People v. Esver CA1/3

Filed 9/29/15 P. v. Esver CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
v. A143397
ARTHUR ANACLETO ESVER, (Alameda County
Defendant and Appellant. Super. Ct. No. H50465)

This is an appeal from judgment after a jury convicted defendant Arthur Anacleto
Esver of committing five separate sex acts on a child age 10 or younger, including four
counts of unlawful sexual intercourse or sodomy and one count of oral copulation or
sexual penetration. Defendant challenges the judgment on two grounds, first, violation of
his constitutional right to due process based upon a jury instruction permitting
consideration of his commission of two prior uncharged sex crimes so long as these prior
crimes were established by a preponderance of the evidence and, second, violation of the
constitutional prohibition against cruel and unusual punishment based upon his 115 year-
to-life sentence. Having considered each of defendant’s contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
On May 18, 2011, defendant was charged by information with four counts of
unlawful intercourse or sodomy with a child age 10 or younger (Pen. Code, § 288.7,
subd. (a); counts one through four), and one count of oral copulation or sexual
penetration against a child age 10 or younger (Pen. Code, §§ 289, 288.7, subd. (b); count

1
five).1 All counts were alleged to have occurred between September 1, 2009 and
March 6, 2011. It was further alleged defendant committed all five counts on separate
occasions against the same victim (§ 667.6, subds. (c)-(d)), and that defendant had
sustained a prior strike conviction (§§ 1170.12, subd. (c)(1), 667, subd. (e)(1)).
A trial began on June 12, 2014, at which the following evidence was presented.
I. The Prosecution’s Case.
On the evening of March 6, 2011, defendant’s former wife, D.E., was at her home
in San Leandro, which she shared with her daughter, M.Q., and M.Q.’s three children,
including Jane Doe (hereinafter, the victim), age nine and in third grade.2 The victim,
who had been acting “mouthy” and aggravated during dinner, asked somewhat urgently
to speak privately with her grandmother. Once D.E. agreed, the victim told her: “My
grandpa has been touching me.” When pressed for details, the victim pointed to her
pubic area and told D.E. the touching had happened today and on previous occasions.
The victim then elaborated that defendant had put his penis into her pubic area, and “put
it in my butt-butt too and it really hurted (sic) me.” D.E. asked the victim why she had
not told her earlier, and the victim replied that “[defendant] said mommy would get really
sick.” The victim had been with defendant earlier that day, when he picked her up at her
house and then took her to pick up a pizza for the family’s dinner. After telling the
victim’s mother what had transpired, the women contacted the police.
On March 7, 2011, the victim was interviewed by the Child Abuse Listening,
Interviewing and Coordination (CALICO) center in San Leandro. The victim told the
interviewer that defendant had placed his penis into her “front part” and her “butt.”
Defendant had then told the victim that, if she told anyone, “they’ll never let you come to
my house ever.” The victim further reported that defendant began molesting her when
she was about eight years-old and in the second grade. The victim nonetheless continued
visiting her grandfather because he kept promising the molestation would stop.

1
Unless otherwise stated, all further statutory references herein are to the Penal
Code.
2
The victim was born in 2001.

2
 The victim underwent a medical examination at Oakland’s Children’s Hospital.
The medical examiner found no visible evidence of injury or infection on the victim;
however, according to testimony from the hospital’s medical director for child protection,
about 90 to 95 percent of child victims have normal or unremarkable examinations after
reporting having been molested.
A police search of defendant’s home on March 7, 2011, led to the discovery of
several tissues and napkins in his bedroom that were sent in for a crime lab analysis. This
analysis rendered the following findings. Semen, but not sperm, was found on two of the
tissues. The absence of sperm cells is consistent with the donor having had a vasectomy
(which defendant had undergone) or low sperm count. In addition, the tissues contained
commingled DNA. Neither the victim nor defendant could be eliminated as donors of
this DNA. The probability of a random individual being attributed to the mixed profiles
on the tissues was “one in 47.3 quintillion Caucasians, one in 409.5 quintillion African
Americans, one in 1.09 quadrillion Southeast Hispanics, and one in 257.9 quadrillion
Southwest Hispanics.” When pressed at trial for further explanation of this analysis, the
criminalist explained that the phrase, “cannot be excluded,” means “he is the guy.”
However, the laboratory’s policy required the criminalist to “say ‘cannot be excluded.’ ”
At trial, D.E. acknowledged that, when the victim was living in San Leandro, she
had told D.E. that she enjoyed spending time with defendant because he bought her
“treats” and she loved “doing that stuff with him.” D.E. also noted the victim had been
getting into trouble recently and had spoken disrespectfully about defendant.
The victim, in turn, testified she never told anyone defendant was molesting her
because he “was very special to me at first.” In addition, defendant had told her that if
she told anyone, she would never see him again. The victim did not want to lose her
grandfather, and did not want to make her mother “emotional and scared.” The victim
ultimately identified five specific occasions during which defendant sexually abused her,
each of which she described as follows.

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A. Count One: Sexual Intercourse or Sodomy (“Blanket Night”).
One night, when the victim was visiting defendant’s home, he invited her to watch
a movie in his bedroom. During the movie, defendant and the victim were lying under a
tiger blanket. Defendant began to rub the victim’s stomach, “private” area and “butt
area.” He then removed her pants and underwear and “started to hurt [her]” by
penetrating her vagina with his penis. His penis, which felt “hard,” was inside her for
about five minutes. Defendant then turned the victim over and placed his penis in her
“bottom” or “butt hole.” “He kept like going really hard and then [took] it out.” About
five minutes later, defendant removed his penis, got dressed, and went into the living
room. The victim, in turn, got dressed and laid on the bed for a while before joining
defendant in the living room.

B. Count Two: Sexual Intercourse or Sodomy (“Soccer Night”).
One day after soccer practice, defendant took the victim to his home and, about 20
minutes later, asked her to come into his bedroom. Defendant then penetrated the
victim’s vagina with his penis. The victim, wanting to see what was hurting her so badly,
lifted the pillow that was covering her face. She could see defendant standing on top of
her, “and he pulled out his private, and, . . . in [her] head [she thought] ‘Oh my gosh.’ ”
Although the incident was painful, there was “no goo on that day.” Defendant redressed
and went into the living room, where the victim joined him to watch television after
pulling up “her pants and stuff.”

C. Count Three: Sexual Intercourse or Sodomy (“Pizza Night”).
On March 6, 2011, the victim was spending the afternoon playing with her Barbie
dolls at defendant’s home, when he asked that she join him in his bed. Defendant then
pulled down her pants and underwear and “started to hurt” her. After touching her
vagina, defendant pulled his pants down and “put his private” into her vagina. She could
not see his penis because he had covered her face with a pillow. Next, defendant
penetrated her “butt” with his penis, which was very painful because he would put his
penis inside her anus “real hard deep and then take it out and then put it in real hard

4
deep.” After defendant moved “it around inside” of her, she had “gooey stuff” on her
bottom, which she wiped off with a tissue “because [she] wouldn’t want that on me. And
. . . it was just gooey.”

D. Count Four: Sexual Intercourse or Sodomy (“Shadow Night”).
One night, the victim was using a flashlight to make “shadow puppets” on the wall
of defendant’s bedroom. Defendant, who was asleep, woke up and got on top of the
victim. According to the victim, after she removed her pajama bottoms and underwear,
defendant “decided to hurt me again.” Defendant penetrated the victim’s vagina with his
penis, and then “pulled his pants up and stuff and he went back to bed.”

E. Count Five: Oral Copulation or Sexual Penetration.
Finally, one day, when the victim was doing laundry in the basement of her San
Leandro home, defendant confronted her and had her lean against him. Defendant placed
his arms around the victim from behind and used his fingers to touch her “private area,
inside, inside and around and outside of it . . . .” Although defendant used two fingers to
touch the outside of her panties, she could feel only one finger inside her vagina.

F. The Uncharged Prior Acts of Sexual Abuse.
R.G., an adult at the time of trial, met defendant when she was about five years
old. R.G.’s aunt was married to defendant at the time, and her grandmother would watch
R.G. and defendant’s children. Once, R.G. was sleeping in a tent they had pitched in the
living room of her aunt’s house. R.G. awoke to find defendant “on top of [her] trying to
kiss [her].” She could feel “[defendant’s] erection rubbing on [her] leg.” She begged
defendant to stop, but “all he could say is ‘just kiss me.’ ” She continued to protest, but
defendant kissed her anyway. R.G. did not call for help because there was no one there.
Another time, when R.G. was about ten or 11 years-old, defendant was driving her
home in his van. Defendant pulled over near a San Leandro park. He then brought R.G.
to sit on a bench seat in the back of the van, where he “went between [her] legs and asked
[her] to kiss him again.” R.G. said, “no,” and began to cry. Defendant then told her: “If
you give me a kiss, I’ll stop.”

5
 R.G. did not tell anyone about these incidents at the time because she was afraid
and because defendant asked her not to. However, after defendant was arrested in this
case, she decided to come forward to report them. She acknowledged having a close
relationship with the victim’s mother (to wit, defendant’s daughter).

II. The Defense Case.
Defendant, testifying in his own defense, denied improperly touching the victim or
R.G. Defendant had known the victim to lie and recalled that she had expressed anger
about his relationship with his girlfriend, Minh, who was age 51 or 52. The victim had
also indicated her desire that he reconcile with D.E., the victim’s grandmother.
Defendant explained the presence of semen on the tissues tested by the crime laboratory
by the fact that he had engaged in intercourse with Minh a few nights before the “pizza
night,” and the couple had used tissues to wipe themselves afterward.

III. The Verdict, Sentencing, and Appeal.
On July 8, 2014, the jury found defendant guilty of all counts, and found true that
defendant had sustained a prior strike conviction. On October 24, 2014, the trial court
granted defendant’s motion to strike the prior conviction enhancement pursuant to section
1385 before sentencing him to a total term of 115 years to life in prison. Defendant filed
a timely notice of appeal the same day.
DISCUSSION
Defendant raises two constitutional arguments on appeal. First, defendant
contends the trial court violated his due process rights by instructing the jury that it could
consider evidence of his commission of two uncharged sexual crimes against R.G., a
minor at the time, if those crimes were proved by the prosecution by a preponderance of
the evidence. Second, defendant contends his sentence, 115 years to life in prison,
violates the constitutional prohibition against cruel and unusual punishment, as well as
procedural due process. We address each argument in turn.

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I. Jury Instruction on Evidence of Defendant’s Prior Uncharged Sex Crimes.
Defendant challenges as unconstitutional the instructions given to the jury
regarding its consideration of the evidence of his commission of two prior uncharged sex
crimes against R.G. The instructions, CALJIC Nos. 2.50.01 and 2.50.1, follow Evidence
Code section 1108, the legal basis relied upon by the trial court to admit this so-called
“propensity” evidence. Defendant reasons that CALJIC Nos. 2.50.01 and 2.50.1, as well
as CALCRIM No. 1191, “dilute the prosecution’s burden [of proof] and permit
conviction based on a chain of reasoning that is fatally flawed because a direct link in the
chain of evidence leading to a guilty finding [is] proved only by a lesser standard than
reasonable doubt.”3
As defendant acknowledges, the California Supreme Court has rejected a variety
of constitutional challenges to Evidence Code section 1108, as embodied in CALJIC Nos.
2.50.01 and 2.50.1 and CALCRIM No. 1191. In doing so, the high court has authorized
the jury’s consideration of otherwise admissible evidence of a defendant’s prior
commission of an uncharged sex crime as tending to prove his or her propensity to
commit sex crimes, so long as the prosecution has proved the uncharged sex crime by a
preponderance of the evidence. (People v. Reliford (2003) 29 Cal.4th 1007, 1014
[“Under CALJIC No. 2.50.01, evidence of the uncharged offense may support the
inference that defendant had a disposition to commit the charged offense which, in turn,
may support the inference that he was likely to commit and did commit the charged
offense”]; accord People v. Falsetta (1999) 21 Cal.4th 903, 918.)
Defendant contends, however, this California Supreme Court authority does not
address the precise issue raised here ─ to wit, “whether the state can use propensity
evidence at all to prove that a defendant was likely to have committed the charged

3
The trial court in this case gave CALJIC Nos. 2.50.01 and 2.50.1, which are for all
significant purposes comparable to CALCRIM No. 1191. The trial court also instructed
the jury on the legal definitions of “beyond a reasonable doubt” and “preponderance of
the evidence,” and on the prosecution’s burden to prove defendant guilty of each offense
beyond a reasonable doubt.

7
offenses, unless the predicate facts ─ the uncharged offenses ─ are proved beyond a
reasonable doubt.” We disagree.
First, defendant disregards that in People v. Reliford, the California Supreme
Court did address the burden of proof applicable to so-called “predicate fact[s].”
Specifically, the high court considered – and then rejected – the defendant’s comparable
argument that CALJIC No. 2.50.01 was too “complicated” for jurors to follow because it
asked jurors to apply the preponderance-of-the-evidence standard to the predicate fact of
his commission of prior sex crimes, while asking them to apply the beyond-a-reasonable-
doubt standard to other facts, explaining: “This is not the first time jurors have been
asked to apply a different standard of proof to a predicate fact or finding in a criminal
trial. (E.g., CALJIC Nos. 2.50 [evidence of other crimes under Evid. Code, § 1101], 4.43
[necessity defense], 4.60 [entrapment], 4.74 [statute of limitations], 6.24 [admissibility of
coconspirator’s statements], 7.73 [failure to file tax returns in prior years], 12.06 [lawful
possession of controlled substance].) As we do in each of those circumstances, we will
presume here that jurors can grasp their duty--as stated in the instructions--to apply the
preponderance-of-the-evidence standard to the preliminary fact identified in the
instruction and to apply the reasonable-doubt standard for all other determinations.” (29
Cal.4th at p. 1016.)
Second, and even more to the point, the precise constitutional argument defendant
raises, directed, as it were, at the evidentiary standard applicable to propensity evidence
admitted under Evidence Code section 1108, was recently rejected by our colleagues in
the Second Appellate District, Division Three. In People v. Anderson (2012) 208
Cal.App.4th 851, the defendant, like our defendant, argued the jury instruction given on
use of propensity evidence diluted the People’s burden of proof with respect to the
charged sex crimes. The Court of Appeal disagreed, reasoning as follows:
“The uncharged offense instruction given here was based on CALCRIM No. 1191. That
instruction and a similar instruction, CALJIC No. 2.50.01, have been upheld against
claims they unconstitutionally lower the prosecution’s burden of proof. (See People v.
Reliford (2003) 29 Cal.4th 1007, 1013-1014 [130 Cal.Rptr.2d 254, 62 P.3d 601]

8
[upholding CALJIC No. 2.50.01]; [citations].) [¶] In People v. Reliford, the prosecution
presented evidence indicating the defendant previously had raped a different victim in a
manner similar to the charged offense. The defendant claimed that, ‘having found the
uncharged sex offense true by a preponderance of the evidence, jurors would rely on “this
alone” to convict him of the charged offenses.’ (People v. Reliford, supra, 29 Cal.4th at
p. 1013.) Reliford rejected the argument because the instruction specifically stated, ‘ “if
you find by a preponderance of the evidence that the defendant committed a prior sexual
offense . . . , that is not sufficient by itself to prove beyond a reasonable doubt that he
committed the charged crime.” ’ (Ibid.) Reliford found, ‘No reasonable juror would
believe those requirements could be satisfied solely by proof of uncharged offenses.’ (Id.
at pp. 1013-1014.) . . . [¶] “Here, as in Reliford, the instruction specified the uncharged
offenses were not sufficient alone to prove the charged offenses and reminded the jury
the People still had the burden to prove ‘every element of every charge’ beyond a
reasonable doubt. Reviewing the instructions as a whole, and assuming jurors are capable
of understanding and correlating jury instructions (People v. Guerra (2006) 37 Cal.4th
1067, 1148-1149 [40 Cal.Rptr.3d 118, 129 P.3d 321]), there is no reasonable likelihood
the instruction on uncharged offenses relieved the prosecution of its burden of proof with
respect to the charged offenses. [¶] . . . “Finally, we reject Anderson’s claim Reliford and
the other cases cited above are distinguishable in that one of the instant uncharged
offenses fell within the direct chain of proof of Anderson’s guilt. (People v. Tewksbury
[(1976)] 15 Cal.3d [953,] 965, fn. 12.) [¶] People v. Tewksbury discussed the degrees of
burdens of proof which may be placed on a defendant in a criminal case. (People v.
Figueroa (1986) 41 Cal.3d 714, 721 [224 Cal.Rptr. 719, 715 P.2d 680].) People v.
Tewksbury, supra, 15 Cal.3d at page 964 held, generally, a defendant need only raise a
reasonable doubt as to the existence or nonexistence of a fact in issue. However, when a
defendant raises ‘factual issues collateral to the question of the accused’s guilt or
innocence [that] do not bear directly on any link in the chain of proof of any element of
the crime,’ such as an entrapment defense or whether a witness is an accomplice, the
Constitution is not offended by requiring the defendant to prove such facts by a

9
preponderance of the evidence. In footnote 12, cited by Anderson, Tewksbury stated:
‘When the People bear the burden of proof of a fact deemed to lie outside the direct chain
of proof of an accused’s guilt of the crime charged, they are not required to prove that
fact beyond a reasonable doubt.’ (People v. Tewksbury, supra, at p. 965, fn. 12.)
[¶] “From this, Anderson reasons a fact within the direct chain of proof of an accused’s
guilt must be proved beyond a reasonable doubt. However, the uncharged offenses were
not in the direct chain of proof as that term is used in Tewksbury. Rather, a defendant’s
propensity to commit a particular type of crime, here lewd act, is the type of collateral
fact addressed in Tewksbury. Anderson’s propensity to commit such crimes does not
‘bear directly on any link in the chain of proof of any element of the crime.’ (People v.
Tewksbury, supra, 15 Cal.3d at p. 964.)” (People v. Anderson, supra, 208 Cal.App.4th at
pp. 896-897 [italics added].)
We agree with the reasoning set forth in People v. Anderson, and find it applies
squarely to defendant’s challenge herein.4 As reflected in our colleagues’ decision, the
California Supreme Court has long recognized that facts relating to a defendant’s prior
commission of a sex crime do not serve as direct proof of the defendant’s guilt in the
present case. However, such facts may serve collaterally to support an inference that the
defendant had a disposition to commit the charged offense which, in turn, may support
the inference that he was likely to commit and did commit the charged offense. As such,
the Constitution is not offended by requiring the People to prove such facts by a
preponderance of the evidence where, as here, the jury is otherwise properly instructed
regarding the People’s burden to prove each element of the crime beyond a reasonable
doubt. (People v. Reliford, supra, 29 Cal.3d at p. 1014; see also People v Jandres (2014)
226 Cal.App.4th 340, 359 [“Propensity was, of course, not an element of any of the
charged crimes. And the instructions specified that the uncharged offense was not
sufficient alone to prove the charged offenses and reminded the jury the People still had

4
Both the California and United States Supreme Courts declined to review this
decision. (See People v. Anderson (Oct. 2012) S205103, review denied; Anderson v.
California (2013) 133 S.Ct. 1738, 185 L.Ed.2d 788, cert. denied.)

10
the burden to prove each charge beyond a reasonable doubt. Accordingly, ‘there is no
reasonable likelihood the instruction on uncharged offenses relieved the prosecution of its
burden of proof with respect to the charged offenses’ ”].) Accordingly, defendant’s first
constitutional challenge to this judgment fails.

II. Sentencing Defendant to 115 Years to Life in Prison.
Defendant, 58 years-old when convicted, also challenges his sentence as a
violation of the Eighth Amendment’s prohibition against cruel and unusual sentences, as
made applicable to the states through the due process clause of the 14th Amendment.
Specifically, defendant contends his 115 years-to-life sentence amounts to de facto
sentence of life without the possibility of parole, which is unconstitutional under both
federal and state law. We conclude, initially, that defendant has forfeited the right to
appellate review of this contention by failing to contemporaneously object to his sentence
on Eighth or 14th Amendment grounds in the trial court. (People v. Gamache (2010) 48
Cal.4th 347, 403; People v. Mungia (2008) 44 Cal.4th 1101, 1140-1141.) Moreover, we
conclude that, even were we to disregard defendant’s failure to raise a proper objection,
his challenge would nonetheless fail on the merits. The applicable law is not in dispute.
“[A] punishment may violate the California constitutional prohibition [against
cruel or unusual punishment] ‘if, although not cruel or unusual in its method, it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity.’ ” (People v. Dillon (1983) 34 Cal.3d
441, 478.) Similarly, the United States Supreme Court has made clear that the “Cruel and
Unusual Punishment Clause of the Eighth Amendment is directed, in part, ‘against all
punishments which by their excessive length or severity are greatly disproportioned to the
offenses charged.’ [Citations.]”5 (Enmund v. Florida (1982) 458 U.S. 782, 788.)
Courts generally apply a three-part test to determine whether a particular sentence
goes astray of these constitutional limitations. “First, we examine the nature of the

5
California’s constitutional prohibition is, thus, even broader than the federal
prohibition against cruel and unusual punishment. (Cal. Const., Art. I, § 17 [prohibiting
“[c]ruel or unusual punishment[s]”].)

11
offense and/or the offender, with particular regard to the degree of danger both present to
society. A look at the nature of the offense includes a look at the totality of the
circumstances, including motive, the way the crime was committed, the extent of the
defendant’s involvement, and the consequences of defendant’s acts. A look at the nature
of the offender includes an inquiry into whether ‘the punishment is grossly
disproportionate to the defendant’s individual culpability as shown by such factors as his
age, prior criminality, personal characteristics, and state of mind.’ (People v. Dillon,
supra, 34 Cal. 3d 441, 479.) Next, we compare the challenged punishment with the
punishment prescribed for more serious crimes in the same jurisdiction. And finally, the
challenged punishment is compared with punishment for the same offense in other
jurisdictions.” (People v. Thongvilay (1998) 62 Cal.App.4th 71, 88.)
We conclude defendant’s sentence is constitutionally permissible under this three-
prong test. First, the nature of defendant and his offenses indeed reflect he is a grave
danger to society. Not only did he commit numerous, serious sex crimes, he did so
against his quite-young granddaughter, who was entrusted to his care by his own
daughter and who loved and respected him tremendously (which sentiments defendant, in
turn, exploited in his favor). Indeed, defendant secured his granddaughter’s silence by
telling her that, if she told anyone, her mother would fall gravely ill and that she would
never see him again. Moreover, defendant has steadfastly denied guilt, expressing no
remorse whatsoever for his actions, while his granddaughter, in turn, has continued to
suffer, attempting suicide and requiring hospitalization for psychiatric treatment. Finally,
we hasten to add this is not defendant’s first brush with the law. Rather, he has
previously committed an offense serious enough to qualify as “Strike” within the
meaning of section 1170.12, as well as the two prior sex crimes against another young
girl, R.G., who was similarly entrusted to his care by a family member.
Second, comparison of defendant’s sentence to those imposed for more serious
crimes in this jurisdiction indicates his sentence is within the realm of acceptable
punishment. (See, e.g., People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 [8th
Amendment challenge rejected where defendant received a 135 years to life sentence for

12
16 sex offenses against four minors]; People v. Wallace (1993) 14 Cal.App.4th 651, 666
[8th Amendment challenge rejected where defendant received a 283 year, eight month
sentence for 46 sex offenses against seven women on four separate occasions].)
Defendant’s suggestion that the mere fact his sentence will not be complete within
his lifetime renders it per se unconstitutional is not consistent with California law. (See
People v. Byrd (2001) 89 Cal.App.4th 1373, 1382-1383 [acknowledging, yet disagreeing
with (and noting the lack of precedential value of), Justice Mosk’s concurring opinion in
People v. Deloza (1998) 18 Cal.4th 585, 600-601, in which he concluded that a 111-year
sentence was “ ‘impossible for a human being to serve, and therefore violates both the
cruel and unusual punishments clause of the Eighth Amendment to the United States
Constitution and the cruel or unusual punishment clause of article I, section 17 of the
California Constitution’ ”].) Nor do we accept defendant’s due process argument that his
sentence amounts to “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 the
possibility of parole for first degree murder, is simply inapposite. Defendant was
convicted of committing five serious sex crimes against a minor on five separate
occasions; he was not convicted of one count of first-degree murder, the only offense
triggering the special-circumstance requirements of section 190.2.
In any event, even accepting defendant’s claim that, with no realistic chance of
parole, he will spend the remainder of his life in prison, the fact remains that our
legislature has implicitly endorsed such long sentences in sex crime cases by enacting
section 667.6. As summarized in People v. Huber (1986) 181 Cal.App.3d 601, 634-635,
a case involving a 106-year sentence for multiple counts of forcible rape, forcible oral
copulation, penetration by foreign object, robbery and burglary: “Justice Reynoso,
writing for the majority in People v. Karsai (1982) 131 Cal.App.3d 224 [182 Cal.Rptr.
406], answers the contention aptly: ‘In enacting Penal Code Section 667.6 the
Legislature has chosen to treat violent sex offenses and violent sex offenders in a manner
different than other types of offenses and offenders. . . . The statute is directed at

13
multiplicity of offenses by providing for full, separate, consecutive sentencing. In view of
the outrageous nature of violent sexual offenses and the manifest danger to society from
recidivism and multiplicity of offenses, we cannot say that the severity of punishment is
so disproportionate to the crimes so as to shock the conscience and offend fundamental
notions of human dignity.’ (Id., at p. 242 [26-year sentence for rape and oral copulation,
enhanced by two prior sexual convictions not disproportionate]; accord People v.
Bestelmeyer [(1985)] 166 Cal.App.3d 520 [129 years for 25 separate offenses not
disproportionate].)”6
Returning to our case, as in People v. Huber, defendant committed a multitude of
serious sexual offenses on five separate occasions against his nine year-old
granddaughter. Given this record and in light of this statutory law, we cannot conclude
defendant’s lengthy sentence offends California law.
Finally, the third prong of the applicable standard requires comparison of
defendant’s sentence to those imposed for comparable crimes in other jurisdictions. (In
re Lynch (1972) 8 Cal.3d 410, 427-429.) Defendant has directed us to no non-California
case casting doubt on the constitutionality of his sentence. The People, in turn, have
identified several cases suggesting the propriety of his sentence. (E.g., Edwards v. Butler
(5th Cir. 1989) 882 F.2d 160, 167 [rejecting 8th Amendment challenge to sentence of life
without possibility of parole for one count of aggravated rape]; Land v. Commonwealth
(Ky. 1999) 986 S.W.2d 440, 441 [rejecting 8th Amendment challenge to sentence of life
without possibility of parole for each of two counts of rape]; Gibson v. State (Fla. 1998)
721 So.2d 363, 369-370 [rejecting 8th Amendment challenge to sentence of life without
possibility of parole for 23-year-old convicted of capital sexual battery and lewd and
lascivious acts on an 8-year-old]; State v. Foley (La. 1984) 456 So.2d 979, 984 [rejecting
8th Amendment challenge to sentence of life without possibility of parole for juvenile
convicted of one count of aggravated rape].) Given this unchallenged sampling of

6
People v. Karsai, supra, 131 Cal.App.3d at pp. 233-234, was disapproved on
another ground in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.

14
comparable non-California decisions, we conclude the third prong has been satisfied in
this case.
Accordingly, having met the applicable three-prong standard for assessing
challenges under the Eighth Amendment of the United States Constitution, and Article I,
section 17 of the California Constitution, the judgment and sentence against defendant
stands.

DISPOSITION
The judgment is affirmed.

_________________________
Jenkins, J.

We concur:

_________________________
Pollak, Acting P. J.

_________________________
Siggins, J.

People v. Arthur Esver, A143397

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