Filed 2/21/18 P. v. Manriquez-Fernandez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR CARMEN MANRIQUEZ-FERNANDEZ,

Defendant and Appellant.


G053479

(Super. Ct. No. 13HF2175)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed as modified with directions.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Victor Manriquez-Fernandez (Manriquez) of aggravated sexual assault (sodomy) of a child under age 14 while seven or more years older than the child (Pen. Code, § 269, subd. (a)(3) [counts 1-3]; all statutory citations are to the Penal Code), sexual intercourse or sodomy with a child 10 years or younger (§ 288.7, subd. (a) [counts 4-6, 12-14]), forcible lewd acts with child under age 14 (§ 288, subd. (b)(1) [counts 7-8]), lewd acts with a child under age 14 (§ 288, subd. (a) [counts 9-10, 15-17]), and possession of child pornography (§ 311.11, subd. (A) [count 11]). The jury also found he committed offenses against more than one victim within the meaning of the One Strike Law. (§ 667.61, subd. (b) & (e) [counts 7-10, 15-17].) The trial court imposed an indeterminate term of 210 years to life comprised of consecutive 15-years-to-life and 25-years-to-life terms.
Manriquez contends his sentence is “tantamount to life without the possibility of parole, and is a legal fiction which constitutes cruel and/or unusual punishment pursuant to the federal and state Constitutions.” He also complains the court’s “no-contact” order imposed under section 136.1 was unauthorized, and the abstract of judgment should be modified to reflect the correct sentencing date. The Attorney General concedes the latter two claims. For the reasons expressed below, we modify the no contact order, and affirm the judgment as modified.

I
FACTUAL AND PROCEDURAL BACKGROUND
Manriquez (born in 1987) lived with his brother’s family for approximately 10 years in Monterey County, and then for a few months in Orange County until his sister-in-law, J.M., called the police in July 2013 to report her son M.M. (born in 2004) disclosed Manriquez had sexually abused him.
According to M.M., Manriquez forced him to take off his clothes and touched his buttocks on numerous occasions. He initially refused to remove his clothing, but Manriquez grabbed his hands and made him take his clothes off. The incidents usually occurred when they were home alone. Manriquez touched his buttocks with his hands, and then told M.M. to touch his penis. When M.M. refused, Manriquez took his hands and forced him to touch his penis. During the first incident, Manriquez penetrated M.M. from behind. Manriquez threatened M.M. he would do “bad things” to him if he told anyone, and offered M.M. a phone or toy if he allowed the touching, but M.M. always refused. When Manriquez slept near M.M., he would take the M.M.’s clothes off and hold his body down while touching him. He also took nude photos of M.M. and threatened to show people if M.M. did not allow the touching. Manriquez usually touched M.M. at night, and when he drove M.M. to school in his van.
M.M. detailed the abuse in a child abuse (CAST) interview, a DVD of which was played for the jury. M.M. stated Manriquez began sodomizing him when he attended preschool in Monterey County. These incidents occurred numerous times. Manriquez ignored M.M.’s protests, and continued to abuse him when the family moved to Orange County. The abuse often occurred when M.M. had been sleeping, or in the morning before Manriquez took M.M. to school.
M.M. stated Manriquez molested him more than once, but less than 10 times, in Orange County. The abuse occurred three to five times in the van, and about four or five times in Monterey County. In Orange County, the abuse always occurred in the living room where M.M. was sleeping. M.M.’s family moved once when they lived in Monterey County, and the abuse occurred at both Monterey County homes. M.M. ultimately told his mother about the abuse because he did not want to sleep in the living room with Manriquez any longer.
Manriquez occasionally struck M.M.’s brother and yelled at M.M. and his sister J.M. He told M.M. he had done the same things to J.M. When M.M. was three years old, he saw Manriquez hold down J.M. and touch her.
J.M. (born in 1999) testified Manriquez touched her vagina on five or six occasions, and her buttocks on three or four occasions. Several incidents occurred at their Monterey County residence when she was between three and five years old. She never told anyone about the abuse because she was afraid he would harm her parents.
Officers arrested Manriquez and found numerous images on his phone depicting sexual contact between adult males and young females.
Manriquez spoke with investigators and confessed to sodomizing M.M. and sexually abusing J.M. in Monterey County and when the family moved to Orange County. Although M.M. protested and complained the penetration hurt, Manriquez continued to abuse him. Manriquez estimated he sodomized M.M. five to eight times in Orange County, and about 12 times in Monterey County. Manriquez admitted he used force to hold down M.M. three or four times because M.M. refused to undress. Manriquez also admitted abusing J.M.
Following trial in March 2016, the jury convicted Manriquez as noted above. In April 2016, the court imposed a prison sentence of 210 years to life, comprised of consecutive 15-years-to-life terms for counts 1, 2, 3, and 15, and consecutive 25-years-to-life terms for counts 4, 5, 6, 12, 13, and 14. The court imposed concurrent terms on the remaining counts.

 
II
DISCUSSION

A. Cruel and Unusual Punishment
Manriquez contends “imposition of a sentence with a legal possibility of parole that is in reality impossible to serve in a single lifetime before parole eligibility is in fact a life without the possibility of parole (LWOP) sentence,” and violated the Eighth Amendment to the United States Constitution and the prohibition against cruel or unusual punishment under article I, section 17 of the California Constitution. He asserts, “Calling a sentence something ‘to life,’ when in reality it could never be served in a defendant’s lifetime shocks the conscience. California courts should not be allowed to call a sentence, such as that given here, an indeterminate sentence when, in reality, the sentence is no different than LWOP. Trial courts should not be able to impose sentences that cannot be served by a human being, which appear to have the legal possibility of parole at some time in the future, when those sentences are nothing more than LWOP sentences being labeled as something else.” He notes he “was convicted of several sexual offenses involving two minor victims, and he was only 28 years old at the time of sentencing. He committed the offenses in this case when he was between 19 and 25 years of age. He had no record of any prior criminal conduct.”
We agree with Manriquez absent intervening circumstances his sentence will not permit him to become eligible for parole in his lifetime (§ 3046, subd. (b)) and is therefore a de facto life without parole sentence. (See People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) [ban on life without parole sentences for juveniles applies to a term-of-years sentence amounting to functional equivalent of a life without parole sentence].) We disagree with his suggestion that under these circumstances his de facto LWOP sentence shocks the conscience. It is the sentence, not its description, that is tested against constitutional provisions. (In re Lynch (1972) 8 Cal.3d 410, 424 [constitution forbids punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity”]; see People v. Dillon (1983) 34 Cal.3d 441, 476-489.)
The “‘One Strike’ law is an alternative sentencing scheme applying to specified felony sex offenses.” (People v. Reyes (2016) 246 Cal.App.4th 62, 79 (Reyes).) It is intended to ensure lengthy prison sentences for serious and dangerous sex offenders on their first conviction. (Ibid. [nature or method of the sex offense places victim in a position of elevated vulnerability].) The Legislature has concluded certain sexual offenders cannot be cured of their aberrant impulses and must be separated from society to prevent them from reoffending. (People v. Wutzke (2002) 28 Cal.4th 923, 929-930.) Because Manriquez committed specified sexual crimes against more than one victim on separate occasions, consecutive sentences were mandatory. (See § 667.61, subd. (i).)
The federal Constitution’s Eighth Amendment prohibition against “cruel and unusual punishments” bars punishment “‘grossly disproportionate’” to the crime. (Graham v. Florida (2010) 560 U.S. 48, 59-60 (Graham); Harmelin v. Michigan (1991) 501 U.S. 957, 997 (conc. opn. of Kennedy, J.).) Article I, section 17 of the state Constitution prohibits punishment “‘so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity.’” (People v. Alvarado, (2001) 87 Cal.App.4th 178, 199.) “Outside the death penalty context, ‘“successful challenges to the proportionality of particular sentences have been exceedingly rare.”’ (Ewing v. California (2003) 538 U.S. 11, 21 (lead opn. of O’Connor, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 73.)” (Reyes, supra, 246 Cal.App.4th at p. 83; People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [it is an “exquisite rarity” for a challenge to proportionality of a sentence to be successful in California].) “[T]he fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is ‘properly within the province of legislatures, not courts.’” (Harmelin, supra, 501 U.S. at p. 998 (conc. opn. of Kennedy, J.).) The validity of legislative enactments will not be questioned, therefore, “‘“‘unless their unconstitutionality clearly, positively, and unmistakably appears.’”’ [Citation.]” (People v. Rhodes (2005) 126 Cal.App.4th 1374, 1390.)
Defendant cites recent cases relating to the limitations on LWOP sentences for juvenile offenders. (See Miller v. Alabama (2012) 567 U.S. 460; Graham, supra, 560 U.S. 48.) The courts have held juvenile offenders have diminished moral culpability as compared to adult offenders. “‘For example, parts of the brain involved in behavior control continue to mature through late adolescence. [Citations.] Juveniles are [also] more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults.’” (Caballero, supra, 55 Cal.4th at p. 266.) These cases are not apt because Manriquez was an adult when he committed these crimes.
Manriquez cites the analysis of Justice Mosk criticizing a prison term of 111 years to life in his concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602 (Deloza). Justice Mosk stated: “The superior court ordered 4 sentences of 25 years to life in prison, to run consecutively, plus 11 years, for a total of 111 years. [¶] A question arises . . . : Is a sentence of 111 years in prison constitutional? [¶] Choosing to address this question myself, I believe that the obvious answer is no: A sentence of 111 years in prison is impossible for a human being to serve, and therefore violates both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and the cruel or unusual punishment clause of article I, section 17 of the California Constitution.”
Justice Mosk argued sentences of this magnitude undermine the public’s confidence in the penal system, and constitute an uncivilized attack on a person’s dignity that serves no valid legislative purpose under a retributive or a utilitarian theory of punishment. Justice Mosk suggested a defendant convicted of numerous counts should be sentenced to either life imprisonment, or in “a particularly egregious case involving exceptionally numerous victims, the maximum could conceivably be life imprisonment without possibility of parole.” (Deloza, supra, at pp. 601-602 (conc. opn. of Mosk, J. [“Once we declare century-plus sentences invalid, I am confident that the Legislature will act to provide appropriate life sentences. Such sentences would serve the purposes of punishment, would be constitutional, and would avoid making the judicial process appear oblivious to life expectancy tables”]; see People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn. of Mosk, J.); cf. People v. Retanan (2007) 154 Cal.App.4th 1219, 1231 (Retanan) [declining to rely on Justice Mosk’s concurring opinion in Deloza ]; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 [same].)
The fact a sentence exceeds the defendant’s life expectancy does not necessarily render it constitutionally cruel or unusual. (Byrd, supra, 89 Cal.App.4th at p. 1383.) As Byrd noted, “[i]n practical effect, he is in no different position than a defendant who has received a sentence of life without possibility of parole; he will be in prison all his life. However, imposition of a sentence of life without possibility of parole in an appropriate case does not constitute cruel or unusual punishment under either our state Constitution [citation] or the federal Constitution. [Citation.]” (Ibid.; Retanan, supra, 154 Cal.App.4th at p. 1230 [sentence substantially longer than the defendant’s possible life span was not cruel or unusual under either Constitution].)
In Retanan, as here, the defendant was convicted of committing multiple sex offenses against multiple children, and the trial court imposed a prison term of 135 years to life under the One Strike law, including nine consecutive indeterminate terms of 15 years to life. Observing “California courts repeatedly have upheld such lengthy prison [terms],” Retanan affirmed the sentence, concluding it was “not disproportionate to the offender or the offenses.” (Retanan, supra, 154 Cal.App.4th at p. 1231; see People v. Bestelmeyer (1985) 166 Cal.App.3d 520 [defendant convicted of committing 25 sex crimes against a single child; sentence of 129 years in prison not unconstitutional per se].) Other decisions have upheld sentences longer than the one imposed here. (See, e.g., People v. Ayon (1996) 46 Cal.App.4th 385, 399 [240 years to life sentence, the functional equivalent of an LWOP sentence, did not constitute cruel or unusual punishment, disapproved on another point in DeLoza, supra, 18 Cal.4th at p. 600, fn. 10]; see United States v. Saccoccia (1st Cir. 1995) 58 F.3d 754, 786, fn. 28 [660 years did not violate the Eighth Amendment, and the district court was not required to attempt to estimate the length of the defendant’s life and then fashion a sentence of corresponding duration].)
Manriquez received a severe sentence, but the sexual abuse he inflicted on these children, especially M.M., warranted a harsh punishment. Manriquez subjected M.M. to multiple acts of sodomy, including forcible sodomy. As the Supreme Court has explained, statutory provisions against sexual abuse of children are intended to provide children with special protection from sexual exploitation. (People v. Martinez (1995) 11 Cal.4th 434, 444 (Martinez).) “[C]hildren are ‘uniquely susceptible’ to such abuse as a result of their dependence upon adults, smaller size, and relative naiveté. [Citation.] . . . [Y]oung victims suffer profound harm whenever they are perceived and used as objects of sexual desire. [Citation.]” (Martinez, supra, 11 Cal.4th at pp. 443-444; see, e.g., People v. Christensen (2014) 229 Cal.App.4th 781, 806 [the “seriousness [of lewd conduct on a child] is considerable” as it “may have lifelong consequences to the well-being of the child”]; Reyes, supra, 246 Cal.App.4th at p. 85 [children are “society’s most vulnerable victim[s]”]; J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1026 [“Child molestation is not the kind of act that results in emotional and psychological harm only occasionally”].)
Here, Manriquez committed 16 sexual offenses against his nephew and niece, abusing their trust in him. Any lewd act in isolation is a serious offense. Cumulatively, his offenses were grave. (People v. Wutzke (2002) 28 Cal.4th 923, 930-931 [persons convicted of sex crimes against multiple victims under the One Strike law “‘are among the most dangerous’ from a legislative standpoint”]; see also People v. Estrada (1997) 57 Cal.App.4th 1270, 1282 [“The penalty for a single offense cannot be properly compared to the penalty for multiple offenses”].) Finally, the goals of penal sanctions that have been recognized as legitimate include retribution, deterrence, incapacitation, and rehabilitation. (Graham, supra, 560 U.S. at p. 71.) Manriquez recognized he had a disorder that caused his attraction to young children. The One Strike law effectively categorizes sex offenders as incorrigible and incapable of change. A life without parole sentence is justifiable as satisfying the legitimate penal goal of incapacitation.

B. “No Contact” Order
Manriquez argues the court’s “no-contact order imposed pursuant to [] section 136.1 must be stricken” as statutorily unauthorized. The Attorney General concedes the issue. We decline to accept the concession but will modify the order.
At sentencing, the trial court ordered: “Next, the court is ordering that the defendant be prohibited for a period of ten years from harassing, intimidating, or threatening the victims or the family members of the victims [pursuant to] Penal Code section 136.1I, No. 1.” The court’s minutes and abstract of judgment refer to section “136.1(i)(1).”
Section 136.1 defines the crime of witness intimidation. That section did not authorize the order in this case. However, section 136.2 provided at the time of sentencing in April 2016: “(i)(1) In all cases in which a criminal defendant has been convicted of . . . any crime that requires the defendant to register pursuant to subdivision (c) of Section 290, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with the victim. The order may be valid for up to 10 years, as determined by the court. This protective order may be issued by the court regardless of whether the defendant is sentenced to the state prison or a county jail or subject to mandatory supervision, or whether imposition of sentence is suspended and the defendant is placed on probation. It is the intent of the Legislature in enacting this subdivision that the duration of any restraining order issued by the court be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.”
Manriquez was convicted of crimes requiring sex offender registration. (§ 290, subd. (c).) Section 136.2, subdivision (i)(1), authorized and directed the trial court to consider imposing an order prohibiting contact with the victims. The trial court intended to impose a 10-year no-contact order in this case. We will modify the court’s order as follows: “The defendant is restrained for a period of ten years from any contact with the victims M.M. and J.M. pursuant to Penal Code section 136.2, subdivision (i)(1).” We note section 136.2 does not extend authorization for a no-contact order to the victims’ family members.

C. Abstract of Judgment
The parties agree the abstract of judgment erroneously provides sentence was pronounced on “4/22/201” and should be corrected to reflect sentence was pronounced on April 22, 2016. We will direct the court to prepare an amended abstract of judgment with the correct date.
 
II
DISPOSITION
The trial court’s April 22, 2016, no-contact order is modified (§ 1260) as follows: “The defendant is restrained for a period of ten years from any contact with the victims M.M. and J.M. pursuant to Penal Code section 136.2, subdivision (i)(1).” The court is directed (1) to correct its sentencing minutes to include the modified no-contact order, (2) to prepare an amended abstract of judgment with the modified order and correct sentencing date, and (3) to forward a copy of the amended abstract of judgment to the appropriate correctional authorities. The judgment is affirmed as modified.



ARONSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



IKOLA, J.