Filed 6/12/15 P. v. Pineda CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066585
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF239958)
                   v.

FRANK PINEDA,                                                                             OPINION

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
         Christine Vento, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.


                                                        -ooOoo-
       A jury convicted defendant Frank Pineda of committing numerous sex offenses
against three grandchildren and a stepdaughter. Pineda was sentenced to prison for over
600 years. On appeal, he contends (1) his lengthy prison sentence constitutes cruel and
unusual punishment under the state and federal constitutions, and (2) the abstract of
judgment erroneously reflects the sentence imposed on counts 3, 4, and 8. We agree with
the second contention, which the People concede, and will remand the matter to the trial
court to correct errors in the abstract of judgment, including an error our independent
review has uncovered regarding the sentence imposed on counts 10 and 20. In all other
respects, we will affirm the judgment.
                                      BACKGROUND1
       On November 5, 2012, the jury convicted Pineda as charged of 11 counts of
forcible lewd acts on a child under the age of 14 years (Pen. Code,2 § 288, subd. (b)(1);
counts 1, 6, 11-19), three counts of oral copulation or sexual penetration with a child 10
years of age or younger (§ 288.7, subd. (b); counts 2, 5, 7), three counts of lewd acts on a
child under the age of 14 years (§ 288, subd. (a); counts 3, 4, 8), one count of pandering
by encouraging a minor under the age of 16 years to become a prostitute (§ 266i, subd.
(b)(2); count 9), and one count of lewd acts on a child of 14 or 15 years of age (§ 288,
subd. (c)(1); count 20). The jury also found true the special allegations that Pineda
engaged in substantial sexual conduct with the victims (§ 1203.066, subd. (a)(8); counts
1, 4, 6, 11, 16-18), and committed sex crimes against multiple victims (§ 667.61, subd.
(b); counts 1, 3, 4, 6, 8, 11-19).
       In a bifurcated proceeding, the trial court found Pineda guilty of failing to file a
change of address (§ 290.013, subd. (a); count 10). The court also found true allegations


1      We omit a recitation of the facts underlying Pineda’s convictions; we need not refer to
them to resolve the issues on appeal.
2      All further statutory references are to the Penal Code unless otherwise specified.


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that Pineda had suffered a prior conviction for spousal rape (§ 262, subd. (a)(1)), which
qualified as a prior strike (§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d)) and a prior
serious felony (§ 667, subd. (a)(1)), and which brought him within the meaning of the one
strike law (§ 667.61, subd. (a)) and the habitual sexual offender law (§ 667.71).
       On January 14, 2013, the trial court sentenced Pineda to 55 years to life on each of
counts 1, 6, and 11 through 19 (forcible lewd acts on child under 14 years), resulting in
an aggregate, indeterminate sentence of 605 years to life. The court further sentenced
Pineda to 12 years on count 9 (pandering), plus 16 months on each of counts 10 (failure
to file change of address) and 20 (lewd act on child of 14 or 15 years), resulting in an
aggregate, determinate sentence of 14 years and eight months. Pineda received
concurrent terms of 55 years to life on counts 3, 4, and 8 (lewd acts on child under 14
years), and the terms imposed on counts 2, 5, and 7 (sexual acts with child 10 years or
younger) were stayed under section 654.
I.     Pineda’s Sentence Does Not Constitute Cruel and Unusual Punishment
       Pineda contends his lengthy prison sentence violates the federal Constitution’s
Eighth Amendment ban on “cruel and unusual punishment,” as well as the similar ban of
article I, section 17 of the California Constitution against “cruel or unusual punishment.”
The thrust of his argument is that a sentence of this duration, being so long it “is
impossible for a human being to serve,” is unconstitutional. (People v. Deloza (1998) 18
Cal.4th 585, 600-601 (conc. opn. of Mosk, J.) [criticizing “multicentury sentences”].)
       As Pineda concedes, however, he did not raise this issue in the trial court.
California law is clear that by failing to raise the issue below, he forfeited the claim.
(People v. Speight (2014) 227 Cal.App.4th 1229, 1247-1248, and cases therein cited.)
Thus, we decline to address it.
       In the alternative, Pineda contends his defense counsel was ineffective for not
moving to reduce his sentence on constitutional grounds. We disagree. To prove
ineffective assistance, Pineda must show that defense counsel’s performance fell below

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an objective standard of reasonableness under prevailing professional norms, and that, in
the absence of counsel’s failure, it is reasonably probable that the result of the sentencing
proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668,
687, 694.)
       Pineda’s ineffective assistance of counsel claim fails because he cannot satisfy the
first prong of Strickland. He cannot show defense counsel’s performance fell below an
objective standard of reasonableness based on defense counsel’s failure to raise
constitutional claims that had little or no chance at success under the law (See People v.
Anderson (2001) 25 Cal.4th 543, 587 [“[c]ounsel is not required to proffer futile
objections”]; see also Ewing v. California (2003) 538 U.S. 11, 22 [successful Eight
Amendment challenges to noncapital sentences “‘exceedingly rare’”]; People v. Weddle
(1991) 1 Cal.App.4th 1190, 1196 [“[f]indings of disproportionality [in sentencing under
the California Constitution] have occurred with exquisite rarity in the case law”].)
       Justice Mosk’s concurrence in People v. Deloza, on which Pineda relies on appeal,
is not an accurate statement of California law, and its reasoning has been rejected.
(People v. Haller (2009) 174 Cal.App.4th 1080, 1089; People v. Byrd (2001) 89
Cal.App.4th 1373, 1383 (Byrd).) Sentences exceeding human life expectancy like
Pineda’s have been repeatedly upheld against constitutional challenge. (See, e.g. Byrd,
supra, 89 Cal.App.4th at p. 1382 [444 years to life plus 115 years]; People v. Cartwright
(1995) 39 Cal.App.4th 1123, 1139-1141 [400 years to life plus 53 years]; People v.
Wallace (1993) 14 Cal.App.4th 651, 666-667 (Wallace) [283 years, 8 months]; People v.
Bestelmeyer (1985) 166 Cal.App.3d 520, 532 [129 years].) The court in Byrd explained:

       “[I]t is immaterial that defendant cannot serve his sentence during his
       lifetime. In practical effect, he is in no different position than a defendant
       who has received a sentence of life without possibility of parole: he will be
       in prison all his life. However, imposition of a sentence of life without
       possibility of parole in an appropriate case does not constitute cruel or
       unusual punishment under either our state Constitution [citation] or the
       federal Constitution. [Citation]. [¶] Moreover …, a sentence such as the


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       one imposed in this case serves valid penological purposes: it
       unmistakably reflects society’s condemnation of defendant’s conduct and it
       provides a strong psychological deterrent to those who would consider
       engaging in that sort of conduct in the future.” (Byrd, supra, 89
       Cal.App.4th at p. 1383.)
       Likewise, Pineda cannot demonstrate he received ineffective assistance based on
defense counsel’s failure to argue his sentence was grossly disproportionate to his crimes
when compared with potential punishment for more serious offenses in California such as
premeditated murder. Courts have rejected similar arguments in upholding lengthy
prison sentences imposed in cases like this one involving the commission of multiple
felonies. Thus, in People v. Crooks (1997) 55 Cal.App.4th 797, 800, the court rejected
the defendant’s argument that his one strike sentence of 25 years to life for his conviction
of rape was cruel and unusual because it was “harsher than that imposed in California for
any type of killing short of first degree murder or for any type of sexual offense … not
committed in the course of a first degree burglary.” (Id. at p. 807.) In rejecting the
defendant’s argument, the court explained:

       “[T]his argument ignores the fact that defendant’s acts involved both the
       commission of more than one kind of offense (rape and first degree
       burglary) and the commission of one offense for the purpose of committing
       another. The penalties for single offenses, such as those defendant cites,
       cannot properly be compared to those for multiple offenses—especially
       where, as here, one offense was committed in order to commit another.
       Moreover, the gravity of the two crimes committed by defendant (burglary
       and rape) is greater than the sum of their parts: being raped in her own
       home is a woman’s worst nightmare.” (Crooks, supra, 55 Cal.App.4th at
       p. 807, italics added; accord People v. Estrada (1997) 57 Cal.App.4th 1270,
       1273, 1282.)
       Moreover, Pineda’s sentence is not unlike those upheld for defendants convicted
of similar crimes. (People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1231
[upholding sentence of 135 years to life for 16 felony offenses arising from molestation
of four children], Wallace, supra, 14 Cal.App.4th at pp. 655, 666-667 [upholding
sentence of 283 years, eight months for 46 felony offenses arising from sexual assaults on


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seven women].) In light of established precedent rejecting similar constitutional
challenges to those Pineda now raises on appeal, he cannot show defense counsel was
ineffective for failing to raise them below.


II.    The Abstract of Judgment Must Be Corrected to Reflect the Actual Sentence
       Imposed for Counts 3, 4, 8, 10, and 20
       At sentencing, the trial court imposed concurrent terms on counts 3, 4, and 8, and
consecutive 16-month terms on counts 10 and 20. However, the abstract of judgment
incorrectly reflects that the court imposed consecutive terms on counts 3, 4, and 8, and
consecutive eight-month terms on counts 10 and 20. Therefore, the abstract of judgment
must be corrected to reflect the actual sentence imposed with regard to counts 3, 4, 8, 10,
and 20 during the oral pronouncement of judgment. (People v. Mitchell (2001) 26
Cal.4th 181, 185.)
                                      DISPOSITION
       The case is remanded for the trial court to correct the abstract of judgment to
reflect concurrent terms imposed on counts 3, 4, and 8, and consecutive 16-month terms
imposed on counts 10 and 20. The court is directed to prepare an amended abstract of
judgment to reflect this correction and to forward the amended abstract of judgment to
the appropriate authorities. The judgment is otherwise affirmed.




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                              _____________________
                                           HILL, P.J.
WE CONCUR:


 _____________________
GOMES, J.


 _____________________
FRANSON, J.




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