conduct on a child under 14 (§ 288, subd. (a)) is not a lesser included offense of oral copulation with a child 10 years of age or younger (§ 288.7, subd. (b)) under either test.
The statutory elements test is not satisfied because comparing the elements of the two crimes reveals that section 288 is violated when the defendant touches an underage child with the specific intent “of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subd. (a); People v. Martinez (1995) 11 Cal.4th 434, 444, 452 (Martinez).) Specific intent is an element of the section 288 crime. (Martinez, at p. 452.) Section 288.7, by contrast, does not contain a specific intent element. (§ 288.7, subd. (b); see People v. Muniz (1989) 213 Cal.App.3d 1508, 1517 [“Forcible oral copulation does not require a specific intent or purpose”]; People v. Brocklehurst (1971) 14 Cal.App.3d 473, 476 [“A violation of [former section 288a] is not a crime requiring a specific intent”].) Section 288.7, subdivision (b) is violated when “[a]ny person 18 years of age or older... engages in oral copulation... with a child who is 10 years of age or younger....” (§ 288.7, subd. (b).)
Section 288, subdivision (a) provides in relevant part that “[a]ny person who willfully and lewdly commits any lewd or lascivious act, ... upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony....” (§ 288, subd. (a).)
In People v. Pearson (1986) 42 Cal.3d 351 (Pearson), the California Supreme Court rejected the contention that a lewd act on a child (§ 288, subd. (a)) was a lesser included offense of sodomy, drawing a distinction between section 288, subdivision (a), which “can be violated only when a lewd act is committed with the required specific intent, ” and sodomy, which, by contrast, “is a general intent crime.” (Pearson, at p. 355.) Relying on Pearson two years later, the high court held it was “evident... the identical distinction exists between the crime of rape, which is a general intent crime, and the crime of committing a lewd act on a child.” (People v. Griffin (1988) 46 Cal.3d 1011, 1030 (Griffin).) In Griffin, the court explained that rape, like sodomy, is a general intent crime, while “a lewd act on a child requires proof of the specific intent of ‘arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child....” (Griffin, at p. 1030.) The reasoning of these casescompels a similar conclusion here. Because forcible oral copulation is a general intent crime, defendant’s contention fails the statutory elements test.
His contention fails the accusatory pleadings test as well, because the pleadings simply track the statutory language. The complaint, the information, and the first amended information charged the section 288.7 offense without alleging any facts relating to intent. The pleadings contain no “language describing [the section 288.7, subdivision (b) offense] in such a way that if committed in that manner the lesser offense must necessarily be committed.” (Clark, supra, 50 Cal.3d at p. 636.) It follows that the trial court did not err by failing to instruct the jury that lewd conduct on a child under 14 is necessarily included in the offense of oral copulation with a child 10 years of age or younger.
Having found no error, we need not consider defendant’s contention that the cumulative effect of the trial court’s errors “synergistically result[ed] in a fundamentally unfair trial.”
F. Cruel or Unusual Punishment
Defendant contends his life sentence is cruel or unusual under the California Constitution and cruel and unusual under the United States Constitution. We disagree.
Defendant challenges his sentence under both the state and federal Constitutions. Since the state Constitution’s prohibition against cruel or unusual punishment is arguably broader than the federal Constitution’s prohibition against cruel and unusual punishment, we analyze his contention under the state standard only. A punishment that satisfies this standard necessarily satisfies the federal standard. (Cf. People v. Anderson (1972) 6 Cal.3d 628, 633-634.)
The Attorney General’s argument that defendant forfeited this claim by failing to raise it below is factually incorrect. The issue was raised, argued, and decided against defendant in the trial court.
Criteria for evaluating whether a particular punishment violates California’s Constitution are set forth in People v. Dillon (1983) 34 Cal.3d 441 (Dillon) and In re Lynch (1972) 8 Cal.3d 410 (Lynch). “[A] statutory punishment may violate the constitutional prohibition not only if it is inflicted by a cruel or unusual method, but also if it is grossly disproportionate to the offense for which it is imposed.” (Dillon, at p. 478.) “[W]hen a defendant under an indeterminate sentence challenges that sentence as cruel or unusual punishment in violation of the California Constitution, the test is whether the maximum term of imprisonment permitted by the statute punishing his offense exceeds the constitutional limit....” (Lynch, at p. 419.) Since the maximum term imposed here was life imprisonment, we must, for purposes of comparison, consider whether a life sentence is unconstitutionally disproportionate.
In Lynch, the California Supreme Court offered three “techniques” for evaluating whether a particular punishment is excessive. The first examines “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (Lynch, supra, 8 Cal.3d at p. 425.) The second technique compares the punishment prescribed with that prescribed for more serious offenses in this state. (Lynch, at p. 426.) The third technique compares the penalty prescribed in California with the penalty prescribed in other jurisdictions for the same offense. The purpose of this inquiry is to see if the challenged penalty is disparate in comparison to “the punishments decreed for the offense in a significant number of those [other] jurisdictions.” (Lynch, at p. 427.)
1. Nature of Offense and Offender
Our inquiry into the nature of the offense necessarily encompasses “the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant’s involvement, and the consequences of his acts.” (Dillon, supra, 34 Cal.3d at p. 479.) We must look at the offense both in the abstract and as it was actually committed. (Ibid.)
The offense that resulted in the life sentence here was oral copulation with a child 10 years of age or younger. Defendant acknowledges that “[s]ex offenses against children are particularly serious, and deserving of sever[e] punishment.” He concedes that “A. has surely been traumatized, ” but argues that his crime “does not measure up” to those deserving a life sentence, since it was “brief” and “not accomplished with violence.” We cannot agree. The trial court could have inferred from the extent of A.’s injuries that the crime was neither “brief” nor nonviolent. A.’s chest was bruised, and her genitals were so red and swollen that she “winced” and “pulled back in pain” when Blackmore examined them. Defendant took advantage of a particularly vulnerable victim, who was only four years old and thought of him as her father. He removed a sleeping A. from her mother’s bed in the middle of the night to sexually assault her.
Viewing defendant’s offense together with evidence of his nature does not suggest that a life sentence was disproportionate here. Consideration of the nature of the offender focuses on “the defendant’s individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.” (Dillon, supra, 34 Cal.3d at p. 479.) Defendant was 49 years old when he committed the offense. His criminal history is not extensive. He emphasizes that this is his first sex offense and that his score on the Static-99 test, an actuarial tool used to estimate recidivism risks, placed him in the “low risk” category. What we think should be emphasized is that, as the probation report noted, defendant was an active participant who has never accepted any wrongdoing or expressed any remorse. The probation officer recommended a life sentence, concluding that defendant’s “lack of accountability suggests that he continues to be a danger to the public, and as such, should be sentenced accordingly.” We agree. The record does not suggest that defendant’s life sentence is disproportionate to the offense or to his nature. (See, e.g., People v. Estrada (1997) 57 Cal.App.4th 1270, 1278 [rejecting cruel and unusual challenge to life sentence for rape during burglary by inebriated 38-year-old defendant who used no weapon, made no threats, had only petty property priors, and begged his victim’s forgiveness]; People v. Crooks (1997) 55 Cal.App.4th 797, 805, 807 (Crooks) [rejecting cruel and unusual challenge to life sentence for rape during burglary by alcoholic 39-year-old defendant who “had led a productive life as a husband and father, ” had only DUI priors, and, “though armed with a knife, ... left it on the floor throughout the incident”].)
In 2003, defendant was arrested for public intoxication (§ 647, subd. (f)). In 2006, he was convicted of public intoxication (§ 647, subd. (f)) and resisting a public officer (§ 148, subd. (a)(1)). In 2007, he was convicted of driving at an unsafe speed (Veh. Code, § 22350).
2. Punishment for More Serious Offenses in California
The rationale underlying the second Lynch technique is that because “the Legislature may be depended upon to act with due and deliberate regard for constitutional restraints in prescribing the vast majority of punishments set forth in our statutes, ” the existence of “more serious crimes punished less severely than the offense in question” may make the challenged penalty appear suspect. (Lynch, supra, 8 Cal.3d at p. 426.) However, “[w]hether a particular punishment is disproportionate to the offense is... a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, and responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty ‘out of all proportion to the offense’ [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.” (Lynch, at pp. 423-424.)
Defendant argues that his sentence is disproportionate because it exceeds the punishment for voluntary manslaughter (§ 193). Courts have rejected similar arguments. In Crooks, supra, 55 Cal.App.4th 797, the defendant contended that his punishment—37 years to life with the possibility of parole for a rape committed in the course of a burglary—was cruel or unusual because it exceeded the punishment for first degree murder or other unlawful killings. (Id. at p. 805.) The court disagreed, noting that the Legislature “has chosen to make other offenses not involving homicide punishable by life imprisonment without possibility of parole, ” and such sentences have been held not to constitute cruel or unusual punishment. (Id. at pp. 807-808, italics added; see also People v. Alvarado (2001) 87 Cal.App.4th 178, 200 [rejecting argument that punishment for rape during burglary, which was “roughly the same as” that for second degree murder, was cruel or unusual].)
Defendant points out that his punishment is also more severe than that imposed for, e.g., forcible rape (§ 264), willful infliction of corporal injury on a child (§ 273d, subd. (a)), forcible lewd conduct on a child under 14 (§ 288, subd. (b)), and statutory rape of a child under 16 (§ 261.5, subd. (d)), none of which garners a life sentence. But this does not, in our view, render his life sentence suspect. “Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime.” (People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 530.) Moreover, we are not convinced that the crimes defendant lists are “more serious” than the crime he committed. (Lynch, supra, 8 Cal.3d at p. 426.) We note that more serious crimes, like assault on a child with force likely to produce great bodily injury resulting in death (§ 273a, subd. (b)) and sexual intercourse or sodomy with a child 10 years of age or younger (§ 288.7, subd. (a)), are punished more, rather than less, severely than defendant’s crime. We agree with the Attorney General that these gradations in punishment, which are part of “ ‘an interlocking matrix of statutes, imposing a graduated system of punishments and enhancements for sex crimes, ’ ” demonstrate that the sentence decreed for defendant’s crime is part of a “ ‘layered and carefully considered approach.’ ” The sentence the trial court imposed here is not an example of the “isolated excessive penalties, ” occasionally enacted through “ ‘ honest zeal, ’ ” that our Supreme Court condemned in Lynch. (Lynch, at p. 426.)
“Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.) We do not think the sentence imposed here was “ ‘out of all proportion to the offense.’ ” (Lynch, supra, 8 Cal.3d at pp. 423-424.)
3. Punishment for the Same Offense in Other Jurisdictions
Defendant concedes that he could have received a life sentence in at least two other states for the same offense. (See Adaway v. State (Fla. 2005) 902 So.2d 746 (Adaway); State v. Bartlett ( N.C. App. 2002) 571 S.E.2d 28.) In fact, he could have received a harsher sentence—life imprisonment without the possibility of parole—in Florida, whose Supreme Court in 2005 rejected the contention that a life term for orally copulating an 11-year-old child was cruel and unusual punishment. (Adaway, at p. 749.) California is not required to be more lenient than all or even a significant percentage of other jurisdictions so long as the sentences imposed here are not so disproportionate that they appear suspect. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.) Defendant has not shown that his punishment is disproportionate to the punishment he could have received in other jurisdictions.
We conclude that defendant’s sentence does not constitute cruel and/or unusual punishment.
G. Length of Concurrent Term
The record is conflicting on the length of the concurrent determinate term for the forcible lewd conduct count. The reporter’s transcript of the sentencing hearing reflects the imposition of an eight-year term: “And again, for the record, the Court will impose the eight years concurrent....” The transcript does not include a statement of the court’s reasons for imposing the upper term, however. The probation report recommended an aggravated prison term for the forcible lewd conduct count, noting three circumstances in aggravation and one in mitigation. Conflictingly, the abstract of judgment reflects the imposition of a concurrent six-year term for that count. The sentencing hearing minutes agree with the abstract.
As a general rule, “[t]he record of the oral pronouncement of the court controls over the clerk’s minute order...., ” and any discrepancies are presumed to be the result of clerical error. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471.) Where possible, however, a conflicting record should be harmonized. (People v. Harrison (2005) 35 Cal.4th 208, 226.) “If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case.” (Ibid.)
In People v. Thompson (2009) 180 Cal.App.4th 974, the trial court orally pronounced the defendant’s aggregate sentence as 27 years and eight months in prison. (Id. at p. 976.) That aggregate was based on a miscalculation of one-third of the midterm for one of the offenses. Correctly calculated, the aggregate sentence was 26 years and four months in prison. (Id. at p. 978.) That was the sentence reflected in the court’s minutes and in the abstract of judgment. (Ibid.) It was also the maximum sentence stated in the plea bargain. (Id. at p. 976.) In those circumstances, the Court of Appeal deemed the minute order and the abstract to prevail over the reporter’s transcript of the sentencing hearing. (Id. at p. 978.)
We are reluctant to take that approach here, and equally reluctant to state that the oral pronouncement controls. The record before us is, in our view, irreconcilable. The court’s oral pronouncement is ambiguous. The court pronounced an eight-year concurrent sentence for the forcible lewd touching count. Eight years is the upper term for that offense. (§ 288, subd. (b)(1)). Had the court intended to impose the upper term, we would have expected it to state its reasons for doing so. Yet the court provided no statement of reasons. Further ambiguity is created by the court’s statement, “And again, for the record, ” which can be read to suggest either of two things: that there was some discussion, off the record, about the length of the sentence the court intended to impose, or that the court believed it had already stated its reasons for imposing the upper term.
The Attorney General concedes that a remand is appropriate to permit the trial court to clarify its intent. We agree.
III. Disposition
The judgment is reversed. The matter is remanded to the trial court for the sole purpose of clarifying the length of the concurrent determinate term for the section 288, subdivision (b)(1) count. If the court intended to impose an eight-year concurrent term, it shall amend the abstract accordingly. If, on the other hand, the court intended to impose the six-year midterm, it shall reinstate the judgment.
WE CONCUR: BAMATTRE-MANOUKIAN, Acting P. J., McADAMS, J.
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.