NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Brett Bianco, Judge. Affirmed.

Niti Gupta, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

D.F. (mother) appeals from the juvenile court’s dispositional order requiring her to complete a full drug and alcohol program with aftercare and weekly testing. She contends the dispositional order must be reversed because: (1) it is unsupported by substantial evidence; (2) the drug program ordered is unduly burdensome; and (3) the order is not narrowly tailored to the circumstances giving rise to dependency. We disagree and affirm.

BACKGROUND

Mother has two sons, A.F.[url=#_ftn1][1][/url] and D.A., who are half-brothers. Both children’s fathers are deceased. At the time the case was initiated in 2020, both children resided with mother and her boyfriend, J.A.

In April 2020, the Department of Children and Family Services (Department) received a referral alleging A.F. was the victim of general neglect by mother and of physical abuse by J.A., and that D.A. was a sibling at risk. The referral alleged A.F. and J.A. had engaged in a physical altercation.

After an investigation, in May 2020, the Department filed a petition on behalf of the children under Welfare and Institutions Code[url=#_ftn2][2][/url] section 300, subdivisions (a), (b), and (j). The petition alleged the children were at risk of serious physical harm due to: (1) J.A.’s physical abuse of A.F. and mother’s failure to protect him from the abuse (counts a-1, b-1, and j-1); (2) mother’s history of engaging in violent altercations with J.A. in the children’s presence and allowing him to reside in their home and have unlimited access to them (counts a-2 and b-2); (3) mother’s “history of substance abuse” and marijuana use which rendered her incapable of providing regular care for the children (count b-3); and (4) mother’s creation of a “detrimental and endangering situation” by allowing J.A. to possess, use, and be under the influence of marijuana in the children’s home and in their presence (count b-4).

At the onset of the Department’s investigation, mother admitted she used marijuana for medicinal purposes, but denied smoking inside the home. A.F. was also interviewed by the Department. He reported mother and J.A. smoked marijuana in mother’s bedroom while he and D.A. were inside the home. When subsequently confronted with A.F.’s statements, mother admitted she would sometimes smoke marijuana in her bedroom when the children were at school.

At a later interview, A.F. told the Department mother had, in the past, asked him to lie and say she does not smoke marijuana. Additionally, A.F. stated mother used to smoke every day but had reduced her intake to approximately twice a week. He further stated mother “tried” to smoke outside and not in front of him or D.A. because they both have asthma.

The Department interviewed multiple family members in the course of its investigation. Maternal uncle told the Department mother smoked marijuana in the home and in front of the children. Additionally, he stated mother’s home “always” smells like marijuana. Similarly, maternal grandmother reported mother and J.A. smoked marijuana in the bathroom while both children were in the home. She also stated A.F. had asked mother to refrain from smoking in the home because both children suffered from asthma. Maternal grandfather reported that whenever he visited mother, the home “stinks of marijuana.” Likewise, paternal grandmother reported the children had told him mother and J.A. smoked marijuana inside the home. Finally, paternal aunt reported A.F. said he “hates how they both [mother and J.A.] smoke in the house.”

With respect to J.A.’s marijuana use, A.F. told the Department that he smoked both inside and outside of the home. Moreover, mother admitted she allowed J.A. to smoke in her bedroom when the children were not home. Also, J.A.’s ex-wife, with whom he shares a daughter, reported their daughter claimed she saw J.A. smoke in front of A.F. and D.A.

At the adjudication hearing, the juvenile court sustained counts a-2, b-2, and b-4 and dismissed all the other counts, including the allegation that mother’s marijuana use placed the children at substantial risk of serious harm. The juvenile court placed the children with mother under Department supervision and ordered her to participate in family maintenance services, which included a six-month full drug/alcohol program with aftercare and weekly drug testing and a domestic violence support group for victims.

Mother timely appealed.

DISCUSSION

[*]Governing Legal Principles and Standard of Review

“The [juvenile] court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion.” [Citations.]” ([i]In re Christopher H.[/i] (1996) 50 Cal.App.4th 1001, 1006.) “‘On appeal, this determination cannot be reversed absent a clear abuse of discretion. [Citation.]’ [Citations.]” ([i]In re Briana V.[/i] (2015) 236 Cal.App.4th 297, 311.) “In reviewing an order for abuse of discretion, we ‘“must consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court’s ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child.”’ [Citation.]” ([i]In re Natalie A. [/i](2015) 243 Cal.App.4th 178, 186-187.)

“The problem that the juvenile court seeks to address [in its dispositional order] need not be described in the sustained section 300 petition. [Citation.] In fact, there need not be a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order. [Citation.]” ([i]In re Briana V.[/i], [i]supra[/i], 236 Cal.App.4th at p. 311 see also [i]In re Christopher H.[/i], [i]supra[/i], 50 Cal.App.4th at p. 1006).) Court ordered programs ‘must be appropriate for each family and be based on the unique facts relating to that family.’ [Citation.]” ([i]In re Michael S.[/i] (1987) 188 Cal.App.3d 1448, 1458.) The juvenile court “may make ‘all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . .’ (§ 362, subd. (a).)” ([i]In re Jasmin C. [/i](2003) 106 Cal.App.4th 177, 180.)

[*]Analysis

Mother contends the juvenile court abused its discretion by ordering her to participate in a substance abuse program. In support of this position, she argues substantial evidence does not support the need for a full substance abuse program as her marijuana use was not the issue that led to dependency. Instead, mother contends her dependence on marijuana has decreased and the drug is used only “to address her acute chronic medical problems.” Additionally, mother argues her marijuana use has no impact on D.A.’s safety and welfare because she does not use marijuana in his presence and she stores it in a safe where D.A. cannot access it. Moreover, she argues participation in the drug program is “unduly burdensome and potentially jeopardizes the goal of retaining” D.A. in her custody. Finally, mother argues participation in the drug program is “not narrowly tailored to address the specific needs of this family.”

For the reasons discussed below, we disagree with mother’s arguments and affirm.

First, we, like the juvenile court, recognize marijuana use is legal in the state of California and acknowledge mother possesses a medical marijuana card. We find the drug program, however, was reasonably tailored to protect D.A.’s interest given the unique facts of this case. Here, the record shows mother smoked marijuana inside the home and when the children were present. Her conduct is especially harmful considering both children suffer from asthma. Additionally, the record shows the children have confronted mother about the impact her smoking has on them. Furthermore, not only did mother lie to the Department about her use of marijuana inside of the home, but she instructed her children to do the same. Moreover, multiple family members reported the children had complained about mother smoking marijuana in front of them. Family members also reported that mother’s home regularly smelled of marijuana. Although the juvenile court struck the allegation that mother’s marijuana use placed D.A. in danger, it could still reasonably find mother’s completion of a drug program would be in D.A.’s best interest. Further, the court could appropriately conclude the program could assist mother in addressing the issues giving rise to dependency jurisdiction by helping her understand the risk of harm D.A. faced due to J.A.’s marijuana abuse, and reducing the likelihood that her own use would impede her participation in the court-ordered domestic violence support group. We therefore conclude the dispositional order was not an abuse of discretion due to lack of evidentiary support.

Next, mother contends the drug program would impose an undue burden on her because she must also manage her unresolved domestic violence issues and medical conditions, and care for D.A. While it is true “[j]uvenile courts should be mindful of the burdens their disposition orders impose on parents already grappling with difficult conditions and circumstances[,] . . . the paramount concern always must be the child’s best interests[.]” ([i]In re D.P.[/i] (2020) 44 Cal.App.5th 1058, 1071.) As discussed above, the evidence demonstrates mother’s marijuana use impacted D.A.’s wellbeing. “[W]e cannot reverse a disposition order reasonably fashioned to eliminate the conditions that led to dependency jurisdiction, no matter how burdensome its requirements may seem from the parent’s perspective. [Citations.]” ([i]I[/i][i]d. [/i]at pp. 1071-1072.) While we recognize and praise mother’s willingness to address the issues that caused the Department intervention, we find the evidence shows the mother’s completion of a drug program is in D.A.’s best interest.

Lastly, mother acknowledges the dispositional order “is not limited to” the court’s sustained jurisdictional findings and that a court has “wide latitude” in ordering reasonable services considering the “evidence as a whole.” ([i]In re Briana V.[/i], [i]supra[/i], 236 Cal.App.4th at p. 311.) However, she argues the dispositional order should be reversed because it was not “narrowly tailored” to the issues that led to dependency. Mother’s reliance on [i]In re Drake M[/i]. (2012) 211 Cal.App.4th 754, 770 for this contention is misplaced. As the Department notes, the court in [i]In re Drake M. [/i]did not hold that the dispositional order must be “narrowly tailored” to the issues that led to dependency intervention. (See [i]In re Drake M[/i]., [i]supra[/i], 211 Cal.App.4th at p. 770.) Instead, the court held a program a parent is required to participate in ““‘must be appropriate for each family and be based on the unique facts relating to that family.’” [Citation.]” ([i]Ibid.[/i]) For the reasons discussed above, we find the drug program was appropriate given the unique facts of this family.

DISPOSITION

The dispositional order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

[url=#_ftnref1][1][/url] This appeal is moot as to A.F. as the juvenile court terminated jurisdiction over him when he turned 18 years old in September 2020. (See [i]In re C.C. [/i](2009) 172 Cal.App.4th 1481, 1488.) Accordingly, this appeal pertains to only D.A.

[url=#_ftnref2][2][/url] All undesignated statutory references are to the Welfare and Institutions Code.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, James R. Dabney, Judge. Dismissed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 1994, a jury convicted defendant and appellant Franklin Perkins of second degree murder (Pen. Code, § 187, subd. (a)),[url=#_ftn1][1][/url] and the trial court sentenced him to an indeterminate term of 15 years to life in state prison. In 2020, Perkins filed a petition for resentencing under section 1170.95. The trial court denied the petition, concluding Perkins was ineligible for relief because he was the actual killer. Perkins timely appealed.

Appellate counsel filed a brief identifying no issues and requesting that this court follow the procedures set forth in [i]People v. Serrano[/i] (2012) 211 Cal.App.4th 496. The court notified Perkins he had 30 days to file a supplemental brief. Perkins did not file a supplemental brief. This court has no independent duty to review the record for reasonably arguable issues. ([i]People v. Cole[/i] (2020) 52 Cal.App.5th 1023, 1039-1040, review granted, Oct. 14, 2020, No. S264278.) We therefore dismiss Perkins’s appeal as abandoned. ([i]Ibid[/i].)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

MANELLA, P.J.

COLLINS, J.

[url=#_ftnref1][1][/url] All undesignated statutory references are to the Penal Code.

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 SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Allen J. Webster, Jr., Judge. Affirmed.

Paul Stubb Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

Thorton David Withers appeals from a postjudgment order denying his motion to vacate the restitution and parole revocation fines imposed when he was sentenced as a third strike offender following his conviction for aggravated assault in 2002. No arguable issues were identified by Withers’s appointed appellate counsel after his review of the record. We also have identified no arguable issues after our own independent review of the record and analysis of the contentions presented by Withers in a supplemental brief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Withers was convicted following a jury trial of assault with a firearm (Pen. Code, § 245, subd. (a)(2))[url=#_ftn1][1][/url] with a true finding he had personally used a firearm when committing the offense (§ 12202.5). In a bifurcated proceeding the trial court found true the allegations Withers had suffered two prior convictions for serious or violent felonies within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). Withers was sentenced as a third strike offender to an aggregate indeterminate state prison term of 30 years to life. As part of his sentence Withers was ordered to pay a restitution fine of $5,000 pursuant to former section 1202.4, subdivision (b). A parole revocation fine of $5,000 was imposed and stayed (former § 1202.45). We affirmed the judgment on appeal. ([i]People v. Withers[/i] (Nov. 19, 2003, B162764) [nonpub. opn.].)

On March 2, 2020 Withers filed a motion to vacate the restitution and parole revocation fines pursuant to our decision in [i]People v. Dueñas[/i] (2019) 30 Cal.App.5th 1157 ([i]Dueñas[/i]). Withers argued, “Petitioner is indigent and has an aggregate sentence of 30 years to life indeterminate term, the imposition of the assessments without the ability to pay finding violated his right to due process.” In support of his contention he lacked the ability to pay, Withers submitted a one-page Inmate Statement Report dated February 10, 2020 indicating he had worked one day in November 2019 and one day in December 2019; he received $25 for each day worked; and $3,027.31 remained due on his restitution fine.[url=#_ftn2][2][/url] The superior court summarily denied the motion on March 3, 2020. Withers filed a timely notice of appeal.

DISCUSSION

In accord with the procedures described in [i]People v. Cole[/i] (2020) 52 Cal.App.5th 1023, review granted October 14, 2020, S264278, we appointed counsel to represent Withers on appeal. After reviewing the record, appointed counsel filed a brief raising no issues. Appointed counsel advised Withers on August 17, 2020 that he may personally submit any contentions or issues he wanted the court to consider.

On September 18, 2020 we received a 16-page typed supplemental brief from Withers. Citing this court’s opinions in [i]Dueñas[/i], [i]supra[/i], 30 Cal.App.5th 1157 and [i]People v. Castellano[/i] (2019) 33 Cal.App.5th 485 ([i]Castellano[/i]), Withers asserts the superior court erred in denying his motion to vacate the restitution and parole revocation fines, arguing he had properly raised the issue of his ability to pay by filing a motion in the superior court and had produced evidence showing his actual inability to pay the fines. Withers has forfeited this argument.

In [i]Dueñas[/i] this court concluded, “[T]he assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair; imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” ([i]Dueñas[/i], [i]supra[/i], 30 Cal.App.5th at p. 1168; accord, [i]People v. Belloso[/i] (2019) 42 Cal.App.5th 647, 654-655, review granted Mar. 11, 2020, S259755.) A restitution fine under section 1202.4, subdivision (b), however, “is intended to be, and is recognized as, additional punishment for a crime.” ([i]Dueñas[/i], at p. 1169; accord, [i]Belloso[/i], at p. 655.) Although section 1202.4, subdivision (c), expressly provides a defendant’s inability to pay a restitution fine may not be considered a “compelling and extraordinary reason” not to impose the statutory minimum fine, the court may consider the defendant’s ability to pay if the court imposes a restitution fine above the minimum amount. ([i]Id.[/i], subd. (d) [“[i]n setting the amount of the [restitution] fine . . . in excess of the minimum fine,” the court “shall consider any relevant factors, including, but not limited to, the defendant's inability to pay”]; see [i]Dueñas[/i], at p. 1170, fn. 6 [“a trial court may . . . consider a defendant’s ability to pay if the court is considering imposing a restitution fine in excess of the statutory minimum amount”]; see also [i]People v. Miracle[/i] (2018) 6 Cal.5th 318, 356.)

In [i]Castellano[/i], decided two months after [i]Dueñas[/i], we clarified that, in the absence of evidence of the defendant’s inability to pay, the People are not required to establish the defendant has the means to pay before the court imposes the fines, fees and assessments required by statute. “[A] defendant must in the first instance contest in the trial court his or her ability to pay the fines, fees and assessments to be imposed and at a hearing present evidence of his or her inability to pay the amounts contemplated by the trial court.” ([i]Castellano[/i], [i]supra[/i], 33 Cal.App.5th at p. 490; accord, [i]People v. Montes[/i] (2021) 59 Cal.App.5th 1107, 1121 [“he will bear the burden of both demonstrating a harm of constitutional magnitude and making a record regarding his alleged inability to pay the restitution fine and court assessments”]; [i]People v. Santos[/i] (2019) 38 Cal.App.5th 923, 934 [“it is the defendant’s burden to demonstrate an inability to pay, not the prosecution's burden to show the defendant can pay”]; see [i]Dueñas[/i], [i]supra[/i], 30 Cal.App.5th at pp. 1168-1169.) If the trial court determines, after considering the relevant factors, a defendant is unable to pay, then the fees and assessments cannot be imposed; and execution of any restitution fine imposed must be stayed until such time as the People can show that the defendant’s ability to pay has been restored. ([i]Castellano[/i], at p. 490; [i]Dueñas[/i], at pp. 1168-1169, 1172.)[url=#_ftn3][3][/url]

At the time Withers was sentenced in 2002, former section 1202.4, subdivision (c), provided, “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the two-hundred-dollar ($200) . . . minimum.” (See also former section 1202.4, subdivision (d) [“[i]n setting the amount of the fine pursuant to subdivision (b) in excess of the two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum [for misdemeanors], the court shall consider any relevant factors including, but not limited to, the defendant’s inability to pay”].)

Here, because the $5,000 restitution fine exceeded the statutory minimum, Withers had the opportunity to object based on his inability to pay. By failing to object, Withers forfeited the argument the court violated his rights by imposing the fine without considering his ability to pay. (See [i]People v. Miracle[/i], [i]supra[/i], 6 Cal.5th at p. 356 [“[b]ecause [the] defendant did not object to the [restitution] fine at his sentencing hearing, he has forfeited his challenge”]; [i]People v. Avila[/i] (2009) 46 Cal.4th 680, 729 [“in not adducing evidence of his inability to pay” a $10,000 restitution fine, the defendant “forfeited the argument”]; [i]People v. Smith[/i] (2020) 46 Cal.App.5th 375, 395 [“a defendant forfeits a challenge to the trial court’s imposition of a restitution fine above the statutory minimum for failing to consider his or her ability to pay if the defendant did not object in the trial court”]; [i]People v. Gutierrez[/i] (2019) 35 Cal.App.5th 1027, 1033 [defendant “forfeited any ability-to-pay argument regarding the restitution fine by failing to object”].)[url=#_ftn4][4][/url]

Because no cognizable legal issues have been raised by Withers’s appellate counsel or by Withers or identified in our independent review of the record, the order denying the postjudgment motions is affirmed. (See [i]People v. Cole[/i], [i]supra[/i], 52 Cal.App.5th at pp. 1039-1040, review granted; see also [i]People v. Serrano[/i] (2012) 211 Cal.App.4th 496, 503; see generally [i]People v. Kelly[/i] (2006) 40 Cal.4th 106, 118-119; [i]People v. Wende[/i] (1979) 25 Cal.3d 436, 441-442.)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

[url=#_ftnref1][1][/url] Statutory references are to this code.

[url=#_ftnref2][2][/url] “Prison wages range from $12 to $56 per month, depending on the prisoner’s skill level.” ([i]People v. Aviles[/i] (2019) 39 Cal.App.5th 1055, 1076; see Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) The state is permitted to garnish a portion of those wages to satisfy the restitution fine. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f) [“[T]he department shall deduct 50 percent or the balance owing, whichever is less, from the inmate’s wages and trust account deposits regardless of the source of such income subject to the exemptions enumerated in subsection (j). In addition, an administrative fee of 10 percent of the deduction shall be deducted to reimburse the department for its administrative costs, for a maximum deduction of 55 percent”].)

[url=#_ftnref3][3][/url] In [i]People v. Kopp[/i] (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, the Supreme Court has directed the parties to brief the following issues: “Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? If so, which party bears the burden of proof regarding defendant’s inability to pay?”

[url=#_ftnref4][4][/url] Former section 1202.45 in 2002, like section 1202.45, subdivision (a), today, provides that the parole revocation fine shall be assessed in the same amount as the restitution fine pursuant to section 1202.4, subdivision (b). Accordingly, Withers’s forfeiture of his challenge to the restitution fine also forfeits any challenge to the parole revocation fine.

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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jack P. Hunt (retired judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Steven D. Blades, Judges. Affirmed.

Emry J. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Sergio Jonathan Del Cid guilty of two counts of sexual intercourse or sodomy with a child 10 years or younger, four counts of lewd acts upon a child under the age of 14, three counts of using a minor for sex acts, one count of dissuading a witness, and one count of contempt of court. The victims are the four daughters of Del Cid’s girlfriend. They were approximately between the ages of six and 13 when the sex offenses occurred, on numerous occasions between 2015 and 2018. On appeal, Del Cid argues: the trial court erred in excluding character evidence regarding the oldest victim; the trial court erred in denying his motion pursuant to [i]People v. Marsden[/i] (1970) 2 Cal.3d 118; and the sentence imposed constitutes cruel and unusual punishment under the United States and California Constitutions. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In or around late 2016, Del Cid and his girlfriend, A.S., began living together, along with A.S.’s four daughters: G., born in March 2005; N., born in December 2007; A., born in October 2010; and E., born in January 2012.[url=#_ftn1][1][/url] A.S. had a shared custody arrangement with the children’s father.

When the oldest victim, G., was in fifth grade, and she, her sisters, her mother, and Del Cid were living in Bell Gardens, she awoke one night to a flashlight shining on her face and someone tugging down her pajama pants and underwear. When she opened her eyes she saw Del Cid running back to the room he shared with her mother. G. was scared. On a subsequent occasion, she again awoke to a flash and the feeling of someone tugging on her pajama bottoms and underwear. She saw Del Cid, who ran back to his room. The family later moved to El Monte. At both homes, Del Cid would try to tickle G., putting his hands under her shirt and under her bra. He at times succeeded in touching or squeezing her breast with his hand. Del Cid did not respond when G. told him to stop. On other occasions, Del Cid picked her or one of her sisters up, wrapped their legs around his hips, and tried to position them onto his penis. These incidents happened only when A.S. was not around. G. would tell Del Cid to stop, but he did not; she sometimes had to push him off or hit him. G. saw Del Cid tickling her little sisters. She told her sisters not to play around with Del Cid; they told her it was Del Cid who initiated the playing.

The last time G. recalled Del Cid touching her occurred in El Monte. G. felt a flashlight on her face and tugging on her pajama bottoms. She opened her eyes and saw Del Cid, sitting on her bed, facing her, and holding a camera with the flash on. Del Cid retreated when G. woke up. She could see that he was naked as he ran away. G. checked her phone; it was around 2:00 a.m. She was scared and could not sleep. Del Cid returned after a while and told her to go back to sleep. She wanted to tell her mother what Del Cid was doing but feared A.S. would not believe her.

E., the youngest victim, was around six years old when Del Cid’s sexual conduct with her began. On multiple occasions, Del Cid told E. to go into her mother’s bedroom. He told E. to get on the bed and remove her pants and underwear. He then made her lie down on her back, with her legs lifted and her feet in the air by her head. Del Cid stood in front of her. She could see him using his phone to take pictures. At times, Del Cid told E. to turn around and expose her bottom to the camera. He touched her legs, her bottom, and her genitals. He used his hands to put her body in different poses, then he took pictures. Del Cid would tell E. to put oil on her hands and touch him. He made her hold his penis while he took pictures with his phone. More than once, Del Cid penetrated E.’s vagina with his penis, which hurt her. He held her stomach so that he could penetrate her. Del Cid also forced E. to watch pornographic videos, including one depicting a woman orally copulating a man.

Del Cid engaged in this behavior when A.S. was not home. He repeatedly threatened E. that if she told anyone about what he was doing she would have to go live with a different family. This threat was effective; E. did not tell A.S.

A. is around one year older than E. On multiple occasions, Del Cid told A. and E. to go into A.S.’s bedroom. He made both girls take off their pants and underwear and had them lie down on the bed. Del Cid would put their legs up to expose the girls’ private parts, then he took pictures. A. described Del Cid grabbing her legs and holding them in the air. According to A., Del Cid aimed the phone at their private parts. She felt that he was doing something wrong, but she was afraid that if she protested Del Cid would get angry. Del Cid told her and E. that if they told A.S. about what he was doing they would have to go to a different family. A. felt sad and also feared she was to blame for Del Cid’s actions. She sometimes saw Del Cid take E. into the bedroom alone and close the door. E. would later come out of the room, silent and with red eyes.

When N. was around eight or nine years old, at a time that G. was at a friend’s house and A.S. was not home, Del Cid called N. into his bedroom. N. initially refused, but eventually went in. Del Cid closed the door. He put N. on the bed and took off her pants and underwear. N. began to kick and cry. Del Cid used his thumbs to stretch open her vagina, then he took pictures. He penetrated her vagina with his penis. The penetration hurt. N. cried. N. wanted to tell A.S. what had happened but found herself unable to.

On other occasions, N. saw E. and A. going into Del Cid’s bedroom. Once, when the door was cracked, N. saw Del Cid taking pictures of E.’s private parts while she was lying with her back on the bed and her legs open. When N. saw this she cried because it was “hard to see [her] sister like that.”

Eventually, in June 2018, G. told her father that Del Cid was touching her. The girls’ father took them to law enforcement. All four girls eventually disclosed Del Cid’s conduct. During an interview with law enforcement, Del Cid declined permission for the officers to search his phone. When he was later told he was being placed under arrest, Del Cid took the phone and broke it in half, rendering it impossible to recover photographs from the phone itself.

While in custody, Del Cid had numerous telephone calls with A.S., including calls in which Del Cid said the case against him would go away if the girls did not appear in court, or if they recanted. Del Cid and A.S. discussed getting the girls to change their stories or to say nothing. In August 2018, Del Cid called A.S. from jail when the girls were visiting her. He asked to speak with G. Although G. refused, A.S. passed the phone to her. Del Cid was crying. He told G. it was difficult for him in jail. G. said he should have thought about what he was doing. Del Cid apologized for “scolding” her, to which G. responded: “But it’s not that, Jonathan. It’s not that. . . . You did it so many times to me and my sisters. Why did you do that? Why did you do it, Jonathan?” Del Cid again said he regretted it, but denied doing anything to N. G. told Del Cid not to “play dumb,” insisted that what N. had reported was true, and again asked why he did it.

G. then continued: “But you hurt me so much, Jonathan, I swear. Every day—I cry every single day at night because of what you did to me. That’s not nice. It’s wrong. And I swear on my mother that I always cry at night because I remember constantly. [¶] . . . [¶] And . . . I can’t . . . saying that I don’t want to live because of this, Jonathan. You made my life horrible, I swear. You ruined my whole life Jonathan.” Del Cid said G. would have a good life and would be fine, “[b]ut what about me? I’ll be here rotting in jail.” He then asserted that G. and her sisters had tried to separate him from A.S. and had tried to make them argue. G. answered: “Okay, but why would you do that? Why did you do it? Doesn’t mean you had to go over there and be a perv. I—we didn’t do anything like that to you. . . . And what you did is very bad. And I was scared. I swear to you, I was scared. [¶] . . . [¶] And I don’t know, but something made me say it. But I swear, Jonathan, that it hurt me.” When Del Cid continued to insist that he had never done anything to N., G. said she would never forgive him. G. returned the phone to her mother and began crying. G. testified at trial that Del Cid told her not to say anything.

The jury found Del Cid guilty on all counts. With respect to G., the jury found Del Cid guilty of four counts of lewd act upon a child under 14 (Pen. Code, § 288, subd. (a); counts 1–3, 8).[url=#_ftn2][2][/url] As to N. the jury found Del Cid guilty of one count of using a minor for sex acts (§ 311.4, subd. (c); count 4) and one count of sexual intercourse or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); count 6). As to E., the jury found Del Cid guilty of one count of using a minor for sex acts (§ 311.4, subd. (c); count 5), one count of sexual intercourse or sodomy with a child 10 years old or younger (§ 288.7, subd. (a); count 9), and one count of lewd act upon a child under 14 (§ 288, subd. (a); count 10). With respect to A., the jury found Del Cid guilty of one count of using a minor for sex acts (§ 311.4, subd. (c); count 7).[url=#_ftn3][3][/url]

The jury also found Del Cid guilty of one count of dissuading a witness when having a prior (§ 136.1, subd. (c)(3); count 11), and one misdemeanor count of contempt of court (§ 166, subd. (c)(1); count 12). As to the section 288, subdivision (a) counts, the jury found true allegations that the crimes were committed against more than one victim (§ 667.61, subds. (b), (c), (e)), and, as to the section 136.1, subdivision (c)(3) count, that Del Cid suffered a prior conviction of section 136.1, subdivision (b)(1).

The trial court sentenced Del Cid to an aggregate sentence of 131 years to life, consisting of an indeterminate sentence of 125 years to life and a determinate sentence of six years. This appeal timely followed.

DISCUSSION

[*]The Trial Court Did Not Err in Excluding Character

Evidence About G.

Del Cid contends the trial court erred in excluding evidence regarding G.’s character. We find no abuse of discretion.

[*]Background

Before trial, Del Cid filed a motion pursuant to Evidence Code section 728, seeking to present evidence that G. had photographs of male genitalia on her cell phone, and that she was hospitalized for marijuana use in September 2018.[url=#_ftn4][4][/url] Del Cid argued the photographs were relevant to the defense theory that G. fabricated the allegations against him, and that she had been in trouble with her mother and Del Cid for her behavior. He also argued the photographs helped establish that G. came up with the idea to falsely claim Del Cid took photographs of her and her sisters. Del Cid asserted the evidence of marijuana use was relevant to show “depraved process and logic.” The prosecutor objected to the evidence, noting that the photographs on G.’s phone were discovered after the children had disclosed Del Cid’s conduct. The hospitalization resulting from G.’s consumption of edible marijuana also occurred after she and her sisters had disclosed Del Cid’s conduct. The prosecutor argued the evidence was not relevant to G.’s credibility and would serve no purpose other than to attack her character.

The trial court ruled that while Del Cid could argue that the allegations against him were contrived, and he could present evidence showing G. had disciplinary issues, the court would exclude evidence of the pictures on G.’s phone. The court further indicated that given the timing of the marijuana-related hospitalization, the evidence was not relevant and more prejudicial than probative under Evidence Code section 352.

[*]Discussion

Evidence Code section 1103, subdivision (c) limits the ability of a defendant charged with certain sex offenses to offer evidence of the complaining witness’s sexual conduct. However, a defendant may use evidence of the complaining witness’s sexual conduct to attack the witness’s credibility, using the procedures set forth in Evidence Code section 782. (Evid. Code, § 1103, subd. (c)(5).) First, the defendant must file a written motion making an offer of proof of the relevance of the evidence of the witness’s sexual conduct, and of the relevance of the evidence in attacking the witness’s credibility. ([i]Id.[/i], § 782, subd. (a)(2).) The court must order a hearing if it finds the offer of proof sufficient. ([i]Id.[/i], § 782, subd. (a)(3).) If the court finds the proposed evidence is relevant pursuant to Evidence Code section 780, and is not inadmissible pursuant to Evidence Code section 352, the court may make appropriate orders detailing what may be introduced and the nature of questions permitted. ([i]Id.[/i], § 782, subd. (a)(4).) Evidence Code section 782 applies when the defense seeks to offer evidence of a child’s prior sexual conduct. ([i]People v. Mestas[/i] (2013) 217 Cal.App.4th 1509, 1514.)

“The trial court is vested with broad discretion to weigh a defendant’s proffered evidence, prior to its submission to the jury, ‘and to resolve the conflicting interests of the complaining witness and the defendant.’ [Citation.] ‘[T]he trial court need not even hold a hearing unless it first determines that the defendant’s sworn offer of proof is sufficient.’ ” ([i]People v. Mestas[/i],[i] supra[/i], 217 Cal.App.4th at p. 1514.) As the court recognized in [i]People v. Chandler [/i](1997) 56 Cal.App.4th 703, 708, courts have narrowly exercised this discretion so as to avoid “undermining . . . the legislative intent to limit public exposure of the victim’s prior sexual history. [Citations.] Thus, the credibility exception has been utilized sparingly, most often in cases where the victim’s prior sexual history is one of prostitution.” We review a trial court’s ruling on the admissibility of prior sexual conduct for an abuse of discretion. ([i]Id. [/i]at p. 711.)

Here, the trial court did not abuse its discretion in excluding evidence of photographs of male genitalia on G.’s cell phone as not relevant to her credibility. The defense offer of proof did not indicate there would be evidence that the photographs were on her phone, or were discovered on her phone, prior to her disclosures about Del Cid, such that they could have played a role in her decision to accuse Del Cid of sexual misconduct. Without any indication that the photographs were on G.’s phone, or were discovered on her phone, prior to her disclosures about Del Cid, the evidence did not have “any tendency in reason to prove or disprove the truthfulness of [her] testimony.” (Evid. Code, § 780.)

On appeal, Del Cid argues that although trial counsel did not know when G. obtained the photographs, the defense [i]suspected [/i]G. had been collecting such photographs prior to Del Cid’s arrest, and he should have been allowed to explore this by questioning G. However, the trial court could reasonably conclude that Evidence Code section 352 applied to bar any such inquiry. While the probative value of evidence of photographs of male genitalia on G.’s phone was minimal, there was a substantial probability that admitting the evidence would require undue consumption of time, and would create a substantial danger of undue prejudice and confusion of issues by suggesting the jury could use the evidence simply to impugn G.’s character, unconnected to any legitimate issue of credibility. ([i]People v. Fontana [/i](2010) 49 Cal.4th 351, 370 [potential prejudice of evidence regarding victim’s sexual activity is substantial; it can lead to impermissible or irrational inferences, such as that victim “got what she deserved”].) The trial court stated it would allow the defense to challenge G.’s credibility by offering evidence generally that G. had disciplinary issues, that Del Cid disciplined her, and that she resented the discipline and fabricated the charges. Excluding the highly prejudicial evidence of photographs of male genitalia on G’s phone was not an abuse of the court’s broad discretion under Evidence Code section 782.

We further conclude the trial court did not abuse its discretion in excluding the evidence of G’s marijuana use under Evidence Code section 352.[url=#_ftn5][5][/url] The hospitalization occurred after G. and her sisters had disclosed Del Cid’s sexual misconduct. There was no evidence of G. using marijuana prior to the hospitalization. There was no evidence or theory that G. was ever impaired or under the influence when the crimes occurred or when she accused Del Cid. There was no suggestion that G. would be impaired in any way when testifying at trial. The trial court reasonably concluded that any probative value of the evidence was substantially outweighed by the probability that its admission would necessitate an undue consumption of time and create substantial danger of undue prejudice, and of confusing the issues. (See [i]People v. Loker [/i](2008) 44 Cal.4th 691, 734–736 [court did not abuse its discretion in excluding evidence of methamphetamine abuse by victims; evidence was not relevant, had no impact on their behavior with respect to defendant]; [i]People v. Carter [/i](2005) 36 Cal.4th 1215, 1259, fn. 30 [trial court did not abuse its discretion in excluding evidence that victim was an alcoholic; evidence was marginally relevant and would have consumed undue amount of time]; [i]People v. Kelly [/i](1992) 1 Cal.4th 495, 523 [no abuse of discretion in exclusion of evidence of victims’ substance abuse; the “court is not required to admit evidence that merely makes the victim of a crime look bad”].)

The trial court did not abuse its discretion in excluding either category of evidence. “We likewise reject defendant’s claim that this ruling deprived him of his right to confront witnesses or his right to present a defense.” ([i]People v. Fontana[/i], [i]supra[/i], 49 Cal.4th at p. 370.)

[*]The Trial Court Did Not Abuse Its Discretion in

Denying Del Cid’s [i]Marsden[/i] Motion

[*]Background

Around two months before trial began, Del Cid requested a [i]Marsden[/i] hearing.[url=#_ftn6][6][/url] Del Cid said his appointed counsel was not helping him, did not visit him, and did not tell him much about the case, including the details of the prosecution settlement offer.

Defense counsel stated the prosecution’s offer. Counsel then informed the court there had been a tactical disagreement at the preliminary hearing when counsel suggested the defense should waive the testimony of the youngest victim. However, since Del Cid disagreed, E. did in fact testify. Counsel indicated Del Cid wrote letters to him and he responded when Del Cid wrote “cogently.” He explained he had not visited Del Cid in custody because Del Cid had not been candid with him and counsel felt written correspondence was more productive. Counsel also said he spent a long time with Del Cid when he was brought to court.

Del Cid asserted his attorney did not, in fact, speak to him when he was brought out of custody for proceedings. Counsel responded that at one proceeding, Del Cid refused to leave the holding cell and refused to speak to him.

The trial court denied the [i]Marsden [/i]motion.

[*]Discussion

Del Cid contends the court erred in denying his [i]Marsden[/i] motion because he established there was a breakdown of the attorney-client relationship so significant that ineffective representation was likely to result. We find no error.

“ ‘When a defendant seeks to obtain a new court-appointed counsel on the basis of inadequate representation, the court must permit him or her to explain the basis of [the] contention and to relate specific instances of inadequate performance. The court must appoint a new attorney if the record clearly shows the current attorney is not providing adequate representation or that the defendant and counsel have such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] If the court holds an adequate hearing, its ruling is reviewed for abuse of discretion.’ ” ([i]People v. Rices[/i] (2017) 4 Cal.5th 49, 69.)

Here, Del Cid complained that defense counsel had not conveyed the prosecution’s offer and did not communicate with him adequately. However, counsel explained that he was communicating with Del Cid through written correspondence, and that they discussed the case when Del Cid was brought to court and agreed to meet with counsel. To “ ‘the extent there was a credibility question between defendant and counsel at the hearing, the court was “entitled to accept counsel’s explanation.” ’ ” ([i]People v. Rices[/i],[i] supra[/i], 4 Cal.5th at p. 69.) Del Cid could not force a substitution of counsel by manufacturing a breakdown of communication resulting from his refusal to meet with his attorney. ([i]People v. Johnson[/i] (2018) 6 Cal.5th 541, 574 [defendant cannot refuse to cooperate or refuse to speak with counsel, then rely on that same behavior to assert irreconcilable conflict with counsel].)

Moreover, defense counsel understood the defense theory Del Cid wished to rely upon. Counsel described how he was defending the case accordingly. Despite Del Cid’s refusal to meet with him, counsel used other means to communicate with Del Cid productively. The information provided to the trial court did not suggest that any delay in the communication of the prosecution’s settlement offer was the result of a conflict between counsel and Del Cid, or that it amounted to inadequate representation. The trial court did not abuse its discretion in denying the [i]Marsden[/i] motion.

[*]Del Cid’s Sentence Does Not Constitute Cruel and

Unusual Punishment

Del Cid contends his aggregate sentence of 131 years to life amounts to cruel and unusual punishment under the state and federal constitutions. We disagree.

“ ‘The Eighth Amendment to the United States Constitution applies to the states. [Citation.] It prohibits the infliction of “cruel [i]and[/i] unusual” punishment. (U.S. Const., 8th Amend., italics added.) Article I, section 17 of the California Constitution prohibits infliction of “[c]ruel [i]or[/i] unusual” punishment. (Italics added.)’ ” “A punishment is cruel or unusual in violation of the California Constitution ‘if, although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’ [Citation.] Because it is the Legislature’s function to define crimes and prescribe punishments, the judiciary should not interfere ‘unless a statute prescribes a penalty “out of all proportion to the offense.” ’ ” ([i]People v. Baker[/i] (2018) 20 Cal.App.5th 711, 723 ([i]Baker[/i]).)

“In our tripartite system of government, the legislative branch defines crimes and prescribes punishment. [Citation.] It is therefore the rare case where a court could declare the length of a sentence mandated by the Legislature unconstitutionally excessive. [Citation.] Even so, it is the judiciary’s responsibility to condemn any punishment that is cruel or unusual. [Citation.] We independently review whether a punishment is cruel or unusual, considering any underlying disputed facts in the light most favorable to the judgment.” ([i]People v. Avila[/i] (2020) 57 Cal.App.5th 1134, 1145–1146.)

In [i]In re Lynch[/i] (1972) 8 Cal.3d 410, our high court identified three techniques to determine whether a punishment is so disproportionate to the crime that it shocks the conscience and offends fundamental notions of human dignity. These techniques are: examining the nature of the offense and/or the offender, “with particular regard to the degree of danger both present to society”; comparing the challenged punishment with punishments for different offenses which are more serious; and comparing the challenged punishment with punishments prescribed for the same offense in other jurisdictions. ([i]Id.[/i] at pp. 425–428.)

[*]Nature of the offense and of the offender

“In examining the nature of the offense, we ‘ “look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant’s involvement, and the consequences of defendant’s acts.” ’ [Citation.] In examining the nature of the offender, we consider ‘ “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.’ ” ’ ” ([i]People v. Gomez[/i] (2018) 30 Cal.App.5th 493, 500.)

Here, as the trial court noted, there were numerous aggravating circumstances relating to Del Cid’s crimes. The victims were all young children. The youngest was only around six years old at the time Del Cid’s crimes against her began. The victims’ youth made them particularly vulnerable, as did the fact that Del Cid was serving in a parental role and caring for them. (See Cal. Rules of Court, rule 4.421(3).) Del Cid took advantage of his position of trust as A.S.’s boyfriend to perpetrate his crimes when he was alone with the victims and was entrusted with their care. ([i]Id.[/i],[i] [/i]rule 4.421(11).) He took advantage of his position of authority to frighten the two youngest victims and ensure their silence, threatening that if they told they would be sent to another family.

While the physical nature of the crimes varied, even the offenses involving the least physical touching entailed extreme violations, humiliation, and coercion. Del Cid made the victims remove their clothes, expose their genitals, and submit to him taking photographs of their most private body parts. Del Cid touched G.’s breasts under her bra, in the guise of playing with her, and picked her up to physically position her onto his penis. He repeatedly went to G.’s room at night to pull down her pants and underwear, ready with his camera and a light and, on one occasion, when he was completely naked. He caused N. and E. physical pain. Del Cid used his fingers to stretch open N.’s vagina while he took pictures, then he penetrated her with his penis while she cried. Del Cid likewise abused the youngest victim, E., on multiple occasions, including subjecting her to sexual intercourse.

Del Cid asserts there was no evidence of penetration in the crimes against G. and A., and only N. suffered bodily harm. This assertion is incorrect, as E. also described Del Cid having sexual intercourse with her on more than one occasion, and that it hurt her. Moreover, the lack of penetration does not significantly mitigate the seriousness of his crimes against these vulnerable victims. A defendant need not physically hurt a child in order to cause permanent psychological damage. ([i]People v. Reyes [/i](2016) 246 Cal.App.4th 62, 85.) “Courts have recognized that lewd conduct ‘may have lifelong consequences to the well-being of the child.’ ” ([i]Baker[/i],[i] supra[/i], 20 Cal.App.5th at p. 725.)

Indeed, the victims have been severely affected by Del Cid’s crimes against them. In the recorded jail call, G. told Del Cid she felt her life was ruined, she did not want to live because of what he had done to her, and she cried every night because of what he had done. Del Cid, for his part, tried to dissuade her from saying anything to authorities. At trial, N. testified that she not only suffered Del Cid’s abuse, she witnessed him taking lewd pictures of her sister, which made her cry because it was difficult for her to witness Del Cid victimizing her sister. According to the victims’ father, at the time of sentencing G. was suffering from suicidal issues and issues of self-harm; N. continued to experience a very deep depression; A. and E. had nightmares and woke up in the middle of the night screaming. For a while the children would not allow him to hug them because they were too upset.

In sum, Del Cid had not one victim, but four. His crimes occurred not once, but over a significant period of time. He took advantage of his relationship with A.S. to abuse her children when she was not around. He took advantage of his position in the family to molest and assault the victims when they were sleeping, when he could disguise his actions as innocent play, or when he was the adult in charge in the home. He threatened the youngest victims with terrible consequences—removal from their family—if they disclosed his crimes. He had painful sexual intercourse with two victims who were under 10 years old, one of whom was only around six years old.

Del Cid was an adult, with at least one young biological child of his own. (See [i]People v. [/i][i]Reyes[/i],[i] supra[/i], 246 Cal.App.4th at p. 88 [sentence of life without the possibility of parole for two forcible sex offenses not disproportionate where defendant was a mature adult, was in complete control of the situation, actions were unprovoked, and he instigated multiple forcible sex offenses against minor victim].) He argues he had only minor contacts with law enforcement and no prior felony convictions. “Although these factors are favorable to him, they do not outweigh the other factors.” ([i]Baker[/i],[i] supra[/i], 20 Cal.App.5th at p. 725.) The punishment, while severe, is not grossly disproportionate to Del Cid’s individual culpability.

The analysis of the court in [i]People v. Retanan[/i] (2007) 154 Cal.App.4th 1219, is equally applicable here. In [i]Retanan[/i], the defendant was convicted of 16 felony counts of sexual offenses against four minor victims. He was sentenced to 135 years to life. ([i]Id. [/i]at p. 1222.) On appeal, the defendant argued the sentence constituted cruel and unusual punishment. The appellate court rejected the argument, reasoning: “California courts repeatedly have upheld such lengthy prison sentences. [Citations.] Defendant was convicted of numerous sex crimes against four young girls, including the rape of a 10-year-old. He attempted to silence two of his victims by threats against the life of the person they loved the most. His many offenses were made possible by exploiting the trust of his victims’ parents. [¶] Defendant’s sentence is not disproportionate to the offender or the offenses.” ([i]Id.[/i] at p. 1231.)

[*]Punishments for more serious offenses in California

Del Cid argues the disproportionality of his sentence is demonstrated by a comparison with the punishment for second degree murder, as well as the punishments for other sex crimes against children. We note, however, that it “is well within the prerogative of the Legislature to determine that sex offenses against young children are deserving of longer sentences than sex offenses against adults or nonsex offenses. ‘ “Punishment is not cruel or unusual merely because the Legislature may have chosen to permit a lesser punishment for another crime. Leniency as to one charge does not transform a reasonable punishment into one that is cruel or unusual.” ’ ” ([i]People v. Gomez[/i], [i]supra[/i], 30 Cal.App.5th at p. 502.)

Here, Del Cid’s sentence reflected that he perpetrated multiple offenses against multiple victims. ([i]People v. Estrada [/i](1997) 57 Cal.App.4th 1270, 1282 [the penalty for a single offense cannot properly be compared to the penalty for multiple offenses].) We also consider that section 288a and section 288.7, under which Del Cid was sentenced on counts 2, 3, 6, 8, 9, and 10, are part of a “graduated scheme ‘whereby punishment increases as the victim’s age decreases and the seriousness of sexual acts increases, with the harshest punishment meted out to adults who orally copulate or penetrate a child aged 10 or younger.’ ” “Together, sections 288a and 288.7 reflect the Legislature’s intent to increase the severity of punishment for oral copulation [or sexual penetration] of younger victims.” ([i]Baker[/i],[i] supra[/i],[i] [/i]20 Cal.App.5th at p. 728.)

Further, as the court reasoned in [i]People v. Alvarado [/i](2001) 87 Cal.App.4th 178, 200, when considering the alleged disproportionality of a life term for rape during a burglary, while “the finality of the consequences of second degree murder make that crime categorically different” from certain sex crimes, the trauma of those sex crimes is substantial. Here, Del Cid’s sentence under section 667.61, the “One Strike” law, reflected punishment for his decision to subject his multiple victims to not one egregious, final act, but repeated instances of trauma-inducing lewd conduct. (See [i]People v. Sullivan[/i] (2007) 151 Cal.App.4th 524, 572 [ “ ‘commission of a single act of murder, while heinous and severely punished, cannot be compared with the commission of multiple felonies’ ”].) We “cannot say that punishing such conduct as severely as second degree murder is either shocking or outrageous.” ([i]Alvarado[/i], at p. 200.)

Moreover, while Del Cid focuses his argument on the application of the One Strike law, we agree with the multiple courts who have found one strike sentences not disproportionate, even with respect to the most severe penalty of life without the possibility of parole. (See [i]People v. Reyes[/i], [i]supra[/i], 246 Cal.App.4th at pp. 88–89 [life without possibility of parole for two forcible sex offenses not disproportionate]; [i]People v. Alvarado[/i], [i]supra[/i], 87 Cal.App.4th at pp. 200–201 [mandatory one-strike term of 15 years to life not disproportionate for rape during a burglary]; [i]People v. Estrada[/i], [i]supra[/i], 57 Cal.App.4th at pp. 1279–1281 [25-years-to-life one strike sentence for forcible rape and first degree burglary with intent to commit forcible rape not disproportionate; in “contrast to the punishment for first degree murder, punishment under the one strike law is precisely tailored to fit crimes bearing certain clearly defined characteristics”].)

[*]Punishment for similar offenses in other jurisdictions

The third [i]Lynch[/i] technique is to compare the challenged punishment with punishments prescribed for the same offense in other jurisdictions. Del Cid acknowledges that the court in [i]Baker[/i], [i]supra[/i], 20 Cal.App.5th at page 731, compared the punishment of sex crimes involving children to punishment for analogous crimes in other jurisdictions and concluded California was not an outlier. He thus asserts that his only contention is “that the punishment sought by the prosecution is disproportionate to the conduct in the instant matter.” We have addressed, and rejected this argument, above.

Rather than arguing that other states impose lesser punishments for the crimes Del Cid was found to have committed, Del Cid cites several cases from other jurisdictions, asserting defendants in these jurisdictions who were guilty of more significant conduct received lesser aggregate sentences. Yet, reviewing how other jurisdictions’ analogous laws were applied in a handful of specific cases, with different underlying conduct, does not allow us to conclude that the penalty here was disproportionate. In fact, none of the cases Del Cid cites reflects a sentence imposed for similarly serious conduct, with a similar number of victims. (See, e.g., [i]State v. Vegas[/i] (Ariz. 2011) 262 P.3d 628, 629 [defendant sentenced to “two concurrent 17-year terms of incarceration, a consecutive five-year term and two consecutive life terms without the possibility of release for 35 years,” for sex crimes against [i]two[/i] victims]; [i]State v. Wiese [/i](Or.Ct.App. 2010) 241 P.3d 1210 [defendant sentenced to four concurrent sentences of 300 months for first degree rape and sodomy offenses against [i]one[/i] victim]; [i]State v. Dykes[/i] (La.App.2d Cir. 2004) 867 So.2d 908 [defendant sentenced to 20-year prison term with hard labor for sex offenses against three victims; underlying conduct involved molestation only].)

“Only ‘when there appears a significant disproportion between a challenged penalty and that imposed for the same crime by our sister states’ should the penalty be deemed suspect.” ([i]Baker[/i],[i] supra[/i], 20 Cal.App.5th at p. 730, quoting [i]People v. Wingo[/i] (1975) 14 Cal.3d 169, 179.) Del Cid has not established this type of “significant disproportion.”

Finally, we conclude that Del Cid’s reliance on [i]In re Rodriguez[/i] (1975) 14 Cal.3d 639, is misplaced. In [i]Rodriguez[/i], the defendant received an indeterminate sentence of one year to life for a violation of section 288. In considering a habeas corpus petition following a denial of parole, our high court applied the [i]Lynch [/i]tests and concluded the 22 years the petitioner had served were excessive and disproportionate. ([i]Rodriguez[/i], at pp. 653–654.) The court noted the crime was a single incident that lasted “only a few minutes” and the victim suffered “no physical harm.” ([i]Id.[/i] at p. 655.) The petitioner’s conduct “was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems.” ([i]Ibid.[/i]) The court further reasoned that if the petitioner had committed other, more serious offenses, he would have been subject to shorter maximum terms and, when compared with similar statutes in 45 other states, in the “vast majority” the petitioner “would have long since served the maximum term for the same offense.” ([i]Id.[/i] at pp. 655–656.)

The case before us is markedly different. Del Cid had multiple victims, he committed multiple sex offenses against them over a significant period of time, he abused his position of trust in the family to accomplish the crimes, and the crimes included sexual intercourse. The circumstances which warranted sentencing under the One Strike law distinguish this case from [i]Rodriguez[/i], which involved a single section 288 violation. Further, Del Cid offered no evidence about himself or his circumstances similar to the petitioner’s characteristics the [i]Rodriguez [/i]court found compelling[i]. [/i]And, as detailed in [i]Baker[/i], California is not an outlier among the states in prescribing severe punishment for crimes analogous to those the jury found Del Cid committed here. [i]Rodriguez[/i] does not mandate a finding in this case that Del Cid’s sentence constitutes cruel and unusual punishment.

[*]Eighth Amendment

Likewise, Del Cid has not established his sentence constitutes cruel and unusual punishment under the Eighth Amendment. As the court explained in [i]Baker[/i], [i]supra[/i], 20 Cal.App.5th at page 733, we “begin an Eighth Amendment analysis ‘by comparing the gravity of the offense and the severity of the sentence.’ [Citation.] ‘This analysis can consider a particular offender’s mental state and motive in committing the crime, the actual harm caused to his victim or to society by his conduct, and any prior criminal history.’ [Citation.] Only in the rare case in which this threshold comparison leads to an ‘ “inference of gross disproportionality” ’ do we proceed to ‘compare the defendant’s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.’ ”

For the reasons explained above in our discussion of the first [i]Lynch[/i] test, a comparison of the relevant factors in this case does not lead to “an inference of gross disproportionality.” Del Cid engaged in multiple egregious sexual offenses against his four young, vulnerable victims, abusing his position of trust to do so. Del Cid has not shown the sentence imposed violates the Eighth Amendment as to him.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ADAMS, J.[url=#_ftn7]*[/url]

We concur:

EDMON, P. J.

LAVIN, J.

[url=#_ftnref1][1][/url] At the time of trial, G. was 14 years old, N. was 11, A. was eight, and E. was seven. Each victim testified.

[url=#_ftnref2][2][/url] All further undesignated statutory references are to the Penal Code.

[url=#_ftnref3][3][/url] Counts 1 to 10 alleged violations occurring during specific periods between March 11, 2015 and April 30, 2018.

[url=#_ftnref4][4][/url] On appeal, Del Cid refers to this as evidence of a “marijuana overdose.” However, the motion filed in the trial court referred only to evidence of “marijuana use” and a hospitalization “for use of marijuana.” The prosecutor indicated G. ate a piece of candy containing THC, she had a bad reaction, and she went to the hospital. Defense counsel confirmed his offer of proof was based on this single incident, which occurred after the children reported Del Cid’s crimes. We reject Del Cid’s assertion on appeal that, based on the offer of proof, the trial court should have considered it “nearly axiomatic that such events rarely occur absent extended prior (and excessive) drug use.”

[url=#_ftnref5][5][/url] Although Del Cid raised the issue of G.’s marijuana-related hospitalization in his Evidence Code section 782 motion, the evidence did not relate to sexual conduct.

[url=#_ftnref6][6][/url] The hearing was conducted by Judge Jack P. Hunt (Ret.); Judge Steven D. Blades presided over all other proceedings at issue in this appeal.

[url=#_ftnref7]*[/url] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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 SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura L. Laesecke, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

___________

Dwayne Maurice Jones was convicted following a jury trial of two counts of aggravated assault and several other felony and misdemeanor charges and sentenced to an aggregate state prison term of eight years four months. No arguable issues have been identified following review of the record by Jones’s appointed appellate counsel or our own independent review. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After being found mentally competent to stand trial, Jones was charged by information with assault by means of force likely to cause great bodily injury and personally inflicting great bodily injury (Pen. Code, §§ 245, subd. (a)(4), 12022.7, subd. (a);[url=#_ftn1][1][/url] count 1), two counts of vandalism causing damage of more than $400 (§ 594; counts 2 and 3), misdemeanor false imprisonment (§ 236; count 4), assault with a deadly weapon (a chair) (§ 245, subd. (a)(1); count 5), and misdemeanor battery (§ 242; count 6). All of the charged offenses took place at a housing complex for veterans in Long Beach.

[u]Count 1[/u]: According to the evidence at trial, as Charles Hill came in the gate at the housing complex on the evening of November 22, 2018, he was hit on the back of his head and pushed to the ground, which caused him to break his ankle. Hill turned his head and saw Jones. Hill’s injury required surgery. Testifying in his own defense, Jones denied he had hit, kicked or pushed Hill.

[u]Counts 3 and 4[/u]: In the evening of December 9, 2018 Ronisha Belgrove was returning to her home at the housing complex when Jones began to follow her and then blocked her path. Belgrove returned to the car of the friend who had brought her home; Jones followed her. Belgrove got inside the car and phoned the police. As the friend started to drive them away, Jones kicked the car, causing a dent. The driver’s insurance paid for the repair except for a $500 deductible. Jones denied this incident had taken place.

[u]Count 5[/u]: On December 21, 2018 Jones tried to attend a dinner that was limited to veterans who were participating in certain programs. He was refused entrance by Oliver Haddad, who was sitting at a table in the cafeteria, checking in guests. Jones left but returned moments later. When Haddad again refused to let Jones in, Jones slammed his hands on the table, said “Fuck you,” and flipped the table onto Haddad’s chest. After both men went outside, Jones picked up a lawn chair and threw it toward Haddad. It was stipulated that Haddad told police officers Jones had thrown the chair toward the building and it landed 10 feet away from him. Jones testified it was his understanding he was eligible for dinner because he had a meal ticket. He was angry when Haddad refused to admit him, and the two men argued. Jones denied flipping the table and explained he had thrown the chair out of his way when he was leaving; he did not throw it at Haddad.

[u]Count 6[/u]: On February 21, 2019 Jontez Bridges, a maintenance employee at the complex, greeted Jones. Jones asked her for a hug. She refused. Jones tried to hug her and grabbed for her jacket when she pulled away from him. Jones testified he and Bridges were friendly and he had asked for a hug without malice or sexual intent. He had no indication she was uncomfortable during their exchange.

[u]Count 2[/u]: On March 6, 2019 Jones was told he was being evicted because of behavior issues. Confronted by two sheriff’s deputies and several housing complex employees, Jones ran to the social hall and used a chair to smash eight television monitors. The vandalism was recorded by the complex’s security cameras. When installed several years earlier, each television cost $3,395. Jones acknowledged he became upset when he was told he was being evicted and threw chairs at the televisions in the social hall.

The jury found Jones not guilty of assault with a deadly weapon (count 5) and guilty on all other charges. It found true the allegation he had inflicted great bodily injury on Hill.

At sentencing the court imposed an aggregate state prison term of eight years four months: the upper term of four years for assault by means of force likely to cause great bodily injury, plus three years for the great bodily injury enhancement, and consecutive terms of eight months (one-third the middle term) for each of the two vandalism counts. The court imposed concurrent terms of one year for false imprisonment and six months for battery. Jones was awarded 217 days of custody credit.

Jones filed a notice of appeal on October 22, 2019.

DISCUSSION

We appointed counsel to represent Jones on appeal. After reviewing the record, counsel filed a brief raising no issues. On February 2, 2021 counsel wrote Jones and advised him he had 30 days within which to submit any contentions or issues he wished the court to consider. We sent a similar notice to Jones on February 5, 2021. We have received no response.

We have examined the record and are satisfied appellate counsel for Jones has complied with counsel’s responsibilities and there are no arguable issues. ([i]Smith v. Robbins[/i] (2000) 528 U.S. 259, 277-284; [i]People v. Kelly[/i] (2006) 40 Cal.4th 106, 118-119; [i]People v. Wende[/i] (1979) 25 Cal.3d 436, 441-442.)

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

[url=#_ftnref1][1][/url] Statutory references are to this code.