P. v. Ambriz













Filed 12/27/12 P.
v. Ambriz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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. ROBERTO BEDOLLA AMBRIZ, Defendant and Appellant.

G045999 (Super. Ct. No. 08NF2205) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, William Lee Evans, Judge. Affirmed.

Allen G. Weinberg, 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, Melissa Mandel and Laura A. Glennon,
Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted
55-year-old Roberto Bedolla Ambriz of sodomizing a child age 10 or younger,
kidnapping to molest the child, a forcible lewd act on another child under
14 years old, and seven counts of lewd acts on children younger than age
14. The jury also found penalty
enhancement allegations to be true on several of these counts, including
kidnapping to commit the forcible lewd act, the offenses were committed against
more than one victim, and substantial sexual conduct with victims under the age
of 14. Ambriz argues the trial court
lacked statutory authority to impose an order barring him from contact with his
two victims. He also argues the 55-year
prison sentence the trial court imposed constitutes href="http://www.mcmillanlaw.com/">cruel and/or unusual punishment under
the federal and state Constitutions because it exceeds his remaining life
expectancy. We find no merit in either
claim, and therefore affirm the judgment.


I

FACTUAL AND PROCEDURAL BACKGROUND

Twelve-year-old Kenny M.
lived in a group home, but visited his parents on weekends in Ambriz’s Anaheim neighborhood. Ambriz preyed on Kenny’s propensity to run
away, inviting him into his apartment where he gave Kenny alcohol and
cigarettes and showed him pornographic films depicting homosexual and
heterosexual sex acts. Ambriz on two
separate occasions sodomized Kenny two to five times and induced Kenny one or
two times to perform sodomy on Ambriz.
Ambriz also orally copulated Kenny two to five times and induced Kenny
to do the same once or twice. Ambriz
engineered the acts by luring Kenny to his bedroom to watch pornography. Kenny testified he did not want to have sex
with Ambriz, and he attempted to escape, but Ambriz hit and pushed him and
blocked the doorway to prevent him from leaving. The sodomy resulted in lingering physical
pain for Kenny, but he did not tell anyone because he was embarrassed.

Nine-year-old Jesus N.
played in the alley near Ambriz’s apartment and sometimes observed Kenny climb
and later descend the stairs from Ambriz’s residence. On one occasion, noticing Kenny appeared
dizzy and complained about his legs after leaving Ambriz’s place, Jesus asked
Kenny what had happened, but Kenny responded, “Don’t worry about it.”

One day in June 2008,
Ambriz hailed Jesus from his apartment window, “Come [up] and I have a toy for
you.” The child walked up the stairs
into the apartment, where he followed Ambriz to his bedroom, and Ambriz closed
the door behind him. The bedroom door
had no inside handle. Ambriz played in
the background a pornographic movie depicting acts of sodomy, disrobed, told
Jesus to be quiet when he asked, “What are you doing,” and pulled down the
child’s shorts and underwear. When the
child became frightened and attempted to back away, Ambriz leaned into him
against the bed and sodomized him. The
boy unsuccessfully tried to push Ambriz away, and the abuse only stopped after
several minutes when Jesus’s friends called his name in the alley. Ambriz removed his penis from Jesus’s behind,
and the boy put on his clothes and quickly left for his home, where he went to
the bathroom and noticed he was bleeding.

The child did not tell
anyone what happened because he believed the incident was his fault and he
would get in trouble. His mother
eventually found his underpants two weeks later, stained with blood and feces. She noticed about the same time that her son
was playing with his brother’s private parts and when she scolded him, he
revealed the abuse and could not stop crying.

Jesus identified Ambriz
in a photographic lineup in a CAST (Child Abuse Services Team) interview as
“the one who did it to me.” Ambriz
admitted to police investigators that he performed sodomy and oral copulation
on Kenny M. and a nine-year-old boy, but claimed the sex acts with the
younger boy occurred a year before the alleged incident with Jesus N. Ambriz claimed both boys wanted him to show
them how to have sex.

II

DISCUSSION

A. No Contact Order

Ambriz contends the
no-contact order the trial court imposed constituted an unauthorized
sentence. The Attorney General asserts
Ambriz forfeited this claim by failing to object to the order below, but
forfeiture applies to sentences imposed “in a procedurally or factually flawed
manner,” provided the sentence is
“otherwise permitted by law.” (>People v. Scott (1994) 9 Cal.4th
331, 354 (Scott).) “A claim that a sentence is unauthorized
. . . may be raised for the first time on appeal, and is subject to
judicial correction whenever the error comes to the attention of the reviewing
court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6; >People v. Robertson (2012)
208 Cal.App.4th 965, 995 (Robertson).) “[A] sentence is generally ‘unauthorized’
where it could not lawfully be imposed under any circumstance in the particular
case. Appellate courts are willing to
intervene in the first instance because such error is ‘clear and correctable’
independent of any factual issues presented by the record at sentencing.” (Scott,
supra, 9 Cal.4th at
p. 354.)

The Attorney General
justifies the no-contact order based on Penal Code section 1202.05 (all
further statutory references are to this code), which requires the trial court
at sentencing to “prohibit all visitation” between a defendant and a child he
or she has victimized by enumerated sexual offenses, including as here lewd
acts committed against children under age 14 (§ 288). But Ambriz correctly points out the trial
court’s order was broader than simply barring visitation in or out of prison,
instead also forbidding “contact with the victims in this matter in any fashion,”
thus precluding correspondence or other forms of contact. As noted in Robertson, however, section 1201.3, subdivision (a),
provides statutory authority to preclude any such contact for a period of 10
years when the victim of a sex crime is a minor. (Robertson,
supra, 208 Cal.App.4th at
p. 996.) We presume the trial court
understood and applied this limitation (Evid. Code, § 664), and we
therefore affirm the trial court’s broad no-contact order with its implied
expiration date. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgment presumed
correct; “‘All intendments and presumptions are indulged’” in its favor].) Properly interpreted, there is no basis to
reverse the trial court’s order.

B. Ambriz’s 55-Year Sentence Is Not Disproportionate to His Child Rape
Offenses

Ambriz contends the
length of his 55 years to life sentence exceeds federal and state
constitutional bounds. Specifically, he
argues the sentence is “gratuitously extreme”
because it most likely “cannot be served in a . . . 55-year
old’s lifetime,” and therefore bears no relation to his “level of culpability.”
He emphasizes his “minimal prior criminal record,” consisting of Vehicle
Code violations, including driving while intoxicated, and he asserts he “took
responsibility for most of his actions . . . by admitting [his]
conduct” to investigating officers. We
are not persuaded. We review claims of
excessive punishment de novo, but must consider the record in the light most
favorable to the judgment. (>People v. Martinez (1999)
76 Cal.App.4th 489, 496.)

The Eighth Amendment to
the United States Constitution barring “cruel and unusual” punishment “contains
a ‘narrow proportionality principle’ that ‘applies to noncapital
sentences.’ [Citations.]” (>Ewing> v. >California (2003) 538 U.S. 11, 20), including “‘sentences for different terms of years’” (>Lockyer v. Andrade (2003) 538 U.S. 63,
72). “A punishment violates the Eighth
Amendment if it involves the ‘unnecessary and wanton infliction of pain’ or if
it is ‘grossly out of proportion to the severity of the crime.’ [Citation.]”
(People v. Retanan (2007) 154
Cal.App.4th 1219, 1230 (Retanan).) The high court has observed this tall bar to
invalidate an otherwise valid sentence is surmounted “only in the ‘exceedingly
rare’ and ‘extreme’ case. [Citations.]” (Lockyer,
supra, 538 U.S. at p. 73 [two
consecutive 25 years to life sentences for third strike petty theft of
videotapes not invalid]; Harmelin v.
Michigan (1991) 501 U.S. 957, 1001 [life without parole sentence for
possessing 672 grams of cocaine not cruel and unusual]); People v. Meneses (2011) 193 Cal.App.4th 1087, 1092; cf. >Solem v. Helm (1983) 463 U.S. 277,
296-297 [life imprisonment without the possibility of parole for uttering
worthless $100 check constitutes cruel and unusual punishment].)

Similarly, under our
state constitutional proscription against “cruel or unusual” punishment (Cal.
Const., art. I, § 17), “[f]indings of disproportionality have occurred
with exquisite rarity in the case law.”
(People v. Weddle (1991) 1
Cal.App.4th 1190, 1196.) The test is whether
the punishment is “so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human
dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) The defendant must demonstrate the punishment
is disproportionate in light of (1) the offense and defendant’s background, (2)
more serious offenses, or (3) similar offenses in other jurisdictions. (Id.
at pp. 429-437.) The defendant must
overcome a “considerable burden” to show the sentence is disproportionate. (People
v. Wingo (1975) 14 Cal.3d 169, 174.)
Ambriz makes no effort on the second and third Lynch prongs to compare his sentence with punishment for more
serious offenses in California or with punishment in other states for the same
offense, which we deem a concession his sentence withstands intra- and
interjurisdictional scrutiny. (>Retanan, supra, 154 Cal.App.4th at p. 1231; People v. Crooks (1997) 55 Cal.App.4th 797, 808 [defendant bears
burden to establish disproportionality].)

Ambriz instead simply
relies on the fact he did not kill his victims and that this was the first time
he had been prosecuted for sex offenses.
He insists a sentence that prevents him from “ever being eligible for parole
for conduct which involved no loss of life does
shock the conscience.” (Italics added.)
Not so. The Legislature rationally
designed its punishment scheme for serious sex offenses to result in long
prison sentences, even for those without a prior criminal record. (People
v. Palmore (2000) 79 Cal.App.4th 1290, 1296.) Sex offenses devastate children, society’s
most vulnerable victims. (>Kennedy v. Louisiana (2008) 554 U.S.
407, 435 [“the victim’s fright, the sense of betrayal, and the nature of her
injuries caused more prolonged physical and mental suffering than, say, a
sudden killing by an unseen assassin”; “attack was not just on her but on her
childhood”; rape “has a permanent psychological, emotional, and sometimes
physical impact on the child”; “[w]e cannot dismiss the years of long anguish
that must be endured by the victim of child rape”].) Accordingly, convictions for multiple sexual
offenses exceeding a defendant’s expected lifetime generally pass
constitutional muster. (See, e.g., >People v. Wallace (1993)
14 Cal.App.4th 651, 666 [283-year sentence for 46 sex crimes against
seven victims] (Wallace); >People v. Bestelmeyer (1985) 166
Cal.App.3d 520, 532 [129 years for 25 sex crimes against one victim].)

Citing >Miller v. Alabama (2012) 132 S.Ct.
2455 (Miller), Ambriz suggests the
high court’s jurisprudence concerning proportionality in criminal punishment
“is in a rapid state of change,” implying it has evolved to bar life sentences
for adults who rape children. Ambriz’s
reliance on Miller is badly
misplaced. Miller had nothing to do with adult sex crimes. Rather, it concerned mandatory life without parole terms for juvenile homicide offenders, which bears no relation to Ambriz or
his sentence. The trial court here had
discretion to run Ambriz’s 25-year and two 15-year sex offense terms
concurrently; unlike in Miller, the
trial court was under no mandatory statutory obligation to impose an actual or
virtual life without parole term. In any
event, Ambriz challenges only the length of the term and not its consecutive
nature, which was well within the trial court’s discretion. (See Cal. Rules of Court, rules 4.406(b)(5)
& 4.421 [factors for consecutive sentencing include degree of cruelty,
viciousness, and callousness, vulnerability of victims, abuse of trust, danger
to society, separate crimes against separate victims, and predator’s
opportunity to reflect].) As noted,
length alone does not implicate constitutional concerns (e.g., >Wallace, supra, 14 Cal.App.4th at p. 666), and the principle that
“‘juvenile offenders cannot with reliability be classified among the worst
offenders’” (In re Nunez (2009)
173 Cal.App.4th 709, 728) has no application to a 55-year-old
pedophile. (Cf. People v. Caballero (2012) 55 Cal.4th 262, 268, fn. 4
[juvenile sentencing requires consideration of “hallmark features” of youth,
including “immaturity, impetuosity, and failure to appreciate risks and
consequences”].)

Ambriz incorrectly
asserts the length of his sentence “can serve no rational legislative
purpose.” Valid penological goals
include retribution, rehabilitation, and deterrence. (In re
Nunez, supra, 173Cal.App.4th at
p. 730.) In addition to just
retribution for the horror Ambriz inflicted on multiple child victims, his
lengthy sentence serves deterrent and incapacitating purposes, leaving little
doubt he will have no opportunity to reoffend.
High recidivism rates and lack of amenability to rehabilitation among
pedophiles reasonably concerned the Legislature and supports the sentence the
trial court imposed. (>People v. Alvarado (2001) 87 Cal.App.4th
178, 187; People v. Groomes (1993) 14
Cal.App.4th 84, 89; see People v. Jeffers
(1987) 43 Cal.3d 984, 994-996 [“A pedophile or fixated offender” is “defined as
a man (there are virtually no female pedophiles) who throughout life is
sexually attracted exclusively to children, usually boys, within a particular
age range,” fn. omitted].)

Here,
no evidence showed Ambriz was immature emotionally or intellectually (>People v. Dillon (1983) 34 Cal.3d
441, 482-483), and no evidence otherwise mitigated his culpability. Instead, Ambriz in his mid-fifties serially
molested a nine year old and a twelve year old, luring the younger boy to his
apartment by offering him a toy, and then Ambriz viciously sodomized the child
until he bled from his anus. The boy’s
mother found blood and feces in his underwear after the assault. Ambriz plied the other boy, who suffered an
unspecified mental disability, with alcohol and tobacco and then sodomized and
performed oral copulation on him, and forced him to reciprocate the acts. The boy testified he told Ambriz he did not
want to engage in the acts, but Ambriz on at least one occasion struck and
pushed the boy to keep him from leaving.
Both boys testified the sexual acts frightened them and were painful and
embarrassing.

While Ambriz admitted
molesting the older boy and at least one younger boy, his admissions were
hardly mitigating for he shirked personal responsibility by claiming each boy
sought his instruction in sexual matters, falsely claimed he did not use force,
and could not remember whether the younger victim was the boy who testified or
another one. Ambriz faced a possible
sentence of 130 years to life, but received a sentence less than half the
maximum. There is not the faintest doubt
the sentence imposed passes muster under both the federal and state
Constitutions. Ambriz’s sentence is
nowhere near disproportionate to his offense, and neither shocks the
conscience, nor offends fundamental
notions of human dignity.

III

DISPOSITION

The judgment is
affirmed.







ARONSON,
J.



WE CONCUR:







O’LEARY, P. J.







BEDSWORTH, J.