P. v. Saeliaw

Filed 1/15/10 P. v. Saeliaw 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was sentenced to an indeterminate life term after his conviction for beating and sodomizing a partially paralyzed 70-year-old man. He contends sentencing him to prison for an indeterminate life term for crimes committed when he was 16 years old constitutes cruel and unusual punishment. We affirm the judgment.

I. BACKGROUND

In a third amended information, filed April 5, 2007, defendant was charged with forcible oral copulation (Pen. Code,[1]  288a, subd. (c)(2)), assault by force likely to produce great bodily injury ( 245, subd. (a)(1)), first degree residential robbery ( 211, 212.5, subd. (a)), two counts of forcible sodomy ( 286, subd. (c)(2)), and first degree residential burglary ( 459, 460, subd. (a)). Several of the counts alleged enhancements for great bodily injury on an elderly victim ( 12022.7, subd. (c)) and great bodily injury in a sex offense ( 12022.8). There were also enhancements for a violent crime against a vulnerable person ( 667.9, subd. (a)), the commission of two or more sex acts ( 667.61, subds. (a), (e)), and the commission of burglary intending a sex crime (667.61, subds. (a), (d)). Although charged as an adult, defendant was 16 years old at the time of the crimes.

Prior to the filing of the third amended information, a bench trial was held on defendants competency, and he was found competent to stand trial. Defendant thereafter pleaded not guilty by reason of insanity.

Defendant attacked a 70-year-old man who, as a result of a stroke, was paralyzed on the right side and used a motorized scooter. Defendant came into the victims garage, closed the door and attempted to kiss the victim. When the victim resisted, defendant tipped the scooter and began striking the victim as he lay on the floor. During the attack, defendant attempted to orally copulate the victim, twice sodomized him, and beat and kicked him ferociously, eventually leaving with the victims identification, medicine, and a dollar bill taken from the victims front shirt pockets. The jury found defendant guilty of all charges and found true all enhancement allegations.

Defendant was born to a teenage Laotian mother in a refugee camp in Thailand and was a sickly baby, subject to fevers and seizures and often malnourished. It was not until his mother brought him to the United States, around the age of two, still unable to crawl or talk, that it was discovered he had a profound hearing loss. Until age seven, defendant lived in squalor with his mother, who remained illiterate and unable to speak English, and a stepfather who beat him regularly. From then until age 12, although removed from this home and placed in the foster system, he failed to make significant progress in learning sign language. At age 12, defendant was placed with a foster mother who specialized in deaf children but was known to be strict and physically abusive. Almost immediately upon arrival in that home, defendant began acting out sexually with boys and men, at school and in public restrooms, with the incidents escalating in aggressiveness as he grew older. Not long after leaving that home at age 15, defendant ended up without supervision in a chao[tic] group home for very disturbed children who were unable to succeed at other foster homes, isolated by his hearing loss. Defendant was living in this home when the assault occurred.

During the sanity hearing, the experts concurred that defendant was seriously mentally disturbed, although they differed on his diagnosis. The trial court found him legally sane at the time of the crime.[2] He was sentenced to a term of 25 years to life on the charge of forcible oral copulation, with an additional sentence of nine years on the remaining charges and enhancements.

II. DISCUSSION

Defendant contends an indeterminate life sentence, in light of his age and the circumstances of his childhood, constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution.

Although at times articulated slightly differently, the standards for cruel and unusual punishment are not materially different under the state and federal constitutions. Both bar punishment that is grossly disproportionate to the crime or the individual culpability of the defendant. (Solem v. Helm (1983) 463 U.S. 277, 288; People v. Dillon (1983) 34 Cal.3d 441, 450, 478, fn. 25, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 11851186.) Under both, the court examines the nature of the offense and the defendant, the punishment for more serious offenses within the jurisdiction, and the punishment for similar offenses in other jurisdictions. (Solem v. Helm, at pp. 290291; In re Lynch (1972) 8 Cal.3d 410, 425, 431, 436.) Any one of the three factors can be sufficient to demonstrate that a particular punishment is cruel and unusual, although the hurdle is very high. (People v. Dillon, at p. 487, fn. 38.) Whether a punishment is cruel and unusual is a question of law for the appellate court, viewing the evidence in the light most favorable to the judgment. (People v. Em (2009) 171 Cal.App.4th 964, 971.)

In recent years, the United States Supreme Court has expanded the protection afforded juveniles by the Eighth Amendment, ruling that persons under age 18 cannot be subjected to capital punishment. (Roper v. Simmons (2005) 543 U.S. 551, 568 (Roper).) Recognizing this holding represented a change from the courts prior rulings, Roper noted that standards of cruel and unusual punishment can change with the  evolving standards of decency that mark the progress of a maturing society  (id. at pp. 560561), an evolution evidenced by the ban on the death sentence for juveniles by most states and nearly all other nations. (Id. at pp. 564, 575.) The court grounded its decision in both the finality of the death penalty and the characteristics of youth, noting juveniles are less deserving of the most severe punishment because they are immature and irresponsible, more susceptible to influences, and more likely to be reformed because their characters are less well-formed. (Id. at pp. 568, 569570.) Under its current docket, the court will likely decide this term whether its ruling in Roper should be extended to preclude a sentence of life imprisonment without the possibility of parole for a juvenile offender. (Graham v. State (Fla.Dist.Ct.App. 2008) 982 So.2d 43, cert. granted May 4, 2009, No. 08-7412, ___ U.S. ___.)

Defendant provides no evidence that evolving standards of decency have led to a similar rejection of the imposition of indeterminate life sentences for juveniles convicted of serious crimes. Roper makes clear that it is confined to the death penalty, and its reasoning is grounded in the severity and finality of that penalty. Similarly, challenges to the constitutionality of life sentences without the possibility of parole for youth are grounded in the finality of the sentence, which is arguably in conflict with the capacity of juveniles to mature and change. (See, e.g., In re Nuez (2009) 173 Cal.App.4th 709, 726727, 732, 736 [finding life-without-parole sentence unconstitutional for a juvenile convicted of kidnapping].) On the contrary, People v. Em, supra, 171 Cal.App.4th 964 recently held an indeterminate life sentence of 50 years to life to be constitutional for a 16-year-old who was convicted as a nonshooting accomplice to murder. (Id. at pp. 975977.) Defendants sentence, although long, allows for parole should his term in prison result in an improvement of his circumstances. There is thus no basis for finding an indeterminate life sentence to be unconstitutional per se when imposed on a juvenile.

Defendant does not argue to the contrary.[3] Rather, he argues his indeterminate life sentence is disproportionate, given the nature of his crime, his age, and his troubled background. We cannot agree. We find unpersuasive defendants distinction between his crime and those for which he acknowledges an indeterminate life sentence may be an appropriate punishmentmurder and aggravated kidnapping. Defendant inflicted serious and unprovoked physical and mental suffering. Choosing an obviously helpless victim, defendant closed the garage door to ensure he could not escape and proceeded to humiliate and abuse his trapped victim both physically and sexually, twice sodomizing him. Although the victims paralysis prevented him from offering any real resistance, defendant beat and kicked him savagely. While it is true defendants crime did not end his victims life, it seriously impaired an ill mans enjoyment of his last years. In terms of impact, the crime was not materially different from an aggravated kidnapping, since it featured the infliction of violence simultaneous with the forcible deprivation of the victims freedom. The Legislature has marked this type of violent sex crime as particularly serious, and we find no basis for disagreeing with that characterization. ( 667.61. subd. (e).)

There is no doubt defendants childhood circumstances are disturbing. Already challenged by deafness, defendant was further isolated by the ignorance and poverty of his mother and his violent stepfather. Taken from this home around age seven, defendant appears to have disappeared into the foster system, emerging at age 12 still largely unable to communicate with others. Even after he began acting out sexually in alarming ways, defendant was not given the foster placement necessary to help him to learn to control his conduct. On the contrary, in the year prior to the crime, he had been placed in a chaotic group home that only exacerbated his isolation and confusion.

Under the test for cruel and unusual punishment, however, the primary focus is not on the defendants life history but on the defendants character and conduct. This branch of the inquiry . . . focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendants individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind. (People v. Dillon, supra, 34 Cal.3d at p. 479.) Defendants history is relevant only for the light it sheds on these questions.

We find little to mitigate defendants culpability in his age, prior criminality, personal characteristics, and state of mind. His difficult past notwithstanding, this is not a misguided but fundamentally sound young man. (See, e.g., In re Nuez, supra, 173 Cal.App.4th at p. 732.) While it is true defendant was characterized as an unusually immature person, it was not immaturity that led to these crimes, nor was it the transitory personality traits of youth, as he argues. The psychological testimony showed defendant to be a person with violent sexual impulses that he is unable, and perhaps unwilling, to control. Although defendant had no criminal history, on several occasions he had made improper sexual advances that likely would have been prosecuted had they been committed by an adult. While it can be argued that the confusion and isolation of defendants final foster placement was the immediate cause of his crime, the psychological testimony suggests he had a propensity to this type of conduct independent of those circumstances.

Defendant argues he should be viewed as less culpable because the undeniable trauma of his youth has left him with anti-social impulses and severely impaired control of those impulses. While defendants moral responsibility may be reduced by his mental condition, his culpability is not. In light of the severity of defendants crime and the lack of mitigating personal characteristics, we find nothing disproportionate in the indeterminate life sentence imposed on him.

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

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Marchiano, P.J.

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Banke, J.

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[1] All statutory references are to the Penal Code.

[2] Defendant waived jury trial on sanity.

[3] While defendant argues a One Strike life sentence on any juvenile is unconstitutionally cruel and unusual, we take this to mean an indeterminate life sentence imposed on a juvenile for the commission of a violent sex crime is unconstitutional, not that an indeterminate sentence is unconstitutional for a juvenile in all circumstances. Defendant acknowledges that an indeterminate life sentence for a juvenile convicted of murder or aggravated kidnapping might be permissible.