Filed 11/30/15 P. v. Garcia CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E061200

v.                                                                       (Super.Ct.No. RIF1301988)

TOMAS RODRIGUEZ GARCIA,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Richard Todd Fields,

Judge. Affirmed in part, reversed in part, and remanded with directions.

         Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and

Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Tomas Rodriguez Garcia molested his niece L.R. from when she was

about six until she was about eleven and his niece M.R. from when she was about five


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until she was about eight. Mostly, he used his hands to fondle their breasts and their

vaginas; however, he also touched M.R.’s vagina with his penis at least once.

       After a jury trial, defendant was found guilty on four counts of a nonforcible lewd

act on a child under 14 (Pen. Code, § 288, subd. (a)), one count of a forcible lewd act on a

child under 14 (Pen. Code, § 288, subd. (b)(1)), and one count of sexual intercourse with

a child aged 10 or younger (Pen. Code, § 288.7, subd. (a)). A multiple victim allegation

under the One Strike Law was found true. (Pen. Code, § 667.61, subd. (e)(5).)

Defendant was sentenced to a total of 85 years to life in prison, along with the usual fines,

fees, and requirements.

       Defendant now contends:

       1. The trial court mistakenly believed that consecutive sentencing was mandatory

on counts 1 through 5.

       2. Defendant’s sentence of 85 years to life constitutes cruel and unusual

punishment.

       3. The trial court violated ex post facto principles by setting the restitution fine

and the parole revocation restitution fine at $300 instead of $280.

       In addition, the People contend that the trial court imposed an unauthorized

sentence by sentencing defendant to 15 years to life on counts 1 through 5, because the

statutorily mandated term on these counts was 25 years to life.




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       We will hold that the trial court erred by imposing consecutive sentences on counts

1, 2, 3, and 5 in the mistaken belief that consecutive sentencing was mandatory, when it

should have exercised its discretion instead. Thus, we will remand for resentencing.

       For the guidance of the trial court on remand, we will also hold that a sentence of

85 years to life in this case is not cruel and unusual punishment.

       The other contentions are moot for purposes of this appeal, though the parties are

free to litigate them on remand.

                                               I

                    CONSECUTIVE TERMS OF 15 YEARS TO LIFE

       A.     Additional Factual and Procedural Background.

       At the sentencing hearing, the trial court announced a tentative sentence. On each

of the lewd act counts, counts 1 through 5, it imposed a term of 15 years to life. On the

one count of sexual intercourse with a child aged 10 or younger, count 6, it imposed a

term of 25 years to life.

       The trial court treated count 1 as the principal term. It stayed the term on the

single forcible lewd act count, count 4, pursuant to Penal Code section 654.

       With respect to counts 2, 3, and 5, it stated: “It is mandatory consecutive, pursuant

to Penal Code [s]ection 667.6, [s]ubdivision (d). And that’s because it involves both the

same victim on separate occasions, and it also involves separate victims.” With respect to

count 6, it stated: “[T]hat section does not fall under Penal Code [s]ection 667.6,

[s]ubdivision (d). Therefore it appears . . . that the Court has discretion.”



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       It determined to run the sentence on count 6 consecutively because: (1) it was “the

most egregious of all the offenses”; (2) it involved “a separate victim, a separate

incident”; and (3) if count 4 had not been stayed, consecutive sentencing on count 4

would have been mandatory.

       Defense counsel stated: “With regard to the mandatory consecutive sentences, the

statutes are what they are, and I don’t have much room to argue.” After some further

discussion, the trial court imposed its tentative sentence.

       B.     Discussion.

              1.     Mandatory consecutive sentencing.

       Defendant contends that the trial court erred in believing that consecutive

sentencing was mandatory on counts 1 through 5. To the extent that defense counsel

forfeited this contention by failing to raise it below, he contends that this constituted

ineffective assistance of counsel.

       Penal Code section 667.6, subdivision (d) makes consecutive sentencing

mandatory with respect to certain specified sex crimes. A forcible lewd act is one of

these. (Pen. Code, § 667.6, subd. (e)(5), referencing Pen. Code, § 288, subd. (b).)

Accordingly, consecutive sentencing on count 4 was mandatory. However, a nonforcible

lewd act (Pen. Code, § 288, subd. (a)) is not one of the specified sex crimes.

Accordingly, consecutive sentencing on counts 1, 2, 3, and 5 was discretionary, not

mandatory.




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       “[C]laims of error in the trial court’s exercise of its sentencing discretion are . . .

forfeited if not raised at the sentencing hearing.” (People v. Trujillo (2015) 60 Cal.4th

850, 856.) By contrast, “[a] claim that a sentence is unauthorized may be raised for the

first time on appeal . . . . [Citation.]” (People v. Barnwell (2007) 41 Cal.4th 1038, 1048,

fn. 7.) Here, consecutive sentences were not unauthorized. This is not a case in which

the trial court could not have imposed consecutive sentences under any circumstances.

Rather, defendant’s contention is that it imposed consecutive sentences based on a

misapprehension regarding the applicable legal standard. That would be an abuse of

discretion (see People v. Knoller (2007) 41 Cal.4th 139, 156 [“an abuse of discretion

arises if the trial court based its decision . . . on an incorrect legal standard”]), but it

would not result in an unauthorized sentence. Accordingly, defense counsel’s failure to

raise the issue below did work a forfeiture.

       We therefore consider whether this forfeiture constituted ineffective assistance.

“In order to establish a claim of constitutionally deficient performance by counsel,

defendant must establish that (1) counsel’s representation fell below an objective standard

of reasonableness under prevailing professional norms; and (2) there is a reasonable

probability that, but for counsel’s failings, the result would have been more favorable to

defendant. [Citation.] . . . ‘When a claim of ineffective assistance is made on direct

appeal, and the record does not show the reason for counsel’s challenged actions or

omissions, the conviction must be affirmed unless there could be no satisfactory

explanation.’ [Citations.]” (People v. Grimes (2015) 60 Cal.4th 729, 773.)



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       Defense counsel has never been asked why he conceded that consecutive

sentencing was mandatory. However, we cannot imagine any legitimate tactical reason

for this concession. Certainly the People do not suggest any.

       The People argue only that defense counsel’s concession was not prejudicial.

They point out that the trial court knew that consecutive sentencing on count 6 was

discretionary, yet it chose to sentence consecutively on this count as well. It does not

necessarily follow, however, that it would have also sentenced consecutively on counts 1,

2, 3, and 5. It explained that it was sentencing consecutively on count 6 for three reasons.

First, that count was the most egregious. By definition, that reason did not apply to

counts 1, 2, 3, and 5. Second, that count “involve[d] both the same victim on separate

occasions, and it also involve[d] separate victims.” This implies that it might have run

the sentences concurrently on counts 1, 2, and 3, which all involved victim L.R., and

counts 5 and 6, which all involved victim M.R., at least with respect to each other. Third,

it was staying count 4, on which it would otherwise have had to impose a full consecutive

sentence. However, it may well have felt that running count 6 consecutively was a fair

tradeoff for staying count 4, and that it was unnecessary to run the other counts

consecutively, too.

       We therefore conclude that there is a reasonable possibility that, if the trial court

had known that it had discretion to run the sentences on counts 1, 2, 3, and 5 concurrently,

it would have done so on one count, at least. Accordingly, we must reverse and remand




                                              6
for resentencing. We express no opinion as to how the trial court should exercise its

discretion on remand.

               2.      Terms of 25 years to life.

       The People contend that the trial court erred by sentencing defendant to 15 years to

life on counts 1 through 5, because under Penal Code section 667.61, subdivision (j)(2),

the only authorized term was 25 years to life.

       The People did not raise this contention below. Accordingly, defendant responds

that they are estopped from arguing that Penal Code section 667.61, subdivision (j)(2)

applies. He also argues that applying this subdivision to him would violate due process,

double jeopardy, and ex post facto principles.

       To the extent that the claimed error resulted in an unauthorized sentence, we are

eliminating its effect by reversing and remanding for resentencing. Arguably, we could

address it for the guidance of the trial court on remand. However, we decline to do so,

because it has not been thoroughly briefed. The People raised this issue for the first time

in their respondent’s brief. Thus, defendant raised his estoppel, due process, double

jeopardy, and ex post facto contentions for the first time in his reply brief. The People

have never had an opportunity to respond to them (although it is arguable that they should

have anticipated these arguments in their respondent’s brief). We conclude that it is best

for the parties to litigate this issue in the trial court in the first instance.




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                                             II

                        CRUEL AND UNUSUAL PUNISHMENT

       Defendant contends that his sentence of 85 years to life constitutes cruel and

unusual punishment because it is a “legal fiction” and cannot actually be served.

       The People respond that defendant forfeited this contention by failing to raise it

below. Ordinarily, a cruel and unusual punishment claim is forfeited if not raised in the

trial court, because it requires “a fact-bound inquiry.” (People v. Ross (1994) 28

Cal.App.4th 1151, 1157, fn. 8; accord, People v. Kelley (1997) 52 Cal.App.4th 568, 583;

People v. DeJesus (1995) 38 Cal.App.4th 1, 27.) Defendant, however, is not arguing that

the sentence is disproportionate to his individual culpability. Rather, he is arguing that an

indeterminate sentence with a minimum parole period longer than the defendant’s

lifespan is always cruel and unusual punishment, as a matter of law. “[T]he rule that a

litigant may not argue new theories for the first time on appeal does not apply to pure

questions of law [citation] . . . .” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1042-

1043; accord, People v. Randle (2005) 35 Cal.4th 987, 1001-1002, disapproved on

another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) Finally, because we are

remanding for resentencing, we would exercise our discretion to reach the issue in any

event for the guidance of the trial court on remand.

       Defendant relies on the late Justice Mosk’s view — expressed persistently in

concurring opinions (People v. Deloza (1998) 18 Cal.4th 585, 600-602 [conc. opn. of

Mosk, J.]), dissenting opinions (People v. Hicks (1993) 6 Cal.4th 784, 797 [dis. opn. of



                                              8
Mosk, J.]), and law review articles (Mosk, Nothing Succeeds Like Excess (1993) 26 Loy.

L.A. L.Rev. 981) — that a term of years that is impossible for a human being to serve

constitutes cruel and unusual punishment. In Justice Mosk’s view, “[t]he maximum

sentence that should be imposed is one a defendant is able to serve: life imprisonment.”

(People v. Deloza, supra, 18 Cal.4th at p. 602 [conc. opn. of Mosk, J.].)

       Justice Mosk’s idiosyncratic view has “no precedential value.” (People v. Byrd

(2001) 89 Cal.App.4th 1373, 1383.) To the contrary, it has been held that a term of years

that is longer than the defendant’s lifespan is not, for that reason, cruel and unusual. (Id.

at pp. 1382-1383.) It is not impossible to serve because it is the functional equivalent of

life without parole. (People v. Ayon (1996) 46 Cal.App.4th 385, 396-401, disapproved on

other grounds in People v. Deloza, supra, 18 Cal.4th at p. 600, fn. 10.) Even Justice

Mosk acknowledged that a life term is not unconstitutional per se.

       To the extent that defendant is arguing that a sentence of life without parole is

cruel and unusual, that is simply not the law. It has been held that a juvenile offender

cannot be sentenced to life without parole for a nonhomicide offense. (Graham v.

Florida (2010) 560 U.S. 48, 82; People v. Caballero (2012) 55 Cal.4th 262, 268.) But an

adult offender can.

       Finally, defendant argues that it is cruel and unusual to call the sentence anything

other than life without parole, because doing so is a “legal fiction.” What a sentence is

called, however, cannot make it cruel and unusual. Defendant had appointed counsel,




                                              9
who could explain to him the effect of the sentence. He could not possibly have been

misled.

       We therefore conclude that the sentence of 85 years to life does not constitute cruel

and unusual punishment.

                                              III

                      THE AMOUNT OF THE RESTITUTION FINE

               AND THE PAROLE REVOCATION RESTITUTION FINE

       Defendant contends that the trial court erred by setting the amount of the

restitution fine (Pen. Code, § 1202.4) and the parole revocation restitution fine (Pen.

Code, § 1202.45) at $300 instead of $280. To the extent that his trial counsel forfeited

this contention by failing to raise it below, he contends that this constituted ineffective

assistance of counsel.

       This issue is moot because we are remanding for resentencing. For the guidance

of the trial court on remand, however, we note that the People have conceded that

defendant’s trial counsel rendered prejudicially ineffective assistance of counsel by

failing to raise this issue below.

                                              IV

                                       DISPOSITION

       The judgment with respect to conviction is affirmed. The judgment with respect to

sentence is reversed. The trial court is directed to resentence defendant in accordance

with the views expressed in this opinion.



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       The clerk of this court is directed to send a copy of this opinion to the State Bar

immediately upon the issuance of the remittitur. (Bus. & Prof. Code, § 6086.7, subd.

(a)(2).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS
                                                                 RAMIREZ
                                                                                         P. J.


We concur:

KING
                           J.

MILLER
                           J.




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