People v. Mendez CA4/1

Filed 12/22/15 P. v. Mendez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D068724

Plaintiff and Respondent,

v. (Super. Ct. No. RIF146729)

VICTOR MARK MENDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J.

Schwartz, Judge. Affirmed in part, reversed in part.

Christine Vento, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Eric A. Swenson and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.
 In a criminal prosecution involving two different victims, Victor Mark Mendez

was found guilty of 12 counts of aggravated sexual assault by oral copulation against a

child under 14 years of age and at least 10 years younger than the defendant (Pen. Code,

§§ 269, subd. (a)(4), 288a) (counts 1-12);1 seven counts of committing a lewd and

lascivious act with a child under 14 years of age (§ 288, subd. (a)) (counts 13-14, 17-19,

21-22); and three counts of aggravated sexual assault by rape against a child under 14

years of age and at least 10 years younger than the defendant (§§ 269, subd. (a)(1))

(counts 15-16, 20). The trial court sentenced Mendez to prison for a term of 330 years to

life.

Mendez contends (1) the information was improperly amended to allege

aggravated sexual assault by rape in count 20 (§ 269, subd. (a)(1)), because no evidence

of rape against that victim was presented at the relevant preliminary hearing; (2) the trial

court prejudicially erred in admitting expert testimony about child sexual abuse

accommodation syndrome; (3) the trial court erred in imposing consecutive sentences for

some of the counts; and (4) the sentence of 330 years to life constitutes cruel and unusual

punishment. We conclude that Mendez's first argument has merit, and the conviction on

count 20 will accordingly be reversed. Mendez's remaining arguments are without merit,

and accordingly, in all other respects, we affirm the judgment.

1 Unless otherwise indicated, all further statutory references are to the Penal Code.

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 II

FACTUAL AND PROCEDURAL BACKGROUND

Jane Doe 1, who was 19 years old at the time of trial, was nine to 11 years old

when she lived with Mendez, who was her mother's boyfriend. Jane Doe 1 testified that

when she lived with Mendez, he molested her several times. On the first incident,

Mendez put his mouth on Jane Doe 1's breasts when she was nine years old, told Jane

Doe 1 to put her hand on his penis, and touched her vagina with his hand. During the

next incident, when Jane Doe 1 was still nine years old, Mendez touched her vagina with

his hands, and under the pretense of educating her, showed her the "69" position while

they were clothed. On subsequent occasions, Mendez engaged in oral copulation with

Jane Doe 1 several times, with Jane Doe 1 stating that she performed oral copulation on

Mendez a minimum of nine times, and that Mendez performed oral copulation on her a

minimum of three times.

Jane Doe 1 also testified that Mendez attempted to put his penis in her vagina at

least two times. First, Jane Doe 1 recalled a specific incident that occurred during a

period when Mendez had been molesting her on a regular basis, in which Mendez tried to

put his penis in her vagina, and it hurt her and felt like stretching. Second, Jane Doe 1

recalled an incident during which Mendez attempted to put his penis in her vagina, which

occurred during the same incident as one of the times that Jane Doe 1 orally copulated

Mendez.

Jane Doe 1 also described one incident during which Mendez performed oral

copulation on her and she also performed oral copulation on Mendez. Jane Doe 1

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testified that Mendez would "often" wrestle with her, groping her vagina and breasts and

rubbing his penis against her, which happened at least five times. Mendez also

performed one act of anal digital penetration on Jane Doe 1.

According to Jane Doe 1, the last incident of attempted molestation occurred when

she was 11 years old, during which Mendez told her to take her clothes off, and she

started crying, saying she did not want to do it anymore, after which Mendez relented.

Shortly thereafter, Jane Doe 1 no longer lived with or had contact with Mendez because

her mother passed away, and she went to live with an aunt and uncle. Jane Doe 1 did not

disclose the molestation while it was occurring, but disclosed it to her uncle eight months

after moving out of Mendez's home.

Jane Doe 2 was Mendez's stepdaughter, who lived with him from approximately

age eight to age 12, and was 26 years old at the time of trial. Jane Doe 2 testified that on

at least two occasions, Mendez came into her bedroom at night and touched her vagina

and breasts. Jane Doe 2 also described one incident of sexual intercourse between her

and Mendez when she was 12 years old. Specifically, Mendez gave alcohol to Jane

Doe 2, kissed and slow danced with her, and then took her into her bedroom and put his

penis in her vagina.2

2 In 2011, Jane Doe 2 was scheduled to testify as a witness for Mendez at a trial
arising out of the offenses against Jane Doe 1, but that trial ended in a mistrial before
Jane Doe 2 could testify. Prior to the mistrial, Jane Doe 2 contacted the prosecutor and
disclosed that she had been molested by Mendez. The People thereafter charged Mendez
with molesting Jane Doe 2. The two cases (concerning Jane Doe 1 and Jane Doe 2) were
later consolidated.

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 Jane Doe 2 did not disclose any molestation by Mendez until 2011, when she

described incidents in which Mendez touched her vagina. Only a few days before her

trial testimony in this case, Jane Doe 2 disclosed the incident of sexual intercourse with

Mendez. Based on Jane Doe 2's testimony regarding sexual intercourse, the trial court

allowed the People to amend the information during trial to charge Mendez with one

count of aggravated sexual assault against a child by rape as to Jane Doe 2. (§ 269, subd.

(a)(1).)

A third victim, Jane Doe 3, testified at trial, although Mendez was not charged

with any crimes relating to that victim. Jane Doe 3, who was 34 years old at the time of

trial, was Mendez's stepdaughter and lived with him when she was approximately nine

and 10 years old. Jane Doe 3 testified that when she lived with Mendez, he would get on

top of her and "dry hump" her, touch her vagina, and make her touch his penis. She

estimated that the molestation occurred three or four times. Jane Doe 3 disclosed the

molestation to her fifth grade teacher, and child protective services investigated, but

Mendez was not arrested.

Mendez testified at trial and denied molesting Jane Doe 1, Jane Doe 2 or Jane

Doe 3, contending that each victim had a motive to falsely accuse him.

With respect to Jane Doe 1, Mendez was found guilty of 12 counts of aggravated

sexual assault by oral copulation against a child under 14 years of age and at least 10

years younger than the defendant (§ 269, subd. (a)(4)) (counts 1-12); five counts of

committing a lewd and lascivious act with a child under 14 years of age (§ 288, subd. (a))

(counts 13-14, 17-19); and two counts of aggravated sexual assault by rape against a

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child under 14 years of age and at least 10 years younger than the defendant (§ 269, subd.

(a)(1)) (counts 15-16). With respect to Jane Doe 2, Mendez was found guilty of two

counts of committing a lewd and lascivious act with a child under 14 years of age (§ 288,

subd. (a)) (counts 21-22); and one count of aggravated sexual assault by rape against a

child under 14 years of age and at least 10 years younger than the defendant (§ 269, subd.

(a)(1)) (count 20).

The trial court sentenced Mendez to prison for 330 years to life, consisting of 22

consecutive terms of 15 years to life on each of the counts on which Mendez was

convicted.

II

DISCUSSION

A. The Trial Court Erred in Permitting the People to Amend the Information to
Allege Aggravated Sexual Assault by Rape Against a Child as to Jane Doe 2

We first consider Mendez's contention that count 20 of the information was

improperly amended to charge him with committing aggravated sexual assault by rape

against a child as to Jane Doe 2. (§ 269, subd. (a)(1).)

In August 2011, the original information that charged Mendez with the

molestation of Jane Doe 2 alleged four counts of lewd and lascivious acts. (§ 288,

subd. (a).) At the preliminary hearing on those allegations in 2011, the investigating

detective testified that Jane Doe 2 had disclosed to him that on three or four occasions

when she was 10 or 11 years old, Mendez touched her vagina with his hand. At the

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preliminary hearing, the People dismissed one of the four counts, and the trial court held

Mendez to answer on three counts of lewd and lascivious acts against Jane Doe 2.

During trial in 2013, shortly before Jane Doe 2 was scheduled to testify, she

disclosed to the prosecutor that Mendez also had sexual intercourse with her as part of the

molestation. Jane Doe 2 thereafter testified at trial to the one instance of sexual

intercourse with Mendez that occurred when she was 12 years old.

During the middle of the defense case at trial, the People moved to amend

count 20 of the information to substitute a charge of aggravated sexual assault of a child

by rape as to Jane Doe 2 for the previous charge of a lewd and lascivious act as to Jane

Doe 2. (§ 288, subd. (a).) Over defense counsel's objection, the trial court granted the

motion to amend the information, and the People thereafter filed an amended information

as to count 20.

Mendez argues that the trial court violated section 1009 and infringed his right to

due process by permitting the People to amend the information to allege in count 20 that

he committed aggravated sexual assault of a child by rape as to Jane Doe 2, when there

was no evidence of that offense presented at the preliminary hearing. The Attorney

General concedes that Mendez's argument has merit. As we will explain, we agree with

the parties.

Section 1009 provides in relevant part that "[a]n indictment or accusation cannot

be amended so as to change the offense charged, nor an information so as to charge an

offense not shown by the evidence taken at the preliminary examination." Based on this

provision, "[t]he general framework within which criminal pleadings are amended is

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statutorily derived and has remained constant since 1911. [Citations.] Section 1009

authorizes amendment of an information at any stage of the proceedings provided the

amendment does not change the offense charged in the original information to one not

shown by the evidence taken at the preliminary examination." (People v. Winters (1990)

221 Cal.App.3d 997, 1005 (Winters).)

The statutory rule in section 1009 is based on constitutional requirements of due

process. (People v. Pitts (1990) 223 Cal.App.3d 606, 904 (Pitts) ["section 1009 protects

a defendant's right to due process"].) "Due process requires that 'an accused be advised

of the charges against him so that he has a reasonable opportunity to prepare and present

his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]

Thus, it is the rule that 'a defendant may not be prosecuted for an offense not shown by

the evidence at the preliminary hearing or arising out of the transaction upon which the

commitment was based.' " (People v. Graff (2009) 170 Cal.App.4th 345, 360 (Graff).)

"Where . . . the particulars are not shown by the preliminary hearing transcript, the

defendant is not on notice in such a way that he has the opportunity to prepare a

meaningful defense." (Pitts, at p. 905.) "[A] preliminary hearing transcript affording

notice of the time, place and circumstances of charged offenses ' "is the touchstone of due

process notice to a defendant." ' " (Id. at p. 908.)

Further, section 1009 is based on article I, section 14 of the California

Constitution, which provides in pertinent part: "Felonies shall be prosecuted as provided

by law, either by indictment or, after examination and commitment by a magistrate, by

information." "Our Constitution thus requires that 'one may not be prosecuted in the

8
absence of a prior determination of a magistrate or grand jury that such action is

justified' " and " '[b]efore any accused person can be called upon to defend himself on

any charge prosecuted by information, he is entitled to a preliminary examination upon

said charge, and the judgment of the magistrate before whom such examination is held as

to whether the crime for which it is sought to prosecute him has been committed, and

whether there is sufficient cause to believe him guilty thereof. These proceedings are

essential to confer jurisdiction upon the court before whom he is placed on trial.' "

(People v. Burnett (1999) 71 Cal.App.4th 151, 165 (Burnett).)

"Many cases illustrate the rule that a defendant may not be prosecuted for an

offense not shown by the evidence at the preliminary hearing . . . ." (Burnett, supra, 71

Cal.App.4th at pp. 165-167, citing People v. Fyfe (1929) 102 Cal.App. 549, 553, 555;

People v. Kellin (1962) 209 Cal.App.2d 574, 576; Winters, supra, 221 Cal.App.3d at

p. 1007; Pitts, supra, 223 Cal.App.3d at pp. 903-908; Levy v. People (1973) 31

Cal.App.3d 427; and People v. Firestine (1968) 268 Cal.App.2d 533.) As relevant here,

this case law includes the situation in which a defendant is accused of molesting a child

but is convicted at trial of certain acts of molestation that were not described during the

preliminary hearing. (Pitts, at pp. 903-908.)

Here, the evidence at the preliminary hearing did not include any act of sexual

intercourse between Mendez and Jane Doe 2 generally, and no suggestion of any specific

incident in which Mendez gave alcohol to Jane Doe 2 and proceeded to have sexual

contact with Jane Doe 2, as she described at trial. Instead, the evidence at the preliminary

hearing concerning Jane Doe 2 was limited to three or four incidents of Mendez touching

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the vagina of Jane Doe 2 at night in her bedroom when she was sleeping. Therefore, the

trial court improperly allowed the People to amend count 20 of the information to include

an allegation of aggravated sexual assault of a child by rape because that offense was not

described at the preliminary hearing.

When an information is improperly amended to allege a count that is not

supported by evidence presented at the preliminary hearing, the proper remedy is to

reverse the conviction on that count. (Graff, supra, 170 Cal.App.4th at p. 362 ["[E]ven

where the prosecution complies with the necessary procedures [to seek amendment of an

information] and no specific prejudice is shown, appellate courts are compelled to reverse

convictions where substantial evidence was presented at trial that did not correspond to

the charges established at the preliminary hearing."].)3 Accordingly, we reverse the

conviction on count 20.

3 Case law has expressly declined to resolve whether an error in convicting a
defendant on a count in an amended information not supported by the evidence at the
preliminary hearing is a structural error, requiring reversal per se, or is subject to
harmless error review. (Graff, supra, 170 Cal.App.4th at p. 368, fn. 18; People v.
Dominguez (2008) 166 Cal.App.4th 858, 870.) As those cases recognized, in an
exceptional circumstance, if a harmless error analysis applies, reversal may not be
required if " 'a valid ground for the verdict remains' " (Graff, at p. 368, fn. 18) or "other
parts of the verdict show that the jury found defendant guilty on a proper theory"
(Dominquez, at p. 870). However, both Dominguez and Graff concluded that regardless
of whether the error was structural or subject to harmless error analysis, reversal was
required because there was no valid alternative basis for the verdict in those cases.
(Graff, at p. 368, fn. 18; Dominquez, at p. 870.) We reach the same conclusion here, and
thus need not decide whether the error is structural or is subject to harmless error review.
Specifically, the Attorney General makes no attempt to argue that the error in this case
was harmless, and we perceive no basis for that conclusion. Aside from the improper
amendment of count 20 in the information, there was no basis for the conviction of
aggravated sexual assault of a child by rape as to Jane Doe 2. (See Graff, at p. 368 [error
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B. The Trial Court Did Not Err in Admitting Evidence of Child Sexual Abuse
Accommodation Syndrome

Over defense counsel's objection, psychologist Jody Ward testified at trial for the

People as an expert witness on child sexual abuse accommodation syndrome (CSAAS).

As Ward explained, CSAAS is "a pattern of behaviors that many children exhibit who

have been sexually abused." Specifically, CSAAS "helps us . . . to understand why

children respond to sexual abuse in the way they do," and was developed based on

observations of behaviors by victims of child sexual abuse by a number of professionals

over a period of time. As Ward explained, the five facets of CSAAS are secrecy,

helplessness, entrapment and accommodation, delayed unconvincing disclosure, and

recantation or retraction. According to Ward, CSAAS is sometimes helpful in

understanding "why children don't disclose sexual abuse for long periods of time" and

why children will go along with the sexual abuse.4

Citing the federal constitutional right to due process, right to present a defense,

and right to a fair trial, Mendez contends that "CSAAS evidence should be held

inadmissible in California for all purposes." Mendez contends that CSAAS evidence is

was prejudicial because there was no basis to conclude that the verdict on the challenged
counts "was based on properly prosecuted charges"].)

4 Ward testified that she knew nothing about the particular facts of Mendez's case.
Further, the jury was instructed with CALCRIM No. 1193 as follows: "You have heard
testimony from [Ward] regarding [CSAAS]. [Ward's] testimony about [CSAAS] is not
evidence that the defendant committed any of the crimes charged against him. You may
consider this evidence only in deciding whether or not [Jane Doe 1] and/or [Jane Doe 2's]
conduct was not inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of their testimony."

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"an invariably one-sided and guilt-directed form of evidence," and that we should follow

the rule in "Pennsylvania, Kentucky, and Tennessee" where, purportedly, "CSAAS

evidence is inadmissible for all purposes."

In arguing that CSAAS evidence should be excluded for all purposes, Mendez is

presenting an argument that has already been thoroughly considered and rejected by

existing case law. Numerous California courts have held that CSAAS evidence is

admissible to disabuse jurors of commonly held misconceptions about child sexual abuse.

(See, e.g., People v. Patino (1994) 26 Cal.App.4th 1737, 1744-1745 (Patino); People v.

Housley (1992) 6 Cal.App.4th 947, 955-956; People v. Gilbert (1992) 5 Cal.App.4th

1372, 1383-1384; People v. Harlan (1990) 222 Cal.App.3d 439, 449-450; People v. Stark

(1989) 213 Cal.App.3d 107, 116-117; People v. Bowker (1988) 203 Cal.App.3d 385,

393-394.) Significantly, our Supreme Court has cited this case law with approval, stating

that in cases of alleged child sexual abuse, "expert testimony on the common reactions of

child molestation victims is not admissible to prove that the complaining witness has in

fact been sexually abused; it is admissible to rehabilitate such witness's credibility when

the defendant suggests that the child's conduct after the incident — e.g., a delay in

reporting — is inconsistent with his or her testimony claiming molestation. [Citations.]

'Such expert testimony is needed to disabuse jurors of commonly held misconceptions

about child sexual abuse, and to explain the emotional antecedents of abused children's

seemingly self-impeaching behavior. [para.] The great majority of courts approve such

expert rebuttal testimony.' " (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301, fn.

omitted [discussing the admissibility of CSAAS evidence in the course of ruling on the

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admissibility of expert testimony about the failure of the parents of a child victim to

report molestation].)5 More recently, in People v. Brown (2004) 33 Cal.4th 892, 906-

907, our Supreme Court stated that expert testimony on CSAAS was similar to expert

testimony on the behavior of domestic violence victims and, on that basis among others,

concluded that the expert testimony on the behavior of domestic violence victims was

admissible in cases involving domestic violence.

Further, case law has specifically rejected the argument presented by Mendez

here, namely that the admission of CSAAS evidence violates a defendant's right to due

process. (Patino, supra, 26 Cal.App.4th at p. 1747 [observing that "the United States

Supreme Court has held the admission of relevant evidence of the battered child

syndrome does not violate the due process clause of the Fourteenth Amendment," and

that "[b]attered child syndrome evidence is analogous to CSAAS evidence"].) We see no

reason to depart from that authority.

Relying on case law in three other states, Mendez argues that the California

position on CSAAS evidence should be reexamined. (Commonwealth v. Dunkle (Pa.

1992) 602 A.2d 830, 838; Newkirk v. Commonwealth (Ky. 1996) 937 S.W.2d 690, 691-

694; State v. Bolin (Tenn. 1996) 922 S.W.2d 870, 872-874.) We decline to do so. To the

5 Because Mendez's contention is that CSAAS evidence should be inadmissible for
all purposes, he does not argue that the evidence was admitted in violation of the
applicable case law limiting admissibility for the purpose of disabusing jurors of any
misconceptions about child sexual abuse. Any such challenge would be without merit in
any event. The record is clear that the People offered Ward's testimony to dispel any
misconception arising from a child victim's delay in reporting sexual abuse, as was the
case with both Jane Doe 1 and Jane Doe 2, and not to establish that abuse occurred.

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extent our Supreme Court has approved the admissibility of CSAAS evidence to rebut

misconceptions about the behavior of child sexual abuse victims, we are required to

follow that precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,

455.)

C. Mendez's Challenges to His Sentence Lack Merit

In two separate arguments, Mendez challenges his sentence for (1) the five counts

of lewd and lascivious acts against Jane Doe 1 (§ 288, subd. (a)) (counts 13-14, 17-19);

and (2) the 12 counts of aggravated sexual assault of a child by oral copulation against

Jane Doe 1 (§ 269, subd. (a)(4)) (counts 1-12). We consider each category in turn.

1. Lewd Act Counts Committed Against Jane Doe 1

For the five counts of lewd acts perpetrated on Jane Doe 1, Mendez was sentenced

to five consecutive terms of 15 years to life under the "One Strike" law (§ 667.61).6 The

molestation of Jane Doe 1 occurred from approximately 2002 to 2005. The parties do not

dispute that pursuant to ex post facto principles (U.S. Const., art. I, § 10, cl. 1; Cal.

Const., art. I, § 9), the version of the One Strike law that existed at the time of the crimes

is the version that controls the sentence to which Mendez could be subjected. (Miller v.

Florida (1987) 482 U.S. 423, 435; People v. Delgado (2006) 140 Cal.App.4th 1157,

1167-1171.)

6 The One Strike law applied to the lewd act counts because of the jury's true
finding that Mendez committed a specific offense against more than one victim.
(§ 667.61, subd. (a).)

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 As Mendez points out, at the time he committed the lewd acts, the One Strike law

provided that the applicable prison term "shall be imposed on the defendant once for any

offense or offenses committed against a single victim during a single occasion."

(§ 667.61, former subd. (g).) Our Supreme Court interpreted the phrase "during a single

occasion" in that version of the One Strike law to mean the offenses "were committed in

close temporal and spatial proximity." (People v. Jones (2001) 25 Cal.4th 98, 107

(Jones).) Applying that definition, our Supreme Court indicated that "a sequence of

sexual assaults by defendant against one victim that occurred during an uninterrupted

time frame and in a single location" should be determined to have occurred on a single

occasion within the meaning of the statute. (Id. at pp. 101, 107 [sexual assaults were

committed on a single occasion when the defendant performed numerous sex acts on the

victim in a car over the span of at least one and a half hours].)

In 2006, after the crimes at issue here were committed, the Legislature amended

the One Strike law to delete section 667.61, subdivision (g) as it formerly appeared and to

insert subdivision (i), which in relevant part provides that for the applicable offenses, "the

court shall impose a consecutive sentence for each offense that results in a conviction

under this section if the crimes . . . involve the same victim on separate occasions as

defined in subdivision (d) of Section 667.6." (§ 667.61, subd. (i); Stats. 2006, ch. 337,

§ 33.) In turn, section 667.6, subdivision (d) defines "separate occasions" as follows: "In

determining whether crimes against a single victim were committed on separate

occasions under this subdivision, the court shall consider whether, between the

commission of one sex crime and another, the defendant had a reasonable opportunity to

15
reflect upon his or her actions and nevertheless resumed sexually assaultive behavior.

Neither the duration of time between crimes, nor whether or not the defendant lost or

abandoned his or her opportunity to attack, shall be, in and of itself, determinative on the

issue of whether the crimes in question occurred on separate occasions." (§ 667.6,

subd. (d).)

Focusing on certain comments that the trial court made during sentencing, Mendez

contends that in sentencing him for the five lewd act counts against Jane Doe 1, the trial

court improperly relied on the current version of the One Strike law, rather than the

version in effect at the time the crimes were committed. Mendez points to the following

statement by the trial court: "In addition, the court has considered any potential [section]

654 issues. However, it appears to the court that each of the offenses were committed

upon different victims on different dates. And therefore, because of that, and the

defendant's reasonable opportunity to reflect upon his behavior, the court does not believe

that [section] 654 in any way, shape, or form applies in this case, mandating therefore —

or at least indicating to the court that it would be consistent with consecutive terms."

We reject Mendez's argument because, in making the comments quoted above, the

trial court said nothing to indicate that it was applying the current version of the One

Strike law rather than the version in effect at the time Mendez committed the crimes.

The trial court mentioned that Mendez had a "reasonable opportunity to reflect upon his

behavior," and the current version of the One Strike law also focuses on that issue to

determine whether consecutive sentences are mandatory (§ 667.61, subd. (i),

incorporating § 667.6, subd. (d)). But there is no reason to believe that by using this

16
language, the trial court was referring to the current version of the One Strike law and

analyzing whether it was required to impose consecutive sentences for the lewd act

counts. On the contrary, the trial court expressly stated that it was discussing the

applicability of section 654, which requires a trial court to stay a sentence on a count

based on the same act or omission punished in another count. Indeed, the question of

whether a defendant had a reasonable opportunity to reflect upon his behavior is relevant

to an analysis under section 654. (People v. Gaio (2000) 81 Cal.App.4th 919, 935 [in

§ 654 analysis it is relevant that offenses "are temporally separated in such a way as to

afford the defendant opportunity to reflect"]; People v. Louie (2012) 203 Cal.App.4th

388, 399 [same]; People v. Felix (2001) 92 Cal.App.4th 905, 915 [for purpose of § 654,

"multiple crimes are not one transaction where the defendant had a chance to reflect

between offenses"].) Therefore, as we read the trial court's comments, it was focusing on

whether Mendez had an opportunity to reflect as part of its analysis under section 654.7

In the absence of any indication to the contrary in the trial court's statements at

sentencing, we must presume that the trial court understood and applied the proper

sentencing provisions in this case. (Ross v. Superior Court (1977) 19 Cal.3d 899, 913

[" 'in the absence of any contrary evidence, we are entitled to presume that the trial court

7 In addition, the trial court's final comment that its determination regarding the
inapplicability of section 654 "would be consistent with consecutive terms" likely refers
to the trial court's view on whether it could impose consecutive sentences once it
determined that section 654 was inapplicable. However, it cannot reasonably be
understood, as Mendez interprets it, as an indication that the trial court believed the
current version of the One Strike law applied to require mandatory consecutive sentences.

17
. . . properly followed established law' "].) Presuming the trial court applied the

provisions of the One Strike law in effect when Mendez committed the lewd acts against

Jane Doe 1, the sentence imposed for those counts is supported by the facts presented at

trial. Under the applicable version of the One Strike law, the trial court was required to

impose only a single prison term "for any offense or offenses committed against a single

victim during a single occasion" (§ 667.61, former subd. (g)), which Jones defined as

offenses "committed in close temporal and spatial proximity." (Jones, supra, 25 Cal.4th

at p. 107.) Here, Jane Doe 1 testified that Mendez would "often" wrestle with her,

groping her vagina and breasts and rubbing his penis against her, which happened at least

five times. In addition to the multiple occasions of wrestling, Jane Doe 1 described other

lewd acts on different occasions, including an occasion when Mendez committed digital

anal penetration, an occasion when Mendez licked her breasts, and an occasion when

Mendez touched her vagina. Based on this testimony, Mendez committed lewd acts

against Jane Doe 1 at least five times on five different occasions that were not close in

temporal and spatial proximity. That evidence fully supports the trial court's imposition

of separate prison terms for each of the lewd act counts under the version of the One

Strike law in effect at the time the crimes were committed. (§ 667.61, former subd. (g).)8

8 Mendez argues that to the extent defense counsel forfeited Mendez's appellate
arguments that the trial court applied the wrong version of the One Strike law, defense
counsel provided ineffective assistance. Specifically, Mendez argues, "Counsel was
ineffective in failing to correct the constitutionally invalid test the court used to sentence
appellant to consecutive terms on the 5 lewd acts . . . ." We need not, and do not, reach
this argument, as we have rejected Mendez's appellate argument on the merits rather than
by concluding that the argument is forfeited.
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 Mendez also contends that the trial court did not understand that it had the

discretion on the lewd act counts to choose to make the sentences run concurrently, and

that we should remand this matter for the trial court to properly exercise its discretion.

We find no support in the record for Mendez's argument. The trial court made no

statement suggesting that it believed it was required to impose consecutive sentences for

each of the lewd act counts, and there is no indication that the trial court was doing

anything other than exercising its discretion to impose consecutive sentences as to the

lewd act counts.

2. Aggravated Sexual Assault of a Child by Oral Copulation in Counts 1
Through 12

In counts 1 through 12, Mendez was convicted of 12 counts of aggravated sexual

assault of a child by oral copulation (§ 269, subd. (a)(4)), with Jane Doe 1 as the victim,

and was sentenced to 12 consecutive prison terms of 15 years to life.

In Mendez's supplemental letter brief dated June 15, 2015, which amended the

original opening brief, Mendez argued that under the former version of the One Strike

law as it existed prior to 2006 (§ 667.61, former subd. (g)), separate terms of 15 years to

life should not have been imposed for some of the violations of section 269,

subdivision (a)(4) because some of those counts were committed on a single occasion.

For this argument, Mendez relied on the provision in the former One Strike law,

which, as we have explained, stated that a prison term under the One Strike law "shall be

imposed on the defendant once for any offense or offenses committed against a single

victim during a single occasion" (§ 667.61, former subd. (g)), and which our Supreme

19
Court interpreted to mean that separate prison terms could not be imposed for the

offenses "committed in close temporal and spatial proximity." (Jones, supra, 25 Cal.4th

at p. 107.)9 Summarizing the issue presented as "how many One Strike sentences could

the court impose on counts 1 through 12 when the correct close temporal special

proximity test is used" (italics added), Mendez argued that some of his oral copulations of

Jane Doe 1 could have occurred on the same occasion when Jane Doe 1 orally copulated

9 After reviewing Mendez's argument that separate prison terms should not have
been imposed for some of the section 269 convictions, we asked the parties to submit
supplemental letter briefs addressing why the One Strike law had any relevance to the
issue. Mendez's response did not directly address the issue we specified. Instead of
discussing whether separate prison terms should have been imposed for each of counts 1
through 12, Mendez briefed the completely separate issue of whether, once imposed, the
prison terms for counts 1 through 12 were required to be served consecutively, and
whether we should remand to the trial court with directions for it to consider whether to
order Mendez to serve the prison terms in counts 1 through 12 concurrently rather than
consecutively. Mendez's entire discussion is inapposite because the trial court did not
indicate that it believed the imposition of consecutive sentences on counts 1 through 12
was mandatory rather than discretionary. Indeed, in explaining its sentencing choices,
the trial court stated that "while I certainly cannot return the damage or innocence to the
victims in this case, the court can and will sentence you to a sentence that will prevent
you from ever being able to be around or touch a young child again." Therefore, we need
not resolve Mendez's specific statutory arguments about whether mandatory consecutive
sentencing was required in this case under the One Strike law or section 667.6,
subdivision (d), as there is no indication that the trial court imposed sentence based on
that understanding rather than based on its discretion to impose a sentence that would
keep Mendez imprisoned for as long as possible. We note also that as part of his
supplementary response, Mendez argues that the trial court erred in not fully setting forth
its reasons for imposing consecutive sentences, as it was required to do under the
applicable rule of court. (Cal. Rules of Court, rule 4.406 (b)(5).) However, this
argument is forfeited because an argument that the trial court failed to articulate its
discretionary sentencing choices may not be raised for the first time on appeal. (People
v. Gonzalez (2003) 31 Cal.4th 745, 751 ["A party in a criminal case may not, on appeal,
raise 'claims involving the trial court's failure to properly make or articulate its
discretionary sentencing choices' if the party did not object to the sentence at trial."].)

20
him. Indeed, as the Attorney General acknowledges, and as the record confirms, Jane

Doe 1 testified at trial that during one molestation incident, both types of oral copulation

occurred.

We reject Mendez's argument that separate prison terms should not have been

imposed for some of counts 1 through 12 that may have occurred on the same occasion,

as the provisions of the One Strike law are not necessary to justify the imposition of 15-

year-to-life sentences for each of the convictions in counts 1 through 12. Mendez was

convicted in counts 1 through 12 under section 269, subdivision (a), which independently

of the One Strike law, requires the imposition of a 15-year-to-life sentence for each

conviction of aggravated sexual assault under that section. Specifically, as it existed

prior to 2006, section 269, subdivision (b) stated, as it does now, that "[a]ny person who

violates this section is guilty of a felony and shall be punished by imprisonment in the

state prison for 15 years to life." Because this statutory provision authorizes the

imposition of separate 15-year-to-life terms for each violation of section 269 in counts 1

through 12, it is not relevant whether the imposition of separate prison terms would also

have been authorized for those counts under the One Strike law. We therefore reject

Mendez's argument and conclude that the trial court properly imposed separate prison

terms for each of counts 1 through 12, regardless of whether some of the acts of oral

copulation occurred on the same occasion.10

10 Mendez argues that defense counsel was ineffective for "failing to alert the court
that not all 12 oral copulation counts occurred on separate occasions." To establish
ineffective assistance of counsel, a defendant must show that (1) counsel's performance
21
D. Mendez's Sentence Is Not Cruel and Unusual Punishment

Mendez's final contention is that a sentence of 330 years to life in this case

constitutes cruel and unusual punishment under the federal and California Constitutions.

(U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.)11

A sentence violates the state prohibition against cruel and unusual punishment if

" 'it is so disproportionate to the crime for which it is inflicted that it shocks the

conscience and offends fundamental notions of human dignity.' " (People v. Dillon

(1983) 34 Cal.3d 441, 478.) The federal Constitution " 'forbids only extreme sentences

that are "grossly disproportionate" to the crime,' " and "[s]uccessful grossly

disproportionate challenges are ' "exceedingly rare" ' and appear only in an ' "extreme" '

case." (People v. Em (2009) 171 Cal.App.4th 964, 977.)

Under the state Constitution, "[t]he three techniques often suggested for

determining if punishment is cruel and unusual are (1) the nature of the offense and the

offender with regard to the degree of danger present to society, (2) comparison of the

was deficient, falling below an objective standard of reasonableness under prevailing
professional norms; and (2) the deficient performance resulted in prejudice. (Strickland
v. Washington (1984) 466 U.S. 668, 687.) Here, as we have explained, the One Strike
law does not apply to counts 1 through 12, and accordingly, it was reasonable for defense
counsel to chose not to point out that some of the oral copulations occurred on the same
occasion.

11 Although Mendez arguably forfeited his cruel and unusual punishment argument
because he did not raise the issue in the trial court (People v. Speight (2014) 227
Cal.App.4th 1229, 1247-1248; People v. DeJesus (1995) 38 Cal.App.4th 1, 27), we "shall
reach the merits under the relevant constitutional standards, in the interest of judicial
economy to prevent the inevitable ineffectiveness-of-counsel claim." (People v. Norman
(2003) 109 Cal.App.4th 221, 230.)

22
challenged punishment with the punishment prescribed for more serious crimes in the

jurisdiction, and (3) comparison of the challenged punishment with punishment for the

same offense in other jurisdictions." (People v. Russell (2010) 187 Cal.App.4th 981, 993,

citing In re Lynch (1972) 8 Cal.3d 410, 425-427.) A similar approach is used for a

federal constitutional challenge.12

"Whether a punishment is cruel or unusual is a question of law for the appellate

court, but the underlying disputed facts must be viewed in the light most favorable to the

judgment." (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) Our analysis

"commences with great deference to the Legislature. Fixing the penalty for crimes is the

province of the Legislature, which is in the best position to evaluate the gravity of

different crimes and to make judgments among different penological approaches.

[Citations.] Only in the rarest of cases could a court declare that the length of a sentence

mandated by the Legislature is unconstitutionally excessive." (Id. at p. 494.)13

12 In Solem v. Helm (1983) 463 U.S. 277, the United States Supreme Court set out a
three-prong test similar to the one adopted in California to address claims of
disproportionate sentences: "[A] court's proportionality analysis under the Eighth
Amendment should be guided by objective criteria, including (i) the gravity of the
offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in
the same jurisdiction; and (iii) the sentences imposed for commission of the same crime
in other jurisdictions." (Id. at p. 292.) The Court subsequently has clarified that the
comparative analyses of the second and third prongs is appropriate only when the
analysis of the first prong "leads to an inference of gross disproportionality." (Harmelin
v. Michigan (1991) 501 U.S. 957, 1005.)

13 Mendez argues that we should rely on Justice Mosk's concurring opinion in People
v. Deloza (1998) 18 Cal.4th 585, 600-601, which expressed the view that a sentence of
111 years in prison "is impossible for a human being to serve, and therefore violates" the
cruel and unusual punishments clause of the federal and state constitutions. We reject
23
 Turning first to the nature of the offenses and the offender, we observe that

Mendez's crimes were serious and severe offenses. Specifically, Mendez was convicted

of 22 counts of various acts of sexual molestation on two victims, over a course of

several years, against girls under the age of 14 who were vulnerable and looked to him as

a father figure. Faced with similar serious sex offenses, "appellate courts have held that

lengthy sentences for multiple sex crimes do not constitute cruel or unusual punishment."

(People v. Bestelmeyer (1985) 166 Cal.App.3d 520, 522, 531 [sentence of 129 years for

25 sex offenses against 11-year-old stepdaughter not cruel and unusual punishment]; see

Retanan, supra, 154 Cal.App.4th at pp. 1222, 1231 [135-year-to-life sentence for 16

felony counts and one misdemeanor count based on sexual molestation of four children

was not cruel or unusual punishment]; People v. Estrada (1997) 57 Cal.App.4th 1270,

1278-1282 [life sentences for sex offenders mandated by California's One Strike law do

not constitute cruel and unusual punishment]; People v. Cartwright (1995) 39

Cal.App.4th 1123, 1129, 1132, 1134-1136 [375-year-to-life sentence based on 19 felony

convictions arising from sexual assaults of three women and recidivism was not cruel or

unusual]; People v. Wallace (1993) 14 Cal.App.4th 651, 666-667 [283-year sentence

upheld for sexual assaults on seven victims].)

With respect to the nature of the offender, Mendez contends that he "exhibited in

his life exemplary behavior," as he served in the military and as a police officer, and did

Mendez's reliance on Justice Mosk's concurrence as it has no precedential value and was
not joined by the other justices. (See People v. Retanan (2007) 154 Cal.App.4th 1219,
1231 (Retanan) [rejecting appellant's attempt to rely on Justice Mosk's concurrence in
Deloza].)

24
many positive things for Jane Doe 1 and Jane Doe 2 when they were under his care.

However, the specific inquiry with respect to the nature of the offender focuses on "the

degree of danger . . . to society." (In re Lynch, supra, 8 Cal.3d at p. 425.) Mendez's

convictions show that he poses a danger to society because of his repeated molestation of

vulnerable young girls. Mendez has pointed to nothing in his background as a police

officer, a member of the military, or a father figure to young girls that would lead us to

believe that he no longer poses a danger of committing sex crimes against children.

Focusing on the inquiry of whether crimes of a more serious nature receive lesser

penalties in the same jurisdiction (In re Lynch, supra, 8 Cal.3d at p. 426), Mendez argues

that a "premeditated murderer . . . is going to receive a sentence of 25 years to life plus

arguably another 25 years to life for the gun he used," and not a sentence of 330 years to

life. Mendez's argument is not persuasive because he is referring to the sentence for a

single count of first degree murder. Here, Mendez was found guilty of committing 22

different offenses, and each offense was punished by a sentence less than that of a single

count of first degree murder.14

We accordingly conclude that Mendez has not established that his sentence was so

disproportionate to his crimes that it constitutes cruel and unusual punishment under

either the state or federal Constitutions.

14 Mendez makes no attempt to compare his sentence with the sentences for similar
offenses in other jurisdictions, and we accordingly do not address that factor.
25
 DISPOSITION

The conviction on count 20 is reversed along with the 15-year-to-life term

imposed for that count. The trial court is directed to prepare an amended abstract of

judgment and forward it to the Department of Corrections and Rehabilitation. In all other

respects the judgment is affirmed.

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

26