P. v. DiPaolo
Filed 8/23/12 P. v. DiPaolo
CA2/2
NOT TO BE PUBLISHED IN THE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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
FRED DIPAOLO,
Defendant and Appellant.
B237485
(Los Angeles
County
Super. Ct.
No. LA062053)
APPEAL from a judgment of
the Superior Court
of
County. Michael K.
Kellogg, Judge. Affirmed.
William
L. Heyman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General for Plaintiff and Respondent.
For
the second time, defendant and appellant Fred DiPaolo (defendant) appeals from
his conviction of three counts of felony sex
abuse.
failed to comply with this court’s directive to exercise its discretion in
determining whether to impose a concurrent or consecutive term as to count
2. He also contends that the consecutive
term amounting to 30 years to life in prison violates the constitutional
prohibition against cruel and unusual
punishment. We conclude that the
trial court exercised its discretion as directed and that defendant’s sentence
was not cruel or unusual. We thus affirm
the judgment.
After
a court trial defendant was convicted of three counts of oral copulation of his
24-month-old grandson in violation of Penal Code section 288.7, subdivision
(b).
secretly recorded by the child’s parents, as well as the confession that
defendant gave to law enforcement when faced with the video, which showed
defendant orally copulating the child three times. The victim’s mother testified that before and after the
recorded incident, she observed the child engaging in behaviors such as
simulating oral sex on a little girl who was his play date, “humping his teddy
bear,†and breathing heavily and rapidly when he kissed his mother. Psychological counseling was sought due to
the behavior.
When defendant was first
sentenced, the trial court imposed two consecutive terms of 15 years to life in
prison (counts 1 & 2), plus one concurrent term of 15 years to life (count
3). In pronouncing sentence, the trial
court stated: “[M]andatory consecutive
sentencing in this matter has already been established by case law. The issue that the court had is count 1, 2
and 3 is whether or not count 2 and 3 merged in to one code of conduct. And the case . . . I read
yesterday is People v. Jimenez cited
officially at 80 Cal.App.4th 286. It
just went, in comparison to the 269s, 288s and 667.6 whether or not consecutive
sentencing is applicable, even though it’s absent from the statute and Court of
Appeals by analogy said absolutely yes.â€
Defendant appealed, and
in an unpublished opinion, we vacated the sentence because the trial court’s
comment, and its reliance on People v.
Jimenez (2000) 80 Cal.App.4th 286 (Jimenez),
suggested a mistaken belief that a consecutive sentence was mandated by section
667.6, subdivision (d), rather than one of discretion. In Jimenez,
the defendant’s conviction under section 269, subdivision (a)(3), satisfied the
factual predicate necessary to apply section 667.6, subdivision (d), even if
the offense was not expressly listed in the statute. (See Jimenez,
supra, at pp. 290-291.) A violation of section 288.7, however, is not
expressly listed in section 667.6; nor are the facts underlying a violation of
section 288.7 encompassed within any of the offenses listed in section
667.6. We thus concluded that
consecutive sentencing was not mandatory for violations of section 288.7, subdivision
(b), and construed the trial court’s comments as indicative of a mistaken
belief that consecutive sentencing was mandatory under the cited statutes. (DiPaolo
I, supra, at p. 6.) Because the trial court had the discretion to
impose consecutive sentences in this case, but was not required by law to do
so, we remanded the matter for the trial court to exercise its discretion in
selecting either a consecutive or concurrent sentence. (Ibid.)
The remittitur was filed
on September 2, 2011, and on November 9, 2011, the trial court once again sentenced
defendant to two consecutive terms of 15 years to life in prison as to counts 1
and 2, plus one concurrent term of 15 years to life as to count 3. Defendant filed a timely
I. The trial court properly exercised its
discretion
Defendant contends that
the sentence must be vacated and the matter remanded a second time because the
trial court again failed to properly exercise its discretion.
With exceptions we found
inapplicable here (see DiPaolo I,
convicted of two or more crimes, the trial court must determine whether to run
the terms of imprisonment concurrently or consecutively. (§ 669.)
The California Rules of Court include factors affecting the decision to
impose consecutive sentences. (Cal.
Rules of Court, rule 4.425.) In
addition, the mitigating and aggravating circumstances set forth in the
determinate sentencing guidelines are proper criteria to consider in evaluating
whether leniency should be granted in imposing an indeterminate term. (People
v. Guinn (1994) 28 Cal.App.4th 1130, 1149; Cal. Rules of Court, rules
4.421, 4.423.) When making a sentencing
choice, the court is vested with broad discretion to weigh aggravating and
mitigating factors, including the authority to minimize or even disregard
allegedly mitigating factors. (
397, 401.) A single aggravating factor
will justify a consecutive term. (
728-729.)
Defendant contends that
the trial court’s comments at the resentencing hearing show that the court did
not exercise its discretion, but instead once again ruled that the imposition
of the consecutive sentence was mandatory once it found that the conduct in
count 1 was separate from the conduct in count 2. Defendant quotes several of the comments,
emphasizing in italics the portions that defendant construes as a failure to
exercise discretion. In relevant part,
defendant points to the following:
1. “[T]he issue
. . . is whether or not this Court understood that it
. . . did have and could have exercised discretion in the
consecutive or concurrent sentencing [scheme] based on the facts of this case and
in light of Penal Code section 667.6, subdivision (d).†(Italics added.)
2. “[T]he appellate
court might not have known explicitly that this Court did exercise its
discretion in finding two separate acts. . . .†(Italics added.)
3. “Under the review standard of this
Penal Code section 667.6[, subdivision] (d) time alone is not controlling. It is whether or not the defendant had the
opportunity for reflection of what he was doing and it was obvious to this
Court that he did. That is why I
incorporated the video into the Court’s decision. So if the appellate court or
reviewing court had an issue with the [section] 667.6[, subdivision] (d)
finding then it could review that.â€
4. “I[t] was
according to the [section] 667.6[, subdivision] (d) analysis that they felt
that I was vague in my determination. So
that’s why I resentenced with what I feel to be extreme clarity as to the
analysis of which I have done. . . . [Defense counsel] is asking me to look past the
[section] 667[, subdivision] (d) analysis that I did. . . .â€
5. “My
[section] 667.6[, subdivision] (d) analysis. Once I
did that analysis [regardless] of the arguments from either side
my analysis separate of any feeling that I might have about a draconian
sentence that does not come into play.
So once I decided, based on the analysis that there were two separate
acts then the consecutive sentencing
proper. . . .†(Italics
added.)
Defendant argues that the
trial court’s comments suggest that the discretion it exercised related only to
whether counts 1 and 2 were separate acts, and not to a discretionary
determination to impose a consecutive term based upon that finding.
Respondent contends that
other comments made by the trial court demonstrate its understanding and proper
exercise of its discretion in imposing a consecutive term as to count 2. In particular, respondent points to a portion
of the trial court’s statement omitted by defendant. Defendant showed that the trial court stated
that it “did exercise its discretion
in finding two separate acts,†but left out the remainder of the sentence. The trial court went on to explain that it
exercised this discretion “through its specific analysis using section
667.6[, subdivision] (d) as a guide.†(Italics added.)
Respondent also points to
the court’s explanation that when it had previously said it had no discretion,
it was referring to the minimum parole eligibility period of 15 years. The trial court explained: “[W]hen the court said [in the original
sentencing hearing] [that it] had no discretion, I was talking in a broader
sense not into a 667(d) saying that when the law says 15 to life I can’t give
less than life with determinants of 15 if that is the sentence to be
imposed. I can’t go life with the
determinative of five, or life with the determinative of 12. That’s how and why that discussion may have
refocused the Court of Appeal[] to an entirely different issue.â€
We agree with respondent
that the trial court’s comments demonstrate that it exercised its discretion to
run the sentence on count 2 consecutively to the term imposed as to count
1. Criteria properly supporting the
imposition of a consecutive term include a finding that the crimes involved
separate acts of violence. (Cal. Rules
of Court, rule 4.425(a)(2).) The trial
court noted that “[i]t was clear from the evidence that count 1 and count 2
were two separate occasions . . . .â€
At resentencing the trial
court emphasized that it understood its discretion to impose consecutive terms
and explained that when it had previously stated that it had no discretion, it
referred to the minimum parole period, not consecutive sentencing, and set
forth in great detail how it had exercised its discretion to determine that
counts 1 and 2 were separate, using the statutory criteria in section 667.6,
subdivision (d), merely as an established guide.
trial court properly exercised its discretion to find as an aggravating factor,
the commission of two separate
violent acts. (Cal. Rules of Court, rule
4.425(a)(2).) Remand for resentencing is
thus not required.
II. Cruel or unusual punishment
Defendant contends that his sentence constitutes cruel and unusual
punishment under the Eighth Amendment to the United States Constitution and
cruel or unusual punishment under article I, section 17 of the California
Constitution. Such claims must be made
in the first instance in the trial court.
(People v. Burgener (2003) 29
Cal.4th 833, 886-887.) Respondent
contends that defendant has forfeited his constitutional claims by failing to
raise them below. Defendant counters
that there was no forfeiture, and if we find otherwise, that defense counsel
was ineffective for failing to raise the issues. We reach the claims in response to
defendant’s claim of ineffective counsel.
(People v. Rodrigues (1994) 8
Cal.4th 1060, 1125-1126.)
Proportionality
Defendant contends that a prison term of 30
years to life for a man his age is grossly disproportionate to three counts of
oral copulation with a child under 10 years old where the victim was just two
years old and was neither killed nor physically injured, and the incident
lasted only a few minutes.
In noncapital cases, a
proportionality review under the Eighth
Amendment is narrow and required, if at all, only in extreme cases where
the punishment gives rise to an inference that it is grossly disproportionate
to the crime. (Ewing v.
California (2003) 538 U.S. 11, 20.)
In general no such inference arises from a sentence of less than
death. (Harmelin v. Michigan (1991) 501 U.S. 957, 962-964, 996.) Thus successful proportionality challenges to
noncapital sentences are and should be ‘“exceedingly rare.â€â€™ (Ewing
v. California, supra, at p. 22,
quoting Rummel v. Estelle (1980) 445
U.S. 263, 374; see also Harmelin, at
pp. 995-996, & 1001 (conc. opn. of Kennedy, J.).)
Great deference is given
to the Legislature’s determination that the gravity of a particular crime
justifies a certain penalty. (
punishment was cruel and unusual. (
174.)
Defendant cites the
objective criteria proposed in Solem v.
Helm (1983) 463 U.S. 277, 292, as a guide to determining proportionality
under the Eighth Amendment: “(i) the
gravity of the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions.†However, defendant provides no analysis of
such factors in relation to the crimes he committed, and relies solely upon his
analysis under the California Constitution.
We thus turn first to that discussion.
Defendant contends that his sentence violates the
California Constitution, because it is cruel or unusual under the
proportionality tests of In re Lynch
(1972) 8 Cal.3d 410 (Lynch), and
offense and of the offender to determine whether the sentence is “so
disproportionate to the crime for which it is inflicted that it shocks the
conscience and offends fundamental notions of human dignity.†(Lynch,
at p. 424, fn. omitted; Dillon, at
pp. 478-479.) Defendant “must overcome a
‘considerable burden’ in convincing us his sentence was disproportionate to his
level of culpability. [Citation.]†(People
v. Weddle (1991) 1 Cal.App.4th 1190, 1197 (Weddle).)
Following Dillon
and Lynch, California courts have
developed three categories of review to guide the determination whether a
sentence is cruel or unusual: “(1) the
nature of the offense and the offender, with particular regard to the degree of
danger which both present to society; (2) a comparison of the challenged
penalty with the punishment prescribed in the same jurisdiction for other more
serious offenses; and (3) a comparison of the challenged penalty with the punishment
prescribed for the same offense in other jurisdictions. [Citation.]â€
(People v. Mantanez (2002) 98
Cal.App.4th 354, 359 (Mantanez); see
also Lynch, supra, 8 Cal.3d at pp. 425-428.)
Defendant relies on the first two categories. A determination whether a punishment is cruel
or unusual may be based solely on the first category, the nature of the offense
and offender (Weddle,
but not solely upon the second. (See
Cal.App.3d 520, 530-531.)
A review of the nature of the offense involves “such
factors as its motive, the way it was committed, the extent of the defendant’s
involvement, and the consequences of his acts. . . .†(Dillon,
supra, 34 Cal.3d at pp.
478-479.) For example, if an examination
of the facts of the offense reveal that it was trivial, nonviolent, or
victimless, life in prison is more likely to be found to be
disproportionate. (See
To consider the nature of the offender, we inquire “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.†(
recidivism. (People v. Gray (1998) 66 Cal.App.4th 973, 992.)
Defendant does not claim that the crimes were trivial,
nonviolent, or victimless. (See
Discussing first the nature of the offense, defendant appears to contend
that his sentence of 30 years to life was grossly disproportionate to two
violations of section 288.7 because his crimes were not as serious as the
abduction, rape, and murder that inspired Proposition 83 (“Jessica’s Lawâ€). As defendant concedes however, a violation of
section 288.7 is a crime of violence.
The 15-year-to-life punishment set by the Legislature for each violation
shows that it considered this crime to be a very serious one. “[G]reat deference is ordinarily paid to
legislation designed to protect children, who all too frequently are helpless
victims of sexual offenses.†(
599; see also In re DeBeque (1989)
212 Cal.App.3d 241, 254.)
Defendant also argues that the victim was not truly harmed
because the incident lasted only a few minutes, there was no evidence of
physical harm, and the victim might not consciously remember the abuse, as he
was only two years old at the time.
Defendant’s argument understates the seriousness of the crimes and the
harm to the victim. While the incident
did not last long, defendant took enough time to check the area for privacy and
orally copulate his grandson three times.
Although there was no evidence of physical injury, the victim’s
inappropriate sexual behavior indicated psychological harm, which can justify a
longer prison term. (See
suggesting that psychological harm is less serious when the victim has no conscious
memory of the abuse.
name="_ftnref4" title="">[4]
Defendant also contends that the nature of the
offender demonstrates a disproportionate sentence. He cites the following circumstances:
defendant turned 65 on the day he committed the offenses; he had no
known juvenile criminal history; his adult criminal history was
“insubstantial,†with one 2007 misdemeanor violation of section 273a,
subdivision (b), willful cruelty to a child, for which he received four years’
summary probation; and evidence indicated a low risk that he would reoffend.
consideration of
such circumstances does not show that
defendant’s consecutive sentence “shocks the conscience and offends fundamental
notions of human dignity.†(
omitted; Dillon, supra, 34 Cal.3d at
pp. 478-479.) First, there is no merit
to defendant’s characterization of the circumstances as indicating a low risk of reoffending. Defendant was still on probation for the misdemeanor
conviction of cruelty to a child when he committed the current offenses.
Defendant suggests that his age, 65 years old at the
time of the offense, is indicative of disproportionality. Although age is one of the factors used to
assess individual culpability (People v.
Crooks (1997) 55 Cal.App.4th 797, 806), defendant’s age does not suggest a
lesser degree of individual culpability in this case. A life sentence may shock the conscience
where the defendant was a teenager who was too immature to foresee the risk his
behavior was creating, as in Dillon,
defendant fails to explain why a man of 65 who cannot control his criminal
impulses toward children should be sentenced to a lesser term.
Finally, under the second Lynch factor, defendant compares his sentence to punishment
prescribed in California for more serious offenses. (See Lynch,
supra, 8 Cal.3d at pp. 425-428;
He compares his consecutive terms totaling 30 years to life to the
minimum term of 26 years to life that a defendant might receive for one count
of first degree murderer if he used a deadly weapon and there were no special
circumstances. (See § 190, subds. (a),
(c); § 12022, subd. (b)(1).) Defendant
also compares his total term to the minimum sentence of 15 years to life that a
defendant might receive for a single count of second degree murder. (§ 190, subd. (a).)
We have rejected defendant’s argument that the nature
of the offense and of the offender indicates disproportionality, thus leaving a
comparison to lesser or equal punishment for more serious crimes as the sole
remaining category of review proposed by defendant. (See Mantanez,
supra, 98 Cal.App.4th at p.
359.) “Punishment is not cruel or
unusual merely because the Legislature may have chosen to permit a lesser
punishment for another crime.†(
530-531.) Thus a consideration solely of
the second category, a comparison to other crimes, is insufficient to determine
that defendant’s sentence was cruel or unusual.
We conclude that defendant has failed to overcome his
“‘considerable burden’†to demonstrate that his sentence was disproportionate
to his level of culpability. (
Our analysis under the California Constitution also leads us to conclude
that defendant has not raised an inference that his punishment is
grossly disproportionate to the crime, and has thus not established the need
for an individualized proportionality review under the Eighth Amendment. (See Ewing v.
California, supra, 538 U.S. at p.
20.)
B. Life
expectancy
Defendant was 67 years old at the time of sentencing. He contends that to impose a 30-year-to-life
term on a 67-year-old man is per se cruel and/or unusual under the federal and
state constitutions. Defendant cites no binding
authority for his contention, but merely relies on
the concurring opinion in People v.
Deloza (1998) 18 Cal.4th 585, in which Justice Mosk stated his opinion that
any sentence longer than the human life span is inherently cruel and unusual. (Id.
at pp. 600-602.) One appellate court has
pointed out that no published opinion has agreed with Justice Mosk, and that
California courts have repeatedly upheld sentences that exceed the defendant’s
life expectancy. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1230 (
lengthy sentences for multiple sex crimes do not constitute cruel or unusual
punishment.†(People v. Bestelmeyer, supra,
166 Cal.App.3d at p. 531 [129 years]; see, e.g., Retanan, at p. 1230 [135 years to life]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1132, 1134-1136
[375 years to life]; see also People v.
Poslof (2005) 126 Cal.App.4th 92, 109 [27 years to life for failure to
register as a sex offender].)
We agree with the Retanan
court’s rejection of Justice Mosk’s view.
(Retanan, supra, 154 Cal.App.4th at p. 1231; see also
1373, 1382-1383.) Guided by the
categories suggested by defendant, we have examined the offense and the
offender in view of the totality of the circumstances. (See Lynch,
supra, 8 Cal.3d at pp. 425-428;
Cal.App.4th at p. 359.) As our analysis
did not lead to the conclusion that defendant’s sentence was cruel or unusual,
adopting Justice Mosk’s view would be to “encroach on matters which are
uniquely in the domain of the Legislature.â€
(People v. Wingo,
C. Undeveloped contentions
Under a separate heading,
defendant contends that because life without parole is imposed upon more
serious crimes, characterizing his sentence as the functional equivalent of
life without the possibility of parole does not save it from being cruel or
unusual. Defendant lists examples of
such crimes but makes no further argument to support his contention, or even to
explain it. We find this contention
insufficiently developed to warrant discussion.
(See People v. Medrano (2008)
161 Cal.App.4th 1514, 1520.)
Also
under a separate heading, defendant contends that running his sentence
consecutively, for a total of 30 years to life, was cruel and unusual. As defendant incorporates all argument
previously made in his opening brief, this point appears to be redundant and
already addressed in this opinion.
III. No ineffective assistance of counsel
We conclude that defendant’s sentence did not constitute cruel and
unusual punishment under the Eighth Amendment to the
States Constitution or cruel or unusual punishment under article I, section
17 of the California Constitution. In
light of that conclusion, and because we have found that the trial court
properly exercised its discretion, we also conclude that defendant has not
demonstrated a
reasonable probability that his sentence would have been different had defense
counsel objected to it on the grounds asserted here. Thus his claim of ineffective assistance of
counsel fails. (See Strickland v. Washington (1984) 466 U.S. 668, 694;
v. Rodrigues,
supra, 8 Cal.4th at p. 1126.)
DISPOSITION
The judgment is affirmed.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We
concur:
___________________________,
P. J.
BOREN
___________________________,
J.
DOI TODD
first appeal resulted in an unpublished opinion. (The
People v. Fred DiPaolo (June 30, 2011, B223962) (DiPaolo I).)
further statutory references are to the Penal Code, unless otherwise indicated.
