People v. Amaya CA4/2

Filed 9/23/20 P. v. Amaya CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071492

v. (Super.Ct.No. FSB1405590)

VITAN AMAYA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. David J. Mazurek,

Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sedival and Elizabeth

M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.

The primary issue in this appeal is whether a sentence of more than 50 years to life

on two counts of unlawful sexual intercourse with a minor 10 years or younger

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constitutes cruel and unusual punishment. We conclude it does not. Although the

defendant had no significant criminal history and, in his words, the crimes “did not

involve violence or threats of violence,” this case is not one of those “‘exceedingly rare’

and ‘extreme’” cases where the sentence is grossly disproportionate to the crime (Lockyer

v. Andrade (2003) 538 U.S. 63, 73) or one where the punishment “shocks the conscience

and offends fundamental notions of human dignity” (In re Lynch (1972) 8 Cal.3d 410,

424). We therefore reject defendant’s claim that his sentence was unconstitutionally

cruel and unusual. We also reject defendant’s challenge to the trial court’s exercise of

sentencing discretion and claim of error under People v. Dueñas (2019) 30 Cal.App.5th

1157 (Dueñas). Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Defendant and appellant Vitan Amaya began dating victim Jane Doe’s mother

when Doe was a baby. During the approximately nine-year relationship, Amaya lived

with the family and helped raise Doe and her older brother. Doe sometimes referred to

Amaya as “Dad.”

When Doe was nine years old, Amaya began molesting her. One night, while Doe

was asleep on the living room sofa, Amaya lay on top of her and put his penis into Doe’s

vagina. Although Doe tried to push Amaya away, he held her arms down.

Amaya also molested Doe on her 10th birthday as well as the following months.

Later that year, Doe began vomiting, and doctors eventually determined that Doe was

pregnant. Doe obtained a medically necessary abortion four days after the pregnancy was

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discovered. Later DNA tests showed that it was 469,000 times more likely he was the

father than a random individual.

In an interview with police, Amaya stated that he loved Doe as his own daughter.

Amaya admitted having sexual intercourse with Doe, but insisted that it only occurred

once and that Doe initiated the encounter.

Amaya was charged with two counts of unlawful sexual intercourse with a child

10 years or younger (Pen. Code, § 288.7, subd. (a); all undesignated statutory references

are to the Penal Code), with count 1 referring to the time Doe was nine years old and

count 2 referring to the time Doe was 10 years old. Count 2 also alleged that Amaya

personally inflicted great bodily injury (i.e., the pregnancy) upon Doe in the commission

of the offense (§ 12022.7, subd. (a)).

A jury found Amaya guilty on all counts. The trial court sentenced Amaya to a

term of 53 years to life, consisting of two consecutive terms of 25 to life on counts 1 and

2 plus three years for the great bodily injury enhancement with 1,604 days’ credit for

presentence custody and conduct. At sentencing, the trial court made the following

remarks:

“The sexual intercourse with a ten-year old would have lasting impacts in and of

itself. You could see the effect it had on the victim when she came to testify. The

psychological impacts of that will be with her and affect her for the rest of her life, and

that’s just for the act of the sexual intercourse. The fact that he impregnated her makes

this so much worse.

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 “There will come a time when the victim will have the understanding and the

cognitive ability to comprehend that she had to terminate a pregnancy, and that will have

significant psychological impact on her. It may impact her in the future in raising kids

and being in relationships. And furthermore, the defendant is responsible for having to

have a life terminated because he, in fact, got the victim pregnant and the pregnancy had

to be terminated for health reasons for the mother, but it doesn’t mean there was a life

that had to be terminated because of the defendant’s actions. So it’s more than just

sexual intercourse with a minor that was ten. It’s sexual intercourse that resulted in

pregnancy that resulted in a life having to be terminated.

“So for all those reasons, the Court thinks the statutorily prescribed sentence is

appropriate and I would not exercise whatever discretion I may have to do anything

different.”

The trial court ordered Amaya to pay a $3,000 restitution fine (§ 1202.4, subd.

(b)), reduced from $10,000, the amount the prosecution requested. The trial court also

ordered Amaya to pay $140 in court operations assessments and court facilities fees (§
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1465.8; Gov. Code, § 70373).

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At sentencing, the trial court stated that it would “order the $70 CSC fee per
convicted count,” but both parties interpret this to refer to the court operations assessment
under section 1465.8 and the court facilities fee under Government Code section 70373,
and we do as well. In any event, the court operations assessment and court facilities fee
are mandatory in that they “shall be imposed on every conviction for a criminal offense”
subject to exceptions not applicable here. Given this, the abstract of judgment is
erroneous in that it only imposes one $70 fee under section 1465.8.

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 II. DISCUSSION

A. Cruel and Unusual Punishment

Amaya first contends that his sentence of 53 years to life constitutes cruel and

unusual punishment under the United States and California Constitutions, given that he

was already 51 years old at the time of sentencing, had no prior felony convictions, and

did not use overt force or threats of violence in committing the crimes. We disagree.

The Eighth Amendment to the United States Constitution states: “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” (U.S. Const., 8th Amend.) “The concept of proportionality is central to the

Eighth Amendment,” and cases addressing it “underscore the essential principle that,

under the Eighth Amendment, the State must respect the human attributes even of those

who have committed serious crimes.” (Graham v. Florida (2010) 560 U.S. 48, 59

(Graham).) Similarly, the California Constitution provides: “Cruel or unusual

punishment may not be inflicted or excessive fines imposed.” (Cal. Const., art. I, § 17.)

Although the parties present the issue as requiring separate analyses under the

United States versus the California Constitutions, the framework is by and large the

same. Under the Eighth Amendment, “challenges to the length of term-of-years

sentences” are reviewed by first “comparing the gravity of the offense and the severity of

the sentence.” (Graham, supra, 560 U.S. at pp. 59-60, discussing Harmelin v. Michigan

(1991) 501 U.S. 957.) “‘[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

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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.” (Id. at p. 60.)

Similarly, “[u]nder the California Constitution, we use a three-pronged test to

determine whether a particular sentence is disproportionate to the offense for which it is

imposed. First, we 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 [105 Cal.Rptr. 217, 503 P.2d 921] [(Lynch)].) Second, we compare the punishment

imposed with punishments prescribed by California law for more serious offenses. (Id. at

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

by other jurisdictions for the same offense. (Id. at pp. 427-429.)” (People v. Em (2009)

171 Cal.App.4th 964, 972; see also People v. Garcia (2017) 7 Cal.App.5th 941, 952

[describing the “three analytical techniques” under Lynch].) A lengthy sentence is cruel

and unusual under the California Constitution 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.” (Lynch, supra, at p. 424.)

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 Thus, under both the federal and the state frameworks, we consider the gravity or

nature of the offense and engage in a comparative analysis. The two differ in that, under

the federal inquiry, we proceed to the comparative analysis only if the “‘threshold’”

analysis concerning the gravity of the offense “‘leads to an inference of gross

disproportionality’” (Graham, supra, 560 U.S. at p. 60), whereas the state inquiry always

involves the comparative analysis.

Here, although the sentence is severe, so too is the gravity of the offense. Amaya

sexually molested and impregnated a 10-year old child, his step-daughter who referred to

him as “Dad,” causing her to have an abortion. Even someone without a criminal history

who commits such actions is a grave danger to society. (See People v. Gonzales (2001)

87 Cal.App.4th 1, 17 [“The lack of a significant prior criminal record is not determinative

in a cruel and unusual punishment analysis.”].) The comparison between the crime and

the sentence does not “‘lead[] to an inference of gross disproportionality’” (Graham,

supra, 560 U.S. at p. 60), so the federal claim fails at this threshold stage.

A comparative analysis does not help Amaya, either. Although a sentence for

violating section 288.7, subdivision (a) is greater than those imposed for first degree

robbery, forcible rape, or forcible sodomy, “[i]t is well within the prerogative of the

Legislature to determine that sex offenses against young children are deserving of longer

sentences than sex offenses against adults or nonsex offenses.” (People v. Gomez (2018)

30 Cal.App.5th 493, 502.) Amaya compares California law to sentence ranges for similar

crimes from 10 other states, many of which have a minimum sentence of less than 25

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years, but three of which (Kansas, Nevada, and Florida) have equal or greater minimum

sentences. Even if we were to assume for the sake of argument that this makes California

“among the most extreme in the nation”—it does not—the California Constitution “does

not require California to march in lockstep with other states in fashioning a penal code. It

does not require ‘conforming our Penal Code to the “majority rule” or the least common

denominator of penalties nationwide.’” (People v. Martinez (1999) 71 Cal.App.4th 1502,

1516.) At bottom, Amaya’s sentence does not “shock[] the conscience” or “offend[]

fundamental notions of human dignity.” (Lynch, supra, 8 Cal.3d at p. 424.) His

contention that he has been subjected to cruel and unusual punishment is without merit.

B. Sentencing Discretion

Amaya next contends that the trial court misunderstood the extent of its sentencing

discretion (specifically, whether it had discretion to impose the two 25-year terms

concurrently or consecutively), and that remand is necessary for the court to properly

exercise such discretion.

Section 669 gives a trial court discretion to determine whether the terms of

imprisonment for two or more convictions are to run concurrently or consecutively. (See

§ 669, subd. (a).) “The Legislature may remove this discretion for certain crimes, but

exceptions are typically made clear in the statutory language of the offense.” (People v.

Leon (2016) 243 Cal.App.4th 1003, 1025.) Here, Amaya contends that the trial court had

discretion under section 669, and the People, not mentioning section 669 in their

respondent’s brief, have tacitly conceded the point.

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 Portions of the record suggest that the trial court believed that the two 25-year

terms must run consecutively. For instance, at sentencing, Amaya’s trial counsel

requested that the counts be imposed concurrently, and the trial court stated its belief it

had to be fully consecutive:

“[Counsel]: I would urge the Court, if it’s possible—and I probably—I don’t

believe it is—but I would ask the Court to at least hold count—the sentence for Count 1

maybe concurrent to Count 2 so it would be 28 to life. I’m not sure if the Court can or if

the Court has no discretion at all because it’s gotta be fully consecutive.

“[Court]: I believe it has to be fully consecutive.”

On the other hand, the trial court also noted that it would impose the counts

consecutively because “[t]his does involve multiple acts at different times.” (See Cal.

Rules of Court, rule 4.425(a)(3) [whether or not the “crimes were committed at different

times or separate places” is a factor to consider in determining whether to impose

concurrent or consecutive sentences].)

Whether or not the trial court actually misunderstood the scope of its discretion

here, however, remand is unnecessary. The court expressly stated that it would have

imposed consecutive sentences even if it had discretion to do otherwise. “‘[W]hen the

record shows that the trial court proceeded with sentencing on the . . . assumption it

lacked discretion, remand is necessary so that the trial court may have the opportunity to

exercise its sentencing discretion at a new sentencing hearing.” “But if ‘“the record

shows that the trial court would not have exercised its discretion even if it believed it

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could do so, then remand would be an idle act and is not required.”’” (People v.

McDaniels (2018) 22 Cal.App.5th 420, 425.) At sentencing, after detailing the lasting

effects Amaya’s crimes would have on Doe’s life, the trial court stated that, “for all those

reasons, the Court thinks the statutorily prescribed sentence is appropriate and I would

not exercise whatever discretion I may have to do anything different.” Because the trial

court clearly stated it would not exercise whatever discretion it had, Amaya’s contention

that the trial court’s remarks here were only made in rejecting a claim of cruel and

unusual punishment is unfounded. The record contains a clear indication that the trial

court would not exercise its discretion to impose the two 25-year sentences concurrently,

so no remand is necessary.

C. Dueñas Error

While this case was pending, another district of this Court of Appeal decided

Dueñas, supra, 30 Cal.App.5th 1157, which held that a trial court must “conduct an

ability to pay hearing and ascertain a defendant’s present ability to pay” before requiring

a defendant to pay a restitution fine under section 1202.4 or assessments under section

1465.8 and Government Code section 70373. (Id. at p. 1164.) Amaya contends that the

trial court improperly imposed a $3,000 restitution fine and $140 in fees under these

statutes without first considering his ability to pay.

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 Here, the probation report requested that Amaya be ordered to pay $10,000 in

restitution fines, the maximum amount allowable for felony convictions under section

1202.4, subdivision (b)(1). At sentencing, Amaya’s trial counsel objected to the amount,

characterizing it as “excessive” and noting that, “[w]ith 53 to life, he’s never gonna be

able to get out or pay that.” The trial court ultimately reduced the restitution fine to

$3,000.

Under these circumstances, it is perplexing that Amaya contends here the trial

court committed Dueñas error regarding the restitution fine. Section 1202.4, subdivision

(c) states that “[i]nability to pay may be considered” in increasing the restitution fine

above the $300 minimum, trial counsel specifically noted Amaya’s inability to pay, and

the trial court ordered an amount lower than what the People requested. This all

collectively indicates that the trial court did consider ability to pay, even if it did not say

as much on the record. We therefore reject any contention that Dueñas error could have

occurred here, at least to the restitution fine. While it is possible Amaya meant to

contend that Dueñas error exists if the finding is not explicit, or that there is error simply

because there was no separate hearing on ability to pay, he does not make these specific

arguments with any citation to authority or significant discussion, so we consider such

arguments waived. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th

939, 956.)

With regard to the remaining $140, Amaya was sentenced to 53 years to life with

1,604 days’ credit for presentence custody and conduct. “Wages in prison range from

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$12 to $56 per month, depending on the job and skill level involved. [Citation.] Fifty

percent of [Amaya’s] wages and trust account deposits will be deducted to pay any

outstanding restitution fine, plus another 5 percent for the administrative costs of this

deduction.” (People v. Taylor, supra, 43 Cal.App.5th at p. 402.) With at least $5.40 per

month available to pay $140, Amaya will be able to pay off these amounts in less than

three years into his over 50-year sentence. Thus, even assuming that these fines were

wrongfully imposed under Dueñas,2 the error was harmless beyond a reasonable doubt.

(People v. Jones, supra, 36 Cal.App.5th at p. 1035.)

D. Clerical Error in the Abstract of Judgment

Even though the trial court imposed $140 in fees under section 1465.8 and

Government Code section 70373, the abstract of judgment lists only one $70 fee under

section 1465.8. “Courts may correct clerical errors at any time,” and “[i]t is, of course,

important that courts correct errors and omissions in abstracts of judgment.” (People v.

Mitchell (2001) 26 Cal.4th 181, 185.) We order that the abstract of judgment be

corrected.

III. DISPOSITION

The judgment of conviction is affirmed. The trial court is directed to modify the

abstract of judgment to correctly indicate the imposition of fees and assessments under

2
The issue is currently pending before the California Supreme Court. (See
People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019, S257844.)

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section 1465.8 and Government Code section 70373 and forward a copy of the amended

abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL
J.

We concur:

CODRINGTON
Acting P. J.

MENETREZ
J.

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