People v. Chatman CA1/1

Filed 2/7/23 P. v. Chatman CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent, A165855

v. (Fresno County
LOUIS CLAYTON CHATMAN, Super. Ct. No.
F16907399)
Defendant and Appellant.

A jury convicted defendant Louis Clayton Chatman of three counts of
lewd and lascivious acts on a child under the age of 14, and the trial court
found true allegations defendant had suffered two prior serious felony
convictions. Before defendant could be sentenced, the trial court found him
incompetent, suspended criminal proceedings, and committed him to a state
hospital. Less than a year later, the trial court determined defendant had
been restored to competency and reinstated the proceedings. The trial court
subsequently sentenced him to 75 years to life.
On appeal, defendant contends (1) there was insufficient evidence to
prove count 2; (2) the court, in connection with count 2, should have
instructed the jury on battery as a lesser included offense of lewd or
lascivious acts on a child under 14; (3) the court abused its discretion in
denying his motion for new trial based on new evidence of his mental illness;
(4) excluding him from a mental health diversion program violates his right

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to equal protection; and (5) his 75-years-to-life sentence violates his right
against cruel and unusual punishment.
We affirm.
BACKGROUND1
In November 2018, the Fresno County District Attorney filed a first
amended information alleging defendant committed three counts of lewd and
lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a))2
and further alleging two prior serious felony convictions under the three
strikes law (§§ 667, subds. (b)–(i), 1170.12, subd. (a)).
One of the victims, C., testified that when she was nine or 10 years old,
she lived in an apartment with her sister H., her brothers, their mother, her
uncle, and defendant, who was dating C.’s aunt. On one occasion C. was in
her uncle’s room playing his video game, when defendant entered and sat on
the bed next to her. She was wearing her “sleeping gown.” Defendant “laid
[her] down in bed” and pushed her “shoulders back.” He began touching her
“private area” where she went “pee.” As he did so, he stated “it’s tight as
fuck.” C. did not know what he meant, and defendant used his hands and
fingers and touched her “[u]p and down” under her underwear. It felt
“[w]eird” and “[g]ross,” so she got up and left the room and “went outside with
my brothers and sisters.”
Another time, when she was around the same age, she was in the
“kitchen and [defendant] touched [her] butt” with his hand. He “[s]mack[ed]

1 We provide only a summary of the case here and discuss additional
facts in connection with our discussion of the issues raised on appeal.
2 All further statutory references are to the Penal Code unless
otherwise indicated.

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[her] butt” and then “walked out the kitchen.” She thought this was “weird”
and that she had “to leave.”
C. was “scared” and did not tell anyone about the incidents until one or
two years later, when she was 11, and after the family had moved. She told
her younger sister H. and her cousin. A year later, after C. heard defendant
had commented that another child’s “butt looked big,” she told her mother
what had happened and her mother took her to the police station.
When C. told her sister H. about the incidents, H. disclosed she was
also a victim and defendant had touched her when she was eight. H. was at
the refrigerator and defendant came up behind her and “put his hands in my
pants” under her clothing. Defendant “touched [her] private part” where she
went “pee.” She did not tell her mother because she was “scared” and “didn’t
want [defendant] to hurt me.” So C. took it upon herself to also tell their
mother about H.
Mother testified she had gotten a call from her husband because of
defendant “fondling with another—two kids.” C., who was 13 at the time,
commented “why are you worried about the neighbors” when defendant “was
touching us.” Mother called the police.
Fresno Officer Jennifer Federico performed forensic interviews with C.
and H. In addition to the interviews, C. and H. were provided with
anatomical drawings to identify where defendant touched them. C. circled
“the vagina and butt” and also provided a written statement that was similar
to her testimony at trial. H. circled “the vagina” and labeled it as “a cookie
where you go pee.”
San Bernardino County Sherriff Deputy William Fifita testified C. told
him about two incidents where defendant touched her vagina and that he had
touched “her buttock several times.” She said that when defendant “put his

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hands underneath her gown and underwear and fondled her vagina,” “it
hurted [sic] but she didn’t bleed.”3
Deputy Fifita testified H. told him of three incidents. One occurred
when she “was laying down in the living room”—defendant “laid down by her
feet and then started touching her leg first and then went underneath her
clothing and touched her vagina.” Another occurred when “she was getting
something out of the refrigerator”—defendant “came up and was acting like
he was getting something out of the refrigerator too and started—at the time
he started fondling her vagina.”4
The jury also heard from David Love, an expert in the “area of child
sexual abuse accommodation syndrome.”
Defendant did not testify or call any witnesses of his own.
The jury found him guilty as charged, and the trial court found true the
allegations of two prior serious felonies and set the matter for sentencing. At
the sentencing hearing, defense counsel made a section 1368 motion,
declaring doubt as to defendant’s competency. The court suspended criminal
proceedings and appointed a doctor to evaluate defendant. The court
subsequently found defendant incompetent on the basis of the evaluator’s
report and ordered him committed and delivered to a state hospital and
authorized the facility to administer antipsychotic medication. Nine months
later, the court found defendant had been restored to competency and
reinstated sentencing proceedings.

3 As to C., defendant was charged with the molestation occurring in
the bedroom (count 1) and in the kitchen (count 2).
4 As to H., defendant was charged with only the molestation occurring
in the kitchen (count 3).

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 At the sentencing hearing, defense counsel made an oral motion for
new trial, which the trial court denied. The court then sentenced defendant
to a total term of 75 years to life.
DISCUSSION
Substantial Evidence (Count 2)
Defendant contends there is insufficient evidence to prove count 2
“based on C.’s testimony that [he] touched her on her buttocks.”
“The proper test for determining a claim of insufficiency of evidence . . .
is whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we
must view the evidence in the light most favorable to the People and must
presume in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294,
314.)
Section 288, subdivision (a) provides in relevant part: “[A] person who
willfully and lewdly commits any lewd or lascivious act . . . upon or with the
body, or any part or member thereof, of a child who is under the age of 14
years, with intent of arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child, is guilty of a felony. . . .” “The
statute is violated if there is ‘ “any touching” of an underage child
accomplished with the intent of arousing the sexual desires of either the
perpetrator or the child.’ (People v. Martinez (1995) 11 Cal.4th 434, 452 . . .
(Martinez).) Thus, the offense described by section 288[, subdivision] (a) has
two elements: ‘ “(a) the touching of an underage child’s body (b) with a sexual
intent.” ’ ” (People v. Villagran (2016) 5 Cal.App.5th 880, 890 (Villagran).)
Section 288, subdivision (a) “ ‘requires “the specific intent of arousing,
appealing to, or gratifying the lust of the child or the accused.” [Citation.]’

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[Citation.] ‘Because intent for purposes of . . . section 288 can seldom be
proven by direct evidence, it may be inferred from the circumstances.’
[Citation.] In determining whether the defendant acted with the required
specific intent, the jury therefore looks to all the circumstances, including the
charged act. (Martinez, supra, 11 Cal.4th at p. 445.) ‘Other relevant factors
can include the defendant’s extrajudicial statements [citation], other acts of
lewd conduct admitted or charged in the case [citations], the relationship of
the parties [citation], and any coercion, bribery, or deceit used to obtain the
victim’s cooperation or to avoid detection [citation].’ ” (Villagran, supra,
5 Cal.App.5th at p. 891.)
Defendant contends there is a “complete absence of evidence” showing
he intended to “ ‘arous[e], appeal[] to, or gratify[] the lust, passions, or sexual
desires of himself” ” or C. because he “never did anything more than touch
C.’s buttocks over her clothes.” And more specifically, he “did not squeeze,
massage, caress, fondle or engage in any touching which could be construed
as a sexual touching.”
Defendant cites no case stating the specific intent requirement for an
act of lewd and lascivious conduct can be satisfied only when a defendant
touches the victim underneath his or her clothing or the perpetrator
“squeeze[s], massage[s], caress[es], [or] fondle[s]” the victim. Indeed, “ ‘[a]ny
touching of a child under the age of 14 violates this section, even if the
touching is outwardly innocuous and inoffensive, if it is accompanied by the
intent to arouse or gratify the sexual desires of either the perpetrator or the
victim.’ ” (People v. Shockley (2013) 58 Cal.4th 400, 404 (Shockley); see
Martinez, supra, 11 Cal.4th at p. 444 [“a lewd or lascivious act can occur
through the victim’s clothing and can involve ‘any part’ of the victim’s body”].)

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 There is more than ample evidence supporting an inference that when
defendant “grabbed” C. in the kitchen and “touch[ed]” her butt with his hand
by “smack[ing]” it, he did so with sexual intent. To begin with, C. did not
think this was normal or ok. Rather, it was “weird,” and she had “to leave.”
She also confirmed on cross-examination, this was the second “incident where
[defendant] grabbed your butt.” At around this same time, defendant also
sexually abused C. in her uncle’s bedroom and at that time, had gone on to
touch her vagina under her clothes.
In addition, defendant sexually accosted C.’s sister H. while she was in
the kitchen and at the refrigerator, and during that incident “put his hands
in [her] pants” under her clothing. Like C., H. was “scared.” H. also said
defendant molested her in the living room, again “fondling her vagina,” and
told Deputy Fifita he had further touched her a third time.
This evidence of defendant’s pattern of conduct is more than sufficient
to support an inference that defendant touched C.’s buttocks with the intent
of “ ‘arousing, appealing to, or gratifying the lust of . . . the accused.’ ”
(Villagran, supra, 5 Cal.App.5th at p. 891; see Martinez, supra, 11 Cal.4th at
p. 445.)
Instruction on Battery (Count 2)
Defendant also contends the jury “should have been instructed on
battery as a lesser included offense of committing a lewd or lascivious act on
[a] child under age 14 years in count 2.” Defendant acknowledges that given
the manner in which he was charged, Shockley, supra, 58 Cal.4th 400, holds
otherwise. We, of course, are bound to follow that Supreme Court authority.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
“A trial court has a sua sponte duty to instruct the jury on any
uncharged lesser offense that is necessarily included in a charged offense if

7
there is substantial evidence from which the jury could reasonably conclude
that the defendant committed the lesser included offense but not the charged
offense.” (People v. Lopez (2020) 9 Cal.5th 254, 269; People v. Duff (2014)
58 Cal.4th 527, 561.) “To determine if an offense is lesser and necessarily
included in another offense . . . , we apply either the elements test or the
accusatory pleading test. ‘Under the elements test, if the statutory elements
of the greater offense include all of the statutory elements of the lesser
offense, the latter is necessarily included in the former. Under the
accusatory pleading test, if the facts actually alleged in the accusatory
pleading include all the elements of the lesser offense, the latter is
necessarily included in the former.’ ” (Shockley, supra, 58 Cal.4th at p. 404.)
As in Shockley, the accusatory pleading against defendant incorporated
the statutory definition of the charged offenses without referring to the
particular facts.5 (Shockley, supra, 58 Cal.4th at p. 404.) Thus, we “must
rely on the statutory elements to determine if there is a lesser included
offense.” (People v. Robinson (2016) 63 Cal.4th 200, 207; Shockley, at p. 404.)
Section 288, subdivision (a) provides, in relevant part, that any person
who willfully “commits any lewd or lascivious act . . . upon or with the body,
or any part or member thereof, of a child . . . with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of that person
or the child, is guilty of a felony.” “ ‘Any touching of a child under the age of
14 violates this section, even if the touching is outwardly innocuous and

5 All three counts used similar language and alleged defendant
“willfully, unlawfully, and lewdly commit[ted] a lewd and lascivious act upon
or with the body or certain parts or members thereof of [the victim], a child
under the age of fourteen years, with the intent of arousing, appealing to, or
gratifying the lust, passions, or sexual desires of said defendant(s) or the said
child.”

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inoffensive, if it is accompanied by the intent to arouse or gratify the sexual
desires of either the perpetrator or the victim.’ ” (Shockley, supra, 58 Cal.4th
at p. 404.)
Section 242, in contrast, defines battery as “any willful and unlawful
use of force or violence upon the person of another.” “ ‘Any harmful or
offensive touching constitutes an unlawful use of force or violence’ under this
statute. [Citations.] ‘ . . . “[T]he least touching” may constitute battery. In
other words, force against the person is enough; it need not be violent or
severe, it need not cause bodily harm or even pain, and it need not leave a
mark.’ ” (Shockley, supra, 58 Cal.4th at p. 404.)
As did the defendant in Shockley, defendant questions whether a
defendant can ever “engage in lewd conduct with a child younger than 14
years without also perpetrating the lesser offense of battery.” (Shockley,
supra, 58 Cal.4th at p. 405.) However, the high court declined to resolve that
question, and instead, applying the statutory elements test, held battery is
not a lesser included offense of lewd conduct upon a child under 14 years of
age. (Id. at p. 404.)
In so holding, the court observed that agreeing with the defendant’s
contention “would mean this form of battery (where lewd conduct supplies
the required harmful or offensive touching) is not a lesser and included
offense of lewd conduct but is essentially the identical offense. If guilt of
battery is predicated on guilt of lewd conduct—i.e., if a person is guilty of
battery because that person committed lewd conduct—neither crime would
have an element not also required of the other. Substantial evidence could
never exist that an element of the lewd conduct offense is missing but that
the defendant is guilty of a battery as a lesser included offense.” (Shockley,
supra, 58 Cal.4th at p. 405.) The court concluded, “when the elements of two

9
offenses are essentially identical, as when guilt of battery would be
predicated on being guilty of lewd conduct, neither is a lesser and included
offense of the other.” (Id. at p. 406.)
While defendant acknowledges we are required to follow Shockley, he
nevertheless cites to Justice Kennard’s dissent in that case to support his
assertion the trial court should have instructed on battery. Justice Kennard
was of the view that the majority had “divided” battery “into two categories:
(1) battery committed by harmful or offensive touching with lewd intent, and
(2) battery committed by a harmful or offensive touching without lewd
intent.” (Shockley, supra, 58 Cal.4th at p. 408 (dis. opn. of Kennard, J.).) In
criticizing this approach, Justice Kennard stated, in relevant part, that “the
majority’s two-category test does not adequately address the possibility of
conflicting evidence on whether a defendant’s conduct falls within one or the
other category. For instance, what if the evidence at trial shows that a
defendant committed an offensive touching of a child (a battery), but there is
conflicting evidence on whether the touching was done with lewd intent? In
this situation, the jury should not be deprived of its right to decide whether
the defendant is guilty only of battery or of lewd conduct with a child as well.”
(Id. at p. 409 (dis. opn. Kennard, J.).)
While Justice Kennard’s minority view may be of academic interest, the
majority opinion is controlling, and the trial court had no obligation here to
instruct on battery as a “lesser included” offense.
In any case, even if Shockley were not controlling, the evidence against
defendant was so strong the trial court was under no duty to provide such a
lesser-included instruction. A “court need instruct the jury on a lesser
included offense only ‘[w]hen there is substantial evidence that an element of
the charged offense is missing, but that the accused is guilty of’ the lesser

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offense.” (Shockley, supra, 58 Cal.4th at p. 404.) Here, as discussed above,
there is no “substantial evidence” that defendant did not commit lewd acts on
C., i.e., that he did not act with any sexual motivation on either of the
occasions charged in the information. In short, “there was no substantial
evidence from which a reasonable jury could have concluded that defendant
committed a lesser, but not a greater, offense.” (People v. Chenelle (2016)
4 Cal.App.5th 1255, 1264.) Therefore, it is not reasonably probable the result
would have been different even assuming a lesser-included battery
instruction might have been appropriate. (People v. Gonzalez (2018)
5 Cal.5th 186, 195–196 [reviewing failure to instruct on lesser included
offense under People v. Watson (1956) 46 Cal.2d 818]; Chenelle, at p. 1265
[same].)
Denial of New Trial Motion
After the trial court found defendant had been restored to competency
and reinstated criminal proceedings, it set the case for sentencing. At the
sentencing hearing, defense counsel made an oral motion for new trial, and
the following colloquy occurred:
Defense Counsel: “[A]fter the trial . . . defendant had mental health
issues which sent him to the hospital. We say that is new evidence that
wasn’t discovered and it was material to the defendant. Even though I’m not
a doctor, he appeared fine all throughout trial, was coherent before trial,
helped me during the trial, we’d ask for a new trial based on that, and we’ll
submit.”
“[The court]: Just so I’m clear, you don’t have any personal basis for
believing he was incompetent during the trial.
“[Defense counsel]: That’s correct, Your Honor.

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 “[The court]: So based on that representation the Court is denying the
request for new trial. Court will also note that during the trial the Court did
not observe anything that led the Court to believe there was an issue of
competence or anything else that would have required the trial to not proceed
as it did.”
Defense counsel made no further comment on the motion.
It is clear from the above colloquy that both the trial court and defense
counsel were discussing the motion for new trial as it related to defendant’s
competency to stand trial.
Contrary to defense counsel’s representations to the trial court, on
appeal defendant maintains the court “appears to have totally missed how
[his] severe mental illness impacts the case.” Specifically, defendant now
asserts the trial court “abused its discretion by failing to analyze and give
proper weight to new evidence of [his] severe mental illness, which could
have provide[d] an affirmative defense through a possible not guilty by
reason of insanity plea and/or by using the mental illness to negate the
specific intent element of section 288, subdivision (a).” He claims “[h]ad the
jury known of [his] severe mental illness [at] least one but likely all of the
jurors would have voted to acquit because [he] did not have requisite specific
intent.”
We review the trial court’s denial of a motion for new trial for abuse of
discretion. (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Watts (2018)
22 Cal.App.5th 102, 115.) “ ‘ “The determination of a motion for a new trial
rests so completely within the court’s discretion that its action will not be
disturbed unless a manifest and unmistakable abuse of discretion clearly
appears.” ’ ” (Davis, at p. 524.)

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 Under section 1181, subdivision 8, the trial court may grant a motion
for new trial, “[w]hen new evidence is discovered material to the defendant,
and which he could not, with reasonable diligence, have discovered and
produced at trial.” “In ruling on a motion for a new trial based on newly
discovered evidence, the trial court considers the following factors: ‘ “1. That
the evidence, and not merely its materiality, be newly discovered; 2. That the
evidence be not cumulative merely; 3. That it be such as to render a different
result probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at the trial; and 5. That
these facts be shown by the best evidence of which the case admits.” ’ ”
(People v. Delgado (1993) 5 Cal.4th 312, 328.)
Here, defendant has not satisfied the first and fourth elements, namely
presenting new evidence that he could not, with reasonable diligence, have
produced at trial. Indeed, he does not explain in his appellate briefing
exactly what the supposed new evidence is. Rather, he simply vaguely
asserts there was “new evidence of mental illness.” He contends the “fact
that the court did not observe mental [sic] during the trial did not mean that
appellant did not suffer from mental [sic] until after the verdict[,] only that it
was not discovered by defense counsel and the court until after the verdict—
thus satisfying ‘the newly discovered evidence’ requirement.”
To begin with, defendant’s mental illness was not new. To the
contrary, the section 1370 progress report showed defendant had a
longstanding history of mental illness. For example, in that report, the
evaluator noted defendant had reported “experiencing symptoms in his 20’s,” 6
that the “severity of his symptoms ha[d] led to treatment in the community
and hospitalizations” on at least three separate occasions, and that defendant

6 Defendant was 47 years old at the time of the report.

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had been “treated within the mental health system when he was
incarcerated” previously. Even assuming this evidence was new to defense
counsel, that does not mean it was “newly discovered” evidence within the
meaning of section 1181, subdivision (8). To the contrary, “ ‘[f]acts that are
within the knowledge of defendant at the time of trial are not newly
discovered even though he did not make them known to counsel until later.’ ”
(People v. Williams (1962) 57 Cal.2d 263, 273.)
Further, even assuming this evidence of defendant’s mental health
history was not discoverable as of the time of trial and thus was “newly”
discovered evidence for purposes of section 1181, subdivision (8), it would not
have justified granting a new trial. Defendant was presumed competent for
trial unless he proved the contrary by a preponderance of the evidence.
(§ 1369, subd. (f); People v. Lawley (2002) 27 Cal.4th 102, 131.) At the
hearing on the motion for new trial, however, defendant presented no
evidence that, at the time of trial, he had been incompetent. To the contrary,
defense counsel stated defendant “appeared fine all throughout trial, was
coherent before trial, helped me during the trial,” and confirmed, on
questioning by the court, that he did not have “any personal basis for
believing [defendant] was incompetent during the trial.” The trial court
stated that it, too, “did not observe anything that led [it] to believe there was
an issue of competence or anything else that would have required the trial to
not proceed as it did.” Thus, while the section 1370 progress report may
indicate defendant had a history of mental illness, it in no way indicated such
illness affected his competency at the time of trial. In short, defendant
presented no evidence that at the time the case was called for trial, he was
incompetent to stand trial.

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 Nor is there any support for defendant’s claim that a retrial wherein
the evidence of his mental illness (again, even assuming it was “new”
evidence for purposes of section 1181, subdivision (8)) was introduced,
probably would have resulted in a different outcome “through a possible not
guilty by reason of insanity plea and/or by using the mental illness to negate
the specific intent element of section 288.” Defendant did not identify any
evidence supporting this claim at the hearing on the new trial motion, and he
has pointed to no such evidence on appeal. Indeed, there was not a shred of
evidence presented at trial that defendant was suffering any symptoms of a
mental illness when he molested C. and H. Thus, defendant’s assertion that
“[h]ad the jury known of [his] severe mental illness [at] least one but likely
all of the jurors would have voted to acquit because [he] did not have the
requisite specific intent,” is nothing more than bald speculation.
In sum, not only was the supposed new evidence of defendant’s history
of mental illness not “new” for purposes of a new trial motion, there also was
“no abuse of discretion because defendant failed to show that a different
result would be probable on retrial. The motion for new trial, including the
issue of a probable different outcome on retrial, must, of course, be decided on
the evidence actually before the court at that time, not on the basis of
evidence that might be developed.” (People v. Beeler (1995) 9 Cal.4th 953,
1004, abrogated on another ground as stated in People v. Pearson (2013)
56 Cal.4th 393, 462; id. at p. 1005 [“An affidavit that is ‘so vague and general’
supports the denial of a motion for new trial.”].)
Exclusion from Mental Health Diversion Program
“[S]ection 1001.35 specifies that the purpose of the mental health
diversion law ‘is to promote all of the following: [¶] (a) Increased diversion of
individuals with mental disorders to mitigate the individual’s entry and

15
reentry into the criminal justice system while protecting public safety.
[¶] (b) Allowing local discretion and flexibility for counties in the development
and implementation of diversion for individuals with mental disorders across
a continuum of care settings. [¶] (c) Providing diversion that meets the
unique mental health treatment and support needs of individuals with
mental disorders.’ ” (In re J.M. (2019) 35 Cal.App.5th 999, 1004 (J.M.).)
To that end, section 1001.36 “authorizes trial courts to grant pretrial
diversion to defendants suffering from qualifying mental disorders.
[Citation.] It states ‘[o]n an accusatory pleading alleging the commission of a
misdemeanor or felony offense, the court may . . . grant pretrial diversion to a
defendant’ if six ‘minimum requirements . . . .’ are met. (Pen. Code,
§ 1001.36, subds. (a)–[(c)].)” 7 (Tellez, supra, 56 Cal.App.5th at p. 443.)
Expressly disqualified from mental health diversion are those charged with
murder, voluntary manslaughter, using weapons of mass destruction, and
certain sex offenses including lewd and lascivious acts on a child under 14
years of age. (§ 1001.36, subd. (d)(1)–(8).)
Defendant contends section 1001.36, subdivision (d)(4)’s exclusion of
defendants convicted of lewd and lascivious acts on children under age 14

7 A court may grant pretrial diversion to a defendant if the six
minimum requirements for eligibility and suitability are met. The defendant
is eligible for pretrial diversion if: (1) The defendant has been diagnosed with
a mental disorder; and (2) The defendant’s mental disorder was a significant
factor in the commission of the charged offense. A defendant is suitable for
pretrial diversion if: (3) A qualified mental health expert opines that
defendant’s symptoms would respond to treatment; (4) The defendant
consents to diversion and waives the right to a speedy trial, subject to an
exception for mentally incompetent defendants; (5) The defendant agrees to
comply with treatment; and (6) The court is satisfied that the defendant will
not pose an unreasonable risk of danger to public safety. (§ 1001.36, subds.
(a)–(c); Tellez v. Superior Court (2020) 56 Cal.App.5th 439, 443, fn. 2 (Tellez).)

16
violates the equal protection guarantees of the federal and California
Constitutions.
“The United States and California Constitutions prohibit denial of
equal protection of the laws. (U.S. Const., 14th Amend.; Cal. Const., art. I,
§ 7, subd. (a).) . . . The equal protection clause requires the state to treat all
persons similarly situated alike or, conversely, to avoid all classifications that
are ‘arbitrary or irrational’ and those that reflect ‘ “a bare . . . desire to harm
a politically unpopular group.” ’ ” (Legg v. Department of Justice (2022)
81 Cal.App.5th 504, 510 (Legg).)
“ ‘The first prerequisite to a meritorious claim under the equal
protection clause is a showing that the state has adopted a classification that
affects two or more similarly situated groups in an unequal manner.’ (In re
Eric J. (1979) 25 Cal.3d 522, 530. . . .)[8] We do not inquire ‘whether persons
are similarly situated for all purposes, but “whether they are similarly
situated for purposes of the law challenged.” ’ (Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253. . . .) ‘The use of the term “similarly situated” in
this context refers only to the fact that “ ‘[t]he Constitution does not require
things which are different in fact or opinion to be treated in law as though
they were the same.’ . . .” [Citation.] There is always some difference
between two groups. . . . Thus, an equal protection claim cannot be resolved
by simply observing that the members of group A have distinguishing
characteristic X while the members of group B lack this characteristic. The
“similarly situated” prerequisite simply means that an equal protection claim
cannot succeed, and does not require further analysis, unless there is some
showing that the two groups are sufficiently similar with respect to the

8 Superseded on other grounds as stated in In re Ernesto L. (2022)
81 Cal.App.5th 31, 40–41.

17
purpose of the law in question that some level of scrutiny is required in order
to determine whether the distinction is justified.’ ” (Legg, supra,
81 Cal.App.5th at p. 510.)
Defendant contends “[s]ex offenders excluded by section 1001.36 . . . ,
whose mental disorders were significant factors in the commission of their
offenses, and who otherwise meet the requirements of . . . section 1001.36,
are similarly situated for the purpose of mental health diversion because
individually-targeted mental health services serve the goal of increasing
public safety regardless of the crime committed. In other words, offenders
who receive appropriate mental health services are naturally less likely to
commit new offenses whether they are sex offenders or offenders who commit
other crimes.”
To begin with, statutory distinctions between those who commit non-
serious and non-violent felonies and those who commit serious or violent
felonies are common, and such distinctions do not run afoul of constitutional
protections because such defendants are not similarly situated for equal
protection purposes. “ ‘ “Persons convicted of different crimes are not
similarly situated for equal protection purposes.” [Citations.] “It is one thing
to hold . . . that persons convicted of the same crime cannot be treated
differently. It is quite another to hold that persons convicted of different
crimes must be treated equally.” ’ ” (People v. Barrera (1993) 14 Cal.App.4th
1555, 1565.)
Thus, “[i]t is well within the prerogative of the Legislature,” for
example, “to determine that sex offenses against young children are
deserving of longer sentences that sex offenses against adults or nonsex
offenses.” (People v. Gomez (2018) 30 Cal.App.5th 493, 502; see People v.
Tuck (2012) 204 Cal.App.4th 724, 738 [“the mandatory registration

18
requirement that follows from a conviction under section 288, subdivision (a)
gives rise to no denial of equal protection”]; People v. Alvarado (2010)
187 Cal.App.4th 72, 79 (Alvarado) [there is “no equal protection violation in
imposing mandatory registration for defendant’s attempted section 288(a)
conviction”].) That a defendant committing sex crimes against children is not
similarly situated to defendants committing other serious offenses forecloses
defendant’s equal protection claim here.
But even if a defendant committing any of the specified child sex crimes
were similarly situated to other defendants not excluded from the diversion
program, his equal protection claim would still fail.
“Where . . . two groups are similarly situated, the high court under
federal law has prescribed different levels of scrutiny” (Legg, supra,
81 Cal.App.5th at p. 511), depending on whether the law targets a suspect
class or touches on a fundamental interest. (J.M., supra, 35 Cal.App.5th at
p. 1010.) “ ‘ “ ‘[I]n cases involving “suspect classifications” or touching on
“fundamental interests” . . . the state bears the burden of establishing not
only that it has a compelling interest which justifies the law but that
distinctions drawn by the law are necessary to further its purpose.’ ” ’
[Citation.] Where a disputed statutory disparity does not involve a suspect
classification or the alleged infringement of a fundamental interest, equal
protection of the law is denied only where there is no ‘ “ ‘rational relationship
between the disparity of treatment and some legitimate governmental
purpose.’ ” ’ ” (Ibid.)
Defendant claims strict scrutiny applies because a fundamental
interest—his personal liberty—is at stake, citing People v. Olivas (1976)
17 Cal.3d 236 (Olivas). Olivas involved an equal protection challenge to a
statute granting trial courts discretion to commit a misdemeanant between

19
the ages of 16 and 21 to the Youth Authority for a term potentially longer
than the maximum jail term that could be imposed for the same offense if
committed by a person over the age of 21 years. (Olivas, at p. 239.) The high
court concluded the minor’s “personal liberty” interest triggered a strict
scrutiny analysis. (Id. at pp. 250–251.)
Subsequent cases have repeatedly refused to read Olivas for the broad
proposition that all criminal statutes must be examined through the lens of
strict scrutiny. In People v. Wilkinson (2004) 33 Cal.4th 821 (Wilkinson), for
example, the Supreme Court said of its prior decision, “[t]he language in
Olivas could be interpreted to require application of the strict scrutiny
standard whenever one challenges upon equal protection grounds a penal
statute or statutes that authorize different sentences for comparable crimes,
because such statutes always implicate the right to ‘personal liberty’ of the
affected individuals.” (Wilkinson, at p. 837.) However, said the court, “Olivas
properly has not been read so broadly.” (Ibid., citing People v. Davis (1979)
92 Cal.App.3d 250; Davis, at p. 258 [“We do not read Olivas as requiring the
courts to subject all criminal classifications to strict scrutiny requiring the
showing of a compelling state interest thereof.”]; see People v. Bell (1996)
45 Cal.App.4th 1030, 1049 [a broad reading of Olivas would “intrude[] too
heavily on the police power and the Legislature’s prerogative to set criminal
justice policy”]; People v. Owens (1997) 59 Cal.App.4th 798, 802 [“California
courts have never accepted the general proposition that ‘all criminal laws,
because they may result in a defendant’s incarceration, are perforce subject
to strict judicial scrutiny.’ ”].) In accordance with the Supreme Court’s more
recent statements, and the prevailing view of the Courts of Appeal, we also
apply the rational basis test.

20
 In that regard, defendant maintains “[t]here is no rational basis to
[exclude] sex offenders from mental health treatment. Particularly, in [the
instant] case, where it was undisputed in the section 1368 proceedings that
[defendant] required specialized mental health treatment and involuntary
medication.” He further asserts, “there is no rational basis to permit
defendants charged with other serious crimes to avoid a felony finding
against them or to obtain dismissal by participating in mental health
diversion, but to disallow the same benefits for sex offenders.”
We have no trouble concluding the Legislature could rationally exclude
defendants who commit serious child sex crimes from a pretrial diversion
program and require such defendants to go to trial and, if convicted, serve a
prison term that comports with the term the Legislature has determined is
appropriate punishment for a crime of this nature against a child. (See
People v. McKee (2012) 207 Cal.App.4th 1325, 1343–1344 [Sexually Violent
Predators Act does not violate equal protection rights in part because “there
is substantial evidence to support a reasonable perception by the electorate,
as a legislative body, that the harm caused by child sexual abuse and adult
sexual assault is, in general, a greater harm than the harm caused by other
offenses and is therefore deserving of more protection”]; Alvarado, supra,
187 Cal.App.4th at p. 79 [mandatory registration for a section 288(a) offense
is rationally related to legitimate state purpose because that “offense is
limited to victims under the age of 14 years, who tend to be more vulnerable
to being preyed upon by sexual predators”]; People v. Singh (2011)
198 Cal.App.4th 364, 371 [same].)
Cruel and Unusual Punishment
Because the trial court found true allegations that defendant had
committed two prior serious felonies, he was sentenced as a “third striker,”

21
and the court was required to sentence him to 25 years to life on each of the
lewd and lascivious act counts. (§ 667, subds. (b), (e).)9 At the sentencing
hearing, the court stated, “These are mandatory sentences, however[,] even if
there was discretion, the Court does not believe this would be an appropriate
case to do anything other than impose indeterminate terms described by
law.” Accordingly, pursuant to section 667, subdivision (e)(2), the court
sentenced defendant to a total term of 75 years to life (consisting of 25 years
to life on each count to be served consecutively).
Defendant contends that at 49 years of age, the mandatory statutory
75-years-to-life sentence “is effectively a sentence of life without the
possibility of parole” and constitutes “cruel and unusual punishment” under
the federal and California Constitutions.
“[I]n California, a punishment may violate article I, section 6, of the
California Constitution if, although not cruel or unusual in its method, it is so
disproportionate to the crime for which it is inflicted that it shocks the

9 Section 667, subdivision (b) provides, “It is in the intent of the
Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer
prison sentences and greater punishment for those who commit a felony and
have been previously convicted of one or more serious or violent felony
offenses.”
Section 667, subdivision (e)(2) provides, in relevant part, “if a defendant
has two or more prior serious or violent felony convictions . . . that have been
pled and proved, the term for the current felony conviction shall be an
indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the greatest of: [¶] . . . [¶]
(ii) Imprisonment in the state prison for 25 years. [¶] . . . [¶] (B) The
indeterminate term . . . shall be consecutive to any other term of
imprisonment for which a consecutive term may be imposed by law. Any
other term imposed subsequent to [the] indeterminate term . . . shall not be
merged therein but shall commence at the time the person would otherwise
have been released from prison.” (§ 667, subd. (e)(2)(A)–(B).)

22
conscience and offends fundamental notions of human dignity.” (In re Lynch
(1972) 8 Cal.3d 410, 424 (Lynch), superseded by statute on another ground as
stated in People v. West (1999) 70 Cal.App.4th 248, 256.)
“Whether a particular punishment is disproportionate to the offense is,
of course, a question of degree. The choice of fitting and proper penalties is
not an exact science, but a legislative skill involving an appraisal of the evils
to be corrected . . . ; in appropriate cases, some leeway for experimentation
may also be permissible. The judiciary, accordingly, should not interfere in
this process unless a statute prescribes a penalty ‘out of all proportion to the
offense’ [citations], i.e., so severe in relation to the crime as to violate the
prohibition against cruel or unusual punishment.” (Lynch, supra, 8 Cal.3d at
pp. 423–424.)
Our Supreme Court has devised a three-part test for assessing whether
punishment is cruel or unusual. (Lynch, supra, 8 Cal.3d at pp. 425–427.)
First, courts should consider “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.) Second, courts should “compare the challenged 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, italics
omitted.) Third, courts should compare “the challenged penalty with the
punishment prescribed for the same offense in other jurisdictions having an
identical or similar constitutional provision.” (Id. at p. 427, italics omitted.)
The defendant bears the burden of establishing that the punishment
prescribed for his offense is unconstitutional (People v. King (1993)
16 Cal.App.4th 567, 572), although he need not establish disproportionality
in all three respects. (People v. Dillon (1983) 34 Cal.3d 441, 487, fn. 38,

23
superseded by statute as stated in People v. Sifuentes (2022) 83 Cal.App.5th
217, 228.)
Defendant appears to focus on the first Lynch factor. He asserts that
“[w]hile these crimes are appalling and certainly psychologically emotionally
damaging to the children, neither girl was physically injured.” Additionally,
while “[s]ex crimes against children certainly require strong punishment . . .
condemning a mentally ill man with no prior sex crime history to the
remainder of his life in prison is a vindictive, excessive and unconstitutional
punishment.” Finally, he notes that C. ended her trial testimony with a hope
that defendant “ ‘gets help,’ ” asserting her “hope was not realized with [his]
draconian sentence.”
We first observe that the principal case on which defendant relied in
his briefing, People v. Cadena (2019) 39 Cal.App.5th 176, in which the Court
of Appeal ruled a “one strike” 30-year to life sentence for section 288,
subdivision (a) convictions was not properly imposed under the statutory
scheme and was also constitutionally excessive, was ordered depublished by
our Supreme Court and is therefore no longer citable authority. (See Cal.
Rules of Court, rule 8.1115(a).) The appellate court ruled in that case that
even “one-strike” sentencing was not permissible despite multiple victims
and that the sentence was excessive because the offensive touching was
exceedingly brief and was only on the victims’ clothes. The two victims also
were not “young” children (i.e., 10 years or younger). The depublication
order, of course, suggests the court’s reasoning was in some respect unsound.
In any case, defendant was sentenced as a “third striker,” and as we have
recounted, the facts here were far more aggravated.
Defendant’s sentence became an admittedly long one because the “three
strikes” law applied and was a consequence of his being a recidivist felon.

24
“Recidivism in the commission of multiple felonies poses a manifest danger to
society justifying the imposition of longer sentences for subsequent offense.”
(People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630.) “When a person has
proven himself immune to the ordinary modes of punishment, then it
becomes the duty of government to seek some other method to curb his
criminal propensities that he might not continue to further inflict himself
upon law-abiding members of society. This, we think, may be done even to
the extent of depriving him permanently of his liberty.” (People v. Cooper
(1996) 43 Cal.App.4th 815, 827-828.)
We therefore conclude defendant’s sentence is not constitutionally
excessive. He took advantage of his position of trust to sexually assault two
young girls with whom he lived, on multiple occasions. Two of the counts of
which he was convicted involved direct fondling of the girls’ vaginal areas.
And while he may have had no prior history of sex crimes, he did have a
lengthy criminal history spanning over three decades, which included two
prior serious felony convictions. The probation report listed no factors in
mitigation and stated that “[f]or more than 30 years, the defendant has
steadily demonstrated escalating criminal behavior, habitual non-compliance
while on supervision, and a constant rate of re-offense.” As for his history of
mental illness, there was no evidence whatsoever it played any role in his
crimes.
Finally, as for C.’s comment that she hoped defendant “gets help,” she
also stated she did not want what happened to her “to happen to more
people.” And while she has tried “to forget it,” “sometimes [she] still think[s]
about” defendant’s violative criminal acts. She has “never got[ten] closure,”
and she has “never got[ten] a sorry for what he did to me.”

25
 In sum, defendant has failed to meet his burden of establishing that his
sentence “is so disproportionate to the crime[s] 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. 425;10 see People v. Ayon (1996)
46 Cal.App.4th 385, 396-401 [rejecting cruel and unusual punishment claim
and upholding sentence of 240 years to life], disapproved on another ground
as stated in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10; People v.
Poslof (2005) 126 Cal.App.4th 92, 95–96 [three strikes life term for knowingly
failing to register as sex offender not unconstitutional].)
DISPOSITION
The judgment is AFFIRMED.

10 “ ‘Although articulated slightly differently, both [the federal and
state cruel and unusual punishment] standards prohibit punishment that is
“grossly disproportionate” to the crime or the individual culpability of the
defendant.’ ” (People v. Baker (2018) 20 Cal.App.5th 711, 733.) Accordingly,
for the same reasons we have discussed in connection with Lynch, we also
reject defendant’s federal cruel and unusual punishment challenge. (See
Baker, at p. 733.)

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P.J.

_________________________
Devine, J.*

*Judge of the Contra Costa Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

A165855, People v. Chatman

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