Filed 1/20/21 P. v. Perez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303087
(Super. Ct. No. 17F-02461)
Plaintiff and Respondent, (San Luis Obispo County)
v.
WILLIAM MARTINEZ PEREZ,
Defendant and Appellant.
William Martinez Perez appeals his 130-year-to-life
One Strike sentence (Pen. Code, § 667.61)1, imposed after he was
convicted of sexually abusing three prepubescent girls over an
eight-year period. Appellant claims the sentence violates the
cruel and/or unusual punishment provisions of the federal and
state constitutions. (U.S. Const. 8th Amendment; Cal. Const.,
art. I, § 17.) We affirm with directions to correct the abstract of
judgment.
Facts
Between 2001 and 2005, appellant sexually abused
M1, the six-year-old daughter of a girlfriend. From 2011 to 2016,
1 All statutory references are to the Penal Code.
appellant sexually abused T1 and T2, the twin daughters of
another girlfriend. The sexual abuse included vaginal
penetration, oral copulation, and inappropriate touching. The
victim’' statements were corroborated in a recorded pretext call.
Appellant admitted sexually abusing T1 and T2, and said “people
have devils on them” and “I’m just sick.” He promised not to
sexually abuse T1 and T2 again. Before trial, appellant tried to
send a letter to the twins’ mother asking her to not let the twins
testify.
The jury convicted appellant of committing lewd acts
on the twins (counts 1-4; § 288, subd. (a)) with special findings
that he committed the offenses against more than one victim, and
each victim was under the age of 14 (§ 667.61, subds. (b), (e)(4) &
(j)(2)). On counts 5-6, appellant was convicted of committing
lewd or lascivious acts on M1 with special findings that the
offenses were committed against more than one victim under the
age of 14 (§§ 228, subd. (a), 667.61, subds. (b), (e)(4) & (j)(2)).
Pursuant to the “One Strike” law (§ 667.61), appellant was
sentenced to four consecutive 25-year-to-life terms on counts 1-4
and two consecutive 15-year-to-life terms on counts 5 and 6.2
2The “One Strike” law is considered an alternative
sentencing scheme, not an enhancement. (People v. Jones (1997)
58 Cal.App.4th 693, 708-709.) Before 2010, the prescribed
punishment was 15 years to life, which is why appellant received
15-year-to-life sentences on counts 5 and 6 for the sexual abuse of
M1. The sexual abuse of the twins from 2011 to 2016 (counts 1-4)
required 25-year-to-life sentences based on a 2010 amendment to
the One Strike law. (See People v. Betts (2020) 55 Cal.App.5th
294, 299.)
2
Cruel and/or Unusual Punishment
Appellant claims the sentence violates the cruel
and/or unusual punishment provisions of the federal and state
constitutions but did not object on that ground, forfeiting the
claim. (People v. Gamache (2010) 48 Cal.4th 347, 403.) On the
merits, the claim fails as a matter of law. “Under the Eighth
Amendment of the United States Constitution, ‘the courts
examine whether a punishment is grossly disproportionate to the
crime.’ [Citation.] ‘Under the California Constitution, a sentence
is cruel or unusual if it is so disproportionate to the crime
committed that it shocks the conscience and offends fundamental
notions of human dignity.’ [Citation.]” (People v. Johnson (2013)
221 Cal.App.4th 623, 636.) Whether the punishment is cruel
and/or unusual is a question of law subject to independent review
and the underlying disputed facts are viewed in the light most
favorable to the judgment. (People v. Palafox (2014) 231
Cal.App.4th 68, 82-83.)
Federal Constitutional Challenge
In non-capital cases, the Eighth Amendment has a
narrow proportionality principle and prohibits only extreme
sentences that are grossly disproportionate to the severity of the
crime. (Ewing v. California (2003) 538 U.S. 11, 20-21 (Ewing);
Graham v. Florida (2010) 560 U.S. 48, 60-61 (Graham).) The
sexual abuse of a child is a serious crime and few crimes, if any,
are more despicable because of the life-long consequences to the
child victim. (Ashcroft v. Free Speech Coalition (2002) 535 U.S.
234, 244-245; People v. Christensen (2014) 229 Cal.App.4th 781,
806.) Appellant sexually molested not just one girl but three.
“Any one act in isolation was a serious offense. Cumulatively,
without a doubt, his offenses were grave.” (Ibid.)
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Appellant argues that the sexual abuse did not
involve force or violence, even though obtained victim compliance
by force and intimidation. T1 testified that appellant held her
down by the shoulders and raped her when she was eight or nine.
About a year later, appellant held T1 face down and put his penis
in her vagina. On another occasion, appellant put his hand
around T2’s throat and squeezed. Appellant sexually abused M1
when she was six years old and continued to do so more than 60
times over a four-year period. Appellant beat M1’s mother,
scaring M1 enough to delay reporting the sexual abuse.
Appellant claims the sentence is excessive because he
has no criminal background and no prior convictions. The
probation report tells a different story. Appellant had eight prior
convictions dating back to 1987. He used marijuana from age 12
to his mid thirties, used methamphetamine daily for five to six
years in his 50s, and used cocaine daily from ages 17 to 24.
Appellant also served a prison term. The probation report listed
eight aggravating factors and no mitigating factors.3 The court
3 The One Strike law was enacted to ensure the serious
sexual offender receives a long prison sentence regardless of the
offender's prior criminal record. (People v. Andrade (2015) 238
Cal.App.4th 1274, 1305 (Andrade) [13 consecutive 15-to-life
sentences].) The probation report states the crimes involved
great violence, great bodily harm, threat of great bodily harm, or
acts disclosing a high degree of cruelty, viciousness, or
callousness (Cal. Rules of Court, rule 4.421(a)(1)); the victims
were particularly vulnerable (id., rule 4.421(a)(3)); the crimes
involved planning, sophistication, or professionalism (id., rule
4.421(a)(8)); that appellant took advantage of a position of trust
or confidence to commit the offenses (id., rule 4.442(a)(11)); that
appellant engaged in violent conduct which indicated a serious
danger to society (id., rule 4.421(b)(1)); that appellant’s prior
4
found that appellant’s actions were “callous” and “aggravated,”
and the sexual abuse began when the victims were very young,
“so young that they didn’t realize . . . what was occurring . . . .”
The United States Supreme Court has rejected
similar Eighth Amendment challenges to life sentences for
recidivist theft offenses and first drug offenses. (See Harmelin v.
Michigan (1991) 501 U.S. 957, 1001, 1005 [upholding life
sentence without parole for possession of a large amount of drugs
by first-time felon]; Ewing, supra, 538 U.S. at pp. 19–20
[California’s “Three Strikes” sentence of 25 years to life for $1,200
felony theft with prior thefts and burglary]; Rummel v. Estelle
(1980) 445 U.S. 263 [upholding life sentence for recidivist thief].)
Those offenses pale in comparison to the predatory sexual
offenses committed by appellant over an eight-year period.
Appellant cites no authority that his One-Strike sentence violates
the Eighth Amendment.
State Constitutional Challenge
To prevail on the state constitutional challenge (i.e.,
cruel or unusual punishment), appellant must show the sentence
is so disproportionate to the crime that it shocks the conscience
and offends fundamental notions of human dignity. (In re Lynch
(1972) 8 Cal.3d 410, 424.) It is a three-prong test in which the
court considers: (1) “the nature of the offense and/or the offender,
with particular regard to the degree of danger both present to
society” (id. at p. 425); (2) a “compar[ison of] the challenged
convictions as an adult were numerous or of increasing
seriousness (id., rule 4.421(b)(2)); that appellant had served a
prior prison term (id., rule 4.421(b)(3)); and appellant’s prior
performance on probation or parole was unsatisfactory (id., rule
4.421(b)(5)).
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penalty with the punishments prescribed in the same jurisdiction
for different offenses which, by the same test, must be deemed
more serious” (id. at p. 426, original italics); and (3) “a
comparison of the challenged penalty with the punishments
prescribed for the same offense in other jurisdictions having an
identical or similar constitutional provision” (id. at p. 427,
original italics).
Appellant abused the trust of three young girls who
viewed him as a father figure, and repeatedly sexually abused the
girls in the family home. After T1 reported the sexual abuse,
appellant feigned remorse, told T1 he was “just sick,” and wrote
to the twins’ mother to dissuade the twins from testifying. The
trial court found that appellant was a sexual predator, a danger
to society, and the One Strike law was enacted for just this type
of crime. Appellant makes no showing that the sentence is
disproportionate to the offenses or the offender. (Andrade, supra,
238 Cal.App.4th at p. 1310 [rejecting state constitutional
challenge to 185-year-to-life sentence; defendant had a pattern of
targeting young, vulnerable women]; People v. Alvarado (2001) 87
Cal.App.4th 178, 200 (Alvarado) [harsh punishment warranted
for callous and opportunistic sexual assault of vulnerable
victim].)
Appellant has not briefed prong two of Lynch which
is tantamount to a concession that the sentence withstands state
constitutional challenge. (People v. Retanan (2007) 154
Cal.App.4th 1219, 1231 (Retanan).) On the merits, the
punishment is no greater than the statutory penalties more
serious California offenses. (People v. Reyes (2016) 246
Cal.App.4th 62, 88-89 (Reyes); People v. Gomez (2018) 30
Cal.App.5th 493, 501-502.) Appellant sexually abused multiple
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victims over an aggregate eight-year time period. It is illogical
under Lynch to compare appellant’s punishment to the
punishment of those who committed more serious crimes against
a single victim.
With respect to the third Lynch prong, appellant
must demonstrate the sentence is excessive when compared to
the punishments prescribed for the same offense in other
jurisdictions having an identical or similar constitutional
provision. (In re Lynch, supra, 8 Cal.3d at p. 427.) Appellant
fails to make the requisite showing4 and complains that he (age
59) will not live long enough to serve his sentence. That is of no
consequence under Lynch. (Retanan, supra, 154 Cal.App.4th at
p. 1231.) The California Legislature has taken a zero tolerance
view of predators who sexually abuse multiple victims under the
age of 14. It has determined that lengthy indeterminate
sentences are necessary because of the gravity of the offense and
4 None of the out-of-state cases cited by appellant involve
multiple child victims. (State v., McKinney (S.D. 2005) 699
N.W.2d 471, 475 [67 years prison for rape and sexual exploitation
of an 11-year-old victim]; State v. Brown (Idaho 1992) 825 P.2d
482, 485 [life plus 30 years to life for rape of woman, robbery and
aggravated burglary]; State v. Shaw (Or. 2010) 225 P.3d 855,
856[25-year sentence for sexual abuse and rape of 11-year-old
victim]; Powell v. State (Miss. 2010) 49 So.3d 166, 174 [30-year
sentence for statutory rape of 11-year-old daughter].) “When the
fundamental nature of the offense and the offender differ,
comparison for proportionality is not possible. . . . [T]he
commission of a single act of murder, while heinous and severely
punished, cannot be compared with the commission of multiple
felonies. [Citation.]” (People v. Cooper (1996) 43 Cal.App.4th
815, 826].)
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the serious harm it inflicts. (People v. Crooks (1997) 55
Cal.App.4th 797, 807-808; see also People v. Martinez (1999) 76
Cal.App.4th 489, 495; People v. Estrada (1997) 57 Cal.App.4th
1270, 1281-1282 (Estrada).) The prescribed punishment is not
cruel or unusual punishment. (Alvarado, supra, 87 Cal.App.4th
at pp. 200-201.)
Consecutive Indeterminate Sentences
Appellant argues there is a “dissonance” between the
sexual abuse and his sentence because he received six One-Strike
life sentences for sexually abusing three victims. The Legislature
has determined that the sexual abuse of multiple child victims
deserve more severe punishment than a single sex offense.
(People v. Murphy (1998) 65 Cal.App.4th 35, 41.) Appellant
opines that the evolving standards of decency in a maturing
society may prohibit punishment that was once acceptable. (See
Graham, supra, 560 U.S. at pp. 58-59.) “He does not, however,
provide any authority to demonstrate that the evolving standards
of decency demand that he, as a repeat child sex abuser, should
be accorded a less severe sentence or the right to eventual parole.
Indeed, an argument can be made that society has, in recent
years, evolved to demand greater protection for the victims and
potential victims of sexual predators.” (Norgaard v. State (Wyo.
2014) 339 P.3d 267, 276.) There is no constitutional right to
sexually abuse multiple child victims, multiple times, and receive
a single One-Strike sentence for each victim. (See People v.
Wutzke (2002) 28 Cal.4th 923, 931 [One Strike law “contemplates
a separate life term for each victim attacked on each separate
occasion”].) “Every court that has ever considered this issue has
rejected [appellant’s] contention that section 667.61 does not
permit multiple life terms to be imposed based on the multiple-
8
victims circumstance.” (People v. Morales (2018) 29 Cal.App.5th
471, 483.)
Appellant’s 130-year-to-life sentence does not shock
the conscience or offend fundamental notions of human dignity.
(In re Lynch, supra, 8 Cal.3d at p. 424.) Nor do One-Strike
sentences violate the federal or state constitutional protection
against cruel and/or unusual punishment. (See, e.g., Estrada,
supra, 57 Cal.App.4th at pp. 1280–1282; Reyes, supra, 246
Cal.App.4th at pp. 87–90; Alvarado, supra, 87 Cal.App.4th at pp.
200–201; People v. Lewis (2013) 222 Cal.App.4th 108, 117–123.)
Correction of Abstract of Judgment
Appellant asserts, and the Attorney General agrees
the abstract of judgment should be corrected to reflect that counts
5 and 6 were committed in 2001, to conform with the 15-year-to-
life sentences imposed on those counts.
Disposition
The judgment is affirmed. The superior court clerk is
directed to correct the abstract of judgment to reflect that counts
5 and 6 were committed in 2001, and to forward the amended
abstract of judgment to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Gusdorff Law and Janet Gusdorff, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael C. Keller, Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.