People v. Reyes

Filed 3/30/16
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D069277

Plaintiff and Respondent,

v. (Super. Ct. No. FVI110450)

LEONEL LOPEZ REYES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Bernardino County, Eric

M. Nakata, Judge. Affirmed as modified and remanded with directions.

Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant

and Appellant.

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

Peter Quon, Jr. and Stacy Alicia Tyler, Deputy Attorneys General, for Plaintiff and

Respondent.
 A jury convicted Leonel Lopez Reyes of forcible oral copulation (Pen. Code,1

§ 288a, subd. (c)(2); count 1), forcible rape (§ 261, subd. (a)(2); count 2), lewd acts upon

a child under the age of 14 (§ 288, subd. (a); count 3), and first degree burglary (§ 459;

count 6). The jury found true allegations that the crimes of counts 1 and 2 occurred

during the commission of a first degree burglary. (§ 667.61, subd. (b), (e).) The jury also

found true allegations under section 667.61, subdivision (l) that Reyes committed the

crimes of counts 1 and 2 during the commission of a burglary with the intent to commit

those crimes, and that the victim, Daniela R., was age 14 or older but under the age of 18

(§ 667.61, subd. (l)).2 The trial court sentenced Reyes to eight years plus one

consecutive term of life without the possibility of parole, consisting of life without the

possibility of parole for the special findings under section 667.61, subdivision (l), the

upper term of eight years for the count 3 offense, a concurrent midterm of four years for

count 6, and 15-year-to-life terms on counts 1 and 2 pursuant to section 667.61,

subdivisions (b) and (e) stayed under section 654.

Reyes contends the prosecutor committed prejudicial misconduct by arguing for

the first time in rebuttal the relevance of evidence that Daniela was gay on the issue of

consent, and also by explaining the reasonable doubt standard in such a way as to dilute

the People's burden of proof in violation of the Sixth Amendment. Reyes further

1 Statutory references are to the Penal Code unless otherwise specified.

2 The jury found not true multiple victim allegations appended to counts 1 and 2.
The jury did not reach a verdict on count 5 as to a different alleged victim, Shirley R.,
and that count was dismissed on the prosecutor's motion. Count 4, also as to Shirley R.,
was dismissed on a defense motion.
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contends his sentence of life without the possibility of parole for committing two forcible

sex offenses violates the proscriptions in the federal and California Constitutions against

cruel and unusual punishment, and his counsel was prejudicially ineffective for failing to

object on this ground under the California Constitution. In a supplemental brief, Reyes

finally contends the trial court sentenced him under section 667.61, subdivision (l) in

counts 1 and 2 under the mistaken belief it had no discretion to impose a lesser sentence.

He asks this court to set aside the sentences in counts 1 and 2 and remand the case for the

trial court to exercise its discretion to either strike or not strike the findings made under

that subdivision.

The People ask that we order the trial court to amend the abstract of judgment to

reflect the jury's true findings on the allegations under section 667.61, subdivision (l)

attached to counts 1 and 2 as well as the court's oral pronouncement of judgment on those

counts, and to indicate that Reyes was sentenced under that section. Reyes agrees, and

we conclude the abstract of judgment should be modified to reflect those changes. As so

modified, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Evidence

Because Reyes does not challenge the sufficiency of the evidence of his

convictions, we briefly summarize his offenses. Where necessary to detail the facts

relevant to Reyes's appellate contentions or to determine prejudice, we do so at that point

in the opinion.

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 From late 2008 to about the middle of 2010, Daniela lived with her mother and

sister in a house that they shared with Reyes, Reyes's wife and three children. In 2010,

the families moved into separate apartments. Reyes at times borrowed from and repaid

money to Daniela's mother.

In June 2011, Reyes owed $100 to Daniela's mother, who expected him to repay it.

On the afternoon of June 22, 2011, Daniela was home when Reyes knocked at their door.

She hesitated and did not want to open the door because of an incident that had occurred

in their prior house: Reyes had pulled her off a couch where she had been sitting with his

son and Daniela thought he was just playing a game, but he started to put his hand inside

her shorts and underwear. Daniela nevertheless opened the door for Reyes, who told her

he was there to repay money. She opened the outside security door, took the money, and

started to close the door but Reyes pulled it open and walked inside. Reyes closed all of

the doors while Daniela tried to back away. When she backed into the wall, Reyes

proceeded to pull Daniela toward him. He eventually picked Daniela up, put his face

between her breasts, then pushed her onto a couch where he tried to kiss her, removed her

shorts and underwear, orally copulated her while holding her arms down, and had

intercourse with her. Afterwards, Reyes gave Daniela $20, told her not to tell anyone,

and left. Crying and having difficulty speaking, Daniela eventually related what had

happened to a friend who told her father, who told Daniela's mother.

A sexual assault examination showed evidence of Reyes's sperm consistent with

his DNA profile in Daniela's vagina. A physical examination of Daniela was within

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normal limits; it revealed no sex assault-related injuries and therefore there were no

findings.

Defense Evidence

Reyes testified that on June 22, 2011, after he gave Daniela the money he owed

her mother, Daniela wanted to "play" and jumped on his back when he was about to

leave. He claimed she removed her shorts and underwear and they had consensual oral

and vaginal sex. Reyes denied holding Daniela's hands down during the acts. He

testified that while he knew having sex with someone who was 14 years old was against

the law in the United States, it was not a problem in Mexico and he did it because he was

sexually attracted to her. Reyes admitted lying to police about his whereabouts that

afternoon.

DISCUSSION

I. Claims of Prosecutor Misconduct

Reyes complains that the prosecutor committed prejudicial misconduct in two

separate instances. First, he contends she engaged in misconduct when she raised in her

rebuttal closing argument for the first time the fact Daniela was gay so as to suggest

Daniela would not consent to have sex with him. He maintains the prosecutor did not

discuss consent in her argument in chief, but waited until rebuttal in order to make it

impossible for his defense counsel to respond to this contested issue. He argues this

conduct violated both federal and state Constitutions and rendered the trial fundamentally

unfair, requiring reversal under the Chapman (Chapman v. California (1967) 386 U.S.

18) standard of harmless error.

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 Second, Reyes contends the prosecutor committed misconduct by misstating the

beyond a reasonable doubt standard in such a way that tended to reduce the prosecution's

burden of proving the charged offenses. He maintains this error, combined with the other

instance of misconduct, cumulatively resulted in prejudice to him because they " 'so

infected the trial with unfairness as to make the resulting conviction a denial of due

process.' "

A. Standard of Review

" ' " 'A prosecutor's conduct violates the Fourteenth Amendment to the federal

Constitution when it infects the trial with such unfairness as to make the conviction a

denial of due process. Conduct by a prosecutor that does not render a criminal trial

fundamentally unfair is prosecutorial misconduct under state law only if it involves the

use of deceptive or reprehensible methods to attempt to persuade either the trial court or

the jury.' " ' " (People v. Charles (2015) 61 Cal.4th 308, 327.) " ' "A defendant's

conviction will not be reversed for prosecutorial misconduct" that violates state law,

however, "unless it is reasonably probable that a result more favorable to the defendant

would have been reached without the misconduct." ' [Citation.] Bad faith on the

prosecutor's part is not a prerequisite to finding prosecutorial misconduct under state law.

[Citation.] In fact, our Supreme Court has stated, ' "[T]he term prosecutorial 'misconduct'

is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a

culpable state of mind. A more apt description of the transgression is prosecutorial

error." ' " (People v. Lloyd (2015) 236 Cal.App.4th 49, 60-61.)

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B. Claim of Misconduct in Arguing in Rebuttal Closing That Daniela Was Gay and

Therefore Did Not Consent

1. Background

During Daniela's cross-examination, defense counsel asked about Daniela's

relationship with her mother, to which Daniela responded it was good "about certain

things" but not others given her mother's different opinions. Defense counsel pressed the

issue, eliciting Daniela's admission that she was gay, and her testimony that she did not

think that was something her mother wanted to know about. Defense counsel then sought

to question Daniela about what she meant by earlier testimony concerning her discussion

with friends about "how [she] wanted it to happen," but the prosecutor objected on

grounds of the rape shield law3 that the questioning was "[g]etting into her sexual

orientation" and "how she wants sex to happen." The court sustained the objection,

ruling the evidence's probative value was outweighed by prejudice and undue

consumption of time under Evidence Code section 352.

3 The rape shield law had been raised in one of the People's pretrial evidentiary
motions. "Under California's rape shield law, specific instances of a complaining
witness's sexual conduct are not admissible to prove consent by the complaining witness
in a prosecution for specified sex offenses. [Citation.] Such evidence may be admissible,
though, when offered to attack the credibility of the complaining witness, provided that
its probative value outweighs the danger of undue prejudice and the defendant otherwise
complies with the procedures set forth in Evidence Code section 782." (People v.
Fontana (2010) 49 Cal.4th 351, 354.) Because counsel agreed there was no evidence on
that point, the trial court did not rule on the prosecutor's motion. Though the People
address whether the prosecutor committed misconduct by violating any ruling under the
rape shield law, Reyes only contends that the misconduct was the prosecutor arguing for
the first time in rebuttal Daniela's lack of consent based on her sexual identity.
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 During the People's closing arguments, the prosecutor pointed out to the jury that

for purposes of counts 1 and 2, forcible oral copulation and forcible rape, one of the

elements was that the victim did not consent. She then argued, "So what do we know

from Daniela? Daniela told us that the defendant orally copulated [her] forcefully. She

said that she didn't want to have any sexual relations with him. She told him, 'No.' She

told him to leave. She told him, 'Stop.' She was not a willing active participant in the act

of oral copulation." The prosecutor made similar arguments about the rape: "Daniela

tells him, 'Leave.' She tells him, 'No.' She tells him, 'Stop.' And he doesn't do any of

that. . . . He continues with his forcible sexual assault on Daniela."

In defense closing, counsel argued that Daniela's testimony differed about whether

she told Reyes to stop or leave during or before the oral copulation and rape, that Reyes's

belief was important, and the prosecutor was required to prove Reyes's state of mind as to

whether Daniela was consenting to the acts. Defense counsel argued that the law as to

those counts was that the defendant was not guilty if he actually and reasonably believed

the woman consented to the intercourse and had such belief throughout the act of

intercourse. Using an example of a dating scenario and pointing to the absence of

physical injury to Daniela, counsel asserted that Daniela's unexpressed feeling that she

was forced, and the absence of evidence that Reyes used force or fear, compelled a

finding that Reyes was not guilty. He also pointed to evidence that Daniela told an

examining nurse that Reyes gave her $20, arguing that "[Daniela] would not be the first

person to be more inclined to have sex with someone [for money]."

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 In rebuttal, the prosecutor referenced counsel's argument about consensual

encounters, stating: "[Defense counsel] was talking about people going on dates and

women getting bought dinners, not prostitutes, just the nice fun date. And [he] argued

about that $20. Not only was Daniela a slut, she was cheap. She sold herself to that man

who could be her father, who had children older than her, for $20. If you believe the

defense version that Daniela consented, that's what he's trying to tell you. You alone can

judge the facts. You alone can judge the testimony. Daniela didn't sell herself. She

testified that she's gay."

Defense counsel objected that the argument violated the court's in limine ruling to

exclude sexual background evidence. The court pointed out that defense counsel had

originally elicited the testimony that Daniela was gay, which was not stricken from the

record. In a bench conference, defense counsel pressed his objections that the prosecutor

committed misconduct by delving into an area governed by the in limine ruling; that the

prosecutor should have minimized such evidence and the court should instruct the jury to

disregard the comment or declare a mistrial. The court denied the mistrial request. The

prosecutor responded that defense counsel pushed Daniela to testify as she did, but the

fact Daniela was gay "doesn't mean that she has any type of sex. That's the rape shield, is

the sex part." The court agreed, ruling, "The fact that one person is or isn't gay has

nothing to do with their sexuality." It ruled the prosecutor's statement was "within the

realm of reasonable argument."

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2. Analysis

In challenging the prosecutor's rebuttal comment concerning Daniela's testimony

of her sexual orientation, Reyes argues: "The prosecutor should have addressed the issue

of consent during her argument in chief. The crimes charged in counts one and two each

required that the prosecutor prove, as an element of the offense, that Daniela did not

consent to the act. . . . [B]y failing to address the question of consent until her rebuttal

argument, the prosecutor made it impossible for appellant's trial counsel to respond

during summation to the prosecutor's argument on the only element of counts one or two

that was actually contested at trial." Citing People v. Robinson (1995) 31 Cal.App.4th

494, Reyes maintains the prosecutor presented arguments "designed to incriminate the

defendant, making those arguments immune from defense reply" and violated both

federal and state standards.

As an initial matter, Reyes's specific argument lacks support in the record, as our

foregoing summary indicates the prosecutor plainly raised the issue of Daniela's consent

in her initial closing summation, and did not blindside defense counsel in making her

arguments. Reyes clarifies in his reply brief that is claim is directed to the prosecutor's

use of Daniela's sexual orientation in her rebuttal closing. To the extent Reyes challenges

the prosecutor's mention of Daniela's sexual orientation for the first time in rebuttal

argument as evidence tending to show Daniela would not have consented to the sex acts,

we conclude he has not demonstrated the prosecutor's argument amounts to misconduct.

Prosecutors may make vigorous arguments and fairly comment on the evidence;

they have broad discretion to argue inferences and deductions from the evidence to the

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jury. (People v. Sandoval (2015) 62 Cal.4th 394, 450.) In particular, "[r]ebuttal

argument must permit the prosecutor to fairly respond to arguments by defense counsel."

(People v. Bryden (1998) 63 Cal.App.4th 159, 184;4 see People v. Hill (1967) 66 Cal.2d

536, 562.) Indeed, "even otherwise prejudicial prosecutorial argument, when made

within proper limits in rebuttal to arguments of defense counsel, does not constitute

misconduct." (People v. McDaniel (1976) 16 Cal.3d 156, 177; People v. Hill, at pp. 560-

561 ["a prosecutor is justified in making comments in rebuttal, perhaps otherwise

improper, which are fairly responsive to argument of defense counsel and are based on

the record"].) In such circumstances, the prosecutor "cannot be charged with misconduct

if his comments only spill over somewhat into a forbidden area; the departure from

propriety must be a substantial one." (People v. Hill, at p. 561.) Thus, in People v. Hill,

the California Supreme Court held that misconduct cannot be based on a prosecutor's

remarks responsive to defense counsel's argument, as long as those remarks do not go

beyond the record. (People v. Hill, at p. 562; see also People v. Tully (2012) 54 Cal.4th

952, 1016.)

Here, Daniela's claimed sexual orientation was in evidence. It was not improper,

nor did it violate any pretrial evidentiary ruling (see footnote 3, ante), for the prosecutor

4 In Bryden, the prosecutor mentioned a key piece of evidence, a redacted prison
note between two inmates, in her opening statement and the note was admitted into
evidence. (People v. Bryden, supra, 63 Cal.App.4th at p. 184.) However, it was not until
the prosecutor's rebuttal closing argument that she presented a chart comparing the
evidence of the note with other evidence in more detail. (Ibid.) The Court of Appeal
rejected the defendant's claim of misconduct, stating that the prosecutor did not refer to
matters outside the record, but fairly responded to defense counsel's arguments. (Ibid.)
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to draw a deduction from that fact in response to defense counsel's closing arguments

concerning consent. On this record, it cannot be said the prosecutor's brief reference was

so egregious that it infected the entire trial, rendering it fundamentally unfair. (Accord,

People v. Fernandez (2013) 216 Cal.App.4th 540, 563.) This was not a situation, as in

People v. Robinson, supra, 31 Cal.App.4th 494, in which the prosecutor committed

numerous acts of misconduct, including by giving a "perfunctory . . . opening argument

designed to preclude effective defense reply, and then giv[ing] a 'rebuttal' argument—

immune from defense reply—10 times longer . . . than his opening argument."

(Robinson, 31 Cal.App.4th at p. 505.) Rather, the prosecutor gave a fair response to

Reyes's closing argument concerning Daniela's asserted consent to the sex acts. And in

Robinson, the appellate court's decision to reverse was based on the prosecutor's

misconduct both before and during trial, as well as error by the trial court in excluding

defense evidence. (Ibid.) Given our rejection below of Reyes's second claim of

prosecutor misconduct, no such cumulative error occurred here.

C. Asserted Misconduct in Explaining the Reasonable Doubt Standard

1. Background

Following the presentation of evidence, the trial court instructed the jury as to

reasonable doubt with CALCRIM No. 220 as follows: "A defendant in a criminal case is

presumed to be innocent. This presumption requires that the People prove a defendant

guilty beyond a reasonable doubt. Whenever I tell you that the People must prove

something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a

reasonable doubt is proof that leaves you with an abiding conviction that the charge is

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true. The evidence need not eliminate all possible doubt, because everything in life is

open to some possible or imaginary doubt. [¶] In deciding whether the People have

proved their case beyond a reasonable doubt, you must impartially compare and consider

all of the evidence that was received throughout the entire trial. Unless the evidence

proves a defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and

you must find him not guilty."

During closing argument, defense counsel discussed Reyes's testimony and his

belief that the sex with Daniela was consensual, and argued that Reyes's only crime was

having sex with a minor. He argued: "[The People] have to prove it beyond a reasonable

doubt from Mr. Reyes, what he reasonably believed. And they have to prove that he

could not, beyond a reasonable doubt, reasonably believe that this young woman was

consenting to his sexual acts upon her. [¶] And reasonable doubt . . . they have to have

proof that leaves you with the abiding conviction that if you were to reach a guilty

verdict, you have to have an abiding conviction that that's the verdict. Not today, not

tomorrow. . . . [¶] And if someone a year from now came running in with one of those

cell phone videos . . . and everything is on video, you would have to be able to say, 'No.'

I have an abiding conviction that my verdict was true and I don't need to see it. But if

you want to see that video, if you have any reasonable doubt about what happened . . .

with Daniela, . . . if you have any reasonable doubt about what happened, even a little

reasonable doubt, then the verdict is not guilty."

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 During the prosecutor's closing rebuttal argument, the following colloquy

occurred:

"[The prosecutor]: Reasonable doubt is proof that leaves you with an abiding

conviction the charge is true. The evidence need not eliminate all possible doubt,

because everything in life is open to some doubt. Reasonable doubt. Reasonable doubt

comes into play only if you have a reasonable doubt.

"[Defense counsel]: Objection. Misstates reasonable doubt. It always comes into

play.

"The Court: Ladies and gentlemen, you have the jury instruction, and that's

[CALCRIM No.] 220. It is reasonable doubt. It is defined in that instruction.

"[The prosecutor]: If you don't have a doubt that the defendant raped and

forcefully orally copulated Daniela, touched . . . Daniela in a rude manner . . . the concept

of reasonable doubt is not a problem and you vote guilty. Only if you have a doubt then

consider, is that doubt reasonable? Is it a possible doubt or a reasonable doubt?"5

2. Analysis

5 The prosecutor continued: "[Defense counsel] talked about it because I think that
I talked about it in opening or voir dire. Is it possible that I go home at night? I don't
know what the raceways are called here, but I go home and I get on my little silks and I
run to the horse racing arena and then I race like I'm Secretariat, which is really old. Is it
possible? Well, yeah. Everything is possible. Look at me. I'm not a horse jockey. First
of all, I'm too tall. And second of all, I don't think that I fit the weight requirements, but
don't tell my husband." Defense counsel made another objection: "Same objection.
Minimizing reasonable doubt." The court responded: "The jury has the instruction."
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 Pointing out prosecutors must not misstate the law in general and particularly may

not absolve the prosecution from its obligation to overcome reasonable doubt of the

elements of the offenses, Reyes argues the prosecutor's statement that reasonable doubt

"comes in play only if you have reasonable doubt" misstated and trivialized the role that

the standard plays in a criminal trial, and that her ensuing comments about possible doubt

and reasonable doubt "grossly oversimplified the central role of the reasonable doubt

standard in the jury's decision-making process." Reyes maintains the arguments lessened

the standard by "making it seem jurors would not need to take that standard into

consideration unless they had a doubt about the truth of the charge after tentatively

making a determination of guilt." The People respond that Reyes forfeited the issue by

failing to object on the specific ground of misconduct, but that the prosecutor did not

misstate the law in any event. They also maintain any error was harmless.

We observe that though Reyes's counsel objected to the prosecutor's comments on

grounds they misstated or minimized the standard, he did not object that the prosecutor's

statements constituted misconduct. Counsel forfeited any claim of prosecutorial

misconduct in connection with these remarks by failing to assign misconduct to the

prosecutor's statements. (Accord, People v. Thomas (2012) 54 Cal.4th 908, 938-939.)

Counsel has an obligation to state the "specific ground for an objection in order to

preserve the issue for appeal." (Id. at p. 938, citing People v. Stanley (2006) 39 Cal.4th

913, 952.)

But addressing the contention in any event, reversal is required only if, when the

complained-of comments are viewed in the context of the prosecutor's whole argument,

15
there is a "reasonable likelihood the jury understood or applied [them] in an improper or

erroneous manner." (People v. Wilson (2005) 36 Cal.4th 309, 337; People v. Dennis

(1998) 17 Cal.4th 468, 522 [the reviewing court must view the statements of a prosecutor

claimed to be misconduct in the context of the argument as a whole, not in isolation].) In

conducting this inquiry, " 'we "do not lightly infer" that the jury drew the most damaging

rather than the least damaging meaning from the prosecutor's statements.' " (Wilson, at p.

338.)

Reyes does not point to any indication in the record, and we have found none, that

as a result of the prosecutor's remarks, the jurors used the reasonable doubt standard to

evaluate doubts they may have had after preliminarily reaching a conclusion as to Reyes's

guilt rather than deciding whether the prosecution had met its burden to prove all

elements of the charged offenses beyond a reasonable doubt. Indeed, the jury's decision

that it could not reach a finding on count 5 or the multiple victim allegations (ante, fn. 2)

suggests it carefully applied the reasonable doubt standard in its deliberations. In any

event, with respect to the prosecutor's remarks, we observe that elsewhere, she told the

jurors to follow the law as stated in the court's instructions, and she correctly

characterized the applicable standard without objection from defense counsel, explaining

that the evidence had shown beyond a reasonable doubt, "not beyond all possible doubt"

or "a shadow of a doubt," that Reyes committed the alleged offenses. The court properly

instructed the jury with CALCRIM No. 200 regarding its obligation to follow the law set

forth in the instructions, and to disregard attorney comments that were inconsistent with

the instructions. The jury was also instructed with CALCRIM No. 222, that "[n]othing

16
that the attorneys say is evidence," as well as CALCRIM No. 220, which correctly

instructed the jury about the presumption of innocence and the prosecutor's burden of

proving guilt beyond a reasonable doubt. After the challenged statements by the

prosecutor, the court referred the jury back to its instructions.

Under the circumstances, we presume the jury followed the court's instructions.

(People v. Boyette (2002) 29 Cal.4th 381, 436; see also People v. Prince (2007) 40

Cal.4th 1179, 1295.) Nothing in the record rebuts or even tends to rebut that

presumption. " 'When [closing] argument runs counter to instructions given a jury, we

will ordinarily conclude that the jury followed the latter and disregarded the former, for

"[w]e presume that jurors treat the court's instructions as a statement of the law by a

judge, and the prosecutor's comments as words spoken by an advocate in an attempt to

persuade." ' " (People v. Centeno (2014) 60 Cal.4th 659, 676.)

Finally, even attributing some error in the prosecutor's comment, we conclude

Reyes has not shown it reasonably likely that he would have obtained a more favorable

verdict or better result absent the challenged statements. (People v. Blacksher (2011) 52

Cal.4th 769, 828, fn. 35.) We also conclude the challenged conduct was harmless beyond

a reasonable doubt. (Ibid.; People v. Cook (2006) 39 Cal.4th 566, 608.) The People's

evidence consisted of Daniela's testimony, as well as evidence that Reyes had lied to

police concerning his whereabouts that afternoon. He conceded to committing the sex

acts, defending only on grounds that Daniela consented. In our view, the fact Daniela

suffered no physical injuries does not render the case a close one on the issue of consent

as Reyes maintains, particularly when the examining nurse agreed such injury was not

17
always present. In light of the relatively strong evidence of Reyes's guilt, we cannot say

any purported misconduct was prejudicial.

II. Claim of Sentencing Error

Reyes contends the trial court sentenced him to life without the possibility of

parole under section 667.61, subdivision (l) under the mistaken belief it had no discretion

to impose a lesser sentence. Relying on the general proposition that a sentencing judge

has discretion to strike an enhancement under section 1385 (People v. Thomas (1992) 4

Cal.4th 206, 210) and other circumstances concerning the state of the law when

subdivision (l) took effect, Reyes argues section 667.61 gave the court discretion to strike

the true finding under subdivision (l) and impose a term of 15 years to life under section

667.61, subdivision (b). Because according to Reyes the sentence was not a true exercise

of the court's sentencing discretion, he asks that we remand the matter for resentencing so

the court can properly exercise its discretion.

A. Background

As we have summarized above, the jury found true special allegations that Reyes

committed the crimes of counts 1 and 2 "during the commission of burglary, with the

intent to commit forcible oral copulation and/or forcible rape, and that the victim was a

child 14 years of age or older and under 18 years of age at the time of the offense in

violation of . . . section 667.61, subdivision (l) . . . ." The jury separately found true

allegations under section 667.61, subdivisions (b) and (e) that Reyes "committed the

crime[s] . . . during the commission of burglary . . . ."

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 During Reyes's sentencing hearing, Reyes's counsel conceded, and the prosecutor

agreed, that Reyes's sentence was governed by statute, and that the court had no

discretion with respect to sentencing. Reyes's counsel, however, objected to the sentence

on grounds it was cruel and unusual under the Eighth Amendment to preserve possible

issues arising in the federal courts. The court proceeded to sentence Reyes on the

determinate counts, and then on the indeterminate counts and special allegations,

imposing life without the possibility of parole sentences on the findings under section

667.61, subdivision (l), and staying under section 654 the findings under section 667.61,

subdivisions (b) and (e).

B. Legal Principles

The "One Strike" law, section 667.61, is an alternative sentencing scheme that

applies to specified felony sex offenses. (People v. Anderson (2009) 47 Cal.4th 92, 102;

People v. Woods (2015) 241 Cal.App.4th 461, 479 & fn. 14.) "The purpose of the One

Strike law is 'to ensure serious and dangerous sex offenders would receive lengthy prison

sentences upon their first conviction,' 'where the nature or method of the sex offense

"place[d] the victim in a position of elevated vulnerability." ' " (People v. Alvarado

(2001) 87 Cal.App.4th 178, 186.) As of September 2010 (Stats. 2010, ch. 219, § 16), the

One Strike law mandates imposition of a sentence of life without the possibility of parole

if the jury finds a person is convicted of one or more enumerated sexual offenses and also

has found true certain factual allegations concerning the manner in which the underlying

offense was committed (§ 667.61, subds. (d), (e)), when the victim is a minor who is 14

years old or older. (§ 667.61, subd. (c), (l); see, e.g., Anderson, at p. 102.)

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 Specifically, section 667.61, subdivision (l) provides: "Any person who is

convicted of an offense specified in subdivision (n) under one or more of the

circumstances specified in subdivision (d) or under two or more of the circumstances

specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall

be punished by imprisonment in the state prison for life without the possibility of parole.

If the person who was convicted was under 18 years of age at the time of the offense, he

or she shall be punished by imprisonment in the state prison for 25 years to life." As

relevant here, subdivision (n) "shall apply" to the offenses of forcible rape (§ 262, subd.

(a)(1)), and oral copulation under section 288a, subd. (c)(2). (§ 667.61, subd. (n).)

Under section 667.61, subdivision (d)(4), a defendant is subject to the harsher

sentence if he "is convicted of" a specified substantive sex offense under subdivision (n),

and also "committed the [offense] during the commission of a burglary of the first degree,

as defined in subdivision (a) of Section 460, with intent to commit an offense specified in

subdivision (c) [including forcible oral copulation and rape]." (§ 667.61, subds. (d)(4),

(l).)

Section 667.61, subdivision (g) provides: "Notwithstanding Section 1385 or any

other provision of law, the court shall not strike any allegation, admission, or finding of

any of the circumstances specified in subdivision (d) or (e) for any person who is subject

to punishment under this section."

The One Strike law provides that "[t]he penalties provided in this section shall

apply only if the existence of any circumstances specified in subdivision (d) or (e) is

20
alleged in the accusatory pleading pursuant to this section, and is either admitted by the

defendant in open court or found to be true by the trier of fact." (§ 667.61, subd. (o).)

C. Analysis

Section 1385, subdivision (a) gives a trial court authority to strike "in furtherance

of justice" factual allegations relevant to sentencing, including both enhancement

allegations and allegations that support an alternate sentencing scheme. (See People v.

Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 518, 529-530 (Romero) [trial court

has power to strike or dismiss three strike allegations under the alternative sentencing

scheme of the "Three Strikes" law].) The Legislature may eliminate a court's power to

strike or dismiss sentencing allegations under section 1385 (id. at p. 518), but "we will

not interpret a statute as eliminating courts' power under section 1385 'absent a clear

legislative direction to the contrary.' " (Ibid.)

We conclude that section 667.61, subdivision (g) provides such clear legislative

direction. Subdivision (g) of section 667.61 begins with the phrase, "Notwithstanding

Section 1385 or any other provision of law . . . ." The California Supreme Court has said

that "[w]hen the Legislature intends for a statute to prevail over all contrary law, it

typically signals this intent by using phrases like 'notwithstanding any other law' or

'notwithstanding other provisions of law.' " (In re Greg F. (2012) 55 Cal.4th 393, 406.)

This phrase in a statute is a term of art which signals the legislative intent that the statute

control, override or displace contrary or conflicting law, or whatever law would

otherwise govern. (Greg F., at p. 406; Arias v. Superior Court (2009) 46 Cal.4th 969,

983; People v. Campos (2011) 196 Cal.App.4th 438, 452.) And here, the Legislature

21
expressly intended to override the trial court's power under section 1385 by referencing

that statute. Having been pleaded, proven and found true by the jury, the section 667.61,

subdivision (d) circumstance of first degree burglary that gives rise to Reyes's sentence of

life without the possibility of parole under section 667.61, subdivision (l) "shall not" be

stricken. (§ 667.61, subd. (g); People v. Hammer (2003) 30 Cal.4th 756, 772 [Under

former section 667.61, subdivision (f), "courts have no . . . discretion [to 'strike' any

punishment-enhancing circumstance (including a prior strike conviction) in the interests

of justice]; sentencing under the full and severe terms of the law is mandatory"]; People

v. Estrada (1997) 57 Cal.App.4th 1270, 1277 [under former section 667.61, subdivision

(f), trial court had no discretion to strike circumstance of first degree burglary under

section 661.61, subdivision (d) giving rise to 25-year-to-life sentence].)

We reject Reyes's argument concerning the Legislature's intent to retain the trial

court's section 1385 discretion in these circumstances. He maintains such intent is

reflected by the fact that when the Legislature amended section 667.61 in 2010 to include

subdivision (l), it did not also amend section 667.61, subdivision (g) to list subdivision (l)

within the findings that "shall not" be stricken.6 But here, the trial court's imposition of a

sentence of life without the possibility of parole under subdivision (l) necessarily

6 At oral argument, Reyes appears to have refined his argument to say that the trial
court had discretion under section 1385 to strike the specific allegation within section
667.61 subdivision (l) as to the victim's age. The attorney general asserted that this was
an entirely new argument, and we agree Reyes neither made nor developed this point in
his supplemental brief on the question. We decline to consider the argument as forfeited.
(See People v. Alexander (2010) 49 Cal.4th 846, 922 [claim forfeited by failing to raise
it in reply brief]; People v. Crow (1993) 6 Cal.4th 952, 960, fn. 7 [declining to address
22
depended on the jury's findings of the first degree burglary circumstance under

subdivision (d), which is specifically included in section 667.61, subdivision (g) as a

circumstance that shall not be stricken. The Legislature's failure to amend section

667.61, subdivision (g) as Reyes contends does not reflect any intent to grant a court

sentencing a defendant under subdivision (l) discretion under section 1385 to strike a

jury's findings supporting that sentence.

A court is "presumed to have been aware of and followed the applicable law"

when imposing a sentence. (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) The

burden is on Reyes to demonstrate that the court misunderstood its sentencing discretion.

(People v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) We conclude the court did

not misunderstand its discretion because the One Strike law does not permit the court to

exercise discretion under section 1385 to strike the factual finding giving rise to Reyes's

life without the possibility of parole sentence under section 667.61, subdivision (l).

III. Claim of Cruel and Unusual Punishment

Reyes contends his One Strike sentence of life without the possibility of parole for

committing two forcible sex offenses violates the proscriptions against cruel and unusual

punishment in the Eighth Amendment to the United States Constitution and article I,

section 17 of the California Constitution. Because his counsel did not object to the

issue raised by defendant for the first time at oral argument]; In re Villa (2013) 214
Cal.App.4th 954, 963, fn. 6 [declining to consider attorney general's argument not
mentioned in return but raised for first time at oral argument]; People v. Dixon (2007)
153 Cal.App.4th 985, 996 [it is improper to raise issues for the first time at oral
argument].)

23
sentence under the California Constitution, Reyes argues his counsel was prejudicially

ineffective for failing to do so, since his life-without-the-possibility-of-parole sentence is

disproportionate to his offense under the applicable state standards. As we will explain,

we reject these contentions.

A. Eighth Amendment

The Eighth Amendment's ban on "cruel and unusual" punishment (U.S. Const., 8th

Amend.) embodies " 'the "precept of justice that punishment for crime should be

graduated and proportioned to [the] offense." ' " (In re Coley (2012) 55 Cal.4th 524, 538;

see Graham v. Florida (2011) 560 U.S. 48, 59.) In Coley, the California Supreme Court

stated: " '[T]he Eighth Amendment contains a "narrow proportionality principle," that

"does not require strict proportionality between crime and sentence" but rather "forbids

only extreme sentences that are 'grossly disproportionate' to the crime." ' " (Coley, 55

Cal.4th at p. 542, quoting Graham, at pp. 59-60; see also Harmelin v. Michigan (1991)

501 U.S. 957, 1001 (conc. opn. of Kennedy, J.), quoting Solem v. Helm (1983) 463 U.S.

277, 288.) "[U]nder the approach . . . , '[a] court must begin by comparing the gravity of

the offense and severity of the sentence. [Citation.] "[I]n the rare case in which [this]

threshold comparison . . . leads to an inference of gross disproportionality" the court

should then compare the defendant's sentence with the sentences received by other

offenders in the same jurisdiction and with the sentences imposed for the same crime in

other jurisdictions. [Citation.] If this comparative analysis "validate[s] an initial

judgment that [the] sentence is grossly disproportionate," the sentence is cruel and

unusual.' " (Coley, at p. 542, quoting Graham, at p. 60.)

24
 Outside the death penalty context, " 'successful challenges to the proportionality of

particular sentences have been exceedingly rare.' " (Ewing v. California (2003) 538 U.S.

11, 21 (lead opn. of O'Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73

[proportionality principle is "applicable only in the 'exceedingly rare' and 'extreme'

case"].) There is no question that "the fixing of prison terms for specific crimes involves

a substantive penological judgment that, as a general matter, is 'properly within the

province of legislatures, not courts.' " (Harmelin v. Michigan, supra, 501 U.S. at p. 998.)

It is for this reason that when faced with an allegation that a particular sentence amounts

to cruel and unusual punishment, "[r]eviewing courts . . . should grant substantial

deference to the broad authority that legislatures necessarily possess in determining the

types and limits of punishments for crimes . . . ." (Solem v. Helm, supra, 463 U.S. at p.

290.)

As we have summarized above, section 667.61, subdivision (l) mandates a

sentence of life without the possibility of parole for specified sex offenses against minors

that are committed under one or more aggravating circumstances. (§ 667.61, subd. (l).)

We have found no case deciding whether such a sentence imposed under section 667.61,

subdivision (l) constitutes cruel and/or unusual punishment. However, appellate courts

have upheld the constitutionality of indeterminate prison terms imposed under the One

Strike law against such challenges under the cruel and unusual punishment prohibition

under the Eighth Amendment in cases where the defendants committed rape in the

commission of a burglary done with the intent to commit another sex crime.

25
 In People v. Crooks (1997) 55 Cal.App.4th 797, 805-809, the Court of Appeal

rejected the defendant's challenge to his 25-years-to-life sentence for committing a rape

while engaged in the commission of a first degree burglary with the intent to commit that

kind of rape. (Crooks, at p. 804.) The Crooks court pointed out that in Harmelin v.

Michigan, a defendant was lawfully sentenced to life without parole for possessing a

large quantity of drugs. (Harmelin v. Michigan, supra, 501 U.S. at pp. 961, 994-995

(lead opn. of Scalia, J.); see also id. at pp. 1008-1009 ["The dangers flowing from drug

offenses and the circumstances of the crime committed here demonstrate that the

Michigan penalty scheme does not surpass constitutional bounds"] (conc. opn. of

Kennedy, J.).) Because the defendant in Crooks was a "forcible rapist" who had received

a lesser sentence, the sentence was not grossly disproportionate to the more serious

crimes. (Crooks, at p. 806.) Crooks also relied upon the majority opinion in Solem v.

Helm, supra, 463 U.S. 296. (Crooks, 55 Cal.App.4th at p. 806.) Though the court in

Solem invalidated a life sentence in view of the "passive" nature of the defendant's

fraudulent check writing (Solem, at p. 296), the majority acknowledged that a life

sentence for other violent criminals would pass constitutional muster. (Crooks, at p. 806,

citing Solem, 463 U.S. at p. 299, fn. 26.) The Crooks court held that the defendant's

sentence did not violate the Eighth Amendment.

In People v. Alvarado, the appellate court considered an Eighth Amendment

challenge to the 15-year-to-life sentence of a defendant who was convicted of rape during

the commission of a burglary under section 667.61, subdivision (e)(2). (People v.

Alvarado, 87 Cal.App.4th at pp. 183, 185.) Alvarado pointed out that subdivision (e)(2)

26
"reflects a legislative finding that the victims of a residential burglary are more

vulnerable because they are inside a structure rather than out in public" and that the

Legislature "sought to deter by harsher punishment those who burglarize homes and

exploit the vulnerability of people inside to commit sex offenses." (Id. at pp. 186, 187.)

Addressing the defendant's claim that his sentence was roughly the same as for second

degree murder, the court stated, "Although the finality of the consequences of second

degree murder make that crime categorically different from rape during a burglary, the

double trauma of having one's home invaded and then being sexually violated is

substantial. Moreover, second degree murder does not require a specific intent to kill or

commit a felony and requires only that a person willfully and knowingly perform an act

dangerous to life with conscious disregard for life. [Citation.] On the other hand, rape

during a burglary reflects that the person decided to enter another's residence for a

felonious purpose and also decided to commit a sexual assault inside. Contrary to

defendant's argument, we cannot say that punishing such conduct as severely as second

degree murder is either shocking or outrageous." (Id. at p. 200.) Finally, the court

observed: "Clearly, California has taken the most aggressive approach toward punishing

and deterring rape during the commission of a burglary. As defendant asserts, it imposes

the longest terms with the least amount of judicial discretion. However, the fact,

acknowledged by defendant, that some other jurisdictions allow for the same or even

harsher punishment (Louisiana and Washington) indicates that in the abstract, the One

Strike term imposed here is not irrational or obviously excessive punishment for rape

during a burglary. The fact that the sentence is mandatory merely reflects the

27
Legislature's zero tolerance toward the commission of sexual offenses against particularly

vulnerable victims. It does not, however, render a defendant's sentence excessive as a

matter of law in every case." (Id. at pp. 200-201.) Referring to Harmelin v. Michigan,

supra, 501 U.S. 957 and other cases, Alvarado concluded the defendant had failed to

show his sentence was so disproportionate to his crime as to shock the conscience or

offend fundamental notions of human dignity. (Alvarado, at p. 201.)

The analyses of the courts in Crooks and Alvarado inform us in addressing Reyes's

challenge. Looking to the gravity of Reyes's offenses and comparing them to his life

without the possibility of parole sentence mandated by the Legislature, we are not

persuaded that the comparison gives rise to an inference of gross disproportionality. We

recognize that Reyes's sentence is very severe. (Harmelin v. Michigan, supra, 501 U.S.

at p. 1001 [sentence of life imprisonment without the possibility of parole is "the second

most severe penalty permitted by law"]; see Graham v. Florida, supra, 560 U.S. at p. 69.)

But the offenses for which Reyes was punished—forcible rape and forcible oral

copulation—were not only found to have occurred during the commission of a residential

burglary, but also were committed against a minor, society's most vulnerable victims. In

People v. Scott (1994) 9 Cal.4th 331, the California Supreme Court stated: "Above and

beyond the protection afforded to all victims of sexual assault, the Legislature has

determined that children are uniquely susceptible to 'outrage' and exploitation. Hence,

special laws on the subject of sex with children have been enacted. They expand the

kinds of acts which may be deemed criminal sexual misconduct, and they generally

28
operate without regard to force, fear, or consent." (Id. at pp. 341-342; see also In re M.V.

(2014) 225 Cal.App.4th 1495, 1521-1522.)

We accept and defer to the California Legislature's judgment that sex crimes

against minors, when they occur in connection with other offenses such as burglary that

pose a heightened danger to human life (People v. Estrada, supra, 57 Cal.App.4th at

p. 1281), are very grave offenses that warrant severe punishment. It is of no moment that

Reyes did not use violence or physically injure Daniela; he did not have to hurt her in

order to do permanent psychological damage. And, in view of Harmelin v. Michigan in

particular, in which the high court upheld a life without parole sentence for a defendant

with no prior felony convictions who possessed a large quantity of drugs (Harmelin v.

Michigan, supra, 501 U.S. at pp. 961, 994-995, 1008-1009), we reject Reyes's claim that

his punishment is disproportionate because it treats him more severely than criminals

who have committed more serious crimes. In his concurring opinion in Harmelin, Justice

Kennedy shed light on the policy judgment inherent in a proportionality decision: "[A]

rational basis exists for Michigan to conclude that petitioner's crime [of possessing a

large quantity of cocaine] is as serious and violent as the crime of felony murder without

specific intent to kill, a crime for which 'no sentence of imprisonment would be

disproportionate.' " (Id. at p. 1004.) In this case, we conclude it is reasonable to place

Reyes's conduct in the same kind of analysis. In our view, this is not the rare case giving

rise to an inference that Reyes's sentence is grossly disproportionate given the gravity of

Reyes's crimes, in which he broke into a person's home and, with intent to do so, forcibly

raped and orally copulated a 14-year-old minor. Having reached this conclusion, we do

29
not reach the other prongs of the analysis under the Eighth Amendment. (People v.

Coley, supra, 55 Cal.4th at p. 542; Graham v. Florida, supra, 560 U.S. at p. 60.)

B. California Constitution

Despite counsel's failure to object to Reyes's sentence under the California

Constitution, we will address the merits of Reyes's contention to show counsel was not

constitutionally ineffective by failing to make a futile or meritless objection. (People v.

Weaver (2001) 26 Cal.4th 876, 931; People v. Cudjo (1993) 6 Cal.4th 585, 616 ["Because

there was no sound legal basis for objection, counsel's failure to object to the admission

of the evidence cannot establish ineffective assistance"]; People v. Noriega (2015) 237

Cal.App.4th 991, 1003.) We conclude here that any objection under the California

Constitution would have been without merit.

A prison sentence will violate the prohibition against cruel or unusual punishment

under the California Constitution (art. I, § 17) where " '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; see also

People v. Boyce (2014) 59 Cal.4th 672, 718-719.) A defendant has a "considerable

burden" to show a punishment is cruel or unusual under the California Constitution.

(People v. Wingo (1975) 14 Cal.3d 169, 174.) "The doctrine of separation of powers is

firmly entrenched in the law of California, and a court should not lightly encroach on

matters which are uniquely the domain of the Legislature. Perhaps foremost among these

are the definition of crime and the determination of punishment." (Ibid.) Thus, " '[o]nly

in the rarest of cases could a court declare that the length of a sentence mandated by the

30
Legislature is unconstitutionally excessive[.]' " (People v. Meneses (2011) 193

Cal.App.4th 1087, 1093.)

To determine whether a particular sentence is disproportionate to the offense for

which it is imposed, we first examine "the nature of the offense and/or the offender, with

particular regard to the degree of danger both present to society." (In re Lynch (1972) 8

Cal.3d 410, 425; People v. Dillon, supra, 34 Cal.3d at p. 479; People v. O'Connor (1986)

188 Cal.App.3d 645, 648.) "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.

Thongvilay (1998) 62 Cal.App.4th 71, 88.) We next compare the punishment imposed

with punishments prescribed by California law for more serious offenses. (Lynch, at

pp. 426-427.) Finally, we compare the punishment imposed with punishments prescribed

by other jurisdictions for the same offense. (Id. at pp. 427-429.)

Reyes points out he was 35 years old when he committed the offenses of counts 1

and 2. His record shows he was arrested for illegal entry into the United States and

subject to deportation proceedings in 2002 and 2004, and he had prior arrests in 2002

with no disposition noted. He points out there is no indication in his prior record that he

committed prior sex offenses, and his probation officer scored him in the low risk

category for being charged with or convicted of another sexual offense if he were

31
released into the public at the time of his sentencing. Though Reyes acknowledges his

convictions in count 1 and 2 are serious offenses, he refers to the absence of injury or

trauma on Daniela's examination and maintains his conduct in committing the crimes was

"not unusually egregious." He argues that, viewing the evidence used to convict him,

"nothing about it justifies the most severe sentence a court can impose for criminal

conduct, short of death."

Reyes further argues his sentence is commensurate with that required for a first

degree murder with special circumstances depending on the circumstances under which

the murder was committed, and that had he killed Daniela while committing the crimes

against her, his punishment would likely be the same (and not a sentence of death), given

his minimal criminal history and the absence of evidence he inflicted physical injury. He

argues that under the circumstances, his punishment of life without the possibility of

parole is disproportionate because it treats him more severely than criminals who have

committed more serious crimes. Finally, Reyes points to a federal sentencing treatise for

statistics of other industrialized nations that either do not permit life without the

possibility of parole sentences, use it sparingly, or do not permit it to be mandatory.

In addressing the first prong, we are not persuaded by Reyes's attempt to minimize

his personal criminal history and the nature of his offenses against Daniela. Though his

history is without prior convictions for sex offenses, it is not devoid of criminality, and

given the fact he forced his way into a residence intending to commit heinous multiple

sex offenses against a minor, the nature and severe consequences of his offenses do not

suggest a violation of the California Constitution's proscription against cruel or unusual

32
punishment. (Accord, People v. Martinez (1999) 76 Cal.App.4th 489, 492 [defendant's

lack of a prior record was "not determinative" given the extremely violent and dangerous

behavior in committing attempted murder with personal use of a firearm].) Though

Reyes does not overtly compare himself to the defendant in People v. Dillon, supra, 34

Cal.3d 441, he cites it as an example of a case in which the sentence was determined to

violate constitutional limits. In Dillon, the California Supreme Court reduced a life

sentence for first degree murder to manslaughter where the 17-year-old defendant with no

criminal record shot a man he thought was about to shoot him. (Dillon, at pp. 482-483,

488.) Unlike Dillon, Reyes is a mature adult, not an "unusually immature youth" who

was responding to a suddenly developing situation in which he perceived immediate

danger. (Id. at p. 488.) And, Reyes was in complete control of the situation, his actions

were unprovoked, and he instigated multiple forcible sex offenses against Daniela.

(Accord, People v. Guinn (1994) 28 Cal.App.4th 1130, 1146-1147.) Dillon does not

compel a conclusion that Reyes's punishment is excessive.

As for the comparison of other punishments for more serious offenses under

California law, Reyes does not fare any better. As the court in People v. Crooks pointed

out, the Legislature has made offenses not involving homicide punishable by life

imprisonment without the possibility of parole, and such sentences are not cruel or

unusual in view of the fact they involve an "inherent danger to the life of the victim . . .

33
even if no death occurs." (People v. Crooks, supra, 55 Cal.App.4th at pp. 807-808.)7 In

People v. Estrada, the appellate court rejected the defendant's claim of cruel or unusual

punishment under the California Constitution where the defendant was sentenced to 25

years to life under section 667.61 for committing a rape and a first degree burglary with

the intent to commit the forcible rape. (Estrada, supra, 57 Cal.App.4th at pp. 1277-

1282.) The court rejected the defendant's argument that California punished other more

culpable crimes, i.e., second degree murder, less severely than rape in the course of a

burglary: "[C]omparing a defendant who commits both forcible rape and residential

burglary with the intent to commit forcible rape to a defendant who commits an

unpremeditated murder ignores the fact the first defendant committed two offenses, not

just one, and committed the burglary for the purpose of committing the rape." (Id. at p.

1282.) The Estrada court also acknowledged the Legislature's decision to punish certain

non-homicide crimes with life imprisonment without the possibility of parole. (Id. at p.

1281.)

Estrada observed that the punishment under the One Strike law "is precisely

tailored to fit crimes bearing certain clearly defined characteristics." (People v. Estrada,

supra, 57 Cal.App.4th at p. 1280.) That is true as to subdivision (l) at issue here, where

7 "The Legislature has chosen to make other offenses not involving homicide
punishable by life imprisonment without possibility of parole: kidnapping for the purpose
of ransom, extortion or robbery with bodily harm short of death (§ 209, subd. (a)) and
attempted train wrecking (§ 218). Such sentences have been found not to constitute cruel
or unusual punishment because the Legislature could reasonably decide that crimes
which involve an inherent danger to the life of the victim are particularly heinous even if
no death occurs." (People v. Crooks, supra, 55 Cal.App.4th at pp. 807-808, fn. omitted.)
34
to impose the life without parole term, the crime must be one of sexual violence and

committed under circumstances increasing the risk of injury or death to the victim and

committed against a minor 14 years or older. "Thus, unlike [the defendant in Dillon,

Reyes] cannot claim he is the victim of an indiscriminate sentencing scheme which metes

out the same punishment for a broadly defined offense regardless of the circumstances

surrounding the commission of the offense." (Estrada, at p. 1280.) Estrada finally

observed the section 667.61 crime involved a high degree of danger to personal safety,

warranting severe punishment: "Burglary of an inhabited dwelling also poses a risk to

human life. . . . When we add to the risk of residential burglary the risk of rape by

means of 'force, violence, duress, menace, or fear of immediate and unlawful bodily

injury' (§ 261, subd. (a)(2)) it is clear the punishment of life with the possibility of parole

after 25 years is not constitutionally out of line with other California punishments." (Id.

at pp. 1281-1282.) In this case, when we consider these circumstances, and add to them

the fact the victim is a 14-year-old minor, the Legislature's decision to impose a sentence

of life without the possibility of parole under section 667.61, subdivision (l) is not so

disproportionate as to shock the conscious and offend fundamental notions of human

dignity, and thus not constitutionally infirm.

Finally, we reject Reyes's contentions as to the final prong of the analysis. Reyes

argues his sentence is out of line with other industrialized nations. But the relevant

comparison under the California Constitution is to other jurisdictions within the United

States (see In Re Debeque (1989) 212 Cal.App.3d 241, 255), and Reyes does not

undertake that inquiry. While California has taken what has been described as an

35
"aggressive approach" reflecting a "zero tolerance toward the commission of sexual

offenses against particularly vulnerable victims," this fact alone "does not . . . render a

defendant's sentence excessive as a matter of law . . . ." (People v. Alvarado, supra, 87

Cal.App.4th at pp. 200-201.) Because Reyes "makes no effort to compare his sentence

with . . . punishments in other states for the same offense" we take it "as a concession

that his sentence withstands [that] constitutional challenge . . . . " (People v. Retanan

(2007) 154 Cal.App.4th 1219, 1231, italics added; accord, People v. Russell (2010) 187

Cal.App.4th 981, 995, citing People v. Sullivan (2007) 151 Cal.App.4th 524, 572.)8

Even if only a few states had comparable punishments, that would not compel a

different result. As the California Supreme Court stated in People v. Wingo, California is

not "concerned . . . with conforming our Penal Code to the 'majority rule' or the least

common denominator of penalties nationwide. . . . [O]ur codes have served as a model

for the nation rather than a mere mirror of the laws of other jurisdictions . . . ." (People v.

Wingo, supra, 14 Cal.3d at p. 179; see also In Re Debeque, supra, 212 Cal.App.3d at

8 We note the state of Louisiana mandates life in prison at hard labor without the
possibility for parole for aggravated rape, which includes penetration of a minor, even for
a first time offense. (See La. R.S. § 14:42(D)(1); State v. Albert (2005) 914 So.2d 574,
579; State v. Taylor (2002) 821 So.2d 633, 642.) Likewise, Florida imposes a mandatory
sentence of life without the possibility of parole for capital sexual battery, including oral
copulation, on a child under the age of twelve. (Fla. Stat. §§ 794:011, 775:082(1);
Adaway v. State (Fla. 2005) 902 So.2d 746, 747-748, 750, 752.) The United States
Supreme Court recently held that Florida's capital sentencing scheme within Florida
Statutes Annotated section 775:082(1), in which an advisory jury makes a
recommendation to a judge, who makes the critical findings needed for imposition of a
death sentence, violated the Sixth Amendment right to a jury trial. (Hurst v. Florida
(2016) ___ U.S. ___ [2016 WL 112683].) The decision does not affect the life without
parole sentences upheld against constitutional excessiveness challenges in Adaway v.
State, supra, 902 So.2d 746.
36
p. 255.) The fact California's sentencing under these circumstances is relatively severe

does not change our conclusion. Reyes has not demonstrated his sentence of life without

the possibility of parole is so "disproportionate to the crime for which it is inflicted that it

shocks the conscience and offends fundamental notions of human dignity." (In re Lynch,

supra, 8 Cal.3d at p. 424.)

IV. Amendment of Abstract of Judgment

The People ask us to order the trial court to modify the abstract of judgment to

reflect in section 2 of the Judicial Council form (CR-292) the jury's true findings on the

allegations under section 667.61, subdivision (l) attached to counts 1 and 2 as well as the

court's oral pronouncement of judgment on those counts, and to indicate by checking a

box in section 8 of that form that Reyes was sentenced under that section. Reyes

concedes these modifications are proper, and also agrees with the People's assertion that

the trial court sentenced him to two life terms without the possibility of parole, but

intended to stay one of those terms under section 654. We agree the abstract of judgment

must be so modified to reflect Reyes's sentencing under section 667.61, subdivision (l)

and order the trial court to correct the abstract of judgment accordingly.

DISPOSITION

The matter is remanded and the trial court ordered to modify the abstract of

judgment to reflect the jury's true findings on the allegations under Penal Code section

667.61, subdivision (l) attached to counts 1 and 2 as well as the court's oral

37
pronouncement of judgment on those counts, and to indicate by checking a box in section

8 of the abstract of judgment that Leonel Lopez Reyes was sentenced under that section.

As so modified, the judgment is affirmed. The clerk of the superior court is directed to

prepare an amended abstract of judgment in these respects, and forward a certified copy

of it to the Department of Corrections and Rehabilitation.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

38