P. v. Perez
Filed 2/4/13 P. v. Perez CA4/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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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.
JAVIER ENRIQUE PEREZ,
Defendant and Appellant.
G046032
(Super. Ct. No. 08CF2172)
O P I N I O N
Appeal from a judgment
of the Superior Court of
County, James Edward Rogan, Judge.
Affirmed.
Kurt David Hermansen,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Barry Carlton, Garrett Beaumont and Sean
Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Javier Enrique Perez was
convicted of one count of sexual
penetration with a foreign object on nine-year-old Mario, and one count of
committing a forcible lewd act on eight-year-old Andy. In plain English, he raped Mario with a toy
light saber, broken at the tip, and forced Andy into participating in that
rape. For these crimes he was sentenced
to two consecutive terms of 15 years to life, for a total of 30 years to
life. Perez was 16 years old when he
committed the crimes. He presents four
discrete challenges to the judgment.
(1) He claims there was insufficient evidence of
force or coercion against the eight-year old.
(2) He claims his sentence is cruel and unusual
as shown by recent federal and state high court case law, specifically
132 S.Ct. 2455; Graham v. Florida
(2010) ___ U.S. ___, 130 S.Ct 2011; and People
v. Caballero (2012) 55 Cal.4th 262.
(3) He claims that under Miller, Graham and
is unconstitutional as applied to persons under age 18, because it left the
trial court without any discretion to impose something less than 30 years to
life.
(4) He claims that under older state high court
case law, specifically People v. Dillon
(1983) 34 Cal.3d 441 and In re Lynch
(1972) 8 Cal.3d 410, his sentence is grossly disproportionate to his offenses.
We
affirm. In brief:
(1) There was
force and intimidation against Andy, including forcibly grabbing him and
pulling his pants down.
(2) Miller,
Graham and Caballero do not apply to sentences which leave the possibility of
a substantial life expectancy after prison, i.e., are not “de facto†LWOPs or
“functional†LWOPs. Perez will be
eligible for parole when he is 47.
(3) There is no rule of constitutional
jurisprudence that requires
minors are sentenced for adult crimes to periods which still leave them a
substantial life expectancy after release from prison.
(4) The punishment here fits the crimes,
before the assault on Mario, and when first interviewed by police, Perez
expressed no remorse, but asserted Mario “liked it.â€
I. FACTS
The facts do not warrant
extended recounting, though we must reiterate the basic principle of appellate
review that all conflicts in the evidence and reasonable inferences from it are
drawn in favor of that version of events which most supports the judgment. (People
v. Jones (1990) 51 Cal.3d 294, 314 [“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.â€]; see also People v. Leyba
(1981) 29 Cal.3d 591, 596-597; People v.
Lawler (1973) 9 Cal.3d 156, 160.)
Mario’s mother worked as
a janitor in Santa Ana, and sometime before 5 p.m. on July 16, 2008, dropped
him off at the house of his friend, Andy.
Andy’s brother Oscar, age 22, was supposed to be baby-sitting the two
boys, and Perez was Oscar’s friend.
Perez’s molestations of
the two boys occurred in the dining area of the kitchen, and can be quickly
summarized:
(1) Perez pulled down Mario’s pants, and held him
on the table so he could not get away.
Perez soon told Andy to “get a plastic bag and some pink cream,†and
then Perez put Andy’s hands in the bag,†then he himself put lotion on the bag,
then he “told [Andy] to put his hands in [Mario’s butt].†Andy complied. Mario screamed. Perez laughed. Mario tried to get away but Perez held him.
(2) Perez next told Andy “to get the light
saber,†which had been a present given Andy on his birthday. The light saber had a broken edge at the very
end. Mario described the toy as “a star
wars stick that was broken from the tip.â€
As Andy would later characterize Perez’s words, “he made me†because
Andy felt “scared of him.†Perez put the
light saber “inside [Mario’s] butt.â€
(3) Perez then pulled Andy’s pants down, and
grabbed Andy with both hands, lifted him up while Mario was still bent over the
table, and made Andy “rub [his] dick up against†Mario’s “butt.â€
Moments later, Perez
used a loud, raised voice to tell Andy not to tell his mother “what he did to
me.†Andy later told Mario, “I’m sorry .
. . I had to do it.â€
Perez was convicted of
four counts in all: (1) sexual
penetration of the eight-year old with a foreign object by force (Pen. Code, §
289, subd, (a)(1)); (2) sexual penetration
of a child under age 14 where he was more than seven years older than the
victim (Pen. Code, § 269, subd. (a)(5)); committing a forcible lewd act upon
the eight-year old, a child under the age of 14 (Pen. Code § 288, subd.
(b)(1)); and (4) committing a forcible lewd act upon the nine-year old (also
Pen. Code, § 288, subd. (b)(1).) For
purposes of this appeal, counts 1 and 2 are academic. Perez was sentenced to 8 years on count 1 and
15 years on count 2, but each of those sentences was stayed under Penal Code
section 654.
title="">[2]
II. DISCUSSION
Substantial Evidence of Force
Perez was convicted, in
count 4, of violating subdivision (b)(1) of section 288, which applies to
forcible lewd acts on a child under 14.
As the statute is structured,
lewd acts against children are first described in subdivision (a),
there is an additional penalty set out in subdivision (b) if an act described
in subdivision (a) is accomplished by use of force, violence, duress, menace,
or fear of immediate bodily injury on the victim or another person.
name="_ftnref4" title="">[4]
From the statute’s
structure, Perez derives the following argument: Perez’s act of lifting up Andy to rub him up
against Mario was itself the lewd act
under subdivision (a), so there is no evidence of force different from, or greater
than that needed to accomplish the lifting and simulated sex; accordingly,
his crime vis-Ã -vis Andy only comes within subdivision (a), which applies to
lewd acts against children, and not within subdivision (b)(1), which applies to
forcible lewd acts against
children. (Cf. People v. Soto (2011) 51 Cal.4th 229, 242.)
The
argument fails because there was substantial evidence of force and threat of
force beyond what was necessary to accomplish the lewd act. Perez argues he “did not force Andy to do
anything by threats of violence or physical force. For example, Javier did not force Andy’s hand
into Mario’s butt; he just grabbed it and put it in slowly. []
Javier did not force Andy, he just instructed or verbally ‘made’ him do
it. Javier got Andy’s compliance by
raising his voice and grabbing Andy.â€
This
self-serving précis of the evidence against him pretty much defeats
itself. And, given the evidence that
Perez’s hand was atop Andy’s on the light saber when it was used on Mario, and
Perez’ concession that grabbing and holding a child will satisfy the
requirements of subdivision (b)(1) (See, e. g., People v. Babcock (1993) 14 Cal.App.4th 383, 388), there seems
little to say here.
When a sixteen-year-old
yanks down the pants of one child and holds him down and then loudly orders
another to commit lewd acts upon him, the implied threat of force is pretty
clear. Given the unspoken but obvious
choice of being an accomplice or a victim, Andy chose accomplice. But to analyze this incident solely in terms
of picking Andy up and rubbing his body against Mario’s and ignore the
frightening assault on Mario that Andy had just participated in is to blind
ourselves to reality and the meaning of the words “duress, menace, or fear†in
the statute. The law neither requires
nor countenances such myopic review.
B. The Roper-Graham-Miller-Caballero Cases
The issue of how long
someone under the age of 18 may be sentenced to prison has been the subject of
considerable judicial attention recently in the wake of Miller. To simplify
analysis, on the next page we provide a chart encapsulating the Supreme Court
cases culminating in Miller and the
way the California Courts of Appeal have dealt with Miller-Graham type
challenges (as of the end of 2012).
Supreme Court cases (in order of doctrinal progression):
Simmons (2005) 543 U.S. 551: No death penalty for juvenile offenders under
18, regardless of crime.
Florida, supra, ___ U.S. ___, 130
S.Ct 2011: No LWOPs for non-homicide
juvenile offenders.
Alabama, supra, ___ U.S. ___ 132
S.Ct. 2455: No mandatory LWOPs for
homicide juvenile offenders.
Caballero, supra, 55 Cal.4th
262: 110 to life for non-homicide
juvenile offender (including attempted murder) is functional equivalent of
LWOP, ergo cruel and unusual within Graham.
after Miller in the California Court
of Appeal:
Case name Age Crime Sentence Result Rationale
years was functional
12/11/12 (multiple counts equivalent
of LWOP; reversed to
211 Cal.App.4th 987 in gang
shooting) give
t/ct chance to use discretion
in
light of Miller
chance
12/7/12 to
reevaluate sentence under
211 Cal.App.4th 909 190.5(b)
w/o seeing
LWOP
as presumptive
AG conceded sentence was
11/13/12 functional
equivalent of LWOP
210 Cal.App.4th 1478
California Appellate Cases Pre-Miller
9/1/10 reversal
was required by
188 Cal.App.4th 47
de
facto LWOP for non-homicide
LWOP Reversed Sentence
disproportionate
4/30/09 for
ransom under
traditional
173 Cal.App.4th 709 disproportionality
test; Justice
Aronson
successful anticipates
yr, 9 mos. felony murder 2 x 25 to life Affirmed Sentence
not disproportionate to
3/3/09 (gang
robbery) crime;
Justice Moore dissented, 171 Cal.App.4th 964 emphasized
young age and
offender
not being shooter
These cases follow a
remarkably consistent pattern. There is
a bright line between LWOPs and long sentences with eligibility for parole if
there is some meaningful life expectancy left when the offender becomes
eligible for parole. We are aware of –
and have been cited to – no case which has used the Roper-Graham-Miller-Caballero line of jurisprudence to strike down
as cruel and unusual any sentence against anyone under the age of 18 where the
perpetrator still has substantial life expectancy left at the time of
eligibility for parole.
name="_ftnref5" title="">[5]
How much life expectancy must remain at the time of eligibility for
parole of course remains a matter for future judicial development, but we can
safely say that in the case before us there is plenty of time left for Perez to
demonstrate, as the Graham court put
it, “some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.†(
State is not required to guarantee eventual freedom to a juvenile offender
convicted of a nonhomicide crime.â€]
There is no dispute that, given all the credits already served by Perez,
he will be eligible for parole when he reaches age 47. That is, by no stretch of the imagination can
this case be called a “functional†or “de facto†LWOP, and therefore neither
course, Roper was a death penalty
case and does not apply for that reason.
The One-Strike Law
Under Welfare and
Institutions Code section 602, subdivision (b)(2)(G), the prosecutor had no
discretion other than to try 16-year-old Perez in adult criminal court. And, under California’s one-strike law, the
trial judge had no discretion other than to impose the two 15-year-to-life
sentences concurrently. (See
§ 667.61, subdivisions (b) [specifying 15-year-to-life penalty] and (i)
[requiring consecutive sentences if separate victims].) However, as noted by Perez, the trial judge
was personally reluctant to impose the two penalties consecutively, and
“probably†would have run the penalties concurrently if he’d the authority to
do so.
Now, on appeal, beyond
the simple application of the Roper-Graham-Miller-Caballero
line, Perez argues that the rationale behind that line of cases – basically the
diminished culpability of minors resulting from their immaturity – implies that
California’s one-strike law is unconstitutional as applied to minors because it
deprives trial courts of the discretion to take into account what the
factor. (Miller, supra, 132 S.Ct. at p. 2464, quoting Roper v. Simmons, supra, 543 U.S. at p. 569.)
The argument is
unpersuasive because it overstates the scope of the Roper-Graham-Miller-Caballero line.
The central focus in the majority opinions in the three federal high
court cases was the fact the offenders had been exposed to the “harshestâ€
available sentence. As
subjecting a juvenile to the same life-without-parole sentence applicable to an
adult – these laws prohibit a sentencing authority from assessing whether the
law’s harshest term of imprisonment
proportionately punishes a juvenile offender.
That contravenes Graham’s (and
also Roper’s) foundational principle:
that imposition of a State’s most severe
penalties on juvenile offenders cannot proceed as though they were not
children.†(Miller, supra, 132 S.Ct. at p. 2465, italics added; see
[“Because the death penalty is the most severe punishment, the Eighth Amendment
applies to it with special force.â€].)
But
this is not an LWOP case. The state’s
most severe penalties are not at stake here.
So, essentially, Perez’s argument boils down to proposing a
judicially-imposed rule of mandatory discretion, namely that no matter how
heinous the crime – or how mild the
penalty otherwise imposed on adults – the federal and state cruel and
unusual punishment clauses require states to hold out some possibility of
discretionary reduction in that
penalty to take into account an offender’s youth. Under the logic of Perez’s position,
California’s one-strike law is unconstitutional as applied to him even if he
were given two mandatory consecutive five-year terms and would be out of prison
when he turned 26 – if those were the
terms similarly situated adults would receive.
This
seems to us a question properly addressed to the legislature and we need only
note that, at the moment at least, no high court has articulated a rule that
would otherwise be sentenced as adults must
have the opportunity for some discretionary reduction in their sentence by the
trial court to account for their youth.
plenty of time for him to be eligible for parole. It passes constitutional muster.
D. Gross Disproportionality
Finally,
quite apart from Miller,
asserts his sentence must be reduced under the older California Supreme Court
jurisprudence of gross disproportionality, as shown primarily in
supra, 34 Cal.3d 441.
Successful
challenges based on the traditional
rare. (See People v. Weddle (1991) 1 Cal.App.4th 1190, 1196 [“exquisite
rarityâ€]; In re Nunez, supra, 173
Cal.App.4th at p. 725 [“rarest of the rareâ€].)
It happened in Nunez, but that
was a case where a 14-year old was given a full LWOP for a non-homicide crime,
with this court successfully anticipating what the federal high court would
soon hand down in Miller. It also happened in 2005, in People v. Carmony
(2005) 127 Cal.App.4th 1066, but that was a case of a 25-year-to-life sentence
for – certainly in comparison to the present case – the relatively trivial
crime of failing to register as a sex offender within five working days of the
offender’s birthday. Likewise,
crime that pales in comparison to the present one, second offense indecent
exposure. And Dillon – while certainly not a minor crime in comparison to the
offense here (in Dillon it was felony
murder) – was a case that, like Nunez,
successfully anticipated what the federal Supreme Court would later do. Specifically, in Dillon our high court was simply some 27 years ahead of
homicide cases).
The
present case certainly is not among those “exquisitely rare†cases which merit
reversal on traditional disproportionality review. The offense was horrendous, particularly when
we take into account the evidence of a broken tip on the light saber. Mario cried out to be released, and Perez
laughed. Perez showed no remorse in the
initial police interview and justified the attack on the nine-year old by
insisting the boy enjoyed it. The
probation report noted Perez already had compiled a criminal record: There were two incidents of auto theft at age
13, and at age 14, he shot a 13-year-old-victim with a BB gun. The sentence still leaves him with the chance
for parole at age 47. And finally Perez
presents no argument or data to the effect that other American jurisdictions
impose on 16-year olds significantly more lenient sentences than the ones given
here.
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
name="_ftn1" title=""> [1] Perez’s opening and reply briefs
conflate some of these four challenges.
His briefs treat the impact of the recent Miller decision in the same heading as they treat the argument
about the lack of discretion under the one-strike law, and treat the argument
from traditional disproportionality under its own heading. The point is only worth mentioning because
the reply brief asserts that the Attorney General has “forfeited†the arguments
as to whether there was insufficient evidence of use of force against the
nine-year old and whether the one-strike law is unconstititutional as applied
to juveniles. Neither assertion is true,
but the conflation in the opening brief of the argument may have led the
Attorney General’s office to treat those topics under the same heading.
name="_ftn2" title=""> [2] All further statutory references
are to the Penal Code unless otherwise indicated.
